P L D 1959 (W (PLP)

SHABIR AHMAD, J.--‑This appeal by Hayat son of Ahmad, resident of Baghiana Kalan in the district of Lahore, is directed against the order passed by Mr. M. H. Munir, on the 25th of April 1957, as ex‑officio Additional Sessions Judge, Lahore at Kasur, whereby he sentenced Hayat to transportation for life for the murder of Farzand Ali alias Farzand, a resident of Baghiana Kalan.

2. According to the prosecution, the incident out of which the case arose occurred at about 8‑30 a.m. on the 19th of November 1951 in village Baghiana Kalan where the appellant and the deceased resided. First information report about the occurrence was made the same day at 10‑15 a.m. at Police Station Bhai Pheru, which is at a distance of 31 miles from the scene of the occurrence, by Mahi, Chowkidar of the village. According to this report the appellant had caused the death of Farzand by causing him injuries with a heavy stick which he snatched from the latter. It was further mentioned in the report that the incident had been witnessed by Muhammad Zubair Lambardar, Abdus Sattar and a number of other residents of the village.

3. The case has had a very tortuous course with the result that its disposal by the trial Court was so inordinately delayed. The case had been sent up by the police to Court within a reasonable time of the incident and the commitment proceedings were conducted by Mr. Muhammad Bashir, those days a Magis trate‑of the First Class at Kasur, who, by his order dated the 31st of May 1952, committed Hayat to the Court of Session to stand his trial for an offence of murder. When the matter came up before the Court of Session, it was discovered that on a plea being raised before the committing Magistrate that Hayat was incapable of understanding the proceedings against him, a reference had been made by the Magistrate to a doctor who, it appears, reported that Hayat accused was capable of under standing the proceedings. Mr. Muhammad Bashir, however, did not examine the doctor and, acting merely on his report, passed the order of commitment. The case was reported to the High Court of Judicature at Lahore by Mr. M. M. Aslam Khan, who was those days one of the Additional Sessions Judges at Lahore, with the recommendation that the commitment be quashed. The matter came up before Justice A. M. Jan of the Lahore High Court who, by his order dated the 20th of April 1953, accepted the recommendation of the Sessions Court, and directed that fresh commitment proceedings be taken against Hayat. Before, however, fresh commitment proceedings could be completed, Hayat was admitted in the Mental Hospital at Lahore on the 9th of June 1953 for being kept under observations and it was only on the 14th of February 1956 that he was dis charged from the hospital as fit to stand his trial, fresh commitment proceedings thereafter started and the case was committed to the Court of Session and ended as already men tioned, in the conviction of the appellant by Mr. M. H Munir, Additional Sessions Judge, Lahore at Kasur, on the 25th of April 1957.

4. At the trial, the eyewitnesses' account of the occurrence was given by Muhammad Zubair (P. W. 1)), Abdus Sattar (P. W. 11), Sultan (P. W. 12), Abdul Haye (P. W. 13) and Dilshad (P. W. 14). Muhammad Zubair (P. W. 10), who appeared before Mr. Munir on the 2'rd of April 1957, stated that about 5J years ago, at about 8‑30 a.m., when he was sitting in his dera and smoking, he saw Farzand deceased taking his buffaloes to his fields and shortly after the appellant approach ing him from behind and after snatching his (Farzand's) sofa causing him injuries with it. The first blow was given on the head of Farzand who fell down and after that the prostrate Farzand was given more injuries by the appellant. The witness added that he ran to the scene of the occurrence and with the help of Abdus Sattar, Sultan, Abdul Haye and Dilshad caught the appellant who tried to run away but was not allowed to do so and disarming him gave the weapon of offence to Abdul Haye P. W. The witness went or to say that shortly after the occurrence he sent information about it to the police station through Mahi Chowkidar who had died before the witness appeared in Court on the 23rd of April 1957. The statement of Muhammad Zubair (P. W. 10) was corroborated in all material details by those of Abdus Sattar (P. W. 11) Sultan (P. W. 12), Abdul Haye (P. W. 13) and Dilshad (P. W. 14).

5. The motive for the attack on the deceased by the appellant was that Farzand deceased had accused the appellant of stealthily picking cotton from his field and having stolen his spinning‑wheel from his house and had taken some persons to the house of the appellant for the return of the articles. The persons who went to the house of the appellant on the evening preceding the morning of the occurrence called upon the appellant to return the articles or to take an oath that he was innocent, otherwise the matter would be' taken to Court by Farzand. The appellant refused to follow either of the two courses and thereafter the persons who had gone to his house returned from there. Evidence about the motive was given by Leelu, who was one of the persons who went to the house of the appellant to persuade him to return the articles to Farzand Leelu had appeared as the sixth witness for the prosecution in the Court of the committing Magistrate but as he had been murdered before the case was tried by Mr. M. H. Munir, Leelu's statement in the Court of the Committing Magistrate was transferred to the record of the Court of Session under section 33 of the Evidence Act after evidence had been given before the learned trial Judge that Leelu was no longer alive.

6. When questioned by the committing Magistrate to explain the circumstances appearing in the evidence led by the prosecu tion against him the appellant said that he was innocent. In the Court of Session also his statement was to the same effect. He explained fn the Court of Session, however, that he was a refugee from Hissar in East Punjab and had settled in village Baghiana Kalan where he had an evacuee house in his possession. The Rajputs of the village wanted him to give the house to them which he refused to do, whereupon he had been falsely implicated in the present case by the Rajputs. He added that about 20 years earlier he had fallen down from a camel with the result that he become insane. No evidence was produced in defence.

7. Before starting the trial of the appellant, Mr. M. H. Munir took the precaution of examining Dr. A. A. Aziz, the then Medical Superintendent, Mental Hospital, Lahore, with regard to the mental condition of the appellant. Appearing a the first witness for the prosecution, Dr. Aziz said that he had examined the appellant on the 22nd of October 1956 and found him to be entirely capable of understanding the Court proceed ings and the case against him. The doctor added that he also examined the appellant on the 29th of October 1956 in the Court of the Magistrate at Chunian, where he appeared as a witness, and on that day too he found that the appellant war; in complete possession of his mental faculties. After taking the statement of the doctor, Mr. Munir, the learned trial Judge put some questions to the appellant in order to satisfy himself that he was capable of understanding the proceedings against him. To one of the questions the appellant replied that he knew that he was before Mr. Munir to stand trial for murder. In reply t another question the appellant said that he had been in custody for five or six years and had during that period been sent to the Mental Hospital, Lahore. The learned trial Judge asked the appellant who had engaged the counsel to defend him and his answer was that as he was too poor the counsel had been engaged for him at Government expense. The learned trial Judge asked the appellant how many wives and children he had and his answer was that he had one wife and eight children of whom five were sons and three daughters. After examining the appellant and Dr. A. A. Aziz (P. W. 1) on the 22nd of April 1957, the learned trial Judge questioned the assessors with regard to the mental condition of the appellant, and agreeing with their un animous opinion that he was sane and capable of understanding the nature of proceedings against him recorded an order to that effect. I have considered this order and the evidence on which it is based, and find myself in complete agreement with it.

8. Doctor Muhammad Ismail, Medical Officer, Civil Hospital, Chunian, who conducted the postmortem examination on the dead body of Farzand on the 20th of November 1951, at 10 a.m., appeared as the second witness for the prosecution, and deposed that he had found the following four injuries on the dead body :‑ (1) A contused wound, 2 " x 1 " bone deep, on the left occipital, running from above downwards. (2) A contused wound, " x ", on the left ear. (3) A contusion, 3" x 1 ", on the left side of the neck, running from above downwards. (4) A contusion, " x ", on the back aspect of the right ‑forearm, in the middle. He added that on removing the scalp he found that there was clotted blood under injury No. 1, and a linear fracture running horizontally which extended from the left parietal to the left occipital bone and was 33" in length. In the opinion of the doctor, death of Farzand Ali alias Farzand deceased resulted from shock, haemorrhage and compression of the brain, and there can be no manner of doubt that it was so. The doctor said that the injury was sufficient in the ordinary course of nature to cause death, and it is obvious that ‑ the opinion was correct.

9. I will now proceed to the determination of the question whether or not the prosecution had succeeded in establishing that it was at the hands of the appellant that Farzand received the injuries which killed him. As mentioned already, the prosecution produced five witnesses to depose that the appellant had caused injuries to the deceased in their presence. The learned counsel for the appellant contended that Sultan (P. W. 12), Abdul Haye (P. W. 13) and Dilshad (P. W. 14) who stated that they‑ had witnessed the occurrence, could not be relied upon because their names did not figure in the first information report as eye‑witnesses of the occurrence. This argument cannot be accepted because it overlooks two important facts, the first of which is that Mahi Chowkidar, who made the first information report, was not an eyewitness of the occurrence, and the second that it was clearly said in the report that besides Muhammad Zubair (P. W. 10) and Abdus Sattar (P. W. 11), who were specifically mentioned in the report, many other persons of the village had seen the occurrence. The mere fact, therefore, that the first information report did not say in clear terms that Sultan, Abdul Haye and Dilshad were three of the eye‑witnesses of the occurrence cannot justify the rejection of their statements. All the five eyewitnesses produced by the prosecution are unanimous in saying that the appellant caused injuries to the deceased on the morning of the 19th of November 1951, at about 8‑30 a.m., and as none of them has any motive to falsely name the appellant as the assailant, of Farzand, I can see no valid reason‑and none was suggested by the learned counsel for the appellant‑why the statements of these witnesses should not be accepted. I hold, therefore, that the prosecution had succeeded in establishing beyond all reasonable doubt that it was at the hands of the appellant that the deceased received injuries which resulted in his death.

10. The evidence of Leelu with regard to the motive was attacked by the learned counsel for the appellant on the ground that he was the solitary witness with regard to it. Leclu was an entirely independent witness and the mere fact that the evidence with regard to motive was given by him alone is no ground for not accepting it to be sufficient proof of the motive relied upon by the prosecution for the attack by the appellant on the deceased.

11. It was contended by the learned counsel for the appellant that even if the appellant caused the injuries ascribed to him, he was not liable in law to be punished for them. In the connection, his reliance was on section 84 of the Pakistan Penal Code which reads as follows :‑ " Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." To show that the appellant was of unsound mind at the time of the incident, his learned counsel relied on the fact that the appellant had to remain in the Mental Hospital, Lahore, from the 9th of June 1953 to the 14th of February 1956, as well as on some evidence on the record of the commitment proceedings which is to the effect that the appellant was insane. It is true that the statement of Dr. A. A. Aziz (P. W. 1) shows that the appellant remained in the Mental Hospital from the 9th of June 1953 to the 14th of February 1956, but that fact by itself cannot prove that at the time of the incident, that is, on the 19th November 1951, the appellant was of unsound mind, though the fact relied upon may, taken with other evidence, lead to the inference that at the time of the incident the appellant was not in possession of his faculties. The other evidence, on which the learned counsel for the appellant relied, was that in the Court of the Committing Magistrate, Muhammad Zubair (P. W. 10) stated that before the occurrence, the accused was insane ; Abdus Sattar' (P. W. l l) stated before the committing Magistrate that the accused was not in his senses during the days of the occurrence, and Sultan (P. W. 12) also made a similar statement in the Court of the committing Magistrate. At the trial, however, these witnesses did not support the theory that the appellant was insane and each of them was confronted with the statement on the point made by him in the Court of the committing Magistrate, but denied having made a statement to that effect. As no evidence was given at the trial that at the time of the incident the appellant was of unsound mind, technically it should be held that no such evidence existed on the record, but as the statements before the committing Magis trate could be used as substantive evidence under section 288 of the Code of Criminal Procedure, I would proceed on the basis that the statements made before the committing, Magistrate by Muhammad Zubair (P. W. 10), Abdus Sattar (P. W. 11) and Sultan (P. W. 12) about the mental condition of the appellant were correct. The matter is not, however, concluded because it is not unsoundness of mind alone which exonerates a man from liability of his criminal acts, and certain other factors are necessary for that purpose.

12. As its language plainly shows, section 84 of the Pakistan Penal Code, which has been reproduced above, draws a distinction between ordinary unsoundness of mind and legal unsoundness of mind. A person may be of unsound mind for the purposes of those interested in diseases of the human brain and yet may not, be of unsound mind for the purposes of those who have to administer the law, because the unsoundness of the mind which the Courts can recognise is that which deprives the perpetrator of a crime of the capacity to understand the nature of his act and of the knowledge that what he was doing was wrong or contrary to law. If a person, who has contravened the criminal law, is considered to‑ be insane by ordinary persons and even by doctors is shown to have the knowledge that what he was doing was either wrong or contrary to law, he will be as liable for his criminal acts as a person considered thoroughly sane by doctors and ordinary persons. Any book on ailments of the human mind will show that unsoundness of mind is of varied kinds. There are persons who are unsound of mind in one respect only and entirely normal in all others. There are others who have many peculiarities of a pronounced character but in some respects are as sane as any other living person. The mere fact that a person may not be able to understand the nature of the proceedings taken in Court against him would not mean that he did not know that the act he had done and which had led to those proceedings was either wrong or contrary to law, nor would a person who is eccentric in certain respects or a person who is slightly weak in the head be entitled to claim the benefit of section 84 of the Pakistan Penal Code. Before a person is held entitled to the benefit of section 84 of the Pakistan Penal Code, the Court has to arrive at the conclusion that at the time he did the act for which he is being tried, he was of unsound mind and by reason of that infirmity was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. Unless all these thing exist, section 84 of the Pakistan Penal Code is inapplicable. Whether or not a person, who suffers from unsoundness of mind, was capable of understanding the nature of his act or knowing that what he was doing was wrong or contrary to law is in each case a question of fact and though the fact that he acts differently from other human beings in many respects is a circumstance which would to some extent go in his favour, it is by itself not sufficient to make him immune from liability.

13. Taking the present case, one finds that after he had caused injuries to Farzand deceased, the appellant tried to escape when he saw Muhammad Zubair and others coming towards the scene of the occurrence. The attempt of the appellant at escape is deposed to by Muhammad Zubair (P. W. 10), Abdus Sattar (P. W. I 1), Sultan (P. W. 12) and Abdul Haye (P. W. 13) in their examination‑in‑chief, and by Dilshad (P. W. 14) in his cross‑examination. If the appellant did not know that what he had done to Farzand was wrong and contrary to law, he would not have tried to run away when he saw persons coming in his direction. In ‑this connection some other facts also cannot be lost sight of. I have mentioned already that the appellant has a wife and eight children. It has not even been suggested that he ever made an attempt at the life of his wife or any of his children. Then there is the fact that he attacked no one but a person who had, on the previous evening, accused him of theft and threatened him with dire consequences if he did not return the articles which had been stolen by him. It may be that the appellant is sub‑normal in intellect but sub‑normality of intellect is not unsoundness of mind either in the ordinary or the legal sense, and, at any rate, cannot unless it is coupled with lack of knowledge that the act that was done was wrong or contrary to law; amount to unsoundness of mind for the purposes of section 84 of the Pakistan Penal Code. The learned counsel for the appellant gave no explanation of the thoroughly sane conduct of his client, whom all through his arguments he described as an insane man, in trying to run away from the scene of murder, evidently to escape being apprehended, but contended that the prosecution witnesses should not be relied upon when they ascribed to the appellant the desire to make himself scarce from the scene of the offence. All the witnesses who deposed about this are entirely independent, and I can think of no reason why they should try to falsely introduce an attempt at escape on behalf of the appellant. Moreover, no explanation, which might be of assistance to the appellant, is forthcoming of his illegal, but by no means insane, and in fact normal, conduct in attacking a man who had about twelve hours earlier accused him of theft in presence of some of his co‑villagers and had threatened dire consequences if the stolen articles were not returned. In view of the circumstances detailed above, I would hold that the appellant was not entitled to the benefit of section 84 of the Pakistan Penal Code, and was liable for his acts.

14. The next contention of the learned counsel for the appellant was that at any rate the offence committed by the appellant did not amount to murder. He contended that as only one blow on the head caused the death of the deceased it could not be inferred that the appellant intended to kill the victim. The medical evidence shows that three of the four blows were dealt on the region of the head. The mere fact that one of those blows was in fact the cause of the death of the victim does not prove that the intention of the appellant was anything other than the intention of anyone who hits another on the head with a heavy weapon and cracks his skull. Learned counsel for the appellant made a reference to certain decisions in which the offence committed was held not to be one of murder in spite of the fact that death ensued, but as the question whether or not the offence amounted to murder depends on the determination of the question of fact whether the assailant had a particular intention or a particular knowledge, the decisions given in other cases can obviously be of very little assistance. The facts proved in the present case are that the appellant ran after the victim, snatched his stick from him and with that weapon dealt him a blow on the head which knocked him down, and did not desist from giving other blows, though his victim had fallen down, till he saw that some persons were running towards him. In view of these facts, I cannot bring myself to believe that the appellant did not intend to cause the death of the victim. It can hardly be doubted that it is known to all adults that if the skull of a person is given a serious injury death of the victim is almost certain and though it is true that some persons survive even though their skulls were badly wounded, it is not the law that even in cases where serious injuries to the skull have resulted in death, it should be held that the assailant did not intend to cause death or a bodily injury as was likely in the ordinary course of nature to cause death. At any rate, the act of causing an injury which causes death to the head of a person is so imminently dangerous that it cannot but be known that it must in all probability cause death arid the fourth clause of section 300 of the Pakistan Penal Code, wherein murder is defined, will be' fully applicable to such an injury which has had fatal con sequences. To cases of the present type, the first, second and the fourth clauses of section 300 of the Pakistan Penal Code are clearly applicable and the author of the injury is liable under section 302 of the Pakistan Penal Code. 1 would, therefore,) uphold the conviction of the appellant.

15. The disposal of the case against the appellant has, no doubt, taken an inordinately long time, but as the minimum sentence prescribed by law for an offence of murder is trans portation for life, which is the sentence imposed by the learned trial Judge, the appeal, cannot but be, and is hereby dismissed. MASUD AHMAD, J.

‑I agree. A.H Appeal dismissed,