P L D 1962 (W (PLP)

S. A. MAHMOOD, J.

Abdul Hamid, aged 40, has been sentenced to death under section 302, Pakistan Penal Code, for having com mitted the murder of Maulvi Mahmood-ul-Hassan on the night between the 30th of April 1957, and the 1st of May 1957, at about 2 a.m., in the mosque. This is an appeal on his behalf. His case is also before us for confirmation of the death sentence. The appeal and the reference will be disposed of by-this judgment.

2. Maulvi Mahmood-ul-Hassan deceased was Pesh Imam of the Jamea Masjid, Lorralai, and was aged about 45 or 50 years at the time of his murder. The deceased went in Etikaf the 20th of Ramzan, 1957, in a corner of the main room of the mosque, which adjoined the hujra. The hujra had a communicating door with his residential quarter, where his family resided. On the 30th of April 1957, which was the 28th of the Ramzan, the appellant came to the mosque where the deceased was reading out a book to Karim Bakhsh (P. W. 8), Mulla Latif and Abdur Rashid (P. W. 11). The deceased stopped reading the book at about 10-30 p.m., and asked the persons, who were present, to leave as he wanted to rest. The appellant, who was also there, asked the deceased to tell him some masla. The latter replied that he had no time then and that he would tell the masla after the Eid. The appellant insisted and asked him to spare him two minutes, as the mash was rather important. Then he asked the deceased, as to who the kharris and shias were. The deceased replied that they were those who had deviated from the right path, and saying this excused himself by saying that it needed a long discourse, and he would explain it in detail later on. All the persons present, then left the place. The deceased closed the room of the mosque, while the outer door was bolted by Karim Bakhsh (P. W. 8), who then left. At about 1-45 a.m., he came to the mosque to see the time, and saw the appellant doing ablution. At that time, the main gate of the mosque was open. On his enquiry, the appellant replied that he wanted to say his Tahajad prayers in the mosque. Having performed his ablution, he went to the main room of the mosque where the deceased was and began to say his prayers, Karim Bakhsh saw the time ; it was 1-30 a.m., and -the deceased was asleep. As there was still about an hour to go, he left for his house.

3. At about 2-45 a.m., Mst. Saeeda Khatun, widow of the deceased, went to the hujra for giving sehri to the deceased, but did not find him in his bed. A man was sitting or praying near the mehrab and she looked again and saw the feet of the deceased. She knocked at the door but had no response. She went back and asked her daughter Mst. Nafia Khatun (P. W. 10) to awaken the deceased. She moved her father's foot, and in the dim light of the room saw blood on his shalwar. She got frightened and went back to her house and informed her mother about it. She raised a hue and cry. Mst. Nafia Khatun then informed Muhammad Shafi (P. W. 14), who came to the spot and found that the deceased was dead. He then went and informed Karim Bakhsh (P. W. 8) that he had seen the deceased lying murdered in the mosque. He also came and found his dead body with his stomach opened and intestines protruding. No one else was found in the room at that time.

4. At about the same time, namely, at about 2-45 or 3 a.m., the appellant went to the shops of Ali Muhammad (P. W. 1) and Amir Hamza (P. W. 2). He asked them to cong ratulate him. They asked him what the occasion for congra tulating him was, on which he replied that he had killed the Maulvi of Jamea Masjid, who was an enemy of the Prophet and used to talk against him. He also told them that he was going to the police station. They noticed that his clothes and fingers were bloodstained. Ali Zaman (P. W. 3), who was going to the oven of Abdul Ghaffar, met the appellant, who told him that the Muslims should be congratulated, as he had murdered the Imam of Jamea Masjid, because he used to talk against the Holy Quran and the Shariat. He told him also that he was going to the Thana, and went in that direction.

5. At about 3-15 a.m., Muhammad Husain, Constable, was on duty at Police Station Sadar Loralai. The appellant wanted him to record a report. He woke up Muhammad Khan, Head Constable (P. W. 17), and apprised him that somebody wanted to make a report. The Head Constable went to the gate and called out who the person was. The person, who was outside the gate, mentioned his name as Abdul Hamid and asked him to open the gate as he had come for a report. The Head Constable opened the gate. The appellant went in. His clothes and hands were bloodstained. He confessed that he had murdered the Imam of the Mosque and stated that he had come to make a report about it. The Head Constable called Chaudhary Rafiq Ali, Sub-Inspector (P. W. 26). Syed Yar Muhammad Shah, District Inspector (P. W. 27), also came there on receiving information. Haji Muhammad Sharif and Muhammad Ali P. Ws., were also called. Chaudhary Rafiq Ali wrote report (Exh. P. C.), (which is inadmissible under section 25, Evidence Act) to the dictation of the appellant, who signed it. The Sub- Inspector took into possession chhuri (Exh. P. 1) with its cover (Exh. P. 2), Waistcoat (Exh. P. 3), which the appellant produced before the Sub-Inspector. The appellant then led the police to the mosque and pointed out the body of the deceased. The Sub-Inspector took into possession bloodstained mats (Exhs. P. 5 to P. 7) and durries (Exhs. P. 8 and P. 9). He also took into possession book (Exh. P. 4) and writing (Exh. P. D), which the appellant produced before him, and the clothes of the appellant (Exh. P. 13 to Exh. P. 16). The bloodstained articles were sealed into parcels. They were sent to the Chemi cal Examiner and Serologist to Government of Pakistan and were found stained with human blood. As the appellant had some injuries, he was sent for medical examination.

6. On the 30th of April 1957, at about 9 a.m., Dr. Naeem Iqbal (P. W. 24), conducted post-mortem examination on the body of Maulvi Mahmood-ul-Hassan and found the following injuries on the body: (1) Incised wound, 16" x 5", extending from the left lumbar region in the back to the navel in front. The wound has pierced the entire abdominal wall and injured the small intestine and extended to the posterior abdominal wall. The wound extended transversely around the trunk: (2) Incised wound, 4" x 2", in unbilical region, wound horizontal and showing downward inclination. Depth involving the entire abdominal wall and, extending upto the abdominal viscera. (3) Incised wound, 9 " x 3", extending from the middle of unbilical region to the right side of the trunk, Direction of the wound was from above downwards and outwards. Depth involving the entire abdominal wall and extending upto the liver. The liver was not injured. The peritoneum was intact. No loop of intestine appeared in the gapping wound. (4) Incised wound, 6 " x 2", in the right hypochondrium extending upto the peritoneum. No abdominal viscera injured, Direction of the wound was from upwards downwards reach ing the right flank. (5) (1) Incised wound, 1 " x " skin deep in the right hypochondrium, horizontal in direction. (2) Six superficial cuts, horizontal in direction in the Epigastrum varying in size from 3" to 1". (3) One superficial cut vertical in direction and 3" Ding near the left margin of superficial cuts mentioned at 5 (2). (4) Four superficial cuts varying in size from 6" x " on the right lumber and umbilical regions. Direction from above downwards and outwards. (5) Multiple cuts on the left side of the trunk and right hypochondruim flank, ranging in size from 4" x ", mostly horizontal in direction. All the cuts mentioned under 5 were only epidermis deep. Loops of intestines protruded through injury No.

1. All the cuts wounds were homicidal caused by sharp-edged weapon. They were antimortem. The large blood vessels were cut. (6) Incised wound 6' long, vertical in direction merging with injury No.

1. The loops of intestines protruded this gap. There was superficial cut 3" long, epidozm's deep on the outer side of left knee. Direction from above downwards, cut wound on " the right parietal bone of the skull" size 1 " x " x ". There were multiple out wound on both the hands varying in size from 1" to V on the front and back involving the fingers also. There was a cut wound 10" x 2" extending down to the vertebral column, in the neck. The right terminal point of the wound commenced 4 " to the right of the middle line and the left 5 " to the left side of the middle line. The trachea and both carotid arteries had been severed, direction horizontal. There was cut wound, 2 " x 1" x 1", horizontal in direction on the right outer aspect of the neck near the upper end. All the injuries were homicidal in nature and suggested that violence and struggle had taken place at the time of the occurrence. The injuries were caused with sharp-edged weapon. The death was due to injury of the neck. 7.. The same doctor examined the appellant at 8-15 a. m. on the same day, and found the following injuries on his person (1) Cut wound on left palm, size 1" x " x ". (2) Superficial cuts on back to middle finger on the terminal phalynx and back middle left index finger. (3) Multiple cuts superficial on the front of right middle, little, ring and index fingers. (4) Minor abrasions on the front of right thumb, size, not exceeding ", only, epidermic deep. Bloodstains on the clothes did not correspond to the injuries. Injuries were simple in nature and their approximate duration was 6-8 hours. The doctor asked a few questions from the appellant about him self and his family affairs, to which he gave intelligent answers, and did not exhibit any emotional disturbance. He came to the conclusion that the appellant was of normal mental calibre. As medical officer of jail he used to visit the District Jail and did not receive any complaint regarding his mental aberration and derangement. He also examined the appellant as a routine measure and he never complained to him of any mental desease.

8. Doctor Muhammad Tahir, a private practitioner, (P. W. 15), went to see the appellant in the Police Lock-up of Loralai after 2 days of the murder. He talked with him and asked him why he had killed the deceased. The appellant replied that he killed him because the deceased had insulted the Prophet by saying that the Prophet had no divine knowledge of past and future. The appellant showed no sign of insanity and was a normal person neither excited nor depressed. He observed no defect in his intelligence or other abnormality.

9. The appellant in his statement before the committing Magistrate admitted that chhuri (Exh. P. 1), Shalwar (Exh. P. 13), waistcoat (Exh. P. 14), shirt (Exh. P. 15) and turban (Exh. P. 16) belonged to him ; that he had gone to the Jamea Masjid on the 1st of May 1957, at about 2 a.m., and had murdered the deceased with knife (Exh. P. 1) ; that he confessed immediately after the murder to Amir Hamza (P. W. 2), Ali Zaman (P. W. 3), and Nur Ahmad (P. W. 4), that he had murdered Syed Mahmood-ul-Hassan deceased and that he went to the police station and voluntarily made the report (Exh. P. C.) (but this is inadmissible in evidence under section 25, Evidence Act) and produced chhuri (Exh. P. 1) and letter (Exh. P. D.) before the police. He made a lengthy statement explaining the reasons for his killing the deceased. At the trial, when his statement made before the committing Magistrate was read over to him, he stated that some portions of it were not stated by hire, but that the rest of the statement was correct. He did not deny the correctness of the material facts stated by him that he had killed the deceased and had produced chhuri (Exh. P. 1) and that his bloodstained clothes were recovered from his person. He admitted that he had controversy over the masla of Ilmul ghaib and other religious matters with the deceased. He also admitted that he purchased chhuri (Exh. P. 1) from Nur Ahmad (P. W. 4) about a week before, the occurrence ; that he went to Muhammad Shafi (P. W. 5) and asked him to sharpen it and that he committed the murder of the deceased on the fateful night. He claimed that he did it under the command of God. He now denied that he had made admissions of guilt before Ali Muhammad, Amir Hamza and Ali Zaman, P. Ws. but admitted that he went to the police station and made report (Exh. P. C.) in the presence of Haji Muhammad Sharif (P. W. 23) and Muhammad Ali and placed chhuri (Exh. P. 1) with its cover on the table, ` and that Ch. Rafiq Ali, Sub-Inspector, removed his clothes, Exhs. P. 13 to P. 15, from his person. He also admitted that he sustained his injuries, which were examined by Dr. Naeem Iqbal, during the occurrence, when he and the deceased fought with each other. He also admitted that Dr. Muhammad Tahir met him in the police lock-up and he told him that he had killed the deceased under the command of Allah and the Holy Prophet, as he had insulted the Holy Prophet by saying that the Prophet did not possess Ilmul ghaib. He admitted that the writings (Exhs. P. M. and P. N.) were in his hand. He again made a very lengthy statement giving minute details of the activities of the deceased as well as his differences with him. In this statement he has explained minutely the reasons which necessitated his killing.

10. Although the appellant in his statement, recorded by the learned Sessions Judge, on the 11th of May 1959, at the commencement of the trial, stated that he was in perfect health and did not himself take any plea of insanity, a number of defence witnesses were produced to prove that his father had become insane for about five or six months in 1935 ; that the appellant was noticed about a year before the occurrence showing signs of mental unsoundness and that he had acted abnormally. These witnesses are Muhammad Ali (D. W. 1), Dost Muhammad (D. W. 2), Abdul Latif (D. W. 3), Mir Asghar Ali Qureshi (D. W. 4), Muhammad Bashir (D. W. 5), Inayatullah (D. W. 6), Haji Abdul Ghafoor (D. W. 7), Ch. Ghulam Muhammad (D. W. 8), Mst. Nazir Begum (D. W. 9) wife of the appellant and Mst. Barkat Bibi (D. W. 10), his mother. This evidence will be dealt with later on.

11. There is no eye-witness of the occurrence. The case against the appellant rests on circumstantial evidence and his own admission of his guilty. The prosecution evidence consists of the following (i) The motive as deposed to by Karim Baksh, Abdur Rashid, Muhammad Wasil, Muhammad Sadiq and Haji Muhammad Shafi P. Ws. The writing (Exh. P. A.) is the masla or opinion, which the appellant obtained from Maulvi Abdul Karim to the effect that the Holy Prophet had the divine knowledge i.e., Ilmul ghaib. Exh. P.D. and D.J. are the details of points of differences between him and the deceased noted down by the appellant in his hand. The writing Exh. D. J. was produced by the appellant himself at the trial, Exh. P. M. is a letter written by the appellant to Abdul Jawed of Maktaba Abdul Jawed, requesting him to give the pages of the Hadis of Abu Daud, on the basis of the sayings of the Holy Prophet, mentioned by him at pages 98, 107, and 108 of his book, Rasool-i-Pak ke Moejezat", published by him. This letter could not be delivered and was thus received back. In the book (Exh. P. 4), at pages 107 and 108, it is mentioned by reference to Abu Saeed Khudri and Hazrat Anas Malik, that the Holy Prophet had once said that there would be people in his Umit, who would talk well but do evil things etc., and that they would be liable to murder and that the person, who would kill them', would be a Ghazi and Shaheed. The description of such persons mentioned was; that they would have shaven heads, thin eyes and black complexions. Abdul Latif (P. W. 6), stated that the appellant read out this portion to him from this book. The prosecution has produced this evidence in support of motive for the murder, which is that the appellant had differences with the deceased over religious matters and considered that he was one of those, who had a shaven head, thin eyes, black complexion and evil ways and his killing would make him a Ghazi and Shaheed. (ii) That the appellant purchased the weapon of offence i.e., the chhuri (Exh. P. 1) from Nur Muhammad (P. W. 4) and took it to Muhammad Shafi (P. W. 5) for sharpening it anal that Abdul Latif (P. W. 6) saw it lying in his house. (iii) That the appellant produced chhuri (Exh. P. 1) at the police station in the presence of Muhammad Gulzar (P. W. 18), Haji Muhammad Sharif (P. W. 23) and Ch. Rafiq Ali (P. W. 26), immediately after the occurrence. It was in cover (Exh. P. 2) and was taken out from his waistcoat's pocket (Exh. P. 3). It is proved to be stained with human blood. (iv) That the appellant made extra judicial confession before Ali Muhammad (P. W. 1), Amir Hamza (P. W. 2) and Ali Zaman (P. W. 3) immediately after the occurrence and before Dr. Muhammad Tahir (P. W. 15) about two days after the occurrence. (v) That he was last seen near the deceased shortly before the murder. (vi) That he received injuries in the struggle during the murder, which he admits. (vii) That he went to the police station and took the police to the mosque and pointed out the body. (The report Exh. P. C. is inadmissible in evidence against him as it (amounts) to a confession to a police officer).

12. In view of what has been stated above, there is no doubt that the appellant killed the deceased with chhuri (Exh. P. 1), which he had purchased a week before the occurrence. This has been admitted by him, both before the committing Magistrate and at the trial. The evidence led by the prosecution in this case is entirely independent and its veracity is not in doubt or dispute. The prosecution case is in fact mostly admitted by the appellant. The learned counsel for the appellant has rightly not challenged the killing of the deceased by the appellant, which stands admitted by him, and is proved beyond reasonable doubt.

13. The learned counsel for the appellant has raised the following three contentions :-(i) that the jurisdiction of the Sessions Judge, to try the case was ousted and had been taken away, because there was no appellate Court left, which could hear an appeal under the Code of Criminal Procedure, for the reason that Article 178 of the abrogated Constitution of 1956, excluded the jurisdiction of the High Court in relation to Special Areas, and Loralai where the incident happened, was in the Special Areas ; (ii) that the whole trial was vitiated, because the learned Sessions Judge, did not comply with the provisions of section 465, Criminal Procedure Code ; and, (iii) that the appellant was legally insane at the time of the commission of the offence within the meaning of section 84 of the Pakistan Penal Code, as he did not understand the wrongful nature of the act and did not, therefore, commit any offence.

14. With regard to the first contention, there is no doubt that as the District of Loralai was situate in the Special Areas as defined in the Constitution, the jurisdiction of the High Court was ousted in relation thereto but the Sessions Judge had jurisdic tion to hear the case. By Notification No. 452-D Judicial, dated the 1st of May, 1940, the Governor-General, created a Sessions Division of Loralai District and other Districts, and by Notification No. 452-E Judicial, of even date, directed that the Court of Sessions shall hold its sitting in Quetta or at the headquarters of the District, from which the case was committed or at any place within its jurisdiction. By Notification No. 502 Judicial dated the 13th of May, 1940, the Agent to the Governor -General, appointed the District Judge, Quetta, to be, by virtue of his office, District Judge of the Baluchistan tribal areas, which included the Loralai District. It is conceded by Mr. Karam Elahi, learned counsel for the appellant, that the District Judge, Quetta, had jurisdiction to try cases of murder from Loralai district, but it is contended that as by reason of Article 178 of the abrogated Constitution, the High Court of West Pakistan was deprived of its jurisdiction over Loralai District, no appellate Court under the Code of Criminal Procedure was left, and this had the effect of ousting the jurisdiction of the Sessions Judge, Quetta, from trying offences committed in the District of Loralai. His contention is that the existence of a Court of appeal is sine qua non of the jurisdiction of the Sessions Court and as no Court of appeal or of confirmation of death sentence under section 374 of the Code of Criminal Procedure existed, the Sessions Judge also ceased to have jurisdiction. We do not agree with this contention, for, in our view, the Sessions Judge's jurisdiction continued to exist and the mere ouster of the jurisdiction of the High Court in respect of Loralai District, did not affect the jurisdiction of the Sessions Judge. It may be mentioned that the Sessions Judge referred the question to the High Court of West Pakistan and the Chief Justice and the learned Judges of the High Court directed him to proceed with the trial, but not to pronounce judgment in the case until the matter of the appellate Court was decided by the Government. The jurisdiction of the High Court was restored by Notification No. S.R.O. of the Government of Pakistan dated the 12th of December, 1961, under clause (2) of Article 1 of Special Areas (Restoration of Jurisdiction) Order, 1961 (President's Order 2 of 1961) whereby the Central Government appointed the 12th of December, 1961, as the date on which the said Order shall come into force. Thereafter, the Sessions Judge, heard arguments in the case and convicted the appellant by his order dated the 26th of .May, 1961. We are, therefore, of the view that the Sessions Judge had jurisdiction to try the appellant and that his order convicting the appellant was with jurisdiction.

15. The second contention is that under section 465 of the Code of Criminal Procedure, the learned Sessions Judge, should have tried the fact of unsoundness of mind and incapacity of the appellant-to make a defence with the aid of the assessors and not by himself. The background of this contention is that before Mr. Muhammad Ali, Sessions Judge, Quetta, who first took' up the case against the appellant, an application was presented by the appellant's Advocate to summon the appellant for recording his plea to the charge. When the appellant appeared before the learned Sessions Judge, an application was made to him on appellant's behalf that he was of unsound mind. The learned Sessions Judge, put some questions and obtained answers from the appellant on the 10th of September, 1957, and came to the conclusion that the appellant was of a perfectly sound mind, as he understood every question put to him and answered them intelligently. He also gave other reasons for this conclusion. He did not hold any enquiry about the unsoundness of his mind under section 465, Criminal Procedure Code. When the case came up before Mr. Tafazal Husain, Sessions Judge, who convicted the appellant, a similar application was made on the 11th of May, 1957, in which it was pleaded that the Court had no jurisdiction to proceed with the case and that the appellant was at that time and at the time of the commission of the offence of unsound mind and insane. It was, therefore, prayed that the procedure provided under sections 465 and 466, Criminal Procedure Code, may be observed and the appellant kept under observation of his mental condition by an expert. The learned Judge passed the following order: "A request of this nature has been dealt with by my learned predecessor vide his order dated the 10th of September, 1957. The learned counsel for the accused has failed to satisfy me that this Court has no jurisdiction to try this case. The question, whether the accused was of unsound mind at the time of the alleged offence, is entirely a separate one to be enquired into in an entirely separate manner. In order to avail of the plea of insanity under section 84, P. P. C., it must be shown in detail that the accused was incapable of understanding the nature of the act at the time when the act in question was committed. This fact is wholly lacking in this application. In order to satisfy myself, whether at present the accused is of unsound mind and incapable of making his defence, I put the following questions." The learned Judge then proceeded to put the following questions to the appellant :- "Q"-1.-What were you doing before this incident ? A.-I was doing business in cloth. Q-2.-Did you carry on the said business of your own understanding or under the guidance or instruc tions of somebody else ? A.-I ran the business myself and none guided or instructed me. Q-.3.-Did you maintain accounts properly? A.-I kept my accounts in an ordinary manner. Q-4.-Did you ever indulge yourself in blackmarketing? A.-No, I have not done so. Q-5.-Why you have not done so ? A.

Had I done so, then I would have been in the dock as I am today and would have faced the con sequences of law. Q-6.

Did you ever suffer from any mental disorder and when ? A.-No, I have not suffered from such ailment. Q-7.-Have you any mental ailment or any other disease at present. A.-No, I am in perfect health."

16. It will be noted that in answer to the last question the appellant stated that he had never suffered from any mental disease and was at the time in perfect health. Having recorded the questions and answers, the learned Sessions Judge, rejected the application for the reason that the appellant did not seem to him of unsound mind or incapable of making his defence. In view of the statement of the appellant himself, there was no substance in the contention raised in the application that the appellant was at the time of unsound mind and incapable of making his defence. In the circumstances, it is really unnecessary to deal with this question at length, but the learned counsel contends that in examining the accused the learned Sessions Judge entered into an enquiry as to the unsoundness of mind of the appellant and he should have decided this question with the aid of assessors. He relies for his contention on Sher Afzal v. The State (P L D 1960 Pesh. 66) and Santok Singh v. Emperor (A I R 1926 Lah. 498). In the first case, the Public Prosecutor suggested by a note that since the accused might set up the plea of insanity at the trial, he should be kept under observation in the mental hospital, and the doctor, under whose observation he might remain, should be summoned at the trial as a witness. The trial Judge made an order for action to be taken according to the note of the Public Prosecutor. The accused was accordingly detained in the mental hospital where he remained under the observation of Dr. Mudassar Khan. The doctor kept him under observation and appeared as (P. W. 1) at the trial of the accused, which commenced on the 15th of June, 1959. His evidence was to the effect that during the period of observation, the accused had not shown any sign of insanity and that in his opinion he was of sound mind. He further deposed that the accused was capable of understanding the proceedings of the trial. The statement of Dr. Zaffar Shah, under whose observation the accused had remained earlier, was also recorded. His opinion also was that the accused was of sound mind. Then the trial Judge, proceeded to make the follow ing order: "In view of the opinion of the Superintendent of Mental Hospital, Peshawar and the examination of the accused by him in Court, I am satisfied that the accused is able to understand the nature of the proceeding and capable of defending himself. I, therefore, enter on his trial." On these facts, the learned Judges set aside the trial as having been vitiated with the observation "that if the trial Court wants to satisfy itself about the mental state of the accused person and his capacity to make his defence, then it is bound to enquire into the question with the aid of the assessors and not alone, and on this point, the provision of section 465 is mandatory and for this, reliance was placed on Santok Singh v. Emperor, which held that it was incumbent on the Sessions Judge himself to hold an enquiry on the question whether the accused was capable of making his defence when the latter came before him on commitment, to take the opinion of the assessors on that question and to come to a decision before proceeding further with the trial. It was held that it was necessary for the learned Sessions Judge, to take these proceedings if he had any reason for supposing that the accused, when brought up for trial, was of unsound mind. The question whether he was of unsound mind at the time of the alleged offence, was an entirely separate one, to be enquired into an entirely separate manner. It was observed that it was necessary to take these proceedings if the learned Sessions Judge had any reason for supposing that the accused before him was of unsound mind. The facts of this case are distinguishable from the present case because the learned Sessions Judge did hold an enquiry into the initial question of unsoundness of mind of the accused. In order to dispose of the objection, it is necessary to cite section 465 of the Criminal Procedure Code, which is as under: "465 (1) If any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury, or the Court with the aid of assessors, shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Jury or Court, as the case may be, is satisfied of the fact, the Judge shall record 4 finding to that effect and shall postpone further proceedings in the e; se and the Jury, if any, shall be discharged. (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court." The terminology of the section makes it plain that the Court is required to try the fact of unsoundness of mind or incapacity of making his defence with the aid of assessors, if it appears to the Court, at the trial, that a person committed for trial is of unsound mind, and consequently, incapable of making his defence. There are two stages in the section. The first stage is that it must appear to the Court that the accused, placed on trial before it, was of unsound mind and incapable of making his defence. The next stage is of trying the question of insound ness of mind which has to follow the first stage, namely, when it appears to the Judge that the accused was of unsound mind and incapable of making his defence. Then starts an enquiry into the second question, which has to be tried by the Court as a preliminary proceeding with the aid of the assessors. In the present case, there was no suggestion before the committing Magistrate that the appellant was of unsound mind. In fact, he made a lengthy statement before Mr. Muhammad Ali, at the first trial. The appellant had made an intelligent statement and he denied that he had a mental ailment. He stated that he was in perfect health, and the Court formed an opinion that he did not appear to be of unsound mind. No necessity for holding an enquiry into the unsoundness of his mind received. The question, therefore, that remains for determination is, whether the Court was bound to hold an enquiry and try the question, whether the appellant was of unsound mind or not In our view the mere making of an application on behalf of a person, committed for trial, that he was of unsound mind, is not sufficient to necessitate the holding of an enquiry. It must appear also to the Court that the accused may be of unsound mind and when it so appears, an enquiry is necessary and the question whether the accused is of unsound mind or not and incapable' of making his defence, has to be decided with the aid of the assessors. The learned Sessions Judge, with a view to satisfy himself, put certain questions to the appellants and then came to the conclusion that he did not seem to be of unsound mind and incapable of making his defence. The examination of the accused was with a view to see if it appeared that he was of unsoundness of mind. The examination was in relation to the first stage and not the second stage. The learned counsel for the appellant argues that the examination of the appellant amounted to an enquiry in the second stage and the question of unsound ness of mind had to be determined with the aid of the assessors. We do not agree with this contention, as we consider that the examination related to the first stage with a view to see if it appeared to the Court that he was of unsound mind and con sequently incapable of making his defence. In this view we are supported by the decisions in Emperor v. Durga Charan Singh (A I R 1938 Cal, 6), Emperor v. Bahadur (A I R 1928 Lah. 796), and Nabi Ahmad Khan v. Emperor (A I R 1932 Oudh 190). In Emperor v. Durga Charan Singh, when the Sessions Court was ready to begin with the case, the learned pleader for the accused asked verbally for an adjournment in order that the accused might he kept under mental observation. His request was based on an impression which he had gained while taking instructions from the accused. The Sessions Judge, thereupon observed that he saw no reason for thinking that the accused was of unsound mind or incapable of making his defence ; his behaviour in the dock was perfectly normal ; he listened intelligently to the charge and gave a clear plea in answer to it. No suggestion had been made before, that he was in any way mentally unsound. He had been in jail awaiting his trial and presumably the Civil Surgeon or a jail doctor would have noticed and reported any mental abnormality. The Judge observed that the only course available was to take action under section 465, Criminal Procedure Code, but he saw no reason foe taking such action, as he considered the accused perfectly normal in mind, judging from his behaviour. It was contended before the learned Judges of the Calcutta High Court on appeal, that it was incumbent upon the Sessions Judge to adjourn the trial in view of the provisions contained in section 465 of the Criminal Procedure Code, and there was no option but to grant an adjournment for the purposes of ascertaining whether the accused was of unsound mind and whether he was in a position to take his trial before the Court of Sessions. The learned Judges of the High Court observed that the argument advanced entirely overlooked the two different stages of procedure con templated by section 465, Criminal Procedure Code. The first stage in the procedure laid down by the section was that it must appear to the Court that the accused, placed on his trial, was of unsound mind and incapable of making his defence. The next stage that was to follow, when it appeared to the Judge, that the accused was of unsound mind and consequently incapable of making his defence, was that the fact of such unsound mind and incapacity should be gone into, on the materials placed before the Court. We respectfully agree with this view. It may be mentioned that the Sessions Judge had made special reference to the statement made by the accused before the Court in his defence, and had come to the conclusion that the accused was perfectly sound in mind judging from his behaviour. In our view the questions put to the accused do not amount to an enquiry in the second stage and the learned Sessions Judge, was, a therefore, not wrong in not holding an enquiry in the first instance about the unsoundness of mind of the appellant. Indeed, the appellant in his statement stated clearly that he was not at the time suffering from any mental ailment of disease nor had ever suffered from it and stated clearly that he was in perfect health. In view of this statement, there was no necessity of entering into an enquiry as to the unsoundness of mind of the appellant as required by section 465 of the Code of Criminal Procedure. The learned Sessions Judge was perfectly justified in holding that/c it did not appear to him that he was of unsound mind and it was not necessary to hold an enquiry and decide the question initially with the aid of the assessors. We, therefore, hold that there has been no illegality in the nature of contravention o If section 465, Criminal Procedure Code.

17. The third 'contention that the appellant was legally insane at the time of the commission of the offence is equally untenable. There is no evidence at all on the record that the appellant was mentally deranged before at or after the time of the occurrence. It is in evidence that he asked a masla from the deceased at about 10-30 p.m. preceding the murder ; that he was seen saying tahajad prayers in the mosque shortly before the occurrence ; that he immediately after the occurrence talked coherently and intelligently to Ali Muhammad (P. W. 1), Amir Hamza (P" W. 2) and Ali Zaman (P. W. 3) and told them that he was going to the police station. This shows that he was conscious of the fact that he had committed a wrongful act, which was an offence which he wanted to report to the police. He then went to the police station and made a lengthy report (Exh. P. C.) which he admits to have made to the police. He also placed the knife (Exh. P. 1) in sheth (Exh. P. 2) on the table before the Sub-Inspector. He took the police to the mosque and pointed the body of the deceased. Two days later, he made a statement before Dr. Muhammad Tahir (P. W. 15) who found him to be in normal health. Dr. Naeem Iqbal also questioned him about himself and his family affairs, to which he gave intelligent answers and he did not exhibit any emotional dis turbance. The doctor came to the conclusion that he was of normal mental calibre and no mental derangement of any kind was ever reported to him while the appellant was in Jail nor he complained of it at any time. The appellant himself denied at the trial that he had ever had any mental illness or disease.

18. In view of all this, it cannot be possibly held that the appellant was legally insane at the time of the commission of the offence and was incapable of understanding the nature of his act, namely, that it was wrongful and an offence. The plea of insanity taken on his behalf by his learned counsel has no substance whatever. In defence, as already stated, ten witnesses were produced. Muhammad Ali (D. W. 1) stated that the appellant had read over to him portions of book (Exh. P. 4) from pages 107 to 110 some days before the occurrence. This does not in any way indicate that he was mentally deranged. Dost Muhammad (D. W. 2) states that the appellant used to discuss the masla of Ilm-ul-ghaib with the deceased, who stated that the quotations and the references made by the appellant were not relevant to the question, and that those present at the spot used to say to the appellant that he was not intelligent enough to understand the masla and was talking nonsense. Abdul Latif (D. W. 3) deposed that the appellant and the deceased used to discuss religious matters with each other and the deceased always rejected his references by saying that they were in Arabic, which the appellant did not un4erstand. The evidence of these two witnesses is of no help to the appellant. Their evidence only shows that they discussed religious matters with each other and this support the prosecution rather than the defence. Mr. Asghar Ali Qureshi deposed that the appellant came to his house in the month of Ramzan, 1957, and had his meals with him, when he expressed certain peculiar views. This evidence is also of no avail to the appellant, for it shows no more. than this that the appellant entertained some curious notions in relation to human conduct. Muhammad Bashir (D. W. 5) states that the appellant's father was of unsound mind in 1935. Inayat Ullah (D. W. 6) also deposes that Khair Din, father of the appellant, was mentally deranged in 1935 and that he was treated by a Hakim. In February, 1957, the appellant went to him at Gujranwala arid discussed religious matters with his father, who told him that he was not in his senses and, should not discuss those poipts, because he was unreasonale and aggressive. He also stated that from his appearance and conduct he was frightened of him and concluded that the appellant was mentally deranged. Haji Abdul Ghafoor (D. W. 7), whose wife's sister is married to the appellant, deposed that the appellant worked with him as an employee and as a partner for twenty years, and that the partnership was dissolved in 1954, and that at that time his mental condition was normal, but later on he came to know from the accused's wife that he was maltreating her and the children. He was violent to his family members and often indulged in religious discussions. His mother came to him for financial assistance. He observed that his mental condition was not normal, as he used to consume the remains of eatables by saying that it was sunnat. His children were so fed up with the appellant that they asked him to stop his visits to their house. Ch. Ghulam Muhammad (D. W. 8) states that the appellant met him at Lyallpur at the house of Abdul Khaliq, two-and-a half months before the occurrence ; then the accused after every two or three minutes asked the persons present there to condole on the death of the daughter of Abdul Khaliq, to offer Fatiha, and people got fed up with it. The appellant used to say that when the male were circumcised, the females should also be similarly circumcised. He behaved insanely because when he went to a mosque he would object that the Namazis were not performing ablution properly. In performing his ablution, he took about half an hour. Thus he was insane, and sent a medicine by a registered packet for treatment of his mental condition. Mgt. Nazir Begum, (D. W. 9) wife of the appellant, stated that the appellant used to behave queerly and cruelly to her and her children and that he acted strangely. He used to say the Holy Quran throughout the night, came late at home, some time started weeping and some time laughing, and this condition had gone for about two years. The condition was aggravated since before the occurrence. She had concluded that he had become mentally unsound. They were in financial difficulties and found it difficult to feed themselves and their seven children. Mst. Barkat Bibi (D. W. 10), mother of the appellant, also stated that her husband was mentally insane and that some time before the occurrence she observed that the appellant used to recite the Holy Quran and wept day and night without any sleep. Her younger son Abdul Majid was also mentally deranged. We do not find it possible to accept the defence evidence which has rightly been rejected by the trial Court. Even if it be accepted that the appellant had strong and strange ideas about religion, it does not follow that he was mentally insane much less that he was legally insane and incapable of understanding the nature of his act. The reason that he committed the murder, has been explained by him. The purpose was to achieve the status of a Ghazi and to become Shaheed. This clearly indicates that he was conscious of the fact that by committing the murder, he would be hanged, because it is only then that he could become Shaheed. Thus he knew the nature of his act and committed the murder for a purpose. His act was not purposeless, but was motivated by differences with the deceased over religious matter, and he believed that the views of the deceased that the Holy Prophet did not possess the knowledge of Ilm-ul-ghaib was heresy. The appellant, therefore, had a motive and acted under a clear design. He has mentioned in detail the reasons for which he committed the murder. In these circumstances, it cannot be said that the act of murder was of-an insane person, who did not understand the nature of his act.

19. There lastly remains the question of sentence. The murder was committed as far back as April, 1957. More than five years have since gone by. The trial was delayed for years, because of a defect in the law, namely, that there was no appellate Court under the Code of Criminal Procedure because of the jurisdiction of the High Court having been abolished in respect of Loralai. The principle is well recognised that after the lapse of so much time, considering the worry and anxiety which an accused had had to undergo, when facing a trial on a charge of murder, he should not be sentenced to death. This is the view taken in Fateh Muhammad v. Bagoo and others (P L D 1960 S C (Pak.) 286), Moonda and others v. The State (P L D 1961 Lab. 333) and Ibrahim and another v. The State (P L D 1959 Lah. 715). Although there are no mitigating circumstances and the murder was planned, and brutally carried out and normally we would have had no hesitation in confirming the sentence of death, but in view of the lapse of more than five year's since the commission of the offence, we consider that the sentence of death should not be confirmed and order that the sentence of the appellant be reduced to transportation for life. In consequence, the sentence of death is not confirmed, and the appeal is otherwise dismissed. K. B. A. Appeal dismissed.