P L D 1953 Lahore 213 (PLP)

KAYANI, J.‑--In the small hours of the 24th of April 1951, Ghulam Yousuf, aged 50 years, a field kanungo of Sialkot, fired several shots with a gun at his son Liaqat Hayat and his wife Mst. Sabira Rashida, apparently in a fit of insane delusion; injuring the former and killing the latter, who, however, made a statement before she died. From the 25th April to the 18th. May 1951, Ghulam Yusuf remained under the observation by Dr. Hamid Musa, Jail Superintendent, who recommended him for being admitted to the Mental Hospital at Lahore. Here he was detained up to the 12th of December 1951 and then dis charged as cured. He was tried for murder and attempt at murder, convicted and sentenced to death under the former charge and to seven years' imprisonment under the latter. He has appealed, while the sentence of death has been referred to us for confirmation. The witnesses of the occurrence are the appellant's son Liaqat Hayat (P. W. 4), and his daughters, Shamim Akhtar (P W 5) and Mahmuda (P. W. 12). Liaqat is 15 years old and the girls 20 years and 16 years respectively. In addition, there is the dying statement of Sabira herself. The incident took place in the appellant's house in Sialkot and is not denied. The defence is one of insanity. In the words of the deceased herself, it happened thus: "My husband Ghulam Yusuf is a girdawar at Satra. He came to his house at 4 p.m. yesterday, and as usual, began quarrelling over small matters. He is addicted to cocaine. I and my children used to remonstrate with him and for that reason he quarrelled with us. He did not have a wink of sleep at night and did not let any other person in the house sleep. He remained moving about in the house with a gun. At about 3 a. m. he asked my son Liaqat to open the door of the house because some one was outside. Liaqat reached the door and was about to unbolt it when the accused fired at him with the gun. He was hit. I ran to the door to save him. The accused fired a second shot, which hit both Liaqat and me. I laid myself prostrate and caused my son also to lie down. The accused fired another shot which (again) hit us both. Then he fired in the air ." Opposite the house was the C. I. D. Office, were Constable Fateh Muhammad (P. W. 16) was on duty at the telephone. On hearing the gun report be went over and knocked at the door but it was not opened. He returned to the telephone and rang up the city police station from where A. S. I Muazzam Hussain (P. W. 13) went promptly to the spot, reaching there at 3‑45 a.m. He knocked at the door and apparently announced himself, where upon Shamim Akhtar, the elder daughter, handed over a gun to him through a window. Several persons bad collected meanwhile. The appellant himself then opened the door and the police officer and others went in. He recorded the statement of Sabira and sent both her and Liaqat to the Hospital. Sabira, however, died on way. Before going into the evidence of insanity, it is necessary to determine the method of approach to the subject. Under section 84, P. P. C. "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." After it is found that the accused was of unsound mind when commit ting the act, it must further be proved, either (1) that he did not know what he was doing or that, if he knew this, (2) he did not know that it was a wrong thing to do or that (3) he did not know it was contrary to law. This presumes a state of insanity where the mind is not in a complete "black out", and our knowledge of it depends on how far we can rely on the experience of the alienist. For if the devil himself knoweth not the mind of man, by which we mean a rational person, how much less does the alienist know about a mind into which he cannot project himself except by drawing analogies from a rational mind? This difficulty apart, the next question is of the burden of proof, and although section 105 of the Evidence Act would seem to place it on the person who pleads insanity‑section 84, P. P. C. being one of the "General Exception" in the Penal Code‑the interpretation of a recent judgment of the Federal Court in Sajdar Ali v. Crown (P L D 1953 F C 93) has created some doubts. As the argument of Mr. Manzur Qadir, who appeared for the appellant, embraced not only this judgment, but also a judgment of the High Court reported as Lal Khan v. Crown (Pak. L R 1952 Lah. 699=P L D 1952 Lah. 502), it is necessary to deal with both of them in some detail. Lal Khan v. Crown dealt with insanity and is directly to the point. On the authority of some English decisions, principally Woolmington's case (1935 A C 462), it was contended for the accused that if the evidence as to insanity created a reasonable doubt in the mind of the Court as to the existence of circumstances bringing the case within the General Exception pleaded by him, he was entitled to acquittal. In Woolmington's case the prisoner shot a man dead and pleaded accident. That plea would correspond in some way to section 80 of our Penal Code, which falls within the General Exceptions. The Lord Chancellor than made observations which have been so often quoted that I would have hesitated to reproduce them for fear of monotony if it had not been necessary to do so. "Throughout the web of the English Criminal law", observed the Lord Chancellor, "one golden thread" is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution, has not made out the case and the prisoner is entitled to an acquittal . . . . . . . . . . . . . . When dealing with a murder case, the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examina tion of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if this explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted." The "golden thread", it will be noticed, breaks where the defence is one of insanity and "subject also to any statutory exception." To revert to Lal Khan v. Crown S. A. Rahman, J., who wrote the principal judgment, observed that the Evidence Act "departs from the principles of English law in certain respects. In the first place, all exceptions, whether general or special, included in the Penal Code, stands on the same level as regards the burden of proof on the accused person, under section 105 of the Act. Under English law the defence of insanity seems to have been placed on a different footing from that of other defences. The expression `reasonable doubt finds no mention in the Act. Instead, we have the criterion of the estimate of probability in each case with reference to the subjective conviction of the `prudent man' as regards the proof or disproof of circumstances bringing the case within an exception. "In so far as the burden of proof lying on the prosecution in a criminal case is concerned, I think the position under the Evidence Act is reconcilable with the rule of `reasonable doubt', prevailing under English law. A `prudent man' would presumably not regard a case as satisfactorily established by the prosecution unless. It is proved beyond `reasonable doubt.' The question of the life and liberty of the subject being involved, every precaution may be expected to be taken by the 'prudent man' to ensure that they are not encroached upon unjustly. In case, therefore, wherein it is only a question whether the offence has been brought home to the accused or note, i.e., the essential facts to prove the ingredients of the crime have been established or not, the rule of `reasonable doubt' may well apply. So far there is no difficulty. But the rule does not appear to be of universal application in the context of the Act. Where the facts established, prima facie make out a case justifying the conviction of a person, of an offence, unless certain other facts are proved bringing the offence within one of the general or special exceptions of the Penal Code, the mere creation of a doubt on the part of the accused as to the existence or otherwise of those special circumstances asserted on his behalf would not suffice. In such a contingency, the necessary facts could be said to be neither `Proved' nor `disproved', and hence they would fall within the definition of `not proved' given in the Act. In view of the clear language of section 105, it would be anomalous to hold that, although the exceptional circumstances were not proved, vet the accused was entitled to have the benefit of a doubt arising on the whole case." But he added a note of caution: "Of course there may be cases in which the defence taken may cast a doubt on the existence of the requisite intention or mens rea which is a necessary ingredient of the offence." Muhammad Munir, C. J., agreeing, with Rahman, J., pointed out that "the prisoner in Woolmington's case was pleading an accident, and therefore, if he had succeeded in showing that there was a reasonable possibility, of the gun having exploded accidentally, proof of one of the ingredients of the offence of murder, namely, malice, would have been rendered doubtful and that doubt would have affected the whole case by making the general issue of the guilt of the prisoner doubtful. But in his charge, the trial Judge, Swift, J., had directed the jury to find the prisoner guilty of murder if they came to the conclu sion that the deceased woman died in consequence of the injuries from the gun which she prisoner was carrying, unless the prisoner satisfactorily proved that the explosion was accidental. This, as was pointed out by the Lord Chancellor, Viscount Sankey, in his speech to the House of Lords, was tantamount to requiring the prisoner to prove his innocence, which had never been the rule of English law . . . . . . . . . . . That case cannot, therefore, be taken to be an authority for the proposition that where an accused person relies upon an exception which causes what would otherwise be murder to cease to be murder, it is sufficient for the prisoner to show that on the facts the application for the exception to the case is doubtful." His Lordship further pointed out that even in Woolmington's case it was recognized that in cases of insanity the onus is exceptionally upon the accused and that the principle enunciated by the House of Lords was "subject also to any statu tory exception." Then, turning to cases of insanity, the learned Chief Justice said: "Since intention or knowledge is a necessary ingredient of the offence of murder as defined by sections 299 and 300 of the Penal Code, if the evidence relating to insanity is sufficient to cast a doubt on the question whether the act of the accused, which is alleged to be murder by the prosecution, was or was not done with the intention or knowledge mentioned in section 300 of the Penal Code, the case will fall within the category of those cases of which Woalmington's case is the leading example and the accused will be entitled to the benefit of that doubt because the doubt relates to an ingredient of the offence charged." These judgments lead to the following deduction; (a) that the Evidence Act places all Exceptions on a par, whether they relate to insanity, accident, self‑defence or grave and sudden provocation; (b) that the proof of the Exception is on the prisoner; (c) that if the evidence relating to the proof of the Exception casts a doubt on an ingredient of the offence, it affects the whole case and not alone the Exception; (d) that if no such doubt arises and the doubt relates only to the Exception, the prisoner has "not proved" his case; (e) that Woolmington's case is an example of the proposition stated in "(c)" above, and finally, (f) that even in Woolmington's case insanity and "statutory exception" were excepted. I now come to Safdar Ali v. Crown decided by the Federal Court. If I correctly understood the learned Assistant Advocate‑General, Lal Khan v. Crown was relied upon by the Advocate‑General in his arguments before the Federal Court. In that case, the prisoner raised a plea of self‑defence and Woolmington's case again figured prominently. Cornelius, J., writing the main judgment and referring to Viscount Sankey's observations with have been already quoted, observed "Malice, as an ingredient of murder, will not be presumed except where the Crown establishes (a) a voluntary act of killing, (b) intention to kill, and (c) absence of provocation. Even where these conditions are satisfied, the Court will not judge the case for the defence (e.g. of accident, self‑defence, provocation) and the case for the prosecutions irrespectively of each other, but the whole of the evidence will be regarded, and if then there be reasonable doubt as to whether the act of killing was either unintentional or provoked, the benefit will go to the accused person. "In reply to the Crown Counsel's argument based on section 105 of the Evidence Act as to onus and section 3 as to the standard of proof‑the belief of the Court guided by the state of mind of a prudent man as it reacts to a given set of circumstances‑His Lordships observed: "I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of `reasonable doubt' which obtains in English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged, i.e., to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established . . . . . . . . . If then art accused person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the prosecution most necessarily fail . . . . . . . . . . . . " So far, the line of reasoning is the same as appears in the final quotation from the judgment of Rahman, J. and the opening quotation from the judgment of the learned Chief justice. "The plea of self‑defence of the person" continued ills Lordship, "in a case of the present kind, is founded on the actuation of the accused by a totally different intention viz. to save his own life from imminent danger of extinction. On the facts alleged by the accused, he was so placed when the deceased delivered his opening blow, that evasive action would have been futile, and he had instantaneously to meet knife with knife if he was to come out of the encounter alive. In such circumstances, intention to kill would be wholly negatived by the instinctive reaction of self‑preservation. The law grants immunity to the extent that such reaction that dispropor tionate to the immediate danger . . . . . . . . A similar immunity is granted where the act is induced by grave and sudden provocation, and for a similar reason, namely, that under the stress of human feeling, an emotional reaction takes place which tempora rily occludes the formation of intention. As was observed by Viscount Simon L. C. in his speech in the case of Holmes (1946 A. C. 588), `the whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self‑control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived'." (In Holme's case, this observation is followed by the follow ing sentence: "Consequently, where the provocation inspires an actual intention to kill, such as Holmes admitted in the pre sent case, or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.") Continuing the subject of intention, Cornelius, J. further observed: "It is not easy to conceive of a person being actuated by more than one intention‑as the term is understood in criminal jurisprudence‑in relation to a single act, and in the circumstances alleged by and against the appellant Safdar Ali, duplicity of intention may be ruled out altogether." Reverting to the doctrine of "reasonable doubt" in Woolmington's case, Cornelius, J. proceeded: "The same pro position may be translated into the terms used in the Pakistan laws in the following way. The question being whether the Court should hold that the defence plea is untrue, it is neces sary to ascertain whether on taking a balance of the evidence and probabilities in the 'whole of the case', the falsity of the defence case is so probable that a prudent man would act on that supposition, i.e. setting the defence case aside he would proceed to consider whether the charges preferred by the pro secution were established 'on the whole case'. But supposing that the result of striking such a balance is different: the truth of the defence case may be questionable, but at the same time its falsity is not probable in the degree necessary for a prudent man to found action on the basis that it is false. This is precisely the state of 'reasonable doubt' referred to by the learned Lora Chancellor . . . . . . In such a state of mind, the prudent man could not set aside the defence case and the stage for considering the opposite case for the prosecution in relation to the evidence would not be reached." Finally, "since the burden of the general issue is on the prosecution from beginning to end, the provisions of section 105, Evidence Act, must be understood in the special sense that while all the details of an alleged criminal transaction are relevant to the case for the prosecution as being part of the res gestae and must be proved by the prosecution, yet the prosecution is under no duty to exclude defences which are open to the accused person, or to furnish proof of facts of a special nature having relevance only to particular defence which the accused either sets up or may set up." In a concurring judgment, the learned Chief Justice of Pakistan made the interpretation of section 105 easier to under stand: "In my opinion, section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him.' In respect of Woolmington's case, His Lordship made the following observations: "I am of the opinion that the decision in the case of Woolmington v. The Director of Public Prosecutions is in no way inconsistent with the provisions of section. 105 of the Evidence Act. In a criminal case, it is the duty of the pro secution to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence the Court is of the opinion that there; is a reasonable possibility that the defence put forward by the accused might be true, it 9s clear that such a view reacts on the whole prosecution case." In the succeeding paragraph it was reiterated that "the principles laid down in Woolmington's case, are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act." Mr. Manzoor Qadir explained that the words "in spite of", in this context, did not mean that notwithstanding the provisions of section 105 to the contrary; Woolmington's case governed the law of Pakistan, for, earlier in the judgment it was stated that the two provisions are not inconsistent with each other. The learned Chief Justice qualified his statement by adding that "the general observations made by me above shall not be taken to apply to any question relating to insanity as no such question arises in the present appeal." Shahab‑ud‑Din, J., in another concurring judgment, said: "That provision of law" (section 105) "was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be estab lished and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden and has only raised a reasonable doubt, the Court has to convict him in spite of the existences of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading. The decision in Woolmingron's case, is therefore applicable in this country, and, far from being inconsistent with section 1:05, it serves as a valuable guide for its interpretation . . . . . . . . . . To secure a conviction for murder, the prosecution had to establish in this case not only that the appellant inflicted on the deceased the injuries of which he died, but also that he was the aggressor and acted with the intention or knowledge requisite for the offence of murder. If in determining whether this burden was discharged by the prosecu tion the version of the accused appears to be reasonably possible, then a reasonable doubt pervades the whole case and the appellant becomes entitled to acquittal." The judgments delivered in Safdar Ali's case, maybe thus summarised: (1) Even when the prosecution proves all the ingredients of the offence of murder, including intention if on the whole evidence including the defence a reasonable doubt arises as to whether the act was unintentional or provoked, the benefit will go to the accused person (Woohnington's case). (2) Applying this principle to the Evidence if the pruden man of section 3 finds in the entire evidence a reasonable doubt'" as to an essential ingredient of an offence, such as the requisite intention, the prosecution must fail. (In one place, Cornelius, J. observed that the prudent man, "setting the defence case aside . . . . . . would proceed to consider whether the charges pre ferred by the prosecution were established on the whole case" but the rest of the judgment does not show that His Lordship intended the defence case to be set aside, for then "the whole case" would not be before the Court). (3) A plea of self‑defence is founded on the actuation of the accused, not by an intention to kill, but by an intention to preserve himself, and duplicity of intention is inconceivable. (4) In cases of grave and sudden provocation, intention is not formed and is excluded by an emotional reaction, (5) Section 105 of the Evidence Act was intended to make it clear that It was not the duty of the prosecution to prove that the case did not fall within an Exception. (Shahab‑ud‑Din, J., further said that the prosecution must prove that the accused was the aggressor, but "on the whole judgment." I think, His Lordship should be presumed to have treated aggression as part of intention) (6). The principles laid down in Woolmington's case are applicable with full force in Pakistan. (7) The general observations made by the learned Chief Justice should not be taken to apply to "any question relating to insanity, as no such question arises in the present appeal." This resume of the judgments in Lal Khan v. Crown and Safdar All v. Crown it is hoped. will make the argument of Mr. Manzoor Qadir intelligible. The argument was this: In the former case the High Court had held that under section 105 of the Evidence Act the burden of proving an exception was on the accused and that all exceptions are on the same level; while in the latter case the federal Court had held, in effect, that in cases of self‑defence the burden was not on the accused. Now since all exceptions are on the same level, the law laid down by the Federal Court in respect of cases of self‑defence must apply to cases of insanity. The contrary observation of the learned Chief Justice that questions relating to Insanity are not covered by anything said in his judgment was merely a precaution which, it is noticeable, was not adopted in the other two judgments. The law laid down by the Federal Court being the law laid down by the majority of the Judges, the remarks of the other two learned Judges should be fully applicable to cases of insanity. An alternative argument was presented thus: Muhammad Munir, C. J., had split section 4, P. P. C. into three parts; (1) prove unsoundness of mind; (2) prove want of knowledge as to the nature of the act; (3) prove want of knowledge as to the act being morally or legal wrong. When His Lordship said that "if the evidence relating to insanity is sufficient to cast a doubt on the question whether the act of the accused, which is alleged to be murder by the prosecution, was or was not done with the intention or knowledge mentioned in section 300 of the Penal Code, the case will fall within the category of those cases of which Woolmington's case is the leading example" he was confining his observation to the first part, but now the decision of the Federal Court affects the other two parts also. Mr. S. A. Mahmood, Assistant Advocate‑General, argued on the other hand that as regards the burden of proof in cases of insanity, Lal Khan v. Crown continues to hold the field, that the learned Chief Justice of Pakistan has expressly excepted cases of insanity, and further that since the principles laid down in Woolmington's case have now been held to be fully applicable to Pakistan and since Woolmington's case recognizes the distinction between insanity and other defences‑thus negatively laying down a principle in respect of cases of insanity we are bound, by the decision to Safdar Ali v. Crown, to hold that the burden of proof in the present case is on the accused. These arguments are attractive, and since the law laid down by the Federal Court is, so far as applicable, binding, it is necessary to ascertain what law, if any, has been laid down in Safdar All's case. In Fazal Illahi v. Crown (P L D 1953 F C 35) Their Lordships have prescribed the limits of applicability of their pronounce ments by declaring that their judgments "were not to be construed as laying down the law generally, but only as declaring the law in relation to the precise findings of fact reached or accepted or assumed by them." To hold otherwise, it was observed, would mean investing the Federal Court with legislative power. Their Lordships also quoted with approval the following observations of Lord Halsbury (L. C.) in Quinn v. Leathem: ". . . There are two observations of a general character which I wish to make, and one is to repeat what I have very often' said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for whom it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically front it." These weighty observations of the Federal Court of Lord Chancellor if I may say so with profound respect, founded as they are on a recognition of human limitations, have an invigorating effect on our legal system: they foster independence of thought and repel intellectual subservience. If this is clearly realized‑and this is not always clearly realized‑‑‑it will be possible to distinguish between pronouncements which are declarations of law and those which are mere generalization from particular facts the former being binding, the latter only entitled to respect, but not infre quently distinguishable on facts. Passing back now to the main points which I have sum marised as deductions from the two canes‑‑Lal Khan v. Crown and Safdar Ali v. Crown‑--I am of the opinion that the princi ple enunciated in items (1) and (2) of the Federal Court judgment is more or less identical with that in item (c) of the High Court judgment, if not actually based on it. According to the latter, if the evidence relating to the proof of the exception casts a doubt on an ingredient of the offence, it effects the whole case and not the exception alone. According to item (2) of the former, if the prudent man of section 3 of the Evidence Act finds in the entire evidence a reasonable doubt as to an essential ingredient of an offence, such as the requisite intention, the prosecution must fail. Thus in both cases, the result follows on a consideration of the entire evidence. Item (1) of the summary of the Federal Court judgment is very slightly different. it says that if on the whole evidence including the defence a reasonable doubt arises as to whether the act was unintentional or provoked, the benefit will go to the accused. Now if the word "provoked" is omitted here, the result will be the same as in items (2) and (c). When using this word Cornelius, J. had obviously in his mind the observation of Lord Sankey that "malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked." For in the Penal Code of Pakistan the proof of intention, for the purpose of proving murder, does not go hand in hand with the disproof of provocation. That Code first defines culpable homicide in section 299 and murder in section 300 as acts committed with a certain intention or knowledge and then expressly makes provocation the subject of an Exception, namely, Exception 1 to section 300, which states that culpable homicide is not murder if death has resulted from grave and sudden provocation. And on that basis alone can the first part of section 304 have any meaning, for the accused must, in the first instance, have intended to cause death, if he could be held guilty of culpable homicide, and if then he can show that he was gravely and suddenly provoked, he will have the benefit of the first part of section

301. It is for that reason apparently that, when in item (2) His Lordship, applied the Woolmington principle to the Pakistan law, he made no reference to the element of provocation. It is true that as stated in item (3) of the summary, Cornelius, J. further observed that the plea of self‑defence is founded on the actuation of the accused by the intention to save himself, not by the intention to kill, and that there can be no duplicity of intention; but His Lordship, so far as I can see, had in his mind the observations of Viscount' Simon relating to provocation in Holmes' case and those observations are based on the fact that "malice" of the British variety comprises both (i) intention and (ii) want of provocation. Self preservation is an instinctive action, as that term is understood in modern psychology, while intention is a voli tional phase of the mind, referring to an executive function of the will, an intelligent purpose to do a criminal act. When the wind blows litter and dust, we close our eyes instinctively, without any volitional effort. That His Lordship was using the word intention as suggestive of an instinctive action is supported by the following further remark in the same context: "In such circumstances intention to kill would be wholly negatived by the instinctive reaction of self‑preservation." But if I have failed to understand the true import of these observations, then since they do not lay, clown any principle nor refer to section

304. P. P. C., they must be understood as referable to English law and applicable to the particular facts of Safdar Ali's case and the particular state of Safdar Ali's mind. The principle which is enunciated in items (1) and (2) is not effected by them, and that principle, as I have already pointed out, is stated in item (c) of the High Court judgment. The view of the High Court has, therefore, not been overruled to this extent. As regards Woolmington's case, the Federal Court said that it was not inconsistent with the Pakistan law and that section 105 of the Evidence Act merely laid down that it was not the duty of the prosecution to disprove all possible defences available to the accused. If I understand this correctly, it means that the burden' of proving that the case does not fall within an exception Is not on the prosecution, and that is only a negative way of stating what section 105 itself states‑that the burden of proving an Exception is on the accused. What the learned Judges of the Federal Court emphasize, however, is that the entire evidence both for the prosecution and the accused should be examined side by side and allowed to react, each upon the other. If then the Court thinks there is a "reasonable possibility" that the defence might be true, the benefit should go to the accused. (Abdul Rashid, C. J.). If there is a "reasonable doubt" as to an essential ingredient of the offence, the prosecution must fail. (Cornelius, J.) Shahab‑ud‑Din, J. would appear to have gone a step further when he said: "The place of the accused may not be established, and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden and has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt". But he added: "The decision has to be taken on the entire evidence and not on the special pleading," and further restricted the scope of what he had already said by stating: "If in determining whether this burden "(the burden of proving the ingredients of the offence)" was discharged by the prosecution, the version of the accused appears to be reasonably possible, then a reasonable doubt pervades the whole case, and the appellant becomes entitled to acquittal". The High Court also, like the Federal Court, contemplated an examination of the whole case in one perspective, for as shown in item (c) of the summary, if evidence relating to the proof of the exception casts a doubt on an ingredient of the offence, it affects the whole case and not alone the exception, and that would be possible only if the whole case is examined together. I think we make no special effort simultaneously to examine the two cases, that of the prosecution and that of the accused. On the contrary, effort would be needed if we tried to block out the one case while considering the other. While the one case is in the "focus" of consciousness, the other is in the "margin", but we are aware of its existence. Mental processes relating to the same transaction cannot be isolated from each other, like sardines in one tin from sardines in another tin, both tins closed airtight. It is only in a subnormal mind (if mental experts know anything) that swarms of mental processes, each under a different label, float in abysmal confusion without reacting on one another. The High Court further said that if no doubt arises as to an ingredient of the offence, but that the doubt relates only to the exception, the prisoner has "not proved" his case, and there is no indication to the contrary in two of the judgments of the Federal Court. Shahab‑ud‑Din, J.. does say something which would appear to contradict the view of the High Court, but the scope of his view has been considerably limited by the more qualified language of the majority of the Judges and by other passages in his own judgment. The "reasonable pos sibility" as to the defence being true, contemplated in the judgment of the learned Chief Justice, appears to me to be different from a "reasonable doubt" as to whether the defence is true and is on a somewhat higher level of probability. In the one case a reasonable person will say: "I think it is quite possible that this happened". In the other case he should say: "I think it is doubtful whether this happened, but it may have happened" S. A. Rahman, J. observed that the burden of proof on the accused person would naturally be lighter, "not because the Act provides for different standards of judgment in so many words, but because the proof is made to depend on the subjective conviction of the prudent man, "thus following in view taken in Sodeman v. R. ((1936) 2 All E R 1138) that "the burden in cases in which an accused had to prove insanity might fairly be stated as not being higher than the burden which rested upon a plaintiff or defendant in civil proceedings", and in Rex v. Carr Briant ((1943) 2 K B 607) that the burden may be discharged by evidence satisfying the jury of the "probability" of that which the accused is called upon to establish. Even Shahab‑ud‑Din, J. said that "the burden cast on the accused under that section" (section 105) "cannot be as heavy as the burden rests on the prosecution". The difference to be bridged is thus difference between "reason able possibility") and probability and can, I am sure, be bridged by the elasticity of a prudent man's mind. But this is mere theorising. In actual practice, the mind vacillates for a time between two possibilities and chooses one of them. In the ultimate resort, it is a question of believing, or not believ ing and when we decide to believe the defence version, we disbelieve the prosecution. The springs of the human mind are not wound up like those of a clock, and it will be sheer pedantry to assume that its vacillative exertions bear any comparison with the oscillate precision of the pendulum. I should not hesitate to admit that the first impression which I had of the judgments in Safdar Ali's case was that they had overruled the decision in Lal Khan v. Crown, but the more I have tried to understand them‑and I confess I was slow to under stand the more I have become convinced that the only point Their Lordships wish to emphasize is that you must have the entire evidence in your mind, the evidence for the accused and the evidence for the prosecution, and allow the one to face the other squarely, that you should not be too pedantic about the burden of proof. In my original belief I had a vague feeling that these learned judgments would have the effect of repealing 14 section 105 pro tanto, but that feeling has ceased to harass me, as I now believe that apart from their main theme, incidental pronouncements therein may be classed with the "generality of expressions" of which Lord Halsbury spoke in Quinn v. Leathem; and which "are not intended to be expositions of the whole law". I, therefore, do not find it possible to accept Mr. Manzoor Qadir's argument that Safdar Ali v. Crown has altered the burden of proof. The Federal Court Is not a legislative body, and it could not have intended to lay down a principle repugnant to section

105. Further, the learned Judges have made no reference to Lal Khan v. Crown, a circumstance which indicates either that they do not disapprove of the views contained therein or that they regard that case as distinguishable on the ground of insanity. Then it is to be noticed that their Lordships have fully approved of the principles involved in Woolmington's case, and in that case itself it has been recognized that the "golden‑thread" rule of English law is not applicable to "insanity', and to "statutory exceptions". Now since under our own law the plea of self‑defence is no less a statutory exception than the plea of insanity. Their Lordships must be understood to approve of Woolmington's case subject to a mental reservation. And the principle laid down in that case was limited to a single sentence: "If at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to acquittal". The doubt that arises should thus relate to the question "whether the prisoner killed the deceased with a malicious intention", and malice being an ingredient of the offence, the doubt refers to an ingredient, not to the defence. This is the meaning of Woolmington's case and this is the meaning of Safdar Ali v. Crown. The burden of proof therefore remains where the Evidence Act intended it to be, where Lal Khan v. Crown has left it now, and since 1872 the Judges have applied it with such balance that there has perhaps been only one occasion when anybody has groaned under its heaviness. In the particular case of insanity, the law contained in section 84, P. P. C. is clearly based on the answers given by the Judges to the House of Lords in McNaughten's case (59 R P 85), the answer to the second and third questions being that "the jury ought to be told in all cases that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it that he did not he was doing what was wrong . . . If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable and the usual course therefore has been to leave the question to the jury whether the accused had a sufficient degree of reason to know he was doing an act that was wrong ; and this course we think is correct, accompanied with such observa tions and explanations as the circumstances of each case may require". The first question put to the Judges was whether a person afflicted with insane delusion is criminally liable if he does a criminal act knowing that it is contrary to law, but believing that he was redressing or revenging some grievance or injury, or that he was producing. some supposed public benefit, and the answer was in the affirmative. The fourth question related to a delusion as to existing facts, and the answer that if he labours under a partial delusion "and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self‑defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment." Applied to our law, the answers may thus be explained: If a person suffers from inane delusions, he has an unsound mind. It is assumed that notwithstanding such unsoundness, the cognitive faculty may not be impaired. If that be the case, he knows the nature of the act. But if he does not know it, as when he strikes a man's head, believing it to be a jar, he is 1 not liable. If he knows that it is a man's head, but strikes it all the same because he believes that he is saving the man from sin, then if he knows at the same time it is contrary to law, he is guilty ; but if he does not know this, he it is not guilty, because then he does not know that it is either morally or legally wrong. McNaughten suffered from delusions of prosecution. Believ ing that he was bounded by enemies, he shot and killed Drum mond, Sir Robert Poele's private secretary, whom he supposedly mistook for Peels. Medical evidence said that such a person might have a moral perception of right and wrong, but that in the case of the prisoner it was delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of exercising control over acts Which had connection with his delusion. The jury were told that he would not be guilty if they thought he was not sensible "that he was violating the laws both of God and man", but that he would be guilty if he was at the time of commission "in a sound state of mind". The verdict was "Not guilty, on the ground of insanity." Whether the jury based its verdict on the mere ground of insanity or on a further realization of the prisoner's incapacity to distinguish right from wrong is not clear. An ordinary jury would normally presume that if a person is of unsound mind, he does not know that what he is doing is wrong. It is possible that in most cases a jury is not assailed by such doubts as assail the more complex mind of a judge, who is made to assume that a person may be of unsound mind and yet may know what he ought and what he ought not to do. What I wish to point out in McNaughten's case, however, is that although the medical evidence indicated absence of perception of right and wrong, it also showed that "he was not capable of exercising control over acts which had connection with his delusion". Whether the motivation of conduct by an irresistible impulse is consistent with the formation of intention‑--an executive function of the mind‑is a matter which has made, me . . . . . .,. . uncons ciously introspective. This was recognized even before McNaughten's case, for Lord Hale wrote in the middle for the seventeenth century (Pleas of the Crown) that "the consent of the will is that which renders human actions either commendable or culpable; as where there is no law there is no transgression, so regularly where there is no will to commit an offence, there is no transgression . . . . . . . . : of him, Glueck says in his book "Mental Disorder and the Cri minal Law" (page 131) "Recognizing at the outset, as did Coke, that the defence of insanity is intimately related with the whole topic of criminal intent (a fact which his predecessors and successors only vaguely were aware of and which many modern judges wholly ignore), he began his inquiry by asking what makes the sane man responsible for his crimes." In most American States, notwithstanding that McNaughten's case has woven itself into their legal system, the effect of the disorder of the impulses upon conduct is taken into consideration. Thus in State v. Richards ((1873) 39 Connecticut, 591), where the defendant was tried for burning a barn, the trial Judge charged the jury as follows: "Your attention has been turned mainly to the question whether the act was done with the felonious intent charged, and this question depends mainly upon another, whether the accused has sufficient mental capacity to warrant as is in imputing to him a felonious intent". At page 242 of his book, Glueck quotes Stephen (History of the Criminal Law of England) in the following passage to show that according to him "the right‑and‑wrong rule laid down by the judges after McNaughten's case is broad enough to include the irresistible impulse doctrine". Stephen said: "The man who controls himself refers to distant motives and general principles of conduct and directs his conduct accordingly. The man who does not control himself is guided by the motives which immediately press upon his attention. If this is so, the power of self‑control must mean a power to attend to distant motives and general principles of conduct, and to connect them rationally with the particular act under consideration; and a disease of the brain which so weakens the sufferer's powers as to prevent him from attending or referring to such considera tions, or from connecting the general theory with the particular fact, deprives him of the power of self‑control. Can it be said that a person so constituted knows that his act is wrong? . . . . . . . Knowledge and power "(to control)" are constituent elements of all voluntary action, and if either is seriously impaired the other is disabled. It is as true that a man who cannot control himself does not know the nature of his acts as that a man who does not know the nature of his acts is incap able of self‑control." In another place, he repeats the same opinion in different words "By 'knowing either that an act is illegal or that it is morally wrong', I understand being able to judge calmly and reasonably of the moral or legal character of a proposed action; and . . . . . . . . by controlling his own conduct' I mean able to refer calmly and reasonably to those motives which would lead men in general to resist temptation to crime and to allow proper weight to them" But, if I may venture to submit respectfully for Stephen is a great authority‑he is somewhat over‑optimistic of the human mind, particularly of the criminal mind, if he thinks there is in all cases a calm and dispassionate reasoning before the crime is committed. The man who commits culpable homicide not amounting to murder, with the intention of causing death, (section 304, Part I, P. P. C.) receives a concession notwithstanding such intention because he temporarily loses the power of self‑control through grave and sudden provocation (Exception 1 to section 300). Can he, while deprived of self‑control, "judge calmly and reasonably of the moral or legal character of a proposed action?" While, therefore, it might be conceded that knowledge and power of control are the constituent ele ments of the voluntary action, it will not be agreed upon generally that knowledge includes the power of self‑control. Judges of fact in Pakistan cannot do more than juries in England, and a jury will not hold, whatever definition of knowledge you give them, that a person who cannot control himself does not know the moral quality of his act. Cases are not rare where a person was so repugnant to his enemy that the latter was carried away by an irresistible impulse to kill him right in the presence of witnesses, with full knowledge of the consequences. These difficulties that suggest themselves in relation to the close intimacy between intention and the power of control become more pronounced in cases of insane delusion and kindred phenomena like hallucinations and illusions. "A hallucination is a false sense impression. The patient hears a sound, or sees feels or smells an object that has no objective existence" (Glueck, page 296). Joan of Arc heard "voices". Ghulam Yusuf in the present case also heard somebody knocking at the door, as we shall presently see. "Mental analysis often discloses that these voices and visions refer to some of the patient's most intimate experiences, his fears, wishes etc., and only through such analysis can the real effect of such hallucination upon the patient's thought and conduct be estimated . . . Since the data of hallucinations are false, they seriously affect the patient's understanding of his environment and distort his experiences". Illusions are hallucinations, but while in the latter the sense organ is not actually stimulated, in the former there is an actual stimulus of the proper sense organ, but the impression is falsified by reason of some disorder of the brain. Thus a red spot of paint may give the patient an impression that he is looking at a red rose. "Delusions involve a false belief rather than a false sense impression and perception. They therefore constitute a disturbance of the higher activities of conscious mind, such as the weighing of evidence, formation of conclusions, passing of judgments. The most frequent forms of this system are delusions of grandure and delusions of persecution. In these cases, as the terms imply, the patients believe themselves to be great personages or the victims of sinister plots against their lives or fortunes." (Glueck, page 300). Now the judges in McNaughten's case assumed that they were dealing with a case of partial delusion in an otherwise sound mind and not all psychiatrists are satisfied with that assump tion. For they seem more inclined to the view that delusions express a condition of the mind as a whole and not of any isolated portion of it. Oppenheimer has collected a number of views in the following short passage cited by Glueck from his "Criminal Responsibility of Lunatics", pages 215, 216: 'The theory of Esquirol and of the English Law . . . is that an isolated delusion lies embedded, like a foreign body, in a brain which is and remains normal all round. As against this view, modern science endorses that simile of Jules Falret, who likens a delusion to a parasitic plant "which will not spring up and grow in an unsnitable soil, and the soil which is suited to it is insanity;" "let the soil be changed to one of sanity", rightly remarks Maudsley, "in other words, let the mind apart from the delusion be sound, and this will dwindle and die." Maine well echoes the modern doctrine if he says: "The delusion is the outward and visible sign of disease of the brain; but the disease must have preceded the delusion, and continues silently to vitiate the mind, sapping the reason, warping the intelligence, and perverting the emotions" . . . . . . . Indeed, one would have thought that a very simple argument ought to have sufficed to show that, however narrow the limits within which insanity may appear to move, the intelligence is nevertheless in toto obscure.' Secondly, when the Judges in McNaughten's case said that delusion will excuse only if it could excuse on the assumption that "the facts with respect to which the delusion exists were real" for example, if under the influence of delusion the prisoner supposes another man to be in the act of attempting to take away his life they assumed that, apart from the particular delusion, he was capable of reasoning to himself that an act in self‑defence was not a moral or legal wrong. This is more than can be said of a mind whose reasoning power is impaired, Stephon thought a delusion may by itself be "evidence of disease affecting the mind other than by merely causing a specific mistake". (Ibid, page 157) and many of us would be inclined to agree with him. At least, since we have not had the benefit of a personal experience, we might well conceive of the existence of a mind either impaired by delusions or producing delusions because of being impaired. It seems to me, therefore, that, wherever the burden of proof lies‑--so long as it does not lie merely in the Evidence Act, so long as it lies in the mind of a prudent man‑it will not be safe to approach a case of insanity without some such mental equipment as follows. (1) While weighing the evidence we should bear in mind that the intention to do an act implies some sort of a resolve and that an unsound mind may be so impaired as to deprive it partially or wholly of the power of making a resolve. (For the first time in the case‑law of India and Pakistan, this seems to have been clearly realized in Lal Khan v. Crown) (2). The processes of the human mind cannot be divided into compartments, and a delusion, illusion or hallucination may be evidence of a state of total disrepair. Beyond this, it is impossible for me to speculate. We have had the advantage of being taken through a large number of cases of insanity on both sides, but as most of them did no more than convey to us the impressions of the judges as to evidence in each particular case. I shall cite only a few of them. In Emperor v. Harke (1906 Cr. L J 88), a Sadhu dashed a boy's head thrice against a parapet, believing that she goddess Shakti had told him that if he killed some one, she would appear to him in person. He admitted it was wrong to kill and threw the burden on the goddess, who naturally declined to interfere. The doctor said his delusions had resulted from excessive use of Mang and charas. Thus, although his act was insane, he had not lost moral values and we would be prepared to convict him even today. But in Dil Gazi v. Emperor (I L R 34 Cal. 687), where the prisoner had killed his wife, under the delusion that she might elope, he was acquittal in the following circumstances. A month and a half before this incident, he had given up attending to his cattle and crops, had been chasing and abusing people without pro vocation, wanted to die as he thought people were going to loot his house, climbed up a tree looking for his pillow. It was held that his previous conduct showed failure of reasoning powers. "In view of the uncertainty that always exists as to how far a deceased's state of mind extends and in view of the difficulty that is never absent from cases like this, of obtaining trustworthy evidence, we find that the facts on the record prove that the unsoundness of his mind prevented him from knowing the nature of his act, and that it was wrong." In Chajju Mal v. Emperor (1910 Cr. L J 105), the prisoner bad killed a girl of two years without any motive, and the medical expert said he "must have been insane" because he was of blameless antecedents. But it was found that since he had sent away a boy to buy sweets in order that he should be alone with his victim, his conduct indicated premeditation. He made a con fession which showed that he knew his act to be wrong. Soon after the murder he recollected everything when examined by a doctor and behaved rationally. The learned Judges, Robertson and Rattigan, held him to be guilty and relied on the following observations made in Queen‑Emperor v. Kader Nasyer Shah (I L R 23 Cal. 604): "We learn, however, from medical and legal authorities who have considered the subject of responsibility in mental diseases . . . . . . that insanity affects not only the cognitive faculties of the mind which guide our actions, but also our emotions which prompt our actions, and the will by which our actions are performed. It may be that our law, like the law of England, limits non‑liability only to those cases in which insanity affects the cognitive faculties, because it is thought that those are the cases to which the exemption rightly applies; and the cases in which insanity affects only the emotions and the will, subjecting the offender to impulses whilst it leaves the cognitive faculties unimpaired, have been left outside the exception, because it has been thought that the object of the criminal law is to make people control their insane as well as their sane impulses, cr to use the words of Lord Justice Branwell in Begina v. Humphreys, to guard against mischievous tendencies and homicidal impulses. Whether this is the proper view to take of the matter . . . . . . is not for us here to consider." On the other hand, "it might be said of our law, as it has been said of the law of England by Sir, J. Stephen, that even as it stands, the law extends the exemption as well to cases where insanity affects the offender's will and emotions as to those where it affects his cognitive faculties, because where the will and the emotions are affected by the offender being subjected to insane impulses, it is difficult to say that his cognitive faculties are not affected. In extreme cases that may be true, but we are not prepared to accept the view as generally correct that a person is entitled to exemption from criminal liability under our law in cases in which it is only shown that he is subject to insane impulses, notwithstanding that it may appear clear that his cognitive faculties, so far as we can judge from his words and acts, are left unimpaired." It may be conceded that a mere insane impulse will not excuse. In Vithoo v. Emperor (1912 Cr. L J 164), the prisoner who was insane through ganja smoking, killed his wife and confessed. Medical examination showed that he was not deranged. There was no evidence of insanity before the act. The confession showed full possession of faculties and clear recollection of what he had done. It was held that this was an extremely temporary form of insanity induced by ganja, and not the type of un soundness spoken of in section 84, P. P. C. In Chinna Ureon v. Emperor (45 All. 329), the prisoner killed his uncle and confessed. He thought he was being taken by the villagers for sacrifice and that his uncle had not rescued him. So, evading his capture, as he thought he had returned and in anger killed his uncle. It was insane delusion, and it was held, in consonance with the answer given in McNaughten's case, that he was in the same position as to responsibility as if the facts of his delusion were true. If those facts had been true, he would have no right to kill his uncle merely because the uncle have not saved him. In Emperor v. Mst. Anandi (45 All. 329), the prisoner woman killed a girl who was alone with her in the house. She closed the door before killing, hanged her skirt after killing and tried to wash, but she did not remove or conceal the dead body which remained opened to view. When other women of the house came, she opened the door and upon being questioned, said she had destroyed "Poorna's issue". It is not clear whether there was any such person as Poorna. She then attempted to run away, but was arrested. Shortly after, she was found insane and was kept in the hospital and asylum for ten months. There was some family history of insanity. There was also evidence that even before the murder she occasionally went out of her mind. There was no motive. It was held that this was sufficient to show that she was not accountable for her actions when she killed the child. It is idle to multiply cases, but the following two may be more useful than others. In Dewa Ram v. Emperor (1937 Lah. 436), the accused had killed his wife and daughter. Some months earlier he had lost a son of six or seven years, for whom he had extraordinary affection, and had become unhinged. Gradually, he became incoherent, spent sleepless nights and tried to kill himself. A day before the murder he climbed up a tree and roosted there, informing people he was sitting with his son. After killing his wife and daughter, unnoticed by anybody, he went to his brothers, four kos away, and told them what he had done. He admitted his act at the trial but said he came to know only when his face struck a well and his nose began to bleed. There was no helpful medical evidence. A Hakim had once treated him for Neurasthenia, which, he said, was not insanity, but which might lead to it. The Civil Surgeon thought his sitting on the tree might be evidence of delusional insanity. The learned Judges observed that it is obviously difficult to know the precise state of an offender's mind at the titre of commission of the offence, but that some indication is furnished by words and conduct attending the commission, which were lacking here. Other circumstances, however, indicated that he did not know the nature of his act and as there was no motive, his own statement on this point may be accepted. In Emperor v. Gedka Goala (1937 Pat. 363), the accused killed his wife, two daughters and a son, after having shut the door of his house. Soon thereafter, he met his brother‑in‑law and told him he had killed others and would kill him also. But this man escaped. Next he met a person whom he asked for water and poison because he had killed other's and wanted to kill himself. This person asked him for his weapon, but the accused, declining said he would first go to a certain place which he named and kill his brother and sister‑in‑law. He did go, but they escaped. These circumstances were held to constitute " knowledge" of the nature of the act. Next, he made a con fession which showed a vivid recollection of what he had done, but the reason he gave for his conduct was that the neighbours called his wife a witch and him an ojha, that they wanted to kill him and his wife and used to catch them and bring them back when they tried to escape, etc., "Then what did God do to me, whether some evil spirit possessed me, or what happened I do not know." The learned Judges held this showed his moral perception of right and wrong, and quoted with approval the following remark from Queen‑Empress v. Lakshman Dagdu (16 Bom. 512): "If he was conscious of the nature, he must be presumed to be conscious of its criminality." In that case a dis tinction was drawn between a paralysis of the will by insane impulses and a paralysis of the mind in the sense of being incapable of knowing the nature of the act or that it was wrong or contrary to law. The following remarks of Lord Branwell in Regina v. Haynes were also reproduced, "Motives exist unknown and innumerable which might prompt the act. A morbid and restless (but resistible) thirst for blood would itself be motive urging to such a deed for its own relief. But an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it." This will be true only if the irresistible impulse is an isolated phenomenon and can be examined by the patient in retrospect, with an eye as to the safeguards. It is now time to examine the facts of the present case. We have seen from the statement of the deceased wife, Sahira Rashida, that her husband the appellant was addicted to cocaine and that as she and the children were in the habit of remon strating with him on this account, he was quarrelsome. She says nothing about insanity but there is ample authority for the view that insanity may be induced by cocaine and other drugs. (See Emperor v. Bhalika (29 Cal. 493), Modi's Medico‑legal Jurisprudence, page 664, Glaister's Jurisprudence, page 622.) The deceased was in the threes of death and could not be expected to throw any light on her husband's conduct in a brief statement. The children, who are all witnesses of the occurrence, who are un willing to save their father. Thus Mahmuda (P. W. 12) denied in her cross‑examination that her father's brain "went wrong" though her statement to Mr. Khurshid Ahmad, Magistrate, on the very day of the occurrence showed that "he used to take medicine in a betel leaf" and that "the illness had told upon his brain." Liaqat Hayat, the son (P. W. 4) maintained that his father had worked for a month in Satrah as girdawar before this incident took place, and was working "regularly" that is to say, as a normal person, though his letter Exh D. B. which he wrote to his uncle on the 30th March, 19A, twenty four days before the occurrence, describes his father as any but a normal person. At the stage of committal, Liaqat made an application to the Magistrate (page 175 of the committing Court's file) that their servant Ramzan, who was a witness of the incident, had been won over by "the opposite party" and that consequently he should not be examined. Ramzan was, therefore, not examined. These matters leave no room for doubt that we cannot look for impartial evidence in this quarter. They are also a guarantee against the letter Exh. D. B. being a subsequent forgery, intended to help the appellant. Its contents were admitted by Liaqat, who attempted to explain them in his own way. To understand this letter, it should be explained that the appellant had remained under suspicion for four or five months and had been prosecuted for sending a false telegram to the Additional District Magistrate that his reader, Sh. Abdul Hamid, had received seven donkey‑loads of corn as a bribe. Since he was acquitted in this case only on the loth. of May 1951, quite some time after the present incident, it is doubtful whether he could have been re‑instated before that date. No official records have been made available, but Liaqat says his father was re‑instated on the 28th or 29th March 1951, and since his re‑instatement is mentioned in Exh. D. B. we might accept Liaqat's testimony. I shall reproduce only the most relevant matter from this letter. "Orders of my father's re‑instatement have been received, but he refrains from doing his work. He is a cause of worry to us. He indulges in discussion with people, standing on the roads. He sits up all night and reads. He often beats us and says we poison his food. He is quarrelsome as a rule. He engages in controversy with the Deputy Commissioner in Court. It is said that the order of reinstatement will be withdrawn if he does not join. He walks about with his gun throughout the night. We fear lest he shoot himself" He slips away from the house and goes to Lahore. The people at Lahore send him back and he goes back. One day he started burning currency notes. One note of ten rupees was scorched and we saved the others. At this he remarked that we love money more than father. He was about to burn his clothes by pouring oil over them, but somebody turned up (and saved him). Then he left for Egypt, but returned from Gujranwala. If this is not disease, then what is it? You said he was not ailing. Come for God's sake, for your failure might bring dismissal to him from service, with consequent bankruptcy of the family." As I have already noticed, the Jail Superintendent kept him under observation from the time of the incident to the 18th of May 1951, and then transferred him to the Mental Hospital. While in jail, Dr. Hamid Musa (P. W. 1) suspected him of "some mental derangement." In the Mental Hospital he remained for seven months, under the observation of the Medical Superintendent Dr. Ahmad Shafi (D. W. 2). His observations are contained in Exh. D. W. 2/1, at page 21 of the paper book, and may be summarized as follows:‑ 19‑5‑51‑Very talkative. Says his wife has been snatched by his brothers who have shot his son. Says he is being pursued by them and beaten. Not sure of the day of the week and gives the date as 27th April 1949. 20‑5‑51.‑Cries for his wife, whom he wants to see and thinks she is alive. 22‑5‑51.‑Says his wife is still alive. He admits having fired shots at Satan. (It may be assumed that the doctor was questioning him as to his wife and the shots he had fired). 26‑5‑51.‑Thinks his wife is alive. Does not believe that he shot his son and his wife. Cries for trifles. 27‑5‑51.‑No "insight" (recognition of one's illness.) Says his friends have deceived him and enticed his wife. 29‑5‑51.‑Says he is subservient to the will of God, and that he killed his wife under the orders of God. Cries frequ ently. Is not quite certain about the fate of his wife and son. 2‑6‑51.‑Talks of great devotion and love for his wife, whom he believes to have been snatched by his friends. 10‑6‑51.‑Cries. Says his wife is dead and his friends have taken her away. Abuses his friends and gets excited while talking. 11‑6‑51.‑Had an interview with his brother who brought him fruit. He would not eat, thinking it was poisoned. Asked him to return his wife. Said he saw her daily, walking about in hospital. 19‑6‑51.‑ Cries for his wife and son. Feels for his children. 23‑6‑5I.‑Says his wife is in possession of his friends. How could he tell her? No one would tell her. 27‑6‑51.‑Today says he killed his son and wife in obe dience to the will of God, like Hazrat Ismail. Cries, says he has not done any thing evil. 1‑7‑51.‑Says he thinks he killed his wife because he is told that he did so. 11‑7‑51.‑Says he must have killed his wife because on that night, after tahajjud prayer, he got a hint from God that he should sacrifice his dearest thing. As his wife was the dearest thing, he may have fired at her and at his son. bit he did not remember what he did. Says he sees his wife daily in hospital. Admits having taken cocaine for three months to keep off sleep, as he was afraid of his neighbour, Hameed, who was trying to involve him in cases. (This neighbour is the reader to the Additional District Magistrate, against whom he was supposed to have sent a telegram.) His talk is quite sensible except that he sees his dead wife and other relatives. Dr. Ahmad Shafi has stated D. W. 2 that even in February 1951, about the second or third week, he had occasion to examine the appellant at the shop of Messrs Fazal Din & Sons Chemists of Lahore, who, as other evidence discloses, are friends of the family. He found the appellant insane and advised Hospital treatment. In that condition, he adds, it was impossible for the appellant to do his normal work, though he could distinguish relatives from strangers. In the Hospital after the event, the appellant suffered from delusions and hallucinations. It was not a case of feigning. Dr. E. L. Dieck (D. W. 1), a highly qualified private practitioner of Lahore, examined the appellant first in the middle of February 1951, and again on the 21st February. On the first occasion he was in a depressed condition and would not talk. He told the doctor that somebody wanted to kill and poison him and that he remained awake throughout the night. On the second occasion, the doctor found him much excited, sometimes weeping and sometimes praying. He was not normal, but the doctor cautiously observed that "it was very difficult to say that he was insane." It is unnecessary to examine other evidence in respect of the period preceding the incident; for we have no doubt from the subsequent history that the appellant was of unsound mind both before and after the incident. As to the time of the occurrence, although S. I. Feroz Khan (P. W. 14) says he found nothing strange in the appellant, and that he made intelligent answers, Habib Ahmad (P. W. 10), a neighbour who is a havaldar in the Military Accounts Department, thought he was insane. Liaqat's account was as follows. At 5 p.m. he found the appellant lying in a room and he gave a watch to the appellant after having got ft repaired. He saw the appellant taking cocaine, and told his mother. She went in and remonstrated and was followed by all the children, who also remonstrated. The appellant became quarrelsome and turned everybody out. At khuftan time he came out and inquir ed of Liaqat if he had closets all the doors. Having satisfied himself as to this, he took all the keys and went in, closing the doors behind him. The wife and children slept in the verandah. The appellant again came out and sat on Liaqat's bed, asking him to put the radio on. Liaqat told him it was late for the radio and, besides, the radio was out of order. He replied that all the radios would soon be set right. He was holding his gun and then returned to his room chaining the door from inside. At 11‑30 p.m. the deceased who was praying on the musalla asked Liaqat to see what his father was doing, and lifting himself to the ventilator, Liaqat saw that the appellant was taking more cocaine. The deceased then knocked at the door whereupon the appellant loaded his gun and stood up. He did not open the door and she went back . . . . . At about 3 a.m. the appellant shouted to Liaqat to wake up. Liaqat woke up but pretended to be asleep. The appel lant then told the deceased that some one was calling from outside and that she should open the door as Liaqat was not getting up. She asked him to see what time it was and the appellant spoke from his watch that it was 3 a.m. After some argument, the deceased asked Liaqat to open the door and while he doing so, the appellant fired. We know the rest of the story from the deceased's statement, but Liaqat adds that while he lay injured he asked his sister to find the keys which he had dropped so that he might go out and fetch a doctor, and that thereupon the appellant had shouted that "we should wait and he would call the doctor soon." Saying this, he opened the door and fired again. Before the firing was over, the appellant asked his children to go out and fetch the police "or some other high officials." He also told them, quite inconsistently, that he would open the door himself in the presence of these officials. He then again fired and hit Liaqat. About this time the police officer knocked at the door. The appellant then placed the gun on a bed, and one of the girls handed it out to the police officer through the window. The appellant then opened the door of the house and admitted the police and others on Before commenting on this evidence, I should reproduce the appellant's statement also. In the committing Court he denied knowledge and told the Magistrate he should "ask God". During the trial, he admitted ownership of the gun but denied having knowledge of the incident. He, however, gave a history of his misfortunes. He belonged to Kalanaur in Gurdaspur district and had built a bungalow in Gurdaspur. He had left it behind, with 30 acres of land. After the parti tion he was posted to Shakargarh. He exchanged his property with a certain Lala Kidar Nath whom he had paid Rs. 500 in addition, but the district authorities had refused to give him possession of the property. His father, a retired Tehsildar, fell ill and died in 1948. He was very, dear to the appellant and his death shocked the appellant. He took leave and applied for retirement on the ground that his brain was affected by shocks. He contributed Rs. 4,600 to a joint business and met with loss. His brother, a Divisional Pay Master, became involved in embezzlement, and the appellant had to pay Rs. 7,000 for him. He spent a lot of money on a hotel at Sialkot which was allotted to him, and the allotment was cancelled two months later. On top of all this came Sh. Abdul Hamid, reader to the A. D. C., a neighbour. There was a theft in his house and tie suspected the appellant. It was all that the appellant could do to save himself from arrest. Later, Abdul Hameed wanted to kill him and he sent thieves to the appellant's house in April. He spent about nine months keeping awake. Then Abdul Hameed received some wheat in bribe and somebody sent a telegram to the A. D. G. in respect of it. The appellant, however, was arrested in November 1950, for sending that telegram, at the instance of Abdul Hameed. He was suspended. He became insane on account of these worries. And we are not surprised. We have known people losing mental balance when they are tested "with something of fear and hunger, some loss in goods or lives or the fruits of their toll" (Quran, II, 155), and we have not been surprised. But we are surprised at the argument of the learned Assistant Advocate‑General that throughout the night of 23rd March Ghulam Yousaf was a conscious and voluntary agent and that he played a rule with Liaqat when he sent Liaqat to the door. According to the learned counsel, the motive behind the appellant was resentment at being remonstrated with for taking cocaine, arid in order that he should not be disturbed, he took the precaution of closing the door behind him and even of loading his gun. But who was disturbing his cocainism at three o'clock in the morning? It is argued that in actual fact there was no knocking at the door, but that the appellant wanted to send Liaqat to the door in order that he should shoot him. Why it was necessary to shoat him from behind and what prevented the appellant from shooting him in bed is not clear from this argument. It was also suggested that as the deceased was sitting on the musalla, the appellant was perhaps prevented by religious scruples from shooting her, and therefore adopted devices to cause her to go to the door. These are arguments of no weight and I mention them merely to show that there exists no better explanation for the abnormal conduct of the appellant For there is generally a reason for doing everything, and it is' not regarded a good reason that a sensible person should try to kill his son and wife at three o'clock in the morning be cause nine hours earlier they told him it was an evil habit that had seized hold of him. That a man should kill his wife and try to kill his son without any reason at all is itself a circumstance pointing strongly to an unhealthy state of mind. Then it was argued that what the appellant did, showed an unimpaired cognitive faculty. He knew that doors have to be locked at night, that the keys of the locks have to be kept by him, that when somebody asks him for time, he has to look at his watch and tell him what time it is, that he knew how to load a gun, how to take aim, that he knew that he had done something which made it necessary to send for the doctor and the police, that he had to be arrested by the police, that he was important enough to be arrested by a "high official." While these circumstances may well be regarded in other surroundings as evidence of knowledge of the nature of the act, there are in the present case other circumstances which point to an extremely confused state of mind, such as we sometimes experience in a dream. I am convinced that the appellant did hear a knock at the door, though there was no knocking. This is a clear instance of hallucinative activity, quickly followed by delusions. For months together the appellant had kept waking lest he should be taken unawares by his enemy next‑door, Sheikh Abdul Hameed When his wife knocks at the door earlier in the evening, he stands up and loads his gun, not because he does not wish to be disturbed, but because he fears that the enemy has coma. At three o'clock, he has a false perception as to the knocking at the door. If he were in possession of his reasoning power, this was exactly an occasion when he should not have got the door opened. Then, before it is opened, he believes something to have happened which necessitates the use of the gun. I can only speculate as to this belief in the appellant's mind for the only alternative to it is an irresistible impulse to do violence, and there is no indication of it in the earlier or subsequent history. For quite a long time in the Mental Hospital he believed his wife to be alive and to have been, taken away by his friends. It was only when repeatedly told about her death that he believed he may have killed her "because everybody said so". But if he did kill her, it was because he had received a hint from God after his Tahajjud prayer that night, and we know from evidence that his tahajjud was vastly superseded by cocaine. There are consequently indicated in his case more delusions than one, jumbled up indistinguishably, leaving him little scope for the exercise of reasoning power. He was firing and wounding, and yet assuring the injured that he would bring a doctor. It may be that he thought someone else was firing. He asked his children to go and fetch the police, and himself opened the door for the police officer to come in. Why is it necessary to think that it was in realization of the wrong caused by himself that he displayed such anxiety for the arrival of the police? We welcome the presence of authority in situations of gravity, and it might be that the appellant thought that since there had been shooting, whether by himself in self‑defence or by another, it was an occasion which called for the presence of the police. There is no evidence, however, that he admitted or regretted having done anything. We have come across cases where at some stage or other, at least after blindly hitting a wall with his nose, the prisoner has come to realize the nature of his act, but the prisoner before us does not know up to this day that he consciously killed his wife. The loading of a gun and firing it, the looking at a watch and giving correct time, the taking charge of keys and the inquiry into tile health of a radio set‑these and other things are accomplished by the force of habit, often without any voluntary effort. But what is the explanation for the appellant's belief that "all radio sets will soon be set right? "How is the appellant's paternal affec tion, demonstrated by his sitting on Liaqat's bed and asking him to switch on the radiogram, consistent with any intention to shoot him? The only circumstance in evidence that goes against the appellant is the statement of the police officer that he found the appellant normally intelligent, nothing "strange or unusual" about him. It is a different matter to believe this officer because he is "disinterested", but is it possible to conceive of a normal person calmly welcoming a sub‑inspector of police after shooting his son and wife? Assuming that what he says is true, the appellant did not behave as a normal person does, as though he had done anything unusual, as though he had done anything. I am not able to say what exactly that state of his mind was, but I am convinced that, although he may have known that he was shooting, he did not know teat he was shooting his wife or son. He had not even know that he had killed one of them. The appellant has, therefore, succeeded in discharging the burden laid upon him by section 84, P. P. C. irrespective of the fact that it is extremely doubtful whether he could have formed H any intention to kill his wife. The appeal should be accepted, the appellant acquitted and the sentence of death not confirmed. In accordance with the provision of section 471 of the Code of Criminal Procedure we direct that the appellant be detained in the Mental Hospital at Lahore and that a report to this effect be sent to the Provincial Government. MUHAMMAD JAN, J.‑--The facts of this case have been stated by my brother Kayani, J. and need not be recounted. In my opinion, they clearly show that by reason of unsoundness of mind the appellant was incapable of knowing the nature of his act when he fired at his wife and son and that if he knew what he was doing he did not know that it was wrong or contrary to law. The learned Sessions Judge has said in his judgment at page 49, line 18 of the paper book that:‑ "There is no doubt that it was the duty of the accused to prove this plea of insanity. It was for him to establish that at the time of this occurrence, he was of unsound mind. He has miserably failed to prove that contention of his." Even if the view of law taken by the learned Sessions Judge were correct, I would say that this is one of the rare cases in my experience where the accused has succeeded in proving his plea. In dealing with the evidence adduced on his behalf the learned Sessions Judge has made the following observation at page 52 line 27 of the paper book:‑ "The learned counsel for the accused wanted to prove that the accused was insane before and after the occurrence in question. From that he wanted that the Court should presume that the accused was insane at the time of this occurrence as well. I do not find and force in this argument of his. It was the duty of the accused to prove specifically and clearly that he was insane at the time of this occurrence. The fact that he was insane before or after the occurrence does not help the accused." Apart from the correctness or otherwise of the view expressed by the learned Judge that it was the duty of the accused to prove specifically and clearly that he was insane at the time of the occurrence, I am unable to understand how he could have done this except by showing that he was insane before and after the occurrence. According to the learned Sessions Judge, it was the duty of the accused to affirmatively prove that he was, by reason of unsoundness of mind, not only incapable of knowing what he was doing, or of distinguishing right from wrong, immediately before and after the occurrence but that he was incapable of doing so even at the moment when he actually pulled the trigger or caused the injuries. The mental condition of the accused at the, time of the commission of the crime can only be inferred from his conduct and state of mind before and after the occurrence. The evidence led by the prosecution arid the defence in this case clearly leads to the inference which exonerates the appellant from liability by virtue of section 84 P. P. C. The prosecution evidence has been sufficiently dealt with by my brother Kayani, J. A brief resume of the defence evidence may also be given. Twelve witnesses were produced on behalf of the appellant. Dr. E. L. Dieck, M. D. (D. W. 1) deposed that he examined the appel lant twice in February 1951. He was in a depressed state of mind on the first occasion anti it took the doctor a long time to make him speak. He then said that people were out to kill him and he could not sleep. On the second visit, i.e., on 21st February 1951, the appellant was excited and "sometimes he wept and sometimes he prayed". His conversation was not coherent and, in the opinion of the doctor, he was mentally unbalanced and showed a tendency towards violence. Dr. Ahmad Shafi (D. W. 2), Superintendent, Punjab Mental Hospital, also saw the appellant in the middle or towards the end of February 1951. He was in a state of elation and said that God talked to him. The doctor considered him to be a mental case and advised treatment in the hospital. This was not done and the grime was committed on 24th April 1951. From the next day, i.e. 25th April 1951, the appellant was kept under observation of jail by Dr. Hamid Musa who found it necessary to send him to the Mental Hospital on 19th May 1951. He was not considered fit to stand his trial until seven months after, i.e., lath December 1951. The doctor in charge of the Mental Hospital has deposed that the appellant was not feigning during this time and the record of his observations, Exh. D. W. 2/1, which has been referred to by my brother Kayani, J. dears ample testimony to the derangement of the appellant's 'hind. To quote only two observations, on 22nd May 1951 the appellant said that his wife was alive and he had fired at Sarah. On 27th June 1951, he said he had killed his son and wife in obedience to God's order, like Hazrat Ismail. He cried and said that he had done no evil. Captain Iqbal Hussain Medical Officer, Mayo Hospital, Lahore (D. W. 4) saw the appellant in the beginning of February 1951 and found that he was suffering from hallucinations. He saw him again in the third week of April 1951, i.e. a day or so before the occurrence, and found that his condition had deteriorated and he was excited and violent. He advised that the appellant should be sent to the Mental Hospital at once but even now this was not done. Captain lqbal Hussain had specialised in mental diseases and had worked as a mental specialist in the Army for a year or more. Mr. Moiz‑ud‑Din, Deputy Superintendent of Police, was in Lahore in April 1951. He knew the appellant and said that he wag mentally unwell. To the same effect is the evidence of Sheikh Naseer Ali, Group Officer, C. I. D. Punjab, (D. W. 6). Muhammad Yahya, Superintendent Jail, (D. W. 7), deposed that the appellant was kept in the District Jail at Sialkot for some time and he had occasions of seeing him with the Assistant Medical Officer of Jail. The appellant was kept as a mental case in the hospital. Ghulam Nabi (D. W. 10) went to the appellant's house a few days before the occurrence and was asked to put his ear to the wall and hear the noise made by thieves trying to break into the house. There were no thieves. Munawar Ali (D. W. 11) is married to the daughter of the appellant and went to his house with the police shortly after the occurrence. According to him, the appellant was insane at that time. Haji Muhammad Yasin (D. W. 12) is married to the sister of the appellant. He looked after him and had him seen by several doctors. According to him the appellant's condition was bad in the months of March and April 1951. On 22nd April 1951 he look the appellant to Doctor Iqbal Hussain who advised treatment in the Mental Hospital. All this evidence, read with the evidence for prosecution, leads to the irresistible conclusion that the appel lant killed his wife and injured his son in a fit of insanity when he did not know what he was doing or that what he was doing was wrong or contrary to law. But even this evidence did not positively prove that the appellant was mad when h committed the crime, I am clearly of the opinion that there is a I reasonable possibility that the defence put forward on his behalf might be true. There is no difference between the plea of insanity and any other exception recognised by law in Pakistan and the evidence regarding insanity in this case is sufficient to cast a doubt on the question whether the act of the appellant was done with the intention or knowledge required to constitute the offence of murder. The appellant is therefore, entitled to the benefit of doubt and I agree with my brother Kayani, J., that this appeal should be allowed. Section 470, Cr. P. C., requires that whenever any person is acquitted on the ground that at the time when he is alleged to have committed an offence he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not. Our finding is that the appellant did commit the acts alleged against him and, in accordance with the provi sions of section 471, Cr. P. C., we order that the appellant be detained in safe custody in the Mental Hospital at Lahore, in accordance with the rules framed by the Local Government, and that a report of this order be made to the Provincial Government. A. H. Appeal accepted.