Akhtar Zaman Malghani, J.--By this judgment, we intend to dispose of Criminal Appeal No, 50 of 2004 and 75 of 2004 as identical questions of fact and law are involved in both the appeals. By means of impugned judgment the appellant Said Muhammad was found guilty under Section 9(c) of the Control of Narcotic Substances Act, 1997 (herein-in-after referred to as Act, 1997) and sentenced to imprisonment for life with fine of Rs, 50,000/- or in default thereof to further undergo six months S.I. The Suzuki Van bearing Registration No, ZBT 422 allegedly used for transportation of charas was also confiscated in favour of the State. Appellant Muhammad Akbar, who claims to be owner of the said Suzuki Van, has also filed appeal against the order of confiscation.
2. Briefly stated, facts of the case are that on 20.3.2003 a case under Section 9 (c) of the Act, 1997 was registered in Police Station Sariab on the report of Abdul Rauf Barech IP/S.H.O. vide FIR No, 57/2003 wherein it was alleged that on the said date after receiving information about the transportation of charas, a blockade was arranged at Over-head Bridge, Sariab Road. At about 7:30 p.m a Suzuki Van bearing Registration No, ZBT 422 driven by Said Muhammad came there which was stopped. On checking three cottons containing 12 Mobile Oil tins were found in the vehicle. On further checking of the tins charas was recovered weighing 15 kilograms. The recovered charas, 12 tins and Suzuki were taken into possession.
3. After usual investigation challan was submitted before the concerned Court. After receipt of challan the learned Judge summoned the appellant from District Jail, Quetta and supplied him statements of the witnesses and other relevant documents as provided under Section 265-C Cr.P.C. on 15th April, 2003, which were acknowledged by him by putting his thumb impression. On 22.4.2003 Mr. Zia Ul Haq Advocate filed Vakalat Nama on behalf of the accused/appellant. On that day the charge was read over to the appellant, to which he pleaded not guilty and took the plea that he cannot drive a Car. Thereafter prosecution produced three witnesses in support of accusation. On 25.9.2003 the appellant was examined under Section 342 Cr.P.C. but he refused to give answer to any question. However; he produced five witnesses in his defence.
On conclusion the learned trial Court found the appellant guilty under Section 9 (c) of the Act, 1997 and sentenced him as mentioned above.
4. We have heard the learned counsel for the appellants as well as learned State Counsel. It is mainly contended by the learned counsel that an application under Section 465 Cr.P.C. was filed before the trial Court pleading that the appellant being of un-sound mind was incapable of making defence which application was summarily disposed of without considering the material on record. He further contended that the defence evidence has not been read in juxta position which resulted in grave mis-carriage of justice. He further contended that the statement of D.W. 4 Dr. Muhammad Umar Marri, which was very material, has not been considered in its true perspective, who has categorically stated that the appellant was suffering from epileptic fits, supporting the defence plea that the appellant was insane person and has been falsely implicated in the case after letting off the real culprits. He further contended that D.W. 1 Muhammad Akbar, who is owner of the Suzuki from where the charas was recovered, has categorically stated that the Suzuki was being driven by his driver Niaz and not by the appellant which also substantiate the defence plea that the appellant was in fact arrested from the bus terminal and made scapegoat in the instant case. The learned counsel vehemently argued that even otherwise the appellant was not liable to be convicted for keeping in possession 15 kilo grams charas because only 100 grams charas was sent for chemical examination. In support of his contentions the learned counsel placed reliance on the judgments reported in PLD 2004 S.C. 856 and 2004 SCMR page 1106.
5. The learned counsel for the appellant Muhammad Akbar contended that the Suzuki was not liable to be confiscated as admittedly the charas was not recovered from the secret cavities but was concealed in the mobile oil tins and the appellant had no knowledge that the Suzuki was being used by his driver Niaz for illegal purpose.
On the other. hand the learned State Counsel contended that the plea of insanity taken during the trial was a device to avoid the punishment. In fact the appellant was a sane person which is also proved from his answer to the charge wherein after pleading not guilty he stated that I cannot drive the car, which means he has fully understood the charge and was capable of making defence. In fact after close of the prosecution evidence an application was moved by the defence taking plea of lunacy which appears to be false and after thought. He further contended that the recovery of charas was not disputed from the Suzuki Van and the plea of the appellant that he was falsely implicated by the S.H.O. after letting off the real culprits is neither believable nor plausible.
According to him statements of the prosecution witnesses coupled with positive report of chemical expert was sufficient to sustain the conviction.
6. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the record as well as impugned judgment. It may be seen that an application for directing medical examination of the appellant was also filed before this Court wherein it was pleaded that the appellant/applicant was/is incapable to defend the case being lunatic and such defence was also taken during the trial but not attended properly by the trial Court. However, later on the application was not pressed and same was dismissed on 9th August, 2004.
7. As regards plea of insanity it may be observed that it has never been case of the appellant that he has committed the offence under the influence of insanity, as such; was exempted from any punishment as provided under Section 84 P.P.C. but he has taken the plea that he was incapable of making defence being of un-sound mind, as such; the trial Court should have adhered to the provisions of Section 465 and other relevant provisions of Cr.P.C. before proceeding with the trial.
Section 465 Cr.P.C. provides that if any person before a Court of Sections or a High Court appears to the Court at his trial to be unsound mind and consequently incapable of making his defence, the Court shall in the first instance try the fact of such unsoundness and in capabability and if the Court is satisfied of the fact, it shall record a finding to such effect and shall postpone further proceedings in the case. From the language used in the section it is abundantly clear that before invoking the provisions of Section 465, it should appear to the Court, before whom an accused is brought, that the said accused is of unsound mind and consequently incapable of making his defence. The Court is under no obligation to enquire into the fact of unsoundness of mind of an accused who is ordinarily to be presumed to be sane. Similarly it is not necessary that enquiry should be held under Section 465 Cr.P.C. read with Section 464 Cr.P.C. merely because the accused has moved an application, which is to be undertaken only where it appears to the Court from its own observations or from any other factor that the accused is incapable of making his defence because of unsoundness of mind. In this regard we are fortified by the judgment reported in 1968 P.Cr.L.J. 1930 wherein it was held as under:-- "The principles applicable to such cases are now well settled. They can be conveniently summarized as follows:--
(a) Before the provisions of Section 464, Cr.P.C. can become applicable it must appear to the Court, before whom an accused is brought that the said accused is of unsound mind and consequently incapable of making his defence.
(b) The Court is under no obligation to investigate the fact of soundness of mind which is ordinarily to be presumed.
(c) An enquiry under Section 464, Cr.P.C. shall not be held merely because the accused has made an application claiming that he is of unsound mind. This shall, on the other hand, only by undertaken where it appears to the Court, from its own observations or from any other factor, that the accused is incapable of making his defence because of unsound mind."
8. In the instant case it may be seen that the plea of un-sound mind has been taken on the ground that the appellant is suffering from epileptic psychosis and in this regard the defence mainly relies upon the statement of D.W. 4 Dr. Muhammad Umar Marri who deposed that in the month of September 2003 the appellant Said Muhammad was referred to him by Dr. Ghaffar Kheyani as a case of epilepsy. On examination he found him confused, displayed signs of self-neglect psycho motor, retendatim depressed and preoccupied about physical symptoms, speeches increased limits to yes and no answers, mood low, and seemed to be pre-occupied with his physical composition; at times seems to be lost and confused. He further stated that no evidence of perceptual abnormality was seen. Accordingly to him patient does not retain insight, at time seems to having hallucinate behaviour. He also stated that they started his treatment in psychotics and provided the medicine but he developed fever on next day forcing them to postpone the treatment, however; fits were controlled with fever and investigations were made and the appellant was discharged on 22.9.2003 but was again brought on 26.9.2003 and they started medication and have controlled the symptoms. The appellant was discharged on 3.11.2003. D.W. 4 Dr. Muhammad Umar Marri has opined about what he observed at the time of examination of the appellant but has not given any opinion whether such disease was of a permanent nature or due to it he was permanently suffering from insanity, thereby;- incapable of making his defence. It would be most dangerous doctrine if a man could say "I once had an epileptic fit and every thing that happen here after or before must be put down to that. In the judgment reported in AIR 1961 SC 998 in some what similar circumstances the Hon'ble Judges observed as under:- "In this connection we might refer to the decision of the Court of Criminal Appeal in England in Henry Perry 14 Cri App Rep 48 where also the defence was that the accused had been prone to have fits of epileptic insanity. During the course of the argument Reading. C.J., observed: "The crux of the whole question is whether this man was suffering from epilepsy at the time he committed the crime. Otherwise it would be a most dangerous doctrine if a man could say,. "I once had an epileptic fit, and everything that happens hereafter must be put down to than"
In dismissing the appeal the learned Chief Justice said: "Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing-that is, the physical nature and quality as distinguished from the moral-or, if he does know the nature and guilty of the act he is committing, that he does not know that he is doing wrong . .. ,There is, however, evidence of a medical character before the jury, and there are statements made by the prisoner himself, that he has suffered from epileptic fits. The Court has had further evidence, especially in the prison records, of his having had attacks of epilepsy. But to establish that is only one step; it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders; and that has not been proved."
We consider that the situation in the present case is very similar and the observations extracted apply with appositeness. We consider that there was no basis in the evidence before the Court for the finding by the Sessions Judge that at the crucial moment when the accused cut the throat of his mother-in-law and severed her head, he was from unsoundness of mind incapable of knowing that what he was doing was wrong. Even the evidence of the father does not support such a finding."
9. As already observed, if it appears to the Court that the accused is incapable of making defence, then it shall resort to the provisions of Section 465 Cr.P.C: but in the instant case after having gone through the proceedings conducted during the trial we are of the considered opinion that the appellant was rightly tried without adhering to the provisions of Section 465 Cr.P.C. because no such plea was taken at the time of commencement of trial or thereafter nor any application was moved in this regard till close of the prosecution evidence, though during cross-examination of P.W.1 Abdul Rauf Barech a suggestion was put to him that the appellant suffered fits during his confinement in Police lock up and that he was mentally abnormal.
The fact that at the time of framing of charge the appellant pleaded not guilty and took the plea that he could not drive a car, shows that he fully understand the charge and was capable of making defence. In the case reported in PLD 1963 S.C. page-1 wherein the accused (Advocate) was a patient of Psychomotor epilepsy and the Medical Superintendent of the Mental Hospital, who, when examined in defence of the accused, admitted that the accused was not certified as insane, but opined that during the attack "he cannot be regarded as responsible for his actions as he is not aware of what he is doing", the Hon'ble Judges observed that Section 84 P.P.C. was not applicable to the case of the accused as it appeared from evidence that when an attempt was made to remove him from the Court room, he resisted the same and attempted to move in the opposite direction. The resistance to removal from the Court room seemed to indicate that he was conscious of the fact that he was being removed and, therefore, attempted to resist and move in a different direction. Similarly in the instant case the answer of appellant to the charge that he cannot drive a Car shows that he understood the charge and was in sound state of mind. The fact that after treatment the general health condition of the appellant improved as stated by D.W.4 Dr. Muhammad Umar Marri, shows that the disease was not of a permanent nature and in fact curable, which conclusion is also supported by the following observations of D.W.4:-- "No evidence of perceptual abnormality".
He also admitted in cross-examination that in case of proper treatment a person can remain in normal condition but in case of discontinuation of treatment it may occur again. Another factor which shows that the appellant was not of un-sound mind as pleaded by him, is his demeanour i,e, tightening his lips, probably under some instructions, at the time of his examination under Section 342 Cr.P.C. Medical and legal standards of sanity are not identical. From the medical point of view, it is probably correct to say that act of murder by itself denotes an un-healthy and abnormal state of mind of the murderer, but from the legal point of view he is sane as long as he can understand that his act is contrary to law. The mere fact that at the time of examining the appellant DW-4 Dr. Muhammad Umer Marri found the appellant confused, self neglect, depressed, pro-occupied and in low mood is not sufficient to hold the appellant of un-sound mind with the meaning of Section 465 Cr.P.C. or under Section 84 P.P.C, because queerness above is not sufficient to hold the appellant of un-sound mind and incapable of making defence. In the judgment reported in 1971 P.Cr.L.J. 1285 (Aurangzaib vs. State) distinction has been made between legal insanity and medical insanity and it was observed:-- "If benefit was to be had from Section 84, P.P.C., it was necessary for the appellant to establish legal insanity in the context of reasonable doubt at the time of committing the offence. There is no material on record to establish that by reason of unsoundness of mind he was incapable of knowing the nature of his own acts or that what he had done was either wrong or contrary to law.
All that appears on record is his queer behaviour before the occurrence. This by itself, even if we were to accept that he acted in that manner, would not throw light on his mental imbalance at the time he had committed the offence in the context of legal insanity. In this connection it will be relevant here to reproduce the following weighty observations of Sajjad Ahmed, J. as he then was, in the case of Ata Muhammad u. The State P.L.D. 1960 Lah. 111 at page 122 of the report:-- "On this legal concept of insanity no amount of queerness in habit, morbidity of temper, peculiarities of character or eccentricities of behaviour, or even aberrations of mind resulting in abnormality will constitute insanity for the purpose of Section 84 of the Pakistan Penal Code although they may be relevant factor's for determining whether or not the accused was insane."
In conclusion we are of the view that the appellant had merely set up a case of feign insanity and we would accordingly repel this plea."
10. In light of above discussion we are satisfied that the appellant was not suffering from any such deceased which can make him incapable of making defence, as such; his application filed under Section 465 Cr.P.C. was rightly rejected by the learned trial Court.
11. Coming to merits of the case it may be seen that according to the prosecution allegations appellant was intercepted by the police on account of advance spy information while driving Suzuki Van bearing Registration No, ZBT 422 and on search of Suzuki twelve mobile tins containing 15 Kilo grams charas were recovered. In order to substantiate the accusation prosecution mainly relies upon statements of P.W. 1 Abdul Rauf Barech, P.W. 2 Muhammad Nawaz and P.W. 3 Abdul Khaliq. All the prosecution witnesses have supported the prosecution version and categorically stated that they recovered 15 Kilo grams charas from the Suzuki, driven by the appellant. Though they were cross-examined at length but nothing material was elicited to create any doubt in their testimony. Even otherwise the defence has not seriously disputed recovery of 15 kilo grams charas from the Suzuki but has taken the plea that the appellant was not driving the Suzuki at the relevant time but was arrested from new Addah Sariab and has been falsely implicated in the case by police after letting off the driver of Suzuki. In this regard the appellant produced D.W.1 Muhammad Akbar who stated that he is owner of the Suzuki bearing Registration No, ZBT 422 and Niaz was his driver. On 25.3.2003 he came to knew that driver has been arrested by the police as charas was recovered from the Suzuki, whereupon he went to the Police Station and S.H.O. told him that Niaz Ahmed and his companions made their escape good. He further stated that Nida Muhammad told him that the police had arrested one mad person after letting off the driver. He further stated that the appellant was not known to him D.W. 2 Nida Muhammad deposed that about 5-6 months back he was going in a rickshaw from new Bus Adda and when he reached at Sariab Road he found the traffic blocked. A Suzuki Van wherein Niaz Muhammad and some other persons were sitting, was stationed there. He went away and on the third day he came to know from the people that charas was recovered from Niaz Muhammad. In the meanwhile Police came there and arrested the appellant, who is mad. On his protest he was also taken by the Police. After 2-3 days an old man came and enquired about his mad son, whereupon; he informed him that his son had been arrested by the Police. D.W. 5 Rozi Muhammad deposed that on 20.3.2003 he purchased articles for his shop from New Bus Adda where Niaz Muhammad Suzuki driver met him, who told him, that he was going to the house of his father-in-law situated at Baleli whereupon he also boarded in the Suzuki. Niaz Muhammad further told him that he has to hand over certain luggage at Sariab road and when they reached at Sariab road, the police has blocked the road. Police stopped them and took to the police Station, where a Police constable told him that charas had been recovered from the Suzuki. He further stated that after arranging Rs, 60,000/- through his father, which were paid to the Police, he got himself freed. In cross-examination he stated that the receipt for purchase of articles is always issued but he could not produce the same.
The learned trial Judge also took into consideration the defence plea and rejected the same 9n sound reasonings and no exception could be taken to such reasonings. Additionally the defence plea in the given facts and circumstances of the case is neither plausible nor believable. If the Police was going to let off the Suzuki Driver and his companions after accepting bribe from them, it is not understandable as to why they would falsely implicate the appellant in the commission of offence, against whom they have no mala fide or malice. It was very easy for the police to have left off the actual culprits after accepting bribe and retain the recovered charas, which would have fetched more money for them by selling it out. The plea appears to be false and have been introduced in order to save skin of the appellant, who not only took the plea that he cannot drive the car but also that he was mad, which plea he could not substantiate. Similarly statement of D.W.
1 Muhammad Akbar that the Suzuki was being driven by his driver Niaz Muhammad without mentioning his place of residence or parentage is not confidence inspiring. It appears that he knew that the Suzuki was being used for transportation of charas and in order to avoid penalty of confiscation and save the appellant, who was his driver, he introduced such plea. If the Police had let off Niaz Muhammad after accepting bribe, it could have also easily released the Suzuki. He has not alleged that the police demanded any money from him for release of the Suzuki, which also shows that the plea advanced by him was false, otherwise a corrupt police officer as alleged by him, would have also tried to extract some money from him in lieu of releasing the Suzuki Van. All the witnesses produced in defence are chance witnesses and they failed to satisfactorily explain their presence at the place of occurrence, as such; no implicit reliance could be placed on their statements.
12. Coming to the contention of the learned counsel that only 100 grams charas was sent for chemical examination, as such, the appellant was entitled to the benefit in view of the judgment passed by the Hon'ble Supreme Court in the case reported in PLD 2004 S.C. 856, it may be observed that P.W. 1 Abdul Rauf in his statement in the Court specifically stated that from each rod sample was drawn, which is also proved from contents of Ex. P/1-A and statement of P.W. 2 Ahmed Nawaz. The recovery memo Ex. P/2-D also shows that sample was drawn from each rod of charas.
In light of the above discussed evidence showing that the sample was drawn from every rod; we find no substance in the contention of learned counsel and the judgment referred to would be of no help to the appellant as in that case sample was drawn only from one rod.
The appellant at the time of examination under Section 342 Cr.P.C. refused to give answer in order to support his plea of madness which plea, as discussed above, was found by us false, therefore, denial of the appellant to give answer to the questions put to him under Section 342 Cr.P.C. would not affect the trial and the result thereof as under Section 342(2) Cr.P.C. the appellant was at liberty to refuse to answer the questions however; the Court in such event may draw inference from such refusal as it think fit but in the instant case no inference was drawn by the trial Court and it has decided the case on the basis of evidence recorded during trial.
In view of what have been discussed above, we are of the considered view that the appellant was rightly found guilty by the learned trial Court. Similarly; the Suzuki Van was rightly confiscated having been used for transportation of charas. Consequently; both the appeals are dismissed being devoid of any merits.