1. MIAN FASIH-UL-MULK, J.---Convict-appellant Muhammad Idrees was tried by learned Additional Sessions Judge-III, Abbottabad. He was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life with a direction to pay Rs,2,00,000 as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. or in default to undergo further R.I. for six months. Benefit of section 382-B, Cr.P.C. was, however, extended to him. Convict-appellant has filed Criminal Appeal No,77 of 2007 against his conviction and sentence whereas Mst. Sosan Jan mother of deceased has filed Criminal Revision No,29 of 2007 for enhancement of sentence. Both the matters have arisen out of one F.I.R. and impugned judgment, therefore, they are disposed of by this single judgment.
2. The prosecution case as narrated in F.I.R. is that on 29-9-2003 complainant Etizaz Ahmed Superintendent, District Jail lodged report in writing (Exh.P.W.5/1) that at about 9-30 p.m. two under trial prisoners namely Muhammad Idrees appellant and Sadiq deceased quarrelled in "Gat" in Cell No,7 of Judicial Lockup. During said altercation accused Muhammad Idrees threw a pitcher on the head of Sadiq and as a result he got seriously injured, who was shifted to District Headquarter Hospital/AMC Abbottabad under police escort at about 10-25 p.m. Subsequently, the hospital authorities informed that the injured has died due to severe bodily inflection. The matter was referred to local police for registration of case and instant F.I.R. was consequently registered.
2. 3.At trial charge was framed against the accused. The prosecution ' in support of its case examined nine witnesses in all while in rebuttal accused produced five witnesses after recording his statement under section 342, Cr.P.C. but did not opt to be examined on Oath. On assessment of evidence, the appellant Muhammad Idrees was found guilty and was convicted and sentenced as mentioned above.
3. 4.Learned counsel for appellant contended that at the time of occurrence the appellant was insane and protection under sections 84, P.P.C. and 100(4) was available to him. The evidence produced before the learned trial Court did not justify conviction. In that the only alleged eyewitness is contradicted by medical evidence. The charge against appellant based on prosecution evidence cannot be held proved as per requirement of law. It was further contended that at the time of occurrence the deceased was 40/45 years old whereas appellant was 20/21 years of age and the possibility of an attack on the honour of accused by the deceased cannot be ruled out. Both the accused and deceased were suffering from psychiatric illness and it is not known what happened between the two soon before the alleged occurrence. Learned counsel while concluding his arguments contended that the accused and deceased were belonging to different villages and had no enmity inter se. In absence of motive, it is most probable that deceased was done to death by jail staff in connivance with enemies of deceased and accused was made a scapegoat.
4. 5.On the contrary, learned counsel for complainant argued that the trial Court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. The only plea taken by accused is the psychotropic ailment and protection of section 84, P.P.C. Learned counsel elaborated that medical and legal standard of insanity have two different meanings. Medical insanity cannot be considered as conclusive evidence. Section 84, P.P.C. is a concession to the accused but the applicability of such concession would depend upon the fact as to whether at the crucial point of time the accused could understand wrong and right and that he could or could not understand the nature of the act. In absence of such evidence every person shall be presumed sane and cannot be granted such concession.
5. ' Learned State counsel supported the impugned conviction and adopted the arguments advanced by learned counsel for the complainant.
6. 7.Arguments heard and record perused.
7. 8.The prosecution story hinges upon statement of P.W.5 Superintendent Jail and lodger of F.I.R., P.W.6 Muhammad Javed Jail Warden, the alleged sole eyewitness and P.W.1 Dr. Darya Khan CMO DHQ Hospital Abbottabad.
8. ' P.W.5 stated that on 28-9-2003 at about 9-30 p.m. a quarrel took place between two under trial prisoners namely Sadiq son of Shah Zaman and Idrees son of Haider Zaman, confined in Cell No,7.
9. Sadiq got seriously injured. He was immediately shifted to DHQ Hospital Abbottabad. A telephonic information was conveyed to local police for registration of case. He received telephonic information from Ayub Medical Complex about the death of injured Sadiq and thus S.H.O. Police Station City was informed through written application dated 29-9-2003 for lodging F.I.R. Exh.PA. In cross-examination P.W.5 admitted that accused Idrees was suffering from Psychiatric problem and -per advise of doctor, he was kept In separate cell before the occurrence. Similarly deceased was also suffering from psychiatric ailment and both were kept in the same cell. The witness further stated that there is nothing on record that both the prisoners had any enmity with each other. He admitted that he is not an eyewitness of the occurrence. He denied the suggestion that jail staff has murdered the deceased with the connivance of his opponents and because of this reason a false case was registered against accused who is insane.
10. ' P.W.6 is the alleged sole eyewitness who stated that lie was on duty on 28/29-9-2003 from 9-00 p.m. to 12 p.m. At about 0900/0920 hours when he reached cell No,4, he heard voice from cell No,7.
11. He rushed towards the cell where he saw that accused Idrees was holding a sharp piece of pitcher in his hand which he inflicted upon head of deceased before him. It was second time when the accused inflicted injury upon the head of deceased. The witness stated that he blow the vessel upon which the guards namely Noor Muhammad and Shah Said arrived along with keys of the cell.
12. The injured Sadiq was taken out from the cell and taken to jail hospital. Afterwards police officials arrived, inspected the spot on his pointation and took into possession broken pieces of pitcher, a piece of mattress stained with blood and prepared the recovery memo- duly signed by him as marginal witness. In cross- examination he admitted that Noor Muhammad and Shah Said arrived after 5/6 minutes of the alleged occurrence. .The witness denied the suggestion that he has not witnessed the occurrence and was deposing on the direction of Jail Superintendent. The witness further denied the suggestion that nothing was recovered in his presence.
13. ' P.W.1 Dr. Darya Khan CMO DHQ Hospital who conducted the postmortem of deceased Sadiq on 29-9-2003 at 12-15 p.m. The postmortem report bears: Deceased on external appearance: ' A middle age well built man of 40/45 years of age with developing P.M. rigidity..
14. ' Injuries:
1. A single lacerated wound 3" x 2" size bone deep a nature on the tight paratio temporal region and fractured of the under skull bones.
15. ' In his opinion death has been caused by massive injury to skull and brain matter leading to cardiopulmory arrest and death. Probable time between injury and death is 8 to 12 hours and between death and postmortem 4 to 5 hours. In cross-examination he admitted that it is correct from 8 hours it comes to 4 p.m on 29-9-2003 and if the time is taken 12 hours then the time between injury and death comes 1 p.m. on 29-9-2003. P.W.1 further admitted it correct that he has conducted the postmortem in between 8 to 9 a.m. on 29-9-2003:
10. Defence relied on the testimony of D .W.1 to D .W.4. D .W.1 Senior Medical Officer stated that the accused was confined in Central Jail Haripur since 20-4-2005. He was diagnosed as a case of gross mental disorder. During his stay in the Ward he remained under treatment of the visiting psychiatrist/specialist. It is also in the knowledge of the witness that during his stay the patient was presented before the Standing Medical Board at different times in different hospitals in DHQ Haripur and Mental Hospital Peshawar. On 17-2-2006 the patient was shifted to Peshawar Jail in connection with his presentation before the Standing Medical Board Mental Hospital, Peshawar. He exhibited various admission slips and original medical certificates issued by visiting psychiatrist Central Jail Haripur. In cross-examination the witness admitted the suggestion correct that during his stay in jail hospital no such incident of violence was reported to the jail authorities by him. Self stated that, the behaviour of accused remained unpredictable and aggressive. He further stated that accused remained admitted in psychiatrist ward till 22-1-2007.
16. ' D.W.2 is the statement of Dr. Asif Rahim, M.O. District Jail Abbottabad. D.W.2 brought the original medical journal register of the patient/accused. On 19-9-2003 patient was complained mental abnormality irritable and was admitted guard observation along with medicines. Similarly on 30- 9-2003 because of mental illness it was advised that the patient if not manageable in jail will be referred to GMH Daddar by M.O./Incharge and the patient will be shifted to DMH Daddar for observation and to be kept alone. Thereafter he was kept under observation and was admitted to get medical opinion from Standing Medical Board Peshawar. Original register pertaining to his Medical Board/history from 19-9-2003 to 5-4-2005 produced before court.
17. ' D.W.3 is the statement of Dr. Muhammad Tariq, Consultant Psychiatrist Sarhad Mental Hospital, Peshawar. The witness stated before court that accused Muhammad Idrees was referred to Standing Medical Board by the Court. He was first interviewed by Dr. Muhammad Bashir of his hospital. He was put in isolation cell in Central Hospital Peshawar due to his aggressive behaviour as he assaulted patient in the toilet of that detention unit and tried to suffocate him. He was discussed by Standing Medical Board and suggested to be kept in isolation cell from other inmates of the jail. He was presented before Medical Board and was declared as behaviourally disturb. The witness further stated that he periodically examined him in the isolation cell and treated with anti- psychiatrist medicines. He was again examined by Medical Board on 17-2-2005. The Board was of the opinion that he suffers from schizophrenia and remained strengthening and aggressive. His behaviour was unpredictable and dangerous. He was presented to Medical Board 3rd time on 16- 2-2006. The Board was of the opinion that he suffers from psychiatrist ailment (major mental illness). He was treated with anti-psychiatry medications and has improved with treatment. Now he does not exist any acute physicist symptoms. He understands the nature of crime proceedings of the court. He is fit to plead in the court of law.
18. ' D.W.4 is the statement of Dr. Syed Muhammad Sultan, Associate Professor Khyber Medical College, Peshawar. His statement also confirms the factum of psychiatric illness, schizophrenia. According to him the accused remained behaviourally disturb, agitated and violent in the ward of Central Prison during the observation period.
11. It would be advantageous to reproduce certain rules framed under section 59 of Prisons Act, 1894:-- ' Rule 435. Every person supposed or found to be a mental patient, whether detained or confined in a prison shall be kept separate from other prisoners.
19. ' Rule 436:-- A mental patient shall be considered dangerous until the Medical Officer has certified that he is harmless. The Superintendent and Medical Officer, shall from time to time, give such directions as may be necessary, for the proper guarding of the mental patient and shall warn the prison officers of any symptoms which may necessitate greater watchfulness".
20. ' By plain reading of these rules, it is clear that every mental patient shall be kept separate from other prisoners and this would be the duty of jail staff to consider every mental patient dangerous unless. Medical Officer certifies that he is harmless:-- ' Rule 633. Every prisoner shall occupy a cell by himself by, night, unless for medical or other special reasons it is necessary for prisoners to be associated. In such cases no fewer than three prisoners may be lodged in one cell, and each shall be supplied with separate bedding.
21. ' According to this rule every prisoner shall be kept alone in a, cell or at least three prisoners in a cell.
22. 12.In the instant case, to say the least, the jail staff in general and Superintendent Jail in particular facilitated the commission of this unfortunate incident when two prisoners (both suffering from mental disorder) were kept in one cell despite clear directions by psychiatrists as mentioned in medical history of accused.
23. 13.To examine the plea of appellant with regard to unsoundness of his mind, appellant wants to get the benefit of section 84, P.P.C. which runs as under:-- "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"
24. ' Section 84 was interpreted in the case titled State v. Balahari Das (PLD 1962 Dacca 467), the relevant observation is as follows:-- (i)If the accused raised any special plea or claims exoneration on the basis of any special or general exception he must prove his special plea of the existence of conditions entitling him to claim the exception.
25. (ii)Irrespective of the success or failure of the special plea raised by the defence or its claim to exoneration the prosecution must prove its case beyond any reasonable doubt.
26. (iii)If after an examination of the entire evidence the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused may be true or that the evidence casts a doubt on the existence of the requisite intention or mens rea which is a necessary ingredient of a particular offence, this will react on the whole prosecution case entitling the accused to the benefit of doubt.
27. (iv)Legal insanity as contemplated in section 84, P.P.C. is different from medical insanity. If the cognitive faculty is not impaired and the accused knows that what he is doing is either wrong or contrary to law he is not insane. Merely being subjected to uncontrollable impulses or insane delusions or even partial derangement of mind will not do, nor merely eccentricity or singularity of manner.
28. (v)If there is evidence of premeditation and design or evidence that the accused after the act in question tried to resist arrest the plea of insanity may be negatived.
29. (vi)If the facts are clear so far as the act complained of is concerned motive is irrelevant.
30. 14.Considering the admission of P.W.5 and statements of Medical Experts (D.W.1 to D.W.4), it is amply proved that the accused was a known patient of schizophrenia before the date of occurrence till 16-2-2006. He remained violent, aggressive and disturbed in behaviour and the jail authorities were constantly advised by various psychiatrists to keep him alone in the ward. Due to serious medical ailment and unsoundness of his mind trial proceedings remained suspended for sufficient long time. In view of such precarious condition the appellant could hardly know the nature of alleged act. No evidence is forthcoming on record to show that at the time of occurrence the appellant was able to understand and distinguish between right and wrong, therefore, we hold that the accused is entitled to the concession of section 84, P.P.C.
31. 15.On merits, it appears that it is a case of sudden occurrence. P.W.5, the lodger of F.I.R. is admittedly not the eyewitness. F.I.R. does not mention the name of any witness. The possibility cannot be ruled out that in order to save the skin of jail staff it was an afterthought to make an eyewitness. The medical evidence does not corroborate the statement of P.W.6. Post mortem report shows one injury on the head of deceased 3" x 2" in size but according to PW-6 it was 2nd time when the accused inflicted injury upon the head of deceased. Statement of P.W.6 was recorded under section 161, Cr.P.C. on the next day and not on the day of occurrence. Both parts of statement i.e, examination-in-chief and cross-examination of PW-1 are contradictory.to each other. The pieces of pitcher though allegedly recovered but not sent to FSL for examination and expert opinion. When there are two versions and both are possible, one favourable to accused is to be accepted. It has also been settled by now that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of accused. The superior courts have also time and again held that accused may take several defence stands but that will not improve the prosecution case.
32. 16.Viewing the case from every angle, it has been established on record that appellant at the time of occurrence was suffering from serious psychiatric illness and was declared unpredictable and dangerous by the Standing Medical Boards constituted from time to time. The appellant due to such precarious condition was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. This particular degree of insanity brings the case within exception. Even on merits, we found no tangible or confidence inspiring evidence leading to the guilt and conviction of accused.
33. 17.In the facts and circumstances of the case, we find that the prosecution has not been able to prove its case against the appellant and in this view of the matter while extending benefit of doubt, the appellant deserves acquittal.
18. Consequently,. we allow this appeal and set aside the impugned conviction and sentence of appellant. He shall be set free forthwith if not required in any other case. In view of above, Criminal Revision No,29 of 2007 stands dismissed.