MUHAMMAD HALEEM, J..-Appellant Aurangzeb was fried and convicted under section 302 for causing the murders of to boys, namely, Abban and Yar Muhammad and under, sections 326 and 324, P. P. C. For causing grievous and simple injuries to Mst. Phapul, Ghulam Muhammad, Muhammad Yousuf, Muhammad Ali and Yasmeen, a baby aged 8 months, by a hatchet. On the first count he was sentenced to death, on the second,' 4 years' rigorous imprisoment and a fine of Rs. 500 or in default of payment of fine to suffer rigorous imprisonment for 6 months and on the third, rigorous imprisonment for one year. He has appealed from jail against his conviction on the above counts while the learned Second Additional Sessions Judge, Hyderabad has referred the case for the confirmation of his death sentence. This judgment will dispose of both the appeal and the reference.
2. One Allah Bachayo had died some 14 or 15 years back leaving him surviving his widow, Mst.
Phapul, and to sons named Abban, aged 14 years and Yar Muhammad, aged 11 years. Mst. Phapul and her sons resided with Muhammad Rahim, brother of Allah Bachayo, in the same house. The appellant, who was his relation, also resided in the same compound but in a different house. Some the before the incident the appellant desired to marry Mst. Phapul but she declined to marry him.
The appellant, in spite of this refusal, used to give tuition to her sons in his house. On. 7th November 1967, at 7-30 p.m., as usual, Abban went to the house of the appellant to take tuition from him while Yar Muhammad stayed in the house. Soon after the appellant came to the courtyard of the house of Muhammad Rahim armed with a hatchet and at that moment Mst. Phapu, wife of Muhammad Rahim, and Mst. Phapul were sitting in the courtyard while Muhammad Rahim was taking his meal.
In their view, the appellant inflicted hatchet blows on Yar Muhammad, who was lying on a cot in the courtyard, and also one blow on baby Yasmeen, who was lying on a separate cot. Seeing this Mst.
Phapul intervened, whereupon the appellant inflicted another hatchet blow on her, which blow severed her forearm. The appellant then tried to run away and while doing so he gave hatchet blows to Ghulam Muhammad, Muhammad Yousuf and Muhammad Ali who came in his way He was, however, apprehended by Abdul Bari, an Advocate, and one other person named Muhammad Shidi. They snatched the hatchet from him. He had blood-stains on his clothes and he disclosed to them that he had also murdered Abban in his house. Mean-- while Muhammad Rahim went and lodged the report at Police Station Math the same evening at 8-05 p.m. Abdul Bari and Muhammad Shidi then took the appellant and his hatchet to the same police station and produced him before Muhammad Usman A. S. I. Who secured the hatchet and seized the clothes in his wearing.
3. Muhammad Usman A. S. I. (P. W. 12) repaired to the place of incident and saw the dead bodies of the to boys, one lying in the courtyard and the other in the house of the appellant. He noticed blood on the ground and took samples of blood-stained earth. He interrogated the injured persons, namely, Mst. Phapul, Ghulam Muhammad, Muhammad Yousuf and Muhammad Ali in the hospital.
The dead bodies of the to boys were sent for post-mortem examination. The appellant volun-- teered to confess and his confession was recorded by Mr. Azizur Rahman, First Class Magistrate, on 8th November 1967.
4. The autopsy .On the dead bodies of the to deceased disclosed that they had died as a result of the hatchet injuries caused to them and in the opinion of the doctor they were sufficient in the ordinary course of nature to cause death. The injuries on the other persons, namely, Ghulam Muhammad, Muhammad Yousuf, Mst. Phapul, Muhammad Ali and baby Yasmeen were also opined to have been caused by a hatchet. Mst. Phapul's left forearm below the elbow joint was completely cut. Muhammad Yousuf had one contused wound besides to other incised injuries. It was of a small dimension and opined to have been caused by some blunt substance. The blood- stained clothes of the appellant, the hatchet and the blood-stained earth were sent for chemical analysis and according to the report of the chemical analyser, all of them were stained with human blood.
5. The appellant in his defence in the committal Court admitted having murdered Abban and Yar Muhammad and of having caused injuries to the prosecution witnesses and baby Yasmeen. In reply to the question whether he wanted to marry Mst. Phapul, he denied the allegation and stated that he was not fit to marry as he was impotent. He resiled from his confession and alleged that he had confessed-because he was tortured by the police. Lastly, in reply to the question as to what further he had to say, he gave a lengthy statement, in which he sought to give an impression that he was not sane as he was getting revela--tions. At the same the he attempted to show enmity against Abdul Bari and Mst. Phapul by alleging against them that Abdul Bari's sister was on terms of illicit intimacy with his brother-in-law, Ali Muhammad, and that Mst. Phapul was also carrying on at the same the with his brother-in-law. Even in this long, statement he admitted having killed the to boys and of having caused injuries to Mst. Phapul and others.
6. In the trial Court he ventured to give an impression that he knew nothing about the said murders and that he had been informed in the mental hospital known as Giddu Bunder that he had killed some persons. He again stated that he used to hear voices and gave a long history of his family troubles. He imputed enmity to Abdul Bari and other prosecution witnesses and lastly admitted with caution that he might have committed the murders on account of losing his mental balance..
He, however; led no evidence in defence.
7. The conviction of the appellant rests upon the ocular testimony of six witnesses, namely, Muhammad Rahim, Mst. Phapul, Mst. Phapu, Ghulam Muhammad, Muhammad Yousuf and Muhammad Ali. It is further supported by the circumstantial evidence of Abdul Bari who had captured the appellant with the help of Muhammad Shidi, who has not been examined in the case.
There is the circumstance that at that the he was armed with a hatchet and wearing blood- stained clothes. The hatchet was snatched and produced at the police station along with the appellant. His blood-stained clothes were removed from his person and secured. The clothes and the hatchet were found to be smeared with human blood. In his, confession, as well as in his statement recorded in the committal Court, he has admitted having killed the to deceased and having caused injuries to the prosecution witnesses and baby Yasmeen. In the trial Court, in his own guarded language his plea is also to the same effect. We have also examined the evidence on record and we have found no feature which could lead us to a contrary conclusion. All the eye- witnesses lived in the same compound and in different houses and they are natural witnesses. All of them are related to him and nothing appears in their evidence to show any malice against the appellant. Additionally, four of the eye-witnesses, namely, Mst. Phapul, Ghulam Muhammad, Muhammad Yousuf and Muhammad Ali received injuries and accordingly their presence cannot also be doubted. The killing of Yar Muhammad and of causing injuries to baby Yasmeen and Mst.
Phapul has been testified by Mst. Phapul herself, Muhammad Rahim and Mst. Phapu. The dead body of deceased Abban was found in the house of the appellant and he has admitted having murdered him. Ghulam Muhammad, Muhammad Yousuf and Muhammad Ali have stated in their evidence, the manner in which the appellant had caused hatchet injuries to each of them. His capture, while he was making a bid to escape, and the seizure of incriminating articles from him have not been assailed by any cogent material on record, nor can it be doubted under the circumstances. Even to Abdul Bari he did not put a suggestion whether his sister was carrying on with the appellant's brother-in-law. There is, there--fore, no reason for us to disbelieve this independent witness when nothing emerges from his testimony to cast doubt on his credibility.
Additionally his own confession and his admissions in the Courts below lead to the inescapable conclusion that it was he who had killed the to deceased and caused injuries to others.
8. Mr. Zahoorul Haq, the learned counsel for the appellant, in the context of the overwhelming evidence was unable to advance any argument to create doubt as to his participation in the crime. He, however, pleaded insanity in terms of section 84, P. P. C. And relied on the admissions of Muhammad Yousuf, Muhammad Ali and Ghulam Muhammad in their testimony as to his queer conduct before the occurrence. Muhammad. Yousuf has stated :--- "The accused was not in senses at the the of the incident. Prior to this incident he used to talk to much and irrelevant. Sometimes, he used to say that Imam Mahdi is born, sometimes he used to say that the Resurrection is near. 'He also used to ask the people to offer the prayers. He never told me that he was receiving voices from heaven. He used to say that Darveshs were visiting him and were revealing to him the secrets of God. He used to remain awake late at night. Sometimes he used to talk to himself while sitting alone."
The next witness is Muhammad Ali. He is a by, aged 9 years, and this is what he has stated :- "The accused at the the of the incident was slightly insane. He used to become in rage. He also used to talk irrelevant things . . . . . . . The accused used to say that Faqirs and Darvesh visit him and that they command him to ask the people to offer prayers and read Holy Qur'an."
Ghulam Muhammad has merely referred to his bad ~ temper but denied that the appellant was insane at the the of the occurrence. The trial Court has not placed any reliance on the evidence of Muhammad Yousuf and Muhammad Ali upon the ground that admittedly both these prosecution witnesses are "maternal nephews" of the appellant and with a view to oblige him they have admitted his insanity. Ghulam Muhammad does, not support the defence plea and apart from his admission that the appellant had a bad temper nothing else can be inferred which could be read in support of the above plea. We are, therefore. Of the, view that his evidence is of no assistance to the plea of the appellant.,.. Even what the other to witnesses have stated is of no consequence: At the most, if we were to accept the obliging admissions still they do not give an indication of mental imbalance, but only his deep religious attitude and talkativeness. There is no medical evidence of his insanity prior to the day of occurrence or of his conduct immediately prior to the occurrence.
The appellant was employed as an inspector in the sugar mill at Talhar and drawing a salary of Rs.
250 per month. He used to give tuition not only to the to deceased boys but to others as well. To begin with, these to features reflect on his healthy state of mind. His conduct immediately after the occurrence does not give any clue of insanity. After committing the murders he made a bid to escape, which is the conduct of a sane person who is aware of the culpability of his action and in the circumstances runs to avoid arrest. He even acted as a sane person when he was captured. No question suggesting any peculiar conduct of the appellant was put to Abdul Bari and according to him, the appellant was giving replies like a sane person except that he complained of reeling in his head, which certainly is not a symptom of insanity. Muhammad Usman, before whom he was produced at the police station, has stated that his conduct was not of a mad man and that he was replying to all questions put to him properly. Muhammad Rahim, Mst. Phapul and Mst. Phapu have not testified to any peculiar conduct of the appellant and have denied the allegation of insanity put to them. Even on the following day, when he was produced before the First Class Magistrate, he did not display the conduct of an insane person. Mr. Azizur Rahman, who recorded his confession, has testified that his conduct was not of a mad man and that "there was also no impression on his face" which could show that his mental condition was not proper. His confession is a detailed statement which a sane person could only give. He has attempted to show enmity against the prosecution witnesses, such as Abdul Bari and the others and has disclosed his own family troubles. His peculiar behaviour as deposed to by the prosecution witnesses does not find place in it. All that he has stated is that he had a weak heart. After reading the confession, one gets an impression as to the fertility of his mind which could only be that of a sane person. It was for the first the in the committal Court that he stated that lee displayed peculiar conduct and used to get revelations. He resiled from his confession and also tried to disprove motive by saying that he was impotent. We are inclined to view from the statement that he gave in the committal Court that he had set up the defence of insanity for the first the in order to avoid the legal consequences. In the trial Court he again became wiser and tried to get away from the effect of his earlier statement by giving an impression that he was not conscious of his own acts and it was later on that he was told that he had committed the murders. He, however, denied the motive by saying that he did not marry a virgin girl to whom he was betrothed and there was no reason for him to have fallen in love with a woman whose husband had died. In the context of: all this material, there is also the evidence of Ghulam Hyder and Abdul Bari,, who had known the appellant since his childhood, and both of them have denied the suggestion that the appellant was insane. It is not, possible to accept that being insane he could have continued to his employment, as an inspector. The trial Court was, th4tefore, justified to repel. This contention. If benefit was to be hid from section 84, P, P.
C., it was necessary for the appellant to establish legal insanity in the context of reasonable doubt at the the 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 to his own acts or that what he had done was either wrong of contrary to law. All that appears on records his queer behaviour before the occurrence. This by itself, even if we were to accept that he acted in that manna, would not throw light on his mental imbalance at the the 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 Ahmad, J. As he then was, in the case of Ata Muhammad v. The State (PLD 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 eccen--tricities of behaviour, or even Abberrations 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 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.
9. The appellant before his trial was referred to a Medical Board with a view to determine -whether he could defend himself. The Board was of the view that the appellant was fit to under--stand the proceedings of the Court and he suffered from no, psychiatric disease. This opinion has been brought on record through the testimony of Dr. Hyder Ali G. Kazi, a member of the Board. The trial Court also- took this view into consideration, though it was only a relevant consideration as to the state of his mind and, concluded that the appellant could not have been insane at the the of committing the offence, and we; are also of the same view:
10. There now remains the question of: sentence. In the circumstances of the case we, have found no mitigating circum--stance to justify the reduction of the capital sentence. The appellant had killed to innocent boys and caused injuries not only to the prosecution witnesses but also to a suckling child We feel that the appellant was actuated by malice and with a view to avenge himself he committed the brutal murders of the to helpless boys. We would accordingly uphold the conviction or the above charges and maintain the sentences imposed therefore. The death sentence is accordingly confirmed and the reference is accepted. His appeal stands dismissed.