' Muhammad Yaqoob son of Ghulam Nabi, Khokhar by caste, resident of Chah Waris Dakhli Alipur, District Shikhupura, was tried for the murder of Mansha, by the Additional Sessions Judge, Sheikhupura. The trial Judge, by judgment, dated 28th February, 1980, found him guilty. He was sentenced to imprisonment for life and a fine of Rs,2,000 or in default six months' R.I.
2. The convict has appealed to this Court.
3. The occurrence in which Mansha was alleged to have been killed took place on 18th April, 1977 at Degarwela in the area of Chah Waris Dakhli Alipur falls within the jurisdiction of Police Station, Warburton. F.I.R. (Exh.P.F.) was lodged by Khadim Hussain, brother of the deceased. It was recorded by A.S.!. Said Ahmad.
4. The incident was alleged to have been seen by the first informant Khadim Hussain and one Fan')
Karim. Muhammad Hussain was also named in the F.I.R. As a witness but he was not examined.
5. The motive, according to the prosecution, was that 3 or 4 days prior to the occurrence there was dispute between'the appellant's father and Khadim Hussain over a ridge in their field, Appellant and the deceased exchanged hot words. The parties, however,compromised. But, according to the prosecution, the motive for the murder of Mansha was this very incident.
4. Prosecution examined the first informant Khadim Hussain and Fazal as eye-witnesses. The other evidence is the recovery of sickle with which, it is alleged, the deceased was attacked by the appellant. It was found to be stained with human blood. The last piece of evidence is the post- mortem report of the deceased.
5. The appellant denied the motive. However, he admitted that the deceased was his Khalazad. He also admitted that he was nephew of Ata Muhammad P.W. When questioned about the actual incident, he answered as under: "I do not know. I was under the fits of insanity in those days."
6. He denied the recovery of sickle and said that it did not belong to him. His answer to the question "why this case against you and why the P.Ws. Deposed against you" was as follows: "I was mentally deranged about one year or more, before the occurrence. I used to lose consciousness- and during the fits of insanity I used to lose every sense and could not know anything good or bad. I came to know after the occurrence after about 20 days that I had become patient of fits of insanity on the day of occurrence and during that fit of insanity the deceased was injured by me.
' As I had injured the deceased therefore, case was registered against me. I have absolutely no enmity against the deceased and the prosecution story in which it has been stated is false."
7. The appellant said that he was insane on the day of occurrence. He produced Dr. M.A.A. Aziz, retired Medical Superintendent, Mental Hospital, Lahore, in defence,
8. I shall deal with the defence evidence after discussing the ocular evidence and the other important evidence.
9. Learned counsel appearing on behalf of the appellant took me through the entire evidence with emphasis on the testimony of Dr. M.A.A. Aziz (D.W.1).
10. The first informant, Khadim Hussain and Fazal Karim blamed the appellant for the attack and said that it was due to his assault that the deceased was fatally injured. I don't think it is necessary to go into details of their, testimony because the appellant himself admitted to have injured the deceased.
11. The only question which needs determination in this appeal is, how far the appellant has been able to establish the plea of insanity. For that matter I would like to advert to the evidence of Dr. M.A.A. Aziz.
12. Dr. M.A.A. Aziz (D.W.1) was cross-examined by the Special Public Prosecutor to which he said that when such a patient would be under a fit he would not distinguish between a foe and friend. The doctor said that he could not say whether such patient would carry his weapon or not after injuring any person. He was of the opinion that such a person would not conceal his weapon after the commission of crime though he may run away after causing injury but not with the intention to save himself. The doctor admitted that such a person does not show any cunning or design.
13. The sole contention raised by Kh. Sultan Ahmad was that the plea of insanity entitled the appellant to acquittal because his case falls within the ambit of section 814 of the Pakistan Penal Code which is to the following effect.
"Act of a person of unsound mind.--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,"
14. Learned counsel submitted that although there is no evidence on record to show that at the time of actual commission of the crime, the appellant was insane yet his case falls within the aforesaid exception.
15. In support of this contention, learned counsel submitted that Dr. M.A.A. Aziz was a specialist though produced by the defence. He was cross-examined by the prosecution but the prosecution did not bring out anything so as to demolish the plea taken by the appellant. Learned counsel submitted that the evidence of Dr. Aziz (D.W.1) completely establishes the stance taken by the appellant.
16. Nobody has cared to appear on behalf of the State. This is not the first time. In many important cases there is no proper representation on behalf of the State. I have to, therefore, decide this appeal after taking into consideration the contentions of the learned counsel, the entire evidence on record and after satisfying myself about the legal position and the plea taken by the appellant.
17. Before proceeding further, I would like to observe that the plea taken by the appellant was not properly considered by the trial Court. The Presiding Judge should have, on his own, gone deeper into this plea. He could have easily ordered the appellant to be examined by a Board of Specialists.
It was also the duty of the prosecution and the defence to bring this aspect to the notice of the trial Judge.
18. In the absence of any other evidence on record regarding the plea taken by the appellant I have no option but to make sure as to how far the testimony of Dr. Aziz is helpful to the plea of the appellant.
19. According to Dr. Aziz, the disease from which the appellant was suffering is a molecular disintegration of personality which results in disorder of thoughts and emotional disturbances due to which the patient becomes very aggressive under delusions. The doctor further deposed that he was not in a position to say what was the period when the trouble started prior to the admission of the, patient. It could be two years before. However, it is established from his evidence that the appellant was suffering from fits. The doctor further clarified that the action of a person passing through such fits was neither intentional nor motivated. It was under sudden excitement and delusions.
20. When the occurrence took place the deceased was carrying a pair of oxen in yoke to his fields.
The appellant was cutting fodder with sickle. No altercation took place. It was all of a sudden that the appellant attacked the deceased. This evidence, therefore, lends support to the testimony of the doctor that when a patient like the appellant was suffering from such fits his action was neither intentional nor motivated. It was sudden. In the absence of any altercation or conversation or anything happening at the spur of the moment such an action would, therefore, be deemed to be not an act of a normal human being. (This observation is meant only for this case and is not of general application). As such it can be legitimately inferred from the evidence and the conduct of the appellant that when he committed the offence he was not aware what he was doing. I accept his plea of insanity, allow the appeal and acquit him. He shall be set free forthwith, if not required in any other case.