Criminal Appeals Nos. 321 and 366 to 369 of 1965, filed by Akhtar Ali appellant and Criminal Appeal No. 323 of 1965, filed by Muhammad Akbar appellant, are connected matters having been directed against separate judgments of the Special Judge (Central), Lahore, all dated the 30th of April 1965 in several different cases arising out of the same initial report lodged by Muhammad Farooq, Inspector of Enforcement Staff, at Police Station City Gujranwala, against the two appellants for offences under sections 465, 466, 468, 471 and 470, Pakistan Penal Code. The convictions and sentences recorded in these cases are detailed as under:-- Akhtar Ali appellant: Cr. A. No. 321/65 Under sections 420 and 468/34, P. P. C.
(Spl. Case No. 253/64) and section 5 (2) of the Prevention of Corruption Act. One year's R. I. under each of the three counts in addition to a fine of Rs. 2,000 under section 420, P. P. C. or in default further R. I. for eighteen months.
Pakistan Criminal Law Journal, [Vol. V i The substantive sentences to run concurrently .
Under section 466, P. P. C. One year's R. I. and a Site of Rs. 2,000 or in default further one year's R. I.
Under sections 420 and 468, P. P. C. and section 5 (2) of the Prevention of Corruption Act. One year's R. I. under each of the three in addition to a fine of Rs. 2,000 under section 420, P. P. C. or in default of payment of fine further one year's R. I. The substantive sentences to run concurrently. Under sections 420 and 468, P. P. C. and section 5 (2) of the Prevention of Corruption Act.
One year's R. I. under each of the three counts, in addition to a fine of Rs. 2,000 under section 420, P.
P. C. or in default of payment of fine further one year's R. I. The substantive sentences to run concurrently.
Under sections 420 and 468, P. P. C. and section 5 (2) of the Prevention of Corruption Act.
One year's R.I. under each of the three counts, in addition to a fine of Rs. 2,000 under section 420, P.
P. C. or in default of payment of fine further one year's R. I. The substantive sentences to run concurrently.
Muhammad Akbar appellant : Cr. A. 323/65. Under sections 420 and 468, P. P. C.
(Spl. Case 253/64). and section 5 (2) of the Prevention of Corruption Act.
One year's R. 1. under each of the three counts in addition to a fine of Rs. 2,000 under section 420, P.
P. C. or in default of payment of fine further R. I. for eighteen months. The substantive sentences to run concurrently.
It appears that the appellants had adopted a universal pattern or modus operandi in extracting money from different members of the public by supplying them fc rged and spare copies of certain orders purporting to have been passed by the claims officers accepting claims of different claimants who appeared as prosecution witnesses in these cases. On the basis of these forged orders, the claimants succeeded in procuring compensation books. Subsequently however, it was in the course of investigation of F, I. R. No. 247 of 1961 pertaining to Old Anarkali Police Station, Lahore, that all the frauds and forgeries committed by the appellants were brought to light, whereupon the case was formally registered against them resulting in different challans leading to separate trials which culminated in the conviction of the appellants. <
2. Briefly stated, the modus operandi resorted to by the appellants in almost all these cases was that Muhammad Akbar, Upper Division Clerk, appellant in Criminal Appeal No. 323 of 1965, some time in the year 1960, somehow managed to get into touch with the claimant taking him to Akhtar Ali appellant, a lower Division Clerk in the Claims section of the Central Record Office, would offer to get the claim sanctioned on promise of a certain amount of money on receipt of which signatures or thumb-impressions of the claimant would be obtained on certain papers with the declared object of filing an appeal. It appears that in almost all cases orders of rejection of the claims by the Claims Officers were converted into orders of acceptance or partial acceptance of the claims. The dates mentioned in the official record, however, remained unaltered.
3. Learned counsel for the appellants have contended before me:
(a) That the entire proceedings stood vitiated for the reason that the investigation was not held by a competent police officer ;
(b) that no sanction for the prosecution of the appellants had been obtained from the appointing authority; and
(c) that the status of the complainants in different cases who had figured as principal witnesses therein, was, in no way, better than that of an accomplice, and as such no reliance could be placed on their testimony without independent corroboration. It was argued that even in cases where some sort of corroboration was available to the prosecution, it was wholly inadequate, to satisfy the legal requirements in terms of section 114 of the Evidence Act, which insisted on corroboration of the statement of an accomplice on all material particulars.
4. In support of the first contention, learned counsel for the appellants relied on Mst. Mumtaz Begum and 4 others v. The State (1). As regards the second point, learned counsel contended that the prosecution had apparently proceeded on the assumption that as the appellants had already been dismissed from service before the commencement of the prosecution, no such sanction was necessary. It was argued that this presumption had no basis on the record and in order to dispense with the sanction for prosecution, the prosecution must have established by positive evidence the fact of the dismissal of the appellants or their removal from service as the case may be. In the absence of any such evidence, the sanction could not have been dispensed with.
Reliance is placed in this regard on [23] Muhammad Baharuddin Sarkar v. The State (1); Shaikh Anwar Ali v. The Crown (2) and Manzoor Elahi v. The State (3). In support of the last contention, leamed counsel have argued firstly that, in all probability, the claimants in each case had filed bogus claims which were not pursued in view of Martial Law Regulation No. 49, which came into force on the 28th of December 1958, wherein it became clear that the Government was going to deal with cases of bogus claims with a heavy hand. Otherwise it does not stand to reason that a claimant having preferred a claim for an amount of Rs. 50,000 or a little less or more should have conveniently chosen not to press it on the pretext of his illness or other pre-occupations. It is argued that if the claimants had come with clean hands they would have straightaway filed appeals before the Deputy Claims Commissioner through counsel but instead of doing that they established contact with the appellants and tried to use underhand methods for seeking verification of bogus claims. It is argued that from the very fact that the claimants in each case instead of engaging a counsel readily yielded to the temptation of paying considerable amounts to the appellants on promise of getting their claims verified would lead to the irresistible conclusion that they were fully conscious of the offers having been made and accepted in the nature of illegal gratifications. In the circumstances, therefore, it cannot be stated with any amount of reasonable certainty that the claimants had been hoodwinked into a false belief but on the contrary had actively connived at the forgeries etc. and as such were no better than accomplices of the offences. In Criminal Appeal No. 366 of 1965 Fazal Muhammad P. W. 9 had made a clean breast in the examination- in-chief that he had offered the money as illegal gratification and as such there could be hardly any doubt that there was an accomplice and a bribe-giver whose statement could be presumed to be tainted and could not be accepted in the absence of corroboration in all material particulars.
Regarding tainted nature of the evidence of an accomplice and the initial presumption of its being unworthy of credit except in the event of corroboration of testimony of all material particulars as' envisaged by Illustration (e) to section 114 of the Evidence Act learned counsel rely on Noor Muhammad v. The State (4) and Sultan Ali v. The State (5) wherein their Lordships have clearly held that the evidence of a bribe-giver has to be scanned with care and caution. The learned counsel also relied on Abdul Hadi v. The Crown (6) and Saeed-ud-Din and 2 others v. The State (7).
5. Learned counsel for Muhammad Akbar appellant in Criminal Appeal No. 323 of 1965 connected with Criminal Appeal No. 321 of 1965, contended that from the statement of
(2) PLD 1950 Dacca 7
(4) PLD 1963 SC 38
(6) 1969 SCMR 843 Munir Ahmad, Upper Division-Clerk P. W. 2, it was abundantly clear that certified copies or orders were issued under his own signatures and that the copies of orders in question had also been so issued, lt is argued that the explanation offered by him without having seen the initials of Muhammad Akbar on each one of these documents he did not care to personally verify on account of rush of work, did not hold water and as such he could not escape the responsibility of these forgeries and was, in all probability, a privy to all the shady deals if at all they were committed. It is argued that in the circumstances, therefore, when the principal accused has been let off presumably having accepted the offer of the prosecution to become a witness, Muhammad Akbar appellant could not be held responsible for the alleged forgeries. Reliance is placed on Ghulam Abbas v. The State (1). It is next contended that admittedly nothing was paid to Muhammad Akbar by any of the claimants, the money having been invariably allegedly paid to and received by his co-accused Akhtar Ali. As such his conviction under section 420/468, P. P. C. and section 5 (2) of the Prevention of Corruption Act was wholly unwarranted. Reliance is placed in this regard on Muhammad Bachai v. The State (2) and Sultan Ali v. The State.
6. On the other hand, in reply to the arguments advanced in support of the first contention that the investigation was conducted by the Inspector without an order of the Magistrate, it is contended on behalf of the State that this was not a point which could be construed as fatal to the prosecution particularly when no prejudice was found to have been caused to the accused personally. Reliance in this regard is placed on the Crown v. Mehr Ali (3) and Jainullah v. The State (4). As regards the contention that no sanction for prosecution had been obtained before the accused were brought to trial in these cases, learned counsel contends that the appellants had themselves admitted in the grounds of appeal that they had been dismissed from service before the commencement of the trial and as such no sanction was called for in the circumstances. Reliance is placed in this regard on S. A. Venkataraman v. The State (5). On the question as to whether the>, claimants had voluntarily parted with considerable amounts when promise of the verification of their claims were held out by the appellants, it is contended that no material is available on the record to justify the inference that the claimants were party to these shady deals or offering amounts by way of illegal gratification. It is argued that the other P. Ws. have not been adequately cross-examined on the point.
Having carefully considered the contentions raised by the learned counsel for the parties, I am clearly of the view that the convictions cannot be allowed to stand for two reasons, [24] firstly having regard to the background of the cases, I cannot, avoid an impression that the claimants being scared away of Martial Law Regulation No. 49 had chosen not to press their claims which would have been mostly inflated if not altogether bogus but, assuming that at least some of them were inevitably prevented by circumstances beyond their control to pursue their cases diligently, eyen the most ignorant rustic knows any extraneous suggestion that to file an appeal he should engage a counsel unless he wants to do it independently yet instead of having recourse to that normal and legitimate procedure they contacted the appellants or fell victims to their allurement but even if one were to proceed on the assumption that they were innocently lured away by the appellants it is difficult to believe that they are quite ignorant of the fact that they were advancing the amounts by way of illegal gratification, in fact, as stated earlier, Fazal Muhammad P. W. 9 in Criminal Appeal No. 366/1965 had frankly conceded that position. However, despite the protestation of the other claimant prosecution witnesses to the contrary I am plearly of the view that they had deliberately paid the amount'as illegal gratification with their eyes open considering this modus operandi as a short cut to and a sure passport to success and as such they ranked no better than accomplices whose testimony could not be accepted without corroboration in material particulars as envisaged by illustration (b) to section 114 of the Evidence Act. This position is fully borne out by the authorities relited upon by the learned counsel for the appellant. Learned counsel for the State could not point out any circumstance or other piece of incriminating evidence which could serve the purpose of corroboration.
The second ground which too appears important and equally weighty, is the fact that the certified copies of the forged orders found to be bogus were invariably issued under the signatures of Munir Ahmad, Upper Division Clerk who appeared as a prosecution witness in all the cases and admitted his signatures on them. The explanation offered by him was that owing to rush of work he did not personally care to verify the position and in good faith placing reliance on the initials of Muhammad Akbar appellant signed all the copies of the order*. Without causing any aspertion on the integrity of this official one cannot brush aside the contention raised on behalf of the appellant that he too could possibly be a party to such racket and the plea of rush of work and innocent carelessness on his part may not necessarily be true. Once that position was conceded then he being a senior official in the hierarchy was one of the principal accused to be hauled up along with the appellants who alone were made the scapegoats, but even if this additional point were excluded from consideration the fact that there had been no corroboration of the testimony of the claimant witnesses in these cases who had been characterised as accomplices the conviction would be defective and could not stand.
The other contention raised on behalf of the appellants on the point of investigation by' an incompetent officer for want of sanction has apparently no force. The appellants had admittedly been discharged from service before the commencement of the trial and as such had ceased to be public servants by obviating the necessity of sanction for prosecution nor, for that matter, did the prosecution by an incompetent officer affect the jurisdiction of the trial Court for the alleged incompetence in itself is open to serious doubt. However, in view of the conclusions arrived at by me in the earlier part of the discussion, these points lose much of their relevancy ..and force.
For all these reasons, I allow the appeals, set aside the convictions and the sentences of the appellants who have already suffered owing to pendency of the appeals for eight long years in- addition to the. agony and expenses of the trial and their dismissal froth service into the bargain.
Appeals allowed.
1972 P Cr, L J 1041 [Lahore] Before Muhammad Afzal.Zullah and Javid Iqbal, JJ ABDULLAH--Appellant versus The STATE--Respondent Criminal Appeal No. 857 of 1967, decided on 13th December 1971.
Penal Code (XL V of 18615), Ss. JS02 & 84 read with Evidence A el (7 of1872), S. l05,Ulus, {a)--Insanity --Barden ofproof--Murder committed by? person alleged to be of unsound" mind--Question whether accused succeeded in establishing defence of insanity and discharged burden of proof as required by S. 105,Evidence Act, 1872-- Law discussed'*-* Criminal Procedure Code (V of 1898), S. 466.
A person rose early one morning with a severe pain in his stomach and asked his wife to give him a pill to relieve the pain. The wife replied that she did not have the pill but she would get it for him after sunrise. This reply incensed him and he inflicted injuries oil ;I t face and head of his.. 'wife with a toka. The wife died instantaneously. : He' was tried under section 302, P. P. C. for committing the murder of his wife. At the trial an application under section 466, Cr. P, C. was. moved to the effect that the accused was .a man of unsound mind and was incapable of conducting his defence. He was', consequently examined by' Mental;Specialists and the diagnosis revealed that he was a victim of schizophrenia. The. accused, however, was ultimately convicted under section 30244'. P.
45. in appeal before the High Court it ; was admitted that the accused did cause injuries to the deceased but it was pleaded that the act of .the accused was not premeditated and was committed without any motive, without any accomplice and without any concealment. Since he was a victim of schizophrenia, it was pleaded that his case was covered by the exceptions mentioned in section 84, P. P. C. On behalf of the State it was urged that the medical and legal standards of insanity are not identical and from the legal standpoint a person must be regarded as sane and responsible for his acts so long as he understood that his act was wrong or contrary to law. Under the legal concept of insanity, it was argued, it must be positively proved that at the time of committing the act the accused was suffering from such disease of the mind as not to know the nature of his act. Under the legal concept of insanity, it was urged, the morbidity of temper or eccentricities of behaviour resulting in abnormality would not constitute insanity as contemplated under section 84, P. P. C. On the question of distinction between legal insanity and medical insanity and as regards the burden of proof (as required under section 105, Evidence Act) of accused's entitlement to the benefit of exception under section 84, P. P. C. the Division Bench held as follows :-- Per Jarid Iqbal, J. (writing leading judgment)-- Unless the contrary is proved, the law picaumes everyone to be of 'sound mind' and responsible for his acts, .veil if a person afflicted by fits of insanity, has lucid intervals, the Jaw presumes that he committed the offence in a lucid interval. Consequently, when the plea of insanity is set up the burden is on the accused to prove that he was not criminally responsible for the act because of his 'unsoundnesS of mind'. Hence, in order to make it easier to appreciate the evidence bearing on the point of 'unsoundnesS of mind' of the accused, not only the consideration of the testimony of the medical expert as to his mental state is necessary but also the specification of the type of mental disorder, for mental disorders have now been well classified and their characteristics or features described in numerous medical textbooks. Ip. 1059)^4 Schizophrenia, literally translated, means 'splitting of the mind'. It is not possible to look inside the mind, hence all conclusions concerning its operation are based on observation of what the person says and does, these being 1he resultants of his mental activity. In this category must be included the activities of the involuntary muscles and glands which cooperate in every activity of the body and play an especially prominent role in such as are accompanied by motion.............. The features in the behaviour that have led to this concept are the apparent lack of harmony between the component parts of the reaction and between this as a whole and the situation that seemingly called it forth.
The words uttered, for instance, do not correspond with the emotion expressed by the face and the attitude of the body ; or the acts performed with arms and legs are out of keeping with the thought as expressed in words. The observer is thus struck by the incongruity between what is said or done and the actual situation under which these are performed..................... We observe him smile, fly into a rage or make some cryptic remark when there is apparently nothing to justify these reactions. Schizophrenic reactions are of exactly similar kind, with, in addition, the fact that the man himself is apparently unaware of the motive for the inappropriate features and is at a loss to explain them. It then appears as if the motivating force is in some way anthus, as it were 'split off' from the conscious mind........... From wbat has been said, it is clear that schizophrenic reaction tendencies are, at least in part, inherited and therefore liable to be manifested at an early age............. It is also quite possible that disease and exhausting conditions of various kinds may cause diminution in the vital vigour or energy of a man originally well endowed and thus lead to acquired inefficiencies in reaction similar to those that are inherent. It is therefore obvious that wide variation in the age at which the characteristic features of schizophrenia become noticeable is possible..................... First, it should be said that the intellectual mechanism remains undamaged, though this is not always easy of demonstration because the patient is more or less inaccessible to study and examination.
The difficulty is iucreased by the fact that absorption in the dream world, which we found characteristic of the schizophrenic personality, is here exaggerated to such a degree that the real world may be entirely ignored and the man may fail to use his powers of perception and grasp. In consequence, he establishes only scanty and haphazard memories of what transpires around him and may thus seem to have lost his memory. Under tire conditions of stress, whatever their nature, that lead to the psychosis, there is a demand for the expression of feelings and instinctive cravings exactly similar to those of persons of a more frank and open personality. Frank expression being contrary to the habits of reaction, "there results an increase of mental splitting and symbolization.................... Often at first this takes the form of a belief in something vaguely wrong with him and. iq consequence, there arises a state of hypochondriac depression appearances may arise. The thoughts and feelings that come in spite of himself are regarded by the sufferer as unwelcome intruders, not his own, but introduced from without. He concludes that he is being influenced by others who can in some way control his mind and acts, and perhaps also read his thoughts. ............... From this starting point, the patient begins to watch persons around for evidence of interference and is liable to refer to himself (ideas of reference) any little gestures or chance remarks in his surroundings which could, by any stretch of imagination, be interpreted as comments on himself. From this, it is but a small step to the development of hallucinations. The strange thoughts become so vivid that they are heard as voices qnd the expectation of comments from bystanders becomes an actual hearing of them, though as a fact they have not been uttered. The content of the hallucinations is usually unpleasant ; comments, invectives, sneers and suggestions referring more or less openly to the repressed desires, or perhaps expressed only in the form of symbols that the man has adopted in his own mind for dealing with the complexes that have been dissociated. Tn addition to the hallucinations of hearing, others connected with sensations from the body organs are also frequent. His stomach or intestines are heing manipulated and ill-treated, his sexual organs mutilated, etc. [p. 1060)3 The second principle, namely, the burden of proving (as required under section "05 of the Evidence Act) that the accused is entitled to the benefit of the Exception under section 84, P. P. C. is on him, it is based on the consideration of two questions: (a) what is the measure of the burden of proof, and
(b) has the accused discharged the burden in the light of the facts of his case? When the plea of insanity as contemplated in section 84, P. P. C. is raised, the following principles of law can be deduced : (/) That legal insanity as contemplated in section 84, P. P. C. is not identical with medical insanity. However, when the latter is proved it reacts on the former. Therefore in order to make it easier to appreciate the evidence bearing on the point of insanity, the testimony, of the medical or mental expert as well as the consideration of the type of mental disorder are ordinarily indispensable necessities, (ii) That ordinarily an uncontrollable impulse, delusion, eccentricity, abnormality, peculiarity of behaviour, queerness of habit, morbidity of temper, or partial derangement of mind leading to the commission of an offence would not, taken singly, exonerate the accused. (Hi) That under section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case of the accused within special or general Exception enumerated in the P. P. C. is on him and the Court must presume the absence of such circumstances. However this principle is not inconsistent with the 'rule of reasonable doubt' and,' therefore, after an examination of the entire evidence, if the Court is of the opinion that there is a reasonable doubt or possibility that the defence put forward by the accused may be true this will react on the whole prosecution case resulting in benefit of doubt to the accused, (iv) That the accused would be considered to have discharged the burden if the entire evidence, prosecution and for defence, if any, furnishes some reasonable grounds for an inference that by reason of unsoundnesS of mind, at the time of the commission of the offence, the accused was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. For this purpose, generally speaking, the behaviour of the accused before, at the time, and after the commission of the crime, the circumstances under which it has been committed, the pattern of the crime, and the manner or method of its execution, amongst others must be carefully considered, [pp. 1062, >064]C c D Ordinarily killing his wife at 3 or 4 a.m. for not supplying him medicine for stomach ache at that hour, while the children were asleep around, is itself a circumstance pointing strongly to an unhealthy condition of mind, which must also be considered in the light of the testimony of the Mental Expei t. [p. 1066]i?
Schizophrenia was associated with hallucinations and a person suffering from such a disease could even commit murder during the fit without knowing as to what he was doing. It may also be noted that according to Insanity and Law by Singer and Krohn, one of the hallucinations associated with schizophrenia is that a person, while under the fit of this form of insanity, may believe that some one was manipulating his stomach or intestines, [p. 1068]F A perusal of the entire evidence made the prosecution case doubtful and there was a reasonable possibility that the defence version may be true. Hence, the appellant succeeds in discharging the burden4aid upon him by section 105 of-the Evidence Act read with section 84, P. P. C. His conviction and sentence are, therefore, set aside and his appeal is accepted.
[p. 1070]G & H Gholam Yusaf v. The Crown PLD 1953 Lah. 213 ; Hayat v. The State PLD 1959 Lah. 474 ; Ata Muhammad v. The State PLD I960 Lah. Ill ; Chandoo v. The State PLD 1963"Kar. 1034 ; Lai Khan v.
Crown PLD 1952 Lah. 502 ; Bashir Ahmad Khan v. The State PLD 1959 Pesh. 1 ; The State v. Balahari Das Sutradhar PLD 1962 Dacca 467 ; Muhammad Shaft v. The State PLD 1962 SC 472 ; Jalal Din v.
The State 1968 P Cr. L J 187 ; Taylor's Principles & Practice of Medical Jurisprudence, Vol.1, 1965 Edn., p.
478 and Singer and Korhn's A Treatise on Psychiatry,: pp. 53--64 ref.
Per Muhammad Afzal Zullah, J.-- If the accused is able to prove substantial impairment to his mental responsibility due to even partial or borderline insanity so as to affect his knowledge as provided in section 84, P. P. C. he would be entitled to a favourable verdict on the plea of insanity. As to how he is,to establish the above requirement, the answer is that the fact need not be proved as scientifically certain but can be established on the balance of probabilities and on proper resolution of doubts, as held in Safdar Ali v. The Crown PLD 1953 FC 93. [p. 1078]/ It is neither necessary nor possible to visualize all the circumstances in which the plea of insanity, as contained in section 84, P. P. C. would be held to have been proved. But it can be laid down with certainty that the rules stated in M. Naghten's case in this behalf are no more applicable in Pakistan. The question of determination of "unsoundnesS of mind" and the question whether the accused was "incapable of knowing" the nature of an act and other circumstances connected with his knowledge are to be decided like any other question of fact and no generalizations like those in M. Naghten Rules will deter the Court from drawing correct inferences from the evidence before it.
One question which has agitated my mind for some time needs however to be stated. In cases where the accused is able to prove the requisites of section 84, (P. P. C.) before and after 'the act' reliable evidence even including medical and psychiatric, he, technically speaking, is still required under the section to prove that "at the time of doing it" he was of "unsound mind" and due to that his knowledge was in diminished state. The same position is sometime stated thus : If the accused has been able to prove that before and after the act he was suffering from such unsoundnesS of mind still, unless he proves otherwise, it will be presumed that "at the time of doing it" he had "lucid interval in mental condition". This kind of approach firstly may not go strictly in line with the law laid down inPLD 1953 FC 93; secondly, in a large majority of cases it wiH.be almost impossible for the accused, as it was in this case, to produce direct evidence vis-a-vis particular moment of "doing the act"; as obviously neither he would have been subjected to an examination at the time of doing the act nor immediately within moments thereafter; and thirdly, if the accused was suffering from unsoundnesS of mind and the lucid interval was of short moments, as could be in this case, the accused subsequent to the act after some time may not, at all, due to the unsoundnesS of mind, recollect as to what might have happened during the act. If he himself is not able to recollect it will be unreasonable to expect that he will be able to instruct his relations or his counsel as to what actually was his state of mind at that time. In these circumstances, to presume that he must have had lucid interval at that lime, unless proved otherwise, will amount to laying a dangerous proposition. The rigour can be reduced by following the rule laid down in Safdar Ali's case, namely, that from the entire circumstances of the case put forth by the prosecution as well as by the defence, it will have to be seen whether the accused has been able to create a reasonable doubt so as to entitle him to the benefit of acquittal. The generally held concept with regard to lucid interval and the burden of proof in respect thereof needs, at least, a re-orientation so as not to insist on strict proof of the exact state of mind at the time of doing the act. It would be sufficient if the accused by making reference to the attending circumstances, even if they have been shown by the prosecution in the Court, is able to establish by preponderance of probabilities that a reasonable possibility cannot be excluded that at the time of doing the act it was not a lucid interval. He would have thus discharged the burden. The evidence of insanity "before or after the time" can be relevant as tending to show the state of mind existing "at the time" of the commission of the offence. This view has been adopted by some of the Courts in America, [p. 1088]/er seq Some more aspects relating to the plea of insanity need brief comment. First: in view of the latest research and developments in the sciences of medicine, psychology, and psychiatry it would not be proper to insist that medical insanity is something totally different from legal insanity. The one has a profound effect on the other and the proof of one will be a strong circumstance to be noticed in the other. The two cannot, in view of the present day knowledge on the subject, be treated in isolation from each other and in water tight compartments. Second: no general rule can be laid down with regard to the visible symptoms of un- soundness of mind. They can be in the form of delusions, impulses, hallucinations, obsessions and other forms of mental phenomenon. The singular existence of any of them or combination thereof may prove the existence of unsoundnesS of mind; but that will be decided on the facts and circumstances of each case. Third : premeditation, design and the conduct of avoiding arrest after the act by themselves individually are not to be taken as positive proof of unsoundnesS of mind. They are very important relevant factors which must be taken note of in a case involving plea of insanity : but may not be enough to be made the basis of any definite finding. Similarly the absence of motive may be taken as a supporting circumstance for plea of insanity, but in no case it can be treated as proof thereof. This is also a circumstance which, while considering the mental condition of the accused so as to find unsoundnesS of mind at the time of the act, should be considered as only one of the relevant circumstances. As held in some cases, this circumstance is not entirely to be ignored, [p. 1090]K M'Naghten's case 4 St. Tr. Ns. 847 ; Russell on Crime, 1964 Edu., Vol. I, pp. n" 5-109, Footnote No. 28 ; Report of the Royal Commission, 1953, Cmd. 8932, paras. 227-228 ; Stally brass's Comparison of Criminal Law in Modern Approach to Criminal Law, Chap. 20, p. 4 j 5 ; Mauds ley's Responsibility in Mental Diseases,* Sullivan's Crime and Insanity; Hall's Mental Disease and Crime (1945145 Col. L R 679; Meredith on Insanity as a Criminal Defence (1947) 25 Can. B R 251 ; Hadfield's case (1800) 27 St.
Tr. 1281 ; R. v. Byrne (1960) 2 Q B 396 ; R. v. Spriggs (1958) 1 Q B 270; Safdar Ali v. The Crown PLD 1953 FC 93 ; R.V. Carr- Briant (1943) K B 607 ; R. v. Dunbar (1958) 1 Q B 1 ; Attorney- General for South Australia v. Brown (I960) A C 432 ; Sodenwn v. R. (1936) 2 All E R 1138 ; R. v. Podola (1960) 1 QB 325; Taylor's Medical Jurisprudence, 1965 Edn., p. 486 ; Arnold's case (1724) I6 St. Tr. 695 ; Rex v. Oliver Smith (1910) 6 Cr. App. R 19 ; Muhammad Aslant v. The Crown PLD 1953 FC 115 ; Fazal Elahi v. Crown PLD 1953 FC 35 ; Quinn v. Leathern (1901) A C 495 ; Shultz v. Stage 13 Tex. 40 ; People v. Kirby 15 Cal.
App. 264; Cochran v. State 65 Fla, 9i; Carter v. State 2 Ga. App. 254 and Laws of Insanity by George A. Smoot, Chap. 14, p. 372 ref.
Muhammad Yaqub Sidhoo for Appellant.
A. R. Shabab Mufti for A.-G. for the State.
Date of hearing : 14th September 1971.
Javid Iqbal, J.--This appeal is filed by Abdullah son of Umar Din, aged 40 years, cultivator, resident of Cliak No. 86-A/ 12-L, Tehsil and District Sahiwal, against his conviction under section 302, P. P. C. and sentence of transportation for life for murdering his wife, Mst. Alam Bibi, aged 35 years with a toka vide judgment dated the 24th of November 1967, of the Sessions Judge, Sahiwal.
2. The prosecution version is that the appellant was residing along with his wife, Mst. Alam Bibi deceased and five children in the same Ihata in which Bashir Ahmad P. W. 8, brother, and Mst. Bibi P. W. 9, mother of Mst. Alam Bibi deceased as well as Ali Slier P. W. 10 resided in Chak No. 86-A/12-L.
The appellant had joint cultivation with Bashir Ahmad P. W. It is stated that at 3 or 4 a.m. on the 15th of February 1967, Bashir Ahmad P. W. awakened the appellant in order to proceed to the fields. The appellant said to his wife, Mst. Alam Bibi deceased, that he had stomach ache and that she should give him the pill. Mst. Alam Bibi deceased replied that she did not have any pill but she would get it for him after sunrise.
Thereupon the appellant started abusing her and shortly thereafter a shriek of Mst. Alam Bibi deceased was heard. On hearing the shriek Bashir Ahmad P. W,, Mst. Bibi P. W. and Ali Sher P. W. rushed to the residential ltotha of the appellant the door of which was open and saw the appellant inflicting injuries on the face and head of Mst. Alam Bibi deceased with a toka while she was lying on the cot. On the alarm and challenge of the prosecution witnesses the appellant ran away along with his toka. Many other persons residing in the village were also attracted to the scene of occurrence. A search party went after appellant but he could not be found. Mst. Alam Bibi died instantaneously because of the injuries sustained by her.
3. Bashir Ahmad P. W. reported the matter to the police on the same day at 7-00 a.m. The F. I. R.
(Exh. P. G.) was recorded by Zahir Muhammad Khan S.I. P.W.11 at Police Station Shahkot which is at a distance of five miles in the direction of east from the place of occurrence. Thus a case under section 302, P. P. C. was registered against the appellant.
4. Zahir Muhammad Khan S. I. P. W. who conducted the investigation reached the scene of occurrence at 9-00 a.m. on the same day. The appellant was not present but he was produced before Zahir Muhammad Khan S. I. P .W. at the spot on the same day in the afternoon by Rehmat Ali P. W. 6 and Faqir Muhammad P. W.
7. Zahir Muhammad Khan S. I. P. W. put the appellant under arrest and interrogated him about the weapon of offence. The appellant, while in custody, led him to a bush about 3 or 4 killas from the village and produced bloodstained toka P. 8 which was lying concealed therein. Its recovery was witnessed by Rehmat Ali P. W. and Faqir Muhammad P. W. and it was taken into possession vide memo. Exh. P. F. The scrapings taken from toka P. 8 were subsequently found according to the reports of the Chemical Examiner and the Serologist to be stained with human blood (Exhs, P. M. and P. O). On the completion of the investigation the appellant was challaned.
5. Dr. Ghulain Rasool P. W. l^performed the post-mortem examination on the dead body of Mst.
Alam Bibi on the 16th of February 1967, at 1-00 p.m. and found the following injuries on her person:--
(1) An incised wound 6"xl"x bone deep and cut on the right temporal frontal region of the scalp.
(2) An incised wound 4|"xl"x bone deep and cut on the upper part of the right cheek joining injury No. 1 above.
(3) An incised wound 4'xl'x bone deep and cut on the right cheek between right ear and right angle of the mouth.
(4) An incised wound on the right ear 3'x 1" cutting the ear and the underlying bone.
(5) An incised wound lj'x 1* x V just below the pinna of the right ear.
(6) An incised wound 3' x x J' on the right side of the neck in the upper part joining the lower margin of the mandible.
(7) Two linear abrasions lj'xj' and lj'xi' on the right cheek below injury No. 3.
Under injuries Nos. 1 and 2 the right temporal and parietal bones were cut and fractured into pieces. The underlying meninges and brain matter was also cut, blood was present all over the cranial cavity. Stomach was healthy and empty. Heart was healthy. All other organs were healthy.
In the opinion of this Medical Officer the cause of death was shock and haemorrhage and injury to the brain matter vide external injuries Nos. 1 and 2. These injuries according to him, were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and had been caused by a sharp-edged weapon. Time between injuries and death was immediate.
6. The commitment proceedings against the appellant were conducted by Raja Adil Khan, M. I. C., Sahiwal. In his statement before the committing Court the appellant admitted that he resided in the Ihata of Bashir Ahmad P. W. in Chak No. 86.A/ 12-L at the time of occurrence along with his wife Mst. Alam Bibi deceased and his five children. However he stated that he did not remember that on the 15th of February 1967, at about 3/4 a.m. he had demanded medicine for stomach ache from his wife Mst. Alam Bibi deceased to which she replied that she would get it for him in the morning and thereupon he started abusing her. He denied the allegation that he had attacked his wife Mst. Alam Bibi with toka P. 8 which resulted in her death. He also denied that on the 15th of February 1967, he had made an extra-judicial confession before Rehmat Ali and Faqir Mohd. P. Ws. that he had murdered his wife Mst. Alam Bibi. Likewise he denied that on the 15th of February 1967 while in police custody he led to the recovery of toka P. 8 from a bush. He disowned toka P.
8. He claimed that .he was innocent and he did not know as to why he had been implicated in this case. However, he stated that he would produce defence evidence in the Court of Session.
7. The appellant was eventually committed to stand his trial, under section 302, P. P. C. for committing the murder of his wife, Mst. Alam Bibi, while his trial was pending before the Additional Sessions Judge, Sahiwal, an application was submitted on his behalf under section 466, Cr. P. C. on the 10th of May 1967 to the effect that the appellant was a man of unsound mind and was incapable of conducting his defence. Thereupon the learned Additional Sessions Judge ordered that the Mental Specialist of Mental Hospital, Lahore, should examine the appellant. Afterwards in order to ascertain as to whether or not the appellant was fit to stand his trial the learned Additional Sessions Judge, Sahiwal, summoned and recorded as C. Ws. the statements of Dr. Captain Muhammad Umar, Medical Superintendent, D. H. Q. Hospital, Sahiwal, Dr. Zafar Iqbal, Medical Officer, Central Jail, Sahiwal, Sh.
Abdul Qadir, Assistant Superintendent Jail, Sahiwal, and Dr. M. A. A. Aziz, Mental Specialist, Mental Hospital, Lahore. Dr. Captain Muhammad Umar stated that he examined the appellant on the 26th of May 1967, under the order of the trial Court. Tbe appellant did not give correct answers to his questions. He was constantly muttering and talked nonsense. He ate and slept well. According to this witness the appellant appeared to be a malingerer, however, Dr. Captain Muhammad Umar admitted in his cross- examination that he was not a mental specialist and that therefore, he thought it fit that the appellant be referred to the Mental Hospital. Dr. Zafar Iqbal stated that he visited the Central Jail Hospital and observed the appellant secretly. In his opinion also the appellant was not a mental case but a malingerer. According to him, when the appellant talked to the jail authorities or with him, he muttered but when he talked to the other prisoners, he talked in perfect senses. Sh. Abdul Qadir stated that during the time the appellant remained in the jail he talked to the other under-trial prisoners in perfect senses but when he talked to the jail official, he talked nonsense, Dr. M. A. A. Aziz stated that the appellant was brought to the Mental Hospital, Lahore on the 2nd of June 1967 for mental examination and remained in the said hospital till the 21st of July 1967. During this period, he found the appellant confused. The appellant talked continuously, was agitated and impulsive. According to this witness he was a case of schizophrenia. He was treated in the Mental Hospital, Lahore was cured and found fit to stand his trial after he had been examined by the Special Medical Board constituted of the Administrative Officer, Government Klental Hospital, Lahore and neuro-psychiatrist Government Mental Hospital, Lahore, as well as Mr. M. A. A. Aziz. The report of the Board dated the 5th of July 1967 is Exh. C. W. B. In his cross-examination this witness stated that schizophrenia was a disease of insanity. The patient according to him may or may not get fits of this disease. This witness stated that it was difficult for him to give exact duration since when the appellant was suffering from schizophrenia. The duration according to him could be about two years. The duration of fits or insanity, according to this Mental Specialist, may last for few minutes or for two months or even for a longer period. Schizophrenia, according to him, was mental disorder and if a person was of an unsound mind, he could not make distinction between good and bad. Since the appellant was adjudged by the Special Medical Board as fit to stand his trial, the learned Additional Sessions Judge vide his order dated tbe 7th of September 1967, fixed the date of trial of the appellant on the 28th of September 1967, but before the date of hearing, orders of the transfer of the case of the appellant were received by the learned Sessions Judge, Sahiwal, to conduct the appellant's trial himself which was accordingly done.
8. The case of the prosecution is supported by three eye-witnesses, namely, Bashir Ahmad P. W., Mst. Bibi P. W. and Ali Sher P. W. It is corroborated by medical evidence, recovery of blood-stained toka P. 8 which was allegedly witnessed by Rehmat Ali and Faqir Muhammad P. Ws. and taken into possession vide memo. Exh. P. F. and an extra-judicial confession alleged to have been made by the appellant before Faqir Mohd, and Rehmat Ali P. Ws., but not relied upon by the learned trial Court.
9. Bashir Ahmad P. W. who lodged theF. I. R. (Exh. P. G.), in his cross-examination denied the suggestion as incorrect that the appellant was insane for about 1J years before the occurrence and that Muhammad Ishaq D. W. 5, brother of the appellant, as well as his wife Mst. Alam Bibi deceased and his sister Mst. Aimna D. W. 3 got him treated for insanity. He also denied the suggestion as incorrect that the appellant had a fit of insanity at the time of the occurrence.
However, he admitted that Mst. Alam Bibi deceased had to bring medicine for the appellant from a person named Shah (Peer Anwar Shah produced as D. W. 6). But he denied the suggestion as incorrect that some time before the occurrence the appellant was taken to Chak No. 94/9-L to be treated by a (Peer Anwar Shah D. W. 6) and that Mst. Alam Bibi deceased had brought him back before the occurrence. He also denied the suggestion as incorrect that he and Mst. Alam Bibi had brought medicine for the treatment of the appellant from Dr. Fateh Muhammad Sabir (produced as D. W. 2), two or three days before the occurrence. He stated that Mst. Alam Bibi deceased was not a woman of bad character but was obedient to her husband. Furthermore when Mst. Alam Bibi deceased had told the appellant that there was no medicine in the house and that she would obtain the same for him in the morning, this reply was given by her to the appellant politely. He further stated that while the appellant was abusing Mst. Alam Bibi deceased she did not abuse him in return. He denied the suggestion as incorrect that the appellant had fits of insanity and that they used to keep him confined in a room. He stated that when they rushed to the scene of occurrence which was inside the residential kotha of the appellant, the door was open. He further stated that after entering the kotha he challenged the appellant but the appellant pointed out toka P. 8 towards him and, therefore he did not go near the appellant. He stated that the appellant ran away after pointing out toka P. 8 towards him. He further stated that he and Ali Sher P. W. chased the appellant when he ran out from the kotha but they stepped aside because the appellant held toka in his hand. The children of Mst. Alam Bibi deceased woke up on hearing the alarm.
10. Mst. Bibi P. W. in her cross-examination also denied the suggestion as incorrect that the appellant had become insane since about 11 years before the occurrence and that the brother and sister of the appellant as well as his deceased wife used to get him treated for insanity. According to her, the appellant had come to his house in the evening before the occurrence in sound health. She did not know if he had any fit of insanity during the night of occurrence. However, she admitted that he had pain in his stomach and that Mst. Alam Bibi deceased had brought medicine for him from Shah in the evening. She denied the suggestion as incorrect that the father of the appellant was also insane and had died as such. Likewise, she denied the suggestion as incorrect that the appellant was living in Chak No. 94/9-L, with his Peer and was getting treatment for insanity from him and that he was brought to his house by Mst.
Alam Bibi deceased some time before the occurrence. She also denied the suggestion as incorrect that the appellant had fits of insanity and that they kept him behind the doors on such occasions.
Likewise she denied the suggestion as incorrect that Mst. Alam Bibi deceased and Bashir Ahmad P.
W. took medicine from Dr. Fateh Muhammad Sabir for the treatment of insanity of the appellant and that the same medicine was being used by the appellant during the night of the occurrence.
She stated that Mst. Alam Bibi deceased had politely told the appellant that she would get the medicine for him in the morning and that she did not abuse the appellant in return but when she was being abused by him she remained quiet.
11. Ali Sher P. W. who is not related to Mst. Alam Bib* deceased and is an independent witness, deposed in his cross- examination, that he did not know if any body took the appellant to Peer Gadhianwala for treatment, nor did he know if Muhammad Ishaq the brother of the appellant, Mst.
Amina his sister and Mst. Alam Bibi deceased got him treated for insanity. He also did not know if Bashir Ahmad P. W. and Mst. Alam Bibi deceased had brought the appellant from Peer Gadhianwala two or three days prior to the occurrence. He did not know if the appellant was insane one or two days prior to the occurrence. He likewise did not know whether the medicine demanded by the appellant was for insanity or for stomach pain. He did not know if the appellant used to quarrel on petty matters. He could not say whether Mst. Alam Bibi deceased was pulling on cordially with the appellant or not. He stated that Mst. Alam Bibi had replied to the appellant politely. According to him, the children of the appellant were asleep in the same kotha. They woke up when he reached inside the kotha and he saw them weeping.
12. The witnesses of the recovery of toka P. 8 namely, Rehmat Ali and Faqir Muhammad P. Ws. are the same before whom the alleged extra-judicial confession was made by the appellant and who apprehended the appellant and allegedly produced him before Zahir Muhammad Khan S. I., P. W.
Rehmat Ali P. W. stated that he and Faqir Muhammad P. W. were deputed by Zahir Muhammad Khan S. I. P. W. to search for the appellant. The relatives of the appellant resided in Chak No. 57/12-L which is at a distance of about 3 miles from the place of occurrence. He stated that he and Faqir Muhammad P. W. went to Chak No. 57/12-L on the same day and found the appellant in the Chowk of that Chak, According to this witness, the appellant first told them that he had heard that his wife had been killed. They asked him to accompany them to their Chak and thus he came along with them and was produced before Zahir Muhammad Khan S. I. P. W. and he confessed before him that he had killed his wife. Thereupon Zahir Muhammad Khan S. I. P. W. arrested the appellant and interrogated him about the weapon of offence. Then the appellant led them to a bush at a distance of about 2 or 3 killas from the village and got recovered blood-stained toka P. 8 which was taken into possession vide memo. Exh. P. F. In his cross-examination he stated that he did not know the appellant before the occurrence, as the appellant, his wife and Bashir Ahmad P. W. had come to their village only about six months prior to the occurrence. He became acquainted with the appellant about a month prior to the occurrence and had seen him 10 or 15 days before the occurrence. He did not notice any signs of insanity in the appellant at that time. He stated that he and Faqir Muhammad P. W. were coming towards the eastern side in the Chowk of Chak No. 57/ 12- L when they noticed the appellant coming alone from the opposite direction. He further stated that the service road was 2 or 3 killas from the village. However, he denied as incorrect his statement made before the police (Exh. D. A), to the effect that the bush from where toka P. 8 was recovered is at a distance of one square from the Chak. According to him, the appellant had himself taken out toka P. 8 from the bush after picking it up from there. He denied the suggestion as incorrect that the appellant was actually produced by Chiragh and Sharif Chowkidars of Chak No. 57/12-L before the police.
13. Faqir Muhammad P. W. stated that he went with Rehmat Ali P. W. to search for the appellant.
They both went to Chak No. 57/12-L and the appellant met them in the Chowk of that Chak. He further stated that on their inquiry the appellant confessed before them that he had murdered his wife Mst. Alam Bibi deceased. They brought him to their village and produced him before Zahir Muhammad Khan S. I. P. W. The appellant thereafter led them to a bush at a distance of 3 killas from the Chak abadi and got recovered blood-stained toka P. 8 which was taken into possession vide memo. Exh. P. F., and attested by him and Rehmat Ali P. W. In his cross-examination be stated that the appellant was sitting among some people who had collected in the chowk of Chak No. 57/12-L when they reached there. According to him, there were 5 or 6 persons out of whom only Chiragh was known to him. He further stated that the appellant was not ill in those days and that he did not hear in the village that the appellant was subjected to fits of insanity. According to him, the appellant had no such fit in his presence on any occasion. He also stated that the appellant was sitting quietly among the people in the Chowk of Chak No. 57/12-L and had stated before him and Rehmat Ali P. W. that he had committed a mistake by murdering his wife. According to him, the appellant made confession before the police for a second time. He also denied as incorrect his statement made to the police (Exh. P. B.) to the effect that the appellant had asked them that he may be produced before the police and that the police might have arrived there. He further stated that as far as he remembered he had stated before the police that the bush from where toka P. 8 was got recovered from the appellant is at a distance of one square from their village. He admitted that the service road is at a distance of 3 or 4 killas from their Chak.
14. In his examination by the trial Court, the appellant admitted that Mst. Alam Bibi deceased was his wife and that he was residing in the same Ihata as Bashir Ahmad P. W. But he stated that he did not remember if Bashir Ahmad P. W. woke him up on the 15th of February 1967, at 3 or 4 a.m., that he asked his wife Mst. Alam Bibi deceased that he had stomach ache and that she should give him medicine but on hearing her reply that she would send the medicine to him in the fields after sunrise, he started abusing her, that he gave blows to Mst. Alam Bibi with toka P. 8 and that on the arrival of Bashir Ahmad, Mst. Bibi and Ali Sher P. Ws. he ran away from the spot along with his toka.
Likewise he stated that he did not remember that Mst. Alam Bibi died on account of the injuries inflicted by him on her. He disowned toka P. 8 and denied that he made an extra-judicial confession before Rehmat Ali and Faqir Mohd. P. Ws. He also denied that he led to the recovery of bloodstained toka P. 8 from a bush while in police custody. He stated that during the days of occurrence he was suffering from fits of insanity and did not know his whereabouts. He was used to be given some herbs by Bashir Ahmad P. W. etc. So that he could be able to enjoy sleep. He pleaded not guilty to the charge and claimed that he was innocent.
15. The appellant also produced seven defence witnesses Dr. M. A. A. Aziz D. W. 1 reiterated his previous statement before the trial Court made as C. W. He stated that the appellant was admitted in the Mental Hospital, Lahore on the 2nd of June 1967 and he remained there till the 21st of July 1967. He was diagnosed as a case of schizophrenia. He was given medical treatment as well as special treatment and was produced before the Board on the lst of July 1967, which declared him fit to stand trial. According to him, schizophrenia was a type of insanity and in the case of the appellant the duration of the disease could be about two years prior to his examination. The fits of insanity, according to him, may last for a few minutes or for two months or even longer. During the fits of schizophrenia the appellant could not differentiate between good and bad. According to this witness, schizophrenia was associated with hallucinations and delusions and a person suffering from such a disease could do anything and even could commit murder during the fit without knowing as to what he was doing. In his cross-examination, he stated that schizophrenia was described as molecularly disintegrated personality. The cause of this disease could be (a)
Inheritance and (b) inability of the personality to stand the strains of life and to adapt itself to its surroundings. In reply to the question of the Public Prosecutor as to whether a person after the commission of murder could become a patient of schizophrenia, he replied that he had not seen schizophrenia in such a case but he had seen effective reactions developed from the impending trial. According to him, the appellant was not a malingerer, because if a person assumed the role of a mad man he could be detected. He stated that a person suffering from schizophrenia could not follow his ordinary pursuits during the fits and could not do intelligent work, although one could meet him in a cafeteria without being able to detect that he was suffering from this disease.
16. Dr. Fateh Muhammad Sabir D. W. 2 stated that he was a registered Homeopathic Practitioner and had his certificate of M. D. H. (Doctor of Homeopathic Medicines), from M. D. H. Medical College, Lahore. According to him, the appellant was brought to him in January 1966 for treatment of insanity by Bashir Ahmad P. W., Mst. Alam Bibi deceased, Muhammad Ishaq D. W. 5 and Mst. Aimna D. W.
3. Whenever the appellant had a fit of madness, he tried to be violent and attempted to beat others. After 2 or 3 months they took medicine from him for the appellant again. He further stated that about 2 days before the occurrence Bashir Ahmad P. W. and Mst. Alam Bibi deceased came to him and told him that the appellant had a serious attack of insanity and had been confined in a kotlia. He gave them medicine for two days. He stated that during the period from January 1966 to the time of occurrence he had been giving medicine for the treatment of the appellant. In his cross- examination lie stated that no body had approached him to appear before the police to depose about the insanity of the appellant.
17. Mst. Aimna D. W. 3 sister of the appellant, stated that he had become mad since about 1J years prior to the occurrence. She deposed that her father was also insane. The appellant had fits of insanity and she, Muhammad Ishaq D. W. and Mst. Alam Bibi deceased used to get him treated from Dr. Fateh Muhammad Sabir D. W. and Pir Anwar Shah D. W. She further stated that about 1J months before the occurrence she wrote a letter to her brother Muhammad Ishaq D. W. at Chak No. 86/9-L to the effect that the appellant had again fits of insanity and was confined in a kotha by Bashir Ahmad P. W. etc. (This letter bears the date 7th of January 1967, and is on the file as Exh. D.
C.). The contents of this letter are as follows:-- ^f 6o| jljI _& L& bs \ d & jj\ LT (jtfc J Axis JS c5CjI (JS*! xi_j1 jj\ _ - Lj my OLL, LT oLL. jSCJ \js"
ASi jjl - Jl- cr"L _ J_\j oL-iS* ^j'U jS" yT ** L. >. IT cjb (_r"l olf s_ejb jjs"
This letter was scribed by Muhammad Aslam D. W. 4 of her Chak. She further stated that as a result of this letter Muhammad Ishaq D. W. took the appellant to Pir Anwar Shah of Gadhian D. W. 6 for treatment where he remained for about a month, but two or three days prior to the occurrence he was brought back by Mst. Alam Bibi deceased and Bashir Ahmad P. W. She stated that on coming to know that the appellant had come back she went to his Chak two days before the occurrence and stayed there for one night. She returned the following day in the evening time and the occurrence took place thereafter on the same night. She further stated that when she saw the appellant, he was in a state of madness and had left him in the same condition. On her inquiry Mst. Alam Bibi deceased had told her that she had brought medicine for the appellant from Dr. Fateh Muhammad Sabir D. W. She was also informed by Mst. Alam Bibi deceased that the medicine was for two days.
In her cross-examination she stated that she had deposed about the madness of the appellant for the first time in the trial Court.
18. Muhammad Aslam D. W. 4, stated that he wrote the letter Exh. D. C. which was addressed to Muhammad Ishaq D. W., brother of the appellant, and as no envelope was available in their Chak the letter was sent berang. He further stated that the appellant came to their Chak on the 15th of February 1967, after the occurrence and sat in the baithak of Muhammad Siddiq, B. D. Member D. W.
7, where this witness was also present. According to him, the appellant was saying that he was doomed as his wife had been murdered. Muhammad Siddiq D. W- had sent him to Chak No. 86- A/12-L with Chiragh and Faqir Chaukidars.
19. Muhammad Ishaq D. W. 5, the brother of the appellant also stated that the appellant had become insane since about 1 years before the occurrence and that they got him treated from Dr. Fateh Muhammad Sabir D. W. and Pir Anwar Shah D. W. According to him, whenever the appellant had fits of insanity, he became violent and sometimes the fits lasted continuously for 2/3 months.
He further stated that about 1J months before the occurrence he received berang letter Exh. D. C. from Mst. Aimna D. W. about the illness of the appellant. He then went to Chak No. 86-A/12-L and took the appellant to Pir Anwar Shah D. W. in Chak No. 94/9-L. The appellant remained there for about one month. But two days prior to the occurrence Bashir Ahmad P. W. and Mst. Alam Bibi deceased brought the appellant back. He further stated that he had accompanied them. During all that time the appellant had been in a fit of insanity. He further stated that Pir Anwar Shah D. W. had told them that they should not take the appellant back with them as he was under a fit of insanity and was very violent. But Mst. Alam Bibi deceased insisted on bringing him back saying that she would get the appellant treated by Dr. Fateh Muhammad Sabir D. W. He further stated that he did not appear before the police to inform them about the condition of the appellant because of fear.
He stated that they were afraid that if they informed the police about the insanity of the appellant they may be involved in the murder of Mst. Alam Bibi.
20. Pir Anwar Shah D. W. 6, deposed that the appellant and his brother Muhammad Ishaq D. W. were his murids. According to him, the appellant was Insane for the last two years and he had been treating him by amulets etc. The appellant used to stay with him for months for treatment. He stated that the appellant had been under his treatment for about a month before the occurrence, that Muhammad Ishaq D. W. had ^ brought the appellant to him, but he was taken back by Mst. Alam Bibi deceased, Bashir Ahmad P. W. and Muhammad Ishaq D. W. three days before the occurrence. According to this witness at that time the appellant was under a fit of insanity and, therefore, he told them not to take the appellant because he may be a cause of danger to others, but Mst. Alam Bibi deceased had told him that she would get the appellant treated from Dr. Fateh Muhammad Sabir D. W.
21. Muhammad Siddiq D. W.
7. Lambardar of Chak No. 57/12-L, stated that in the war of September 1965, the appellant was apprehended in their Chak because he was suspected to be an Indian spy.
On coming to know about it he went to the authorities and told them that the appellant belonged to their Chak and was innocent. He thus got him released and brought him to his Chak. According to this witness, thereafter sometimes the appellant had fits of insanity. He further stated that on the 15th of February 1967, the appellant was brought to his baithak by one Anwar of Chak No. 56/12-L saying that he was wandering about and talking nonsense. Many people assembled there and they told the appellant that they had heard that his wife had been murdered. Thereupon the appellant stated that his wife had been murdered by some body and that he had been doomed.
He further stated that he asked Chiragh and Sharif Chaukidars of his Chak to take the appellant to Chak No. 86-A/12-L and consequently they took him to his Chak. In his cross-examination he stated that Mst. Aimna D. W. was living in his Chak. She came to know about the occurrence early in the morning and had gone to Chak No. 86-A/12-L. He further stated that he appeared before the Inspector of Police on the next day of occurrence and told him about the insanity of the appellant but the Police Inspector did not listen to him.
22. Learned counsel for the appellant does not seriously contest that the injuries which led to the death of Mst. Alam Bibi were inflicted by the appellant. He argues that the act of the appellant was not premeditated, but was committed without any motive without any accomplice and without any concealment. He urges that in the light of the statement of the Mental Expert Dr. M. A. A. Aziz, who was summoned as C. W. as well as D. W. I, the appellant had a mental history and was suffering from the mental disease called schizophrenia for about two years prior to the date of the appellant's mental examination by him (2nd of June 1967). He further argues that according to Dr. M. A. A. Aziz schizophrenia was a form of insanity and if a person was afflicted by a fit of this disease he could not distinguish between right and wrong or good and bad. He argues that after the commission of the alleged offence, according to the mental expert, the appellant remained in the Mental Hospital, Lahore, from the 2nd of June 1967 to the 21st of July 1967, and on his mental examination was found to be suffering from schizophrenia for a period of about two years. According to the learned counsel the statements of the D. Ws. who should be believed, reveal that the appellant was under a fit of insanity at the time of commission of the alleged offence and was incapable of knowing the nature of the act done by him or that he was ^ doing what was either wrong or contrary to law. He, therefore, pleads that the case of the appellant was covered by the Exception mentioned in section 84, P. P. C. which runs as follows:-- "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.''
23. Learned counsel for the State on the other hand contends that medical and legal standards of insanity are not identical. He urges that from the medical standpoint the act of murder by itself indicates an abnormal state of mind of the murderer, but from the legal standpoint a person must be regarded as sane and responsible for his act so long as he understood that his act was wrong or contrary to law, if person was aware that the act was one which he ought not to do and that the act was at the same time contrary to law, he was punishable. Therefore, according to him, in order to successfully establish a defence on the ground of insanity, it must be positively proved that at the time of committing the act the appellant was labouring under such a defect of reason or from disease of the mind as not to know the nature of his act or that what he was doing was wrong or contrary to law. Under the legal concept of insanity, learned counsel for the State argues, morbidity of temper or eccentricities of behaviour resulting in abnormality would not constitute insanity as contemplated in section 84, P. P. C. He further afgues that where the Court notices that insanity was a feigned one, it should ignore it. According to the learned counsel, the act of the appellant was not without a motive. Immediately before the commission of the offence, the behaviour of the appellant indicates that he was sane. It is argued that according to the prosecution version which should be believed, the appellant wanted medicine for his stomach ache and on refusal he was enraged and committed the offence. Hence according to the learned counsel, the act of the appellant was sane because he had a motive or a cause. Immediately after the commission of the offence, the learned counsel argues, the appellant threatened the P. Ws. with toka in his hand not to reach near him, and then he escaped from the scene of occurrence along with the weapon of offence to his sister's village at a distance of three miles. It is also argued that he managed to hide the weapon of offence, namely, toka, P. 8 which was subsequently recovered at his instance.
According to the learned counsel, all these acts of the appellant were sane acts and hence his case was not covered by section 84, P. P. C.
24. Two principle* have indeed been well enunciated in the law of this country. First, the distinction between legal insanity and medical insanity as illustrated in Gholam Yusaf v. The Crown (1), Hayat v. The State (2), Ata Muhammad v. The State (3) and Chandoo v. The State (4). And second, the burden of proving (as required under section 105 of the Evidence Act) that * the accused is entitled to the benefit of the Exception under section 84, P, P. C. is on him as illustrated in Lai Khan v. Crown (5), Gholam Yusaf v. The Crown, Bashir Ahmad Khan v. The State (6), Hayat v. The State, Ata Muhammad v. The State, The State v. Balahari Das Sutradhar (7), Muhammad Shafi v. The State (8), Chandoo v. The State and Jalal Din v. The State (9).
25. In regard to the first principle, namely, the distinction between legal insanity and medical insanity, in order to make it easier to appreciate the evidence bearing on this point, the medical evidence would of course be an indispensable necessity. In Ata Muhammad v. The State it was pointed out:-- "In a trial in the Sessions Court, an accused person may feign insanity, but if it appears to the Court, unable to detect the simulation that the accused may be of unsound mind, the question had to be tried as a fact and medical evidence on the point would, of course, be an indispensable necessity."
On this point, learned counsel for the appellant also relies .on Taylor's Principles and Practice of Medical Jurisprudence, Volume I (1965 Edition), page 478 wherein it is observed:-- "It is clear that medical evidence about the state of mind of an accused person is in fact of vital importance, and provided that it is given with integrity and objectivity, it will receive the respect and attention of the Court. This in turn is without prejudice to the fact that whereas it is for the medical witness to testify as to the mental state of the accused, it is finally for the jury to assess the degree of impairment of responsibility arising therefrom."
It is obvious that unless the contrary is proved, the law presumes everyone to be of 'sound mind' and responsible for his acts. Even if a person afflicted by fits of insanity, has lucid intervals, the law presumes that he committed the offence in a lucid interval. Consequently, when the plea of insanity is set up the burden is on the accused to prove that he was not criminally responsible for the act because of his 'unsoundnesS of mind'. Hence, in order to make it easier to appreciate the evidence bearing on the point of 'unsoundnesS of mind' of the accused, not only the consideration of the testimony of the medical expert as to his mental state is necessary but also the specification of the type of mental disorder, for mental disorders have now been well classified and their characteristics or features described in numerous medical textbooks.
(2) PLD 1959 Lah. 474
(4) PLD 1963 Kar. 1034
(6) PLD 1959 Pesh. 1
(8) PLD 1962 SC 472 LJ 187 In the present case the Medical or Mental Expert, namely, Dr. M. A. A. Aziz, who was produced as C. W. as well as D. W. has stated that the appellant was afflicted by the mental disorder called schizophrenia for a period of about two years before his examination by him on the 2nd of June 1967. He has also * stated that schizophrenia was associated with hallucinations and delusions, and a patient of schizophrenia had fits of iosanity which could last for few minutes or for months or even for a longer period, and if a person was subject to a fit of this mental disease, he could not make distinction between good and bad, and could do anything, even commit murder during the fit without knowing as to what he was doing.
It may be useful at this stage also to consider as to what is schizophrenia or the psychosis of a patient suffering from this disease. Obviously this form of mental disorder is now fairly well classified and its essential characteristics have been described in numerous medical books. In Insanity and Law (A Treatise on Forensic Psychiatry) by Singer and Korhn, pp. 53--64, it is described as follows :-- "Schizophrenia, literally translated, means 'splitting of the mind'. It is not possible to look inside the mind, hence all conclusions concerning its operation are based on observation of what the person says and does, these being the resultants of his mental activity. In this category must be included the activities of the involuntary muscles and glands which cooperate in every activity of the body and play an especially prominent role in such as are accompanied by emotion........... The features in the behavior that have led to this concept are the apparent lack of harmony between the component parts of the reaction and between this as a whole and the situation that seemingly called it forth. The words uttered, for instance, do not correspond with the emotion expressed by the face and the attitude of the body; or the acts performed with arms and legs are out of keeping with the thought as expressed in words. The observer is thus struck by the incongruity between what is said or done and the actual situation under which these are performed......... We observe him smile, fly into a rage or make some cryptic remark when there is apparently nothing to justify these reactions. Schizophrenia reactions are of exactly similar kind, with,in addition, the fact that the man himself is apparently unaware of the motive for the inappropriate features and is at a loss to explain them. It then appears as if the motivating force is in some way and for some reason kept out of conscious recognition and it is this which has led to the concept of 'splitting.' The impulse to action and the memories associated with it, while still active, yet operate independently of consciousness and are thus, as. it were 'split off* from the conscious mind.......... From what has been said, it is clear that schizophrenic reaction tendencies are at* least in part, inherited and, therefore, liable to be manifested at an early age........ It is also quite possible that disease and exhausting conditions of various kinds may cause diminution in the vital vigour or energy of a man originally well endowed and thus lead to acquire inefficiencies in reaction similar to those that are inherent. It is, therefore, obvious that wide variation in the age at which the characteristic features of schizophrenia become noticeable is possible............. First, it should be said that the intellectual mechanism remains undamaged, though this is not always easy of demonstration because the patient is more or less inaccessible to study and examination. The difficulty is increased by the fact that absorption in the dream world, which we found characteristic of the schizophrenic personality, is here exaggerated to such a degree that the real world may be entirely ignored and the man may fail to use his powers of perception and grasp. In consequence, he establishes only scanty and haphazard memories of what transpires around him and may thus seem to have lost his memory. Under the conditions of stress, whatever their nature, that lead to the psychosis, there is a demand for the expression of feelings and instinctive cravings exactly similar to those of persons of a more frank and open personality. Frank expression being contrary to the habits of reaction, there results an increase of mental splitting and symbolization .............. Often at first this takes the form of a belief in some thing vaguely wrong with him and in consequence, there arises a state of hypochondriac depression with evidence of perplexity and irritability.................................... Out of this perplexing state of wish and counterwish, .... many odd appearances may arise. The thoughts and feelings that come in spite of himself are regarded by the sufferer as unwelcome intruders, not his own, but introduced from without. He concludes that he is being influenced by others who can in some way control his mind and acts, and perhaps also read his thoughts.............. From this starting point, the patient begins to watch persons around for evidence of interference and is liable to refer to himself (ideas of reference) any little gestures or chance remarks in his surroundings which could, by any stretch of imagination, be interpreted as comments on himself. From this, it is but a small step to the development of hallucinations. The strange thoughts become so vivid that they are heard as voices and the expectation of comments from bystanders becomes an actual hearing of them, though as a fact they have not been uttered. The content of the hallucinations is usually unpleasant comments, invectives, sheers and suggestions referring more or less openly to the repressed desires, or perhaps expressed only in the form of symbols that the man has adopted in his own mind for dealing with the complexes that have been dissociated. In addition to the hallucinations of hearing, others connected with sensations from the body organs are also frequent. His stomach or intestines are being manipulated and ill-treated, his sexual organs mutilated, etc. (Underlining* is mine). Hallucinations of other senses may also occur, but are somewhat less frequent................. The hallucinations and feelings of influence often lead to false explanations (delusions) of being under the evil eye hypnotized, ?[Here in italics] worked on by extraordinary machines and supernatural powers......................... The man may complain bitterly when questioned, but if left to himself, he usually does nothing more than brood and worry, and he makes no coherent effort to discover the cause nor prevent their recurrence. This does not mean that he will not at times make abortive, usually short lived, and sometimes violent and explosive efforts to reply to them. He may go to the police and ask for protection, or he may make a desperate assault on someone in his surroundings, perhaps commit murder or other serious damage, but he does not follow a co-ordinated plan. The manner in which such assaults are carried out is such as to stamp them at once as pathologic. The outbreak is sudden, unexpected, unplanned (though he may provide himself with weapons), and apparently without motive; a truly impulsive and unconsidered act. The man's attitude toward the deed after its accomplishment is devoid of remorse. It is almost as though he fails to accept authorship, he is not a free agent, and he apparently often experiences considerable relief after the act is performed. Yet he may retain full memory for the whole event. Sometimes, however, there is some clouding of consciousness with the extreme excitement, and the memories then will be proportionately vague and incomplete............ Having but little interest in the things of the outside world, the man will do little or no work, but will sit or walk around idly, . ..; he pays no attention to relatives or friends and may seem to have lost all affection for them; ..... his speech and acts become disconnected and scattered owing to the fact that they are guided from within and not by the things in the actual world. Questions may or may not be attended to and the answers given, even if partly responsive, show carelessness and sudden inexplicable twists and turns, odd phrases, new words and words used with unsual meanings, which may seem utterly senseless because they refer to the autistic and not to the real world. These peculiarities may be so marked as to constitute a meaningless jargon (verbigeration)."
26. The second principle, namely, the burden of proving (as required under section 105 of the Evidence Act) that the accused is entitled to the benefit of the Exception under section 84, P. P. C. is on him, it is based on the consideration of two questions:
(a) what is the measure of the burden of proof, and (b) has the accused discharged the burden in the light of the facts of his case?
27. Regarding the measure of the burden of proof when the plea of insanity, as contemplated in section 84, P. P. C. is taken, the law is clearly laid down in the well considered judgment Ghulain Yusaf v. The Crown in which Kayani, J. after reviewing numerous authorities on this point, wrote: "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 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 (/) that even in Woolmington's case insanity and 'statutory exception' were excepted........................................... Passing back now to the main points which I have summarised a deduction from the two cases Lai Khan v. Crown and Safclar All v. Crown I am of the opinion that the principle enunciated in itmes (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 the 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."
In the same judgment Muhammad Jan, J. wrote: ''But even if the evidence did not positively prove that the appellant was mad when he committed the crime, I am clearly of the opinion that there is a 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."
This authority was also considered as the correct exposition of law in Ata Muhammad v. The State in which Sajjad Ahmad, J. wrote: "In dealing with cases of insanity, the first thing to be considered is that the issue of insanity at the time of the commission of an offence is in the nature of a defence raised by an accused person, or on his behalf, to criminal responsibility and, therefore, it has to be proved either from the prosecution evidence or independently by the defence. In law, until the contrary is proved, every man is presumed to be sane and possessed of a sufficient degree of reason to be responsible for his actions. This follows from section 105 of the Evidence Act, which provides that the burden of proving that the case of an accused person falls within an exception is on him. . However, this position is not inconsistant with the 'rule of reasonable doubt' which pervades our criminal jurisprudence and according to which a doubt occurring in the matter will react on the prosecution case as a whole resulting in a benefit of doubt to the accused."
Another important authority which requires consideration in this connection is The State v. Balahari Das Sutradhar. In that judgment also numerous earlier authorities on this point including Ghulam Yusaf v. The Crown were reviewed and it was held: "(/) If the accused raises any special plea or claims exoneration on the basis of any special or general exception he must prove his special plea or the existence of conditions entitling him to claim the exoneration.
(//) 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.
(ii7) 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.
(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 mere centricity or singularity of manner.
(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.
(vi) If the facts are clear so far as the act complained of is concerned motive is irrelevant."
28. Thus, in the light of these authorities, when the plea of insanity as contemplated in section 84, P.
P. C. is raised, the following principles of law can be deduced: (/) That legal insanity as contemplated in section 84, P. P. C. is not identical with medical insanity.
However, when the latter is proved it reacts on the former. Therefore in order to make it easier to appreciate the evidence bearing on the point of insanity, the testimony of the medical cr mental expert as well as the consideration of the type of mental disorder are ordinarily indispensable necessities.
(it) That ordinarily an uncontrollable impulse, delusion eccentricity, abnormality, peculiarity of behaviour, queerness of habit, morbidity of temper, or partial derangement of mind leading to the commission of an offence would not, taken singly, exonerate the accused.
(7) That under section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case of the accused within special or general Exception enumerated in the P. P. C. is on him and the Court must presume the absence of such circumstances. However, this principle is not inconsistent with the 'rule of reasonable doubt' and, therefore, after an examination of the entire evidence, if the Court is of the opinion that there is a reasonable doubt or possibility that the defence put forward by the accused may be true, this will react on the whole prosecution case resulting in benefit of doubt to the accused.
(v) That the accused would be considered to have discharged the burden if the entire evidence, prosecution and for defence, if any, furnishes some reasonable grounds for an inference that by reason of unsoundnesS of mind, at the time of the commission of the offence, the accused was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. For this purpose, generally speaking, the behaviour of the accused before, at the time, and after the commission of the crime, the circumstances under which it has been committed, the pattern of the crime, and the manner or method of its execution, amongst others must be carefully considered.
29. Now these principles of law can be applied to the facts of the case before me in order to arrive at the final conclusion as to whether the appellant has succeeded in establishing the defence of insanity as contemplated in section 84, P. P. C. or has been able to discharge the burden of proof as required by section 105 of the Evidence Act.
30. I have no doubt in my mind that at 3 or 4 a.m. on the 15th of February 1967, the appellant inflicted injuries on his wife Mst. Alam Bibi with a toka which resulted in her death. Learned counsel for the State would have me believe that the act of the appellant was inspired by a motive. He argues that the appellant woke up with pain in his stomach and demanded medicine from Mst.
Alam Bibi deceased but on her refusal to supply the same he got annoyed, abused her and murdered her. He points out that according to the statements of Bashir Ahmad and Mst. Bibi P. Ws. the appellant had given beatings to Mst. Alam Bibi deceased previously also on many occasions whenever he quarrelled with her. Therefore, according to the learned counsel, this act of the appellant was a sane act. But even if it is accepted that the appellant was in the habit of beating his wife Mst. Alam Bibi deceased whenever he quarrelled with her, it is difficult to believe that a person who woke up at 3 or 4 a.m. with pain in his stomach and demanded medicine from his wife, would become so enraged on her refusal to furnish the same at that hour, that he would go to the extent of mercilessly inflicting injuries with toka on her face and head and murdering her. It is in evidence that Mst. Alam Bibi deceased was a woman of good character and was an obedient wife.
It is also in evidence that when the appellant demanded medicine from her she replied to, him politely and when he started abusing her, she did not abuse in return. She remained lying on the cot while their five children were asleep beside her. She did not get up, but while the appellant went on abusing and inflicting injuries with toka, she sustained them in the lying position. Even if he was annoyed, and according to the statements of Bashir Ahmad and Mst. Bibi P. Ws., was in the habit of beating his wife whenever he quarrelled with her, he could have only given her a beating on this occasion also and not attacked her with toka inflicting injuries on her face and head. Ordinarily killing his wife at 3 or 4 a.m. for not supplying him medicine for stomach ache at that hour, while the children were asleep around, is itself a circumstance pointing strongly to an unhealthy condition of mind, which must also be considered in the light of the testimony of the Mental Expert. Dr. M. A. A.
Aziz, who has stated that the appellant suffered from the mental disease called schizophrenia and in a fit of schizophrenia, as stated by Singer and Krohn in Insanity and Law (A Treatise on Forensic Psychiatry), the patient has the hallucination that someone was manipulating his stomach or intestines. None of the prosecution witnesses claims to have actually see as to what led the appellant to commit the offence. They rushed to the spot on hearing the shriek of Mst. Alam Bibi deceased, and saw the appellant inflicting injuries of her with toka.
31. Learned counsel for the State also argues that when Bashir Ahmad and Ali Sher P. Ws. attempted to reach near him, the appellant threatened them by pointing out toka towards them and when they held back, the appellant ran away. According to him, this act of the appellant also indicates that he was a sane person and knew what he was doing. The fact that the appellant threatened Bashir Ahmad P. W. by pointing out toka towards him is neither stated in the F. I. R. lodged by him nor mentioned in his examination-in-chief before the trial Court. All the three eye-witnesses, namely Bashir Ahmad, Mst. Bibi and Ali Sher P. Ws. have only stated that they raised alarm and challenged the appellant at which he ran away with toka in his hand. The pointing out of toka by the appellant is mentioned only by Bashir Ahmad P. W. in his cross-examination wherein he has stated that afrer entering the room he challenged the appellant but the appellant pointed out toka towards him and, therefore, he did not dare to go near him. Thus, according to him, after pointing out toka the appellant ran away. No other eye-witness mentions the fact of toka being pointed out by the appellant towards Bashir Ahmad P. W. and, therefore, I am of the opinion, that the testimony of Bashir Ahmad P. W. on this point cannot be relied upon.
32. Learned counsel for the State also points out that after the commission of the offence the appellant escaped with toka to his sister Mst. Aimna D. W.'s village three miles away. He also argues that on his way to his sister's village, the appellant carefully concealed toka in a bush which after his arrest by the police was recovered at his instance. All these acts of the appellant, according to the learned counsel, were acts of a sane person who knew what he was doing.
33. There is the testimony of Rehmat Ali and Faqir Mohd. P. Ws. who claim to have been deputed by the police to search for the appellant. These two witnesses also claim that they went to the village of the appellant's sister three miles away, met the appellant there, brought him back to their village and produced him before the police. They likewise claim that the appellant made an extra-judicial confession before them that he had murdered his wife Mst. Alam Bibi deceased. Furthermore they claim that they were the witnesses of the recovery of toka P. 8 made at the instance of the appellant. But I doubt if any reliance can be placed on their testimony. As regards their meeting the appellant in the village of his sister, Rehmat Ali P. W. has deposed that he and Faqir Muhammad P.
W. met the appellant in the Chowk of that village, they asked him to accompany them to their village and subsequently they produced him before Zahir Muhammad Khan S. I. P. W. Rehmat Ali P.
W. has further stated in his cross-examination that they were going towards the eastern side in the Chowk of Chak No. 57/12-L and that the accused was coming alone from the opposite direction. He has also deposed that he did not see other persons gathered in the Chowk. On the other hand Faqir Mohd. P. W. has stated in his cross-examination that when they reached the Chowk of Chak No. 57/12-L, five or six persons had assembled in the Chowk and the appellant was sitting quietly among them. He has further stated that they brought the appellant to their Chak and produced him before the police, although he has denied the suggestion as incorrect that the appellant had asked them that he might be produced before the police and that the police might have arrived there. He has also denied the suggestion as incorrect that he stated so before the police when he was confronted with his statement Exh. D. B. made before the police wherein it was so recorded.
The contradiction between these two witnesses in respect of the circumstances of meeting the appellant in the Chowk of his sister's village raises a doubt in my mind as to whether they actually went to Chak No. 57/12-L and met the appellant.
34. The testimony of these two witnesses regarding the extra-judicial confession of the appellant has rightly been disbelieved by the trial Court because in this connection Rehmat Ali P. W. has stated that the appellant, when produced before Zahir Muhammad Khan S. I. P. W. confessed before him that he had killed his wife; whereas Faqir Muhammad P. W. has stated that the appellant first made this confession before them and for the second time before the police.
35. I doubt if the testimony of these two witnesses can be relied upon also in respect of the recovery of toka P. 8 at the instance of the appellant. Rehmat Ali P. W. has stated that the appellant led them to a bush at a distance of about 2 or 3 killas from their Chak and got recovered blood- stained toka P.
8. He has further stated in his cross-examination that the appellant had himself taken out his toka from the bush after picking it up from there. On the other hand Faqir Muhammad P. W. has stated in his cross-examination that as far as he remembered, he had stated before the police that the bush was at a distance of one square from their Chak. Faqir Muhammad P. W. does not state that toka was concealed in the bush or that the appellant picked it out from there. Anyway, the testimony of Rehmat Ali and Faqir Muhammad P. Ws. does not inspire confidence. In my opinion, they did not go to the village of the appellant's sister, they did not meet the appellant there, and also, they did not produce him before the police. Similarly, it is doubtful, as held by the trial Court, if any extra-judicial confession was made by the appellant before them.
Likewise their testimony about the recovery of toka P. 8 at the instance of the appellant is doubtful.
36. As for the unsoundnesS of mind of the appellant before, at the time, and after the commission of the offence, Bashir Ahmad and Mst. Bibi P. Ws. have categorically denied as incorrect the suggestion put to them that the appellant was suffering from fits of insanity. But in the circumstances when the daughter of Mst. Bibi P. W. and sister of Bashir Ahmad P. W. namely, Mst.
Alam Bibi, was killed at the hands of the appellant, it is hardly possible to believe that they would help the appellant even if he actually suffered from insanity. Ali Sher P. W. has stated, like Rehmat Ali and Faqir Muhammad P. Ws. that he did not know if the appellant was insane or suffered from fits of insanity. However in this respect there is no reason why reliance should not be placed on the testimony of Dr. M. A. A. Aziz D. W. as well as other D. Ws. The appellant has stated before the. trial Court that during the days of the occurrence he was suffering from fits of insanity and did not know his whereabouts and that he was administered some herbs by Bashir Ahmad P. W. etc. So that he could be enabled to enjoy sleep. Dr. M. A. A. Aziz D. W. diagnosed him as a case of schizophrenia and deposed that the duration of this disease could be about two years prior to his examination of the appellant. According to him, the period of fits of insanity under this disease may last for few minutes or may last for two months or even longer, and when the appellant was under such a fit, he could not differentiate between good or bad. He further stated that Schizophrenia was associated with hallucinations and a person suffering from such a disease could even commit murder during the fit without knowing as to what he was doing. According to him, the appellant was not a malingerer. It may also be noted that according to Insanity and Law by Singer and Krohn, one of the hallucinations associated with schizophrenia is that a person, while under the fit of this form of insanity, may believe that some one was manipulating his stomach or intestines. Another very important clue about the unsoundnesS of mind of the appellant is letter Exh. D. C. written for Mst. Aimna D. W. by Muhammad Aslam D. W. on the 7th of January 1967, (about li months before the occurrence) and addressed to Muhammad Ishaq D. W. the brother of the appellant. The relevant contents of this letter have already been reproduced. According to Mst. Aimna D. W. it was on receipt of this letter that Muhammad Ishaq D. W. took the appellant for treatment to Pir Anwar Shah D. W. with whom the appellant stayed for about a month.
Mst. Aimna D. W. has further deposed that the appellant had become mad for about l years prior to the occurrence and that his father was also insane. Mst. Aimna, Muhammad Ishaq and Pir Anwar Shah D. Ws. have all consistently stated that two or three days prior to the occurrence, the appellant was brought back from the custody of Pir Anwar Shah D. W. to his house by Mst. Alam Bibi deceased, Bashir Ahmad P. W. and Muhammad Ishaq D. W. At that time, according to Muhammad Ishaq and Pir Anwar Shah D. Ws. the appellant was under a fit of insanity and Pir Anwar Shah D. W. had advised them not to take him away. But Mst. Alam Bibi deceased insisted on taking him back in order to get him treated from Dr. Fateh Muhammad Sabir D. W. Dr. Fateh Muhammad Sabir D. W. has deposed that the appellant had been under his treatment during the period of January 1966, to the time of the occurrence. He has further stated that about two days before the occurrence, Bashir Ahmad P. W. and Mst. Alam Bibi deceased came to him and told him that the appellant had a serious attack of insanity and was confined in a kotlta and thereupon he gave them medicine for two days.
37. It has been pointed out by learned counsel for the State that no reliance should be placed on the statement of Mst. Aimna and Muhammad Ishaq D. Ws. as they were closely related to the appellant and, therefore, interested in saving him. It is also argued that these two witnesses never appeared before the police or the committing Magistrate, but came forward to make their statements for the first time in favour of the appellant only in the trial Court. It is further argued that the testimony of Pir Anwar Shah D. W. must also not be relied upon because he was the Pir of the appellant as well as Mst. Aimna and Muhammad Ishaq D. Ws. The reason why Mst. Aimna and Muhammad Ishaq D. Ws. did not appear before the police is given by Muhammad Ishaq D. W. in his cross-examination which is plausible. He has stated that they were afraid that if they informed the police about the insanity of the appellant they might be involved in the murder of Mst. Alam Bibi deceased. However, there is nothing on the record to belie letter Exh. D. C. written by Muhammad Aslam D. W. on behalf of Mst. Aimna D. W. to her brother Muhammad Ishaq D. W. 1J months prior to the occurrence about the fit of insanity of the appellant. Even if the testimony of Pir Anwar Shah D.
W. is discarded for the reason that he was the Pir of the appellant and his family, what reason is there to discard the testimony of Dr. M. A. A. Aziz D. W. and Dr. Fateh Muhammad Sabir D. W. The last mentioned two D. Ws. would possibly have no interest in saving the appellant, and consequently, there is no reason why they should not be believed. Finally, the statement of Muhammad Siddiq D.
W. is also relevant. He is B. D. Member and Lambardar of Chak No. 57/12/L. He has stated that on the 15th of February 1967, the appellant was brought to him by one Anwar as he was wandering about and talking nonsense. According to him, the appellant was sent to his Chak (Chak No. 86-A/12-L) by him along with Chiragh and Sharif Chaukidars. In his cross-examination, he has staled that he appeared before the Inspector of Police on the next day of occurrence and told him about the insanity of the appellant but he did not listen to him. The Inspector of Police, namely, Ghulain Muhammad Khan Niazi P. W. 2, has stated in his cross-examination that besides the P. Ws. he made inquiries about the appellant from numerous persons named by him including Muhammad Siddiq D. W.
38. A perusal of the entire evidence makes the prosecution case doubtful and leaves a reasonable possibility that the defence version may be true. It is proved that the appellant had been under fits of insanity subsequent to and for a few months prior to, 1he commission of the offence. It is also reasonably possible that he woke up at 3 or 4 a.m. on the 15th of February 1967, and under the fit, believed that some one was manipulating his stomach. He demanded medicine for stomach ache from Mst, Alam Bibi his wife and on her inability to produce it he became abusive, picked up a toka lying nearby and inflicted injuries on the face and head of Mst. Alam Bibi while she was lying on the cot, under the hallucination that it was this person who was manipulating his stomach, without knowing as to what he was doing. On the appearance of Bashir Ahmad, Mst. Bibi and Ali Sher P. Ws. who had entered his kotha as the door was open, he walked away from the scene of occurrence alongwith the toka. It is also possibte that he mechanically proceeded towards his sister's village.
He either took the toka along with him or might have thrown it on the way. He neither went to the house of his sister nor attempted to conceal himself but wandered in that village. He did not resist apprehension or arrest (as this is not even the case of the prosecution), but was probably sent back to his village in the company of some persons either along with the toka or without it, and was thus produced before the police. 11 is, therefore, reasonably possible that the act of the appellant was executed without any premeditation, without any motive, without any accomplice and without any concealment. Even after the execution of the act, the appellant did not hide himself by seeking refuge in his sister's house or resist arrest in any way. I am, therefore, of the opinion that there is a reasonable possibility that the defence put forward on behalf of the appellant might be true.
Hence, the appellant succeeds in discharging the burden laid upon him by section 105 of the Evidence Act read with section 84, P. P. C. His conviction and sentence are, therefore, set aside and his appeal is accepted.
39. Dr. M. A. A. Aziz has stated that the appellant was given medical and special treatment during his stay in the Mental Hospital, Lahore, until he was cured and found fit to stand his trial by the Special Medical Board vide its report dated the 5th July 1967 (Exh. C. W. B ). This statement of Dr. M.
A. A. Aziz is not sufficient to satisfy me as to whether the appellant has been cured permanently in the sense that there is no likelihood in the future of the recurrence of his disease, or was cured and found fit only to stand his trial. Therefore, in order to ensure that he does not have a relapse or recurrence of his disease and
(1) AIR 1925 Lah. 148
(3) PLD 1961 Lah. 554 (5) 1968 P Cr. L J 1991
(1) AIR 1917 PC 71
(3) AIR 1934 All. 260
(1) PLD 1968 Lah. 451
(1) 1968 SCMR 325
(1) PLD 1958 Dacca 532
(3) PLD 1960 Kar. 607
(5) PLD 1971 Kar. 78
(1) PLD 1953 Lah. 213 (3) PL D 1960 Lah. Ill
(5) PLD 1952 Lah. 502
(7) PLD 1962 Dacca 467
(9) 1968 P
1. Having considered the entire position, we are firmly >f the view that once Mehar Khan, the star witness of the trosecution, is disbelived as a liar it would not only be difficult ut almost impossible to uphold the conviction. He has not nly foolishly insisted on a brazen face lie regarding the date of le lunar month and the availability of sufficient light to enable lentification but made a glaring departure from the initial report putting guns in the hands of the three acquitted accused and tributing firing to them. According to him it was in the course
2. PLD 1967 Pesh. 343
3. It was next contended that the number and location of injuries indicate that the deceased was attacked by more than one assailant and in any case he suffered some injuries after having fallen on the ground; and because these suppositions, do not fit in with the prosecution case, therefore, according to the learned counsel the eye-witnesses did not see the occurrence. The supposition of the learned counsel is not justified. The injuries and their location are such that they could have been caused by a single assailant on an unarmed victim as deposed to by the witnesses.
4. AIR 1931 Lah. 538
5. 1970 P Cr. L J 591 (2) 1969 P Cr. L J 226
(3) PL D 1967 Lah. 176
6. 1913 AC 546
7. There are some other circumstances borne out by the record which lend grave doubts to it. The prosecution case is that Hidayat Masih deceased in spite of the extensive damage done to his intestines by the violent knife blow in his abdomen immediately proceeded to the police station and reaching there unaccompanied by any one after covering a distance of three or four furlongs from the spot and made the statement Exh. PK/i before the Sub-Inspector, who then proceeded to the spot and met Nawab Masih P. W. on the way in an injured condition. The Sub-Inspector also recorded his statement and after preparing necessary injury sheets sent both of them to the hospital under the escort of Muhammad Bunaras, Foot Constable. The later part of the prosecution case has been belied by Nawab Masih P. W. himself, who stated that on receiving the knife blow he had fallen down and was still lying injured at the spot when the police came there and two constables brought him to the hospital where he was medically examined. He had emphatically denied that he was taken to the police station after the occurrence. He had, however, stated before the committing Magistrate that he was taken to the police station from the spot along with Hidayat Masih. If his earlier statement before the committing Magistrate was correct it would cut at the root of the entire prosecution case including the dying declaration. It is not mentioned in Karvvai Police under Exh. PK/1 that Hidayat Masih had come to the police station and that his statement was recorded there. There was yet another aspect which reflected against it. If
8. 1971 P Cr. L J 943 (2) 1970 P Cr. L J 445
9. AIR 1936 Cal. 324 (2) AIR 1938 Mad. 129
10. PLD 1961 Dacca 53 (2) 1969 P Cr. L J 690
11. The allegation against the petitioner is that he destroyed a kotha belonging to Mufti Muhammad Zaman, situated in Khasra No. 2892/1240 in village Nawan Fatehpur District Gujrat by getting fire to it. The petitioner not only denied having set fired the kotha but pleaded further that the land in question had always been in his (i.e. the petitioner) possession. He submitted further that Khalid Mahmood Mufti complainant had based the case On a warrant of possession relating to the land in question in favour of his father Mufti Muhammad Zaman, which had allegedly been issued by the Revenue Officer, Gujrat, and contended that the said warrant of possession was a bogus one and had been issued by the Revenue Officer in complicity with the above- mentioned Mufti Muhammad Zaman.
12. In the latter authority relied upon by the learned counsel for the petitioner himself, it was clearly held on the basis of Ramrao v. Emperor (4) that failure to frame charge under one of the several offences alleged against the accused would be tantamount to their discharge from the same and as such the order would be revisable in revision by the Sessions Court as well as the High Court. It may be mentioned in this context that although sometimes this Court has directly entertained
13. Though six persons had been convicted but only five out of them filed appeal or appeals which was or were rejected by the Commissioner on 17-6-1970, though on the point of sentence he reduced it to five years' R. I.
14. 1970 SCMR 863
15. The prosecution story briefly stated is that on 26-5-66 at about dopehrwela Ghulam Muhammad P. W. 8 along with his wife Mst. Mehran P. W. and son Abdul Hamid deceased was cutting pohli from the field of Haji Muhammad Ali Tiwana, which was being cultivated by him i.e. Ghulam Muhammad P. W. 8, when the three appellants suddenly turned up, armed with deadly weapons. Ghulam Muhammad and Mumtaz appellants were armed with vaholas while Ghulam Farid appellant was armed with a hatchet. Mumtaz appellant raised a lalkara and opened the assault by giving a Vahola blow on the head of Abdul Hamid deceased with its wrong side. Ghulam Muhammad appellant then followed by giving a blow on the head of the deceased with the wrong side of the Vahola. Abdul Hamid deceased fell on the ground. Ghulam Farid appellant then gave a hatchet blow with its blunt side on the flank of the deceased. Ghulam Muhammad P. W. 8 advanced to save his son but was threatened by Mumtaz appellant and he therefore did not advance any further. Mst. Mehran P. W. 9, the mother of the deceased however went forward to save him but Mumtaz appellant gave her a Vahola blow on her left arm with the result that she too
16. PLD 1971 SC 720
17. The challan was put in Court on 25th May 1965 and notices were issued to the respondents, who were on bail for their appearance in the Court on P7th June 1965 when copies of the statements of the prosecution witnesses and other necessary documents were supplied to them and the case was posted to 9th July 1965 for their evidence. On this date the evidence of three prosecution witnesses was recorded, namely, Dr. Rafique Ahmad (P. W. 1), who had examined the injured person, Noor Muhammad (P. W. 2), the informant and Sardar Muhammad (P. W. 3), the injured person. The case was then adjourned to 26th August 1965 for remaining evidence. On this date the case was placed before some other Magistrate and as the respondents had no notice of this transfer they could not appear in that Court, so notices had to be issued to them for 9th September 1965 which they complied and the case was fixed for further evidence on 21st September 1965, when none of the summons issued for service on the prosecution witnesses were received in Court and the case was adjourned to 5th October 1965. On this date Niaz Ahmad, Assistant Sub-Inspector and Muhammad Hussain, Moharrir Head Constable were present as witnesses, but the Magistrate had been transferred without a substitute, so the case was adjourned to 19th October 1965. On this date his successor had not arrived, so the case was adjourned to 3rd November 1965 on which date it
18. PLD 1960 Lah. 140 (2) PLD 1969 Lah. 690
(3) PLD 1965 Kar. 622
19. A feeble attempt was made by the learned counsel for the appellants to urge that there was no satisfactory explanation for five hours delay in reporting the matter to the police although the police station was at a distance of only three miles from the place of the occurrence. The occurrence had no doubt taken place at about 5 a.m. and some time was spent in sending for Zakir Husain Shah P. W. who on coming to the spot and g after making the necessary enquiry from the injured person about the circumstances in which he had met this fate arranged a cot to carry him to the hospital reaching there at about 6 a.m. It was then the duty of the doctor Incharge of the hospital to inform the police who did send an intimation to the police about it immediately vide Exh.
P. C. but no police officer came to the hospital in response to their communication. Zakir Husain Shah P. W. seems to have waited for the police at the hospital till the medical examination and after obtaining the medico-legal report he personally went to the police station and lodged a report about this occurrence, so he could not be blamed for the delay if any
20. AI R 1929 Lah. 456
(3) PLD 1962 Lah. 728
(5) 1970S C M R 313
21. I L R 5 Rang: 53
22. I L R 53 All. 172
23. 1968 P Cr. L J 97
24. 1971 P Cr. L J 918 (2) 1969 P Cr. L J 1011
(3) PLD 1956 SC (Pak.) 106 (4) PLD 1961 Dacca 565
(5) PLD 1958 SC (lnd.) 308 becomes a menace to others, as an abundant caution, I direct that the appellant be detained in the Mental Hospital in accordance with the provisions of section 47l, Cr. P. C. and report to this effect be made to the Provincial Government.
Muhammad Afzal Zullah, J.--The questions relating to Muhammad plea of insanity, particularly in cases of murder, have been Mullah J answered elaborately by eminent Judges in Pakistan.
However, it is felt that there, at least, is a seeming conflict in some views which needs to be either resolved or explained. I had no intention of entering upon either exercise. Nevertheless, as there is some possibility of injustice in some cases, therefore I deem it necessary to state certain realities and also to make an attempt to draw necessary and legitimate conclusions.
The two questions on which the analysis is essential are:--
(1) What facts may be established by an accused person so as to succeed on the basis of, commonly known 'plea of insanity'?
(2) How can an accused person succeed in establishing that plea? In other words, how he has to discharge this burden?
In England these questions vexed the minds of great Jurists, Commentators and Experts in psychology, medicine and psychiatry.
In 1843, some so-called Rules were stated in (but not actually laid down by) the House of Lords in the case of M. Naghten (1).
For a century and a quarter, men of wisdom criticised those Rules, but in all probability due to the background in which they were stated and also because of certain tendency in the English character they were not formally changed. These Rules have governed the fate of scores of accused not only in Engiish Courts but also in the dependencies, colonies, dominions and other places which are or were under English juridical influence. In the country of origin, a Royal Commission was appointed to examine certain Rules of Criminal Law. It came almost to unanimous conclusion (with one dissent only) that the Rules stated in M' Naghten's case did not lay down correct law and in any case needed modification. Some change has been brought about in England by enactment of the Homicide Act of 1957 and some other enactments. But as the present learned Chief Justice of Pakistan, Hamoodur Rehman, J. observed in Muhammad Shaft v. The State (2), "Unfortunately the law in this country does not recognize such lesser forms of mental abnormality and, apart from unsoundnesS of mind which renders a person incapable of knowing either the nature of the act or that what he is doing is wrong or contrary to law, the plea of a diminished responsibility is not available as a defence in a criminal prosecution as in England now under the English Homicide Act of 1957, under the existing law even in a case of impulsive insanity or melancholic homicidal mania it is necessary to establish that the maniac was incapable of knowing what he was doing at that point of time", I hope the persons who are responsible for initiating new Legislation must have noticed the anxiety expressed by the learned -- (l);4St.Tr.(N S) 847=59 R R85 (2) PLD 1962S C 472 Chief Justice and some thought in the Legislative Offices and Chambers must have been devoted to this very essential part of Criminal Law.
The present Penal Code (in Pakistan) was enacted in 1860 and the Evidence Act in 1872. lt appears that the then Legislature was to a very large extent influenced by M* Naghten's Rules (1843) in enacting the substantive law of responsibility of insane persons as contained in section 84 of the Pakistan Penal Code and burden of proving innocence in such cases, as is contained in section 105 of the Evidence Act. The latter provision also deals with the burden of proof in certain other matters.
These are the provisions which, in order to answer the two questions posed by me above, would have to be interpreted in somewhat precise manner so as to reduce, if not entirely to avoid, the chances of incorrect decisions by trial Courts in cases where questions of proof of culpability by an allegedly insane person is involved. In order to do so, it is necessary to discuss the relevant Rules in M' Naghten's case in detail.
It may be, with respect, pointed out that the most striking and interesting feature of the Rules in M'
Naghten's case is that they were stated in answer to hypothetical questions put by the House of Lords to the Judges present and summoned for the purpose only of answering the questions. Mr. Edward Drummond, Private Secretary to Sir Robert Peel was shot dead by a man called M' Naghten who suffered from persecution delusion and who killed Drummond in mistake of Sir Robert Peel. M'
Naghten was acquitted by a jury on the ground of insanity on the Judges direction. The public reacted to the acquittal unfavourably and it led to debate in the House of Lords when a number of questions were put to those of its members, who were Judges. It is necessary to state here that Lord Chief Justice Tindal, who presided over the hearing, expressed himself in his charge to the jury, in the following words:-- "The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him."
During the debate in March 1843, in the House of Lords it was considered necessary to take the opinion of the Judges on the law of England that governed such cases. Two months thereafter all the Judges attended the House of Lords but no questions were then put to them. In June, the Judges again attended the House when the report shows, "no arguments having been heard the following questions of law were propounded to them." It is not essential to state the five questions.
Two sets of answers were given, one by Justice Maule and the other by the remaining Judges pressure led by Lord Chief Justice Tindal himself. After reading the entire report one gets a clear impression that the Judges were most reluctant to give answers and for some time resisted the same; but probably due to the public opinion and also due to the public pressure they were constrained to offer hypothetical answers to the hypothetical questions. Maule, J. prefixed his answers with the following statement:-- "I feel great difficulty in answering the questions put by your Lordships on this occasion : First, because they do not appear to arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts', not inconsistent with those assumed in the quesion: this difficulty is the greater, from the practical experience both of the Bar and the Court being confined to questions arising out of the facts of particular cases: secondly, because I have heard no argument at your Lordship's Bar or elsewhere, on the subject of these questions; the want of which I feel the more, the greater are the number and extent of questions which might be raised in argument and thirdly, from a fear, of which I cannot divest myself, that as these questions relate to matters of Criminal Law of great importance and frequent occurrence, the answers to them by the Judges may embarrass the administration of justice, when they are cited in criminal trials. For these reasons I should have been glad if my learned brethren would have joined me in praying your Lordships to excuse us from answering these questions ; but as I do not think they ought to induce me to ask that indulgence for myself individually, I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned; fearing that my answers may be as little satisfactory to others as they are to myself."
(Underlining* is mine.)
The above statement of mental attitude of an answering Judge speaks volumes about the circumstances in which the Judges . were constrained to give the answers. Lord Chief Justice Tindal While representing the majority view expressed almost similar views and apprehensions in the following statement:-- "My Lords, Her Majesty's Judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordship's House, think it right, in the first plaoe, to state that they have forborne entering into any particular discussion upon these questions from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of Counsel thereon, they deem it at once impracticable, and at the same time dangerous to the administration of justice, if it were practicable, to attempt *[Here in italics] to make minute applications of the principles involved in the answers given by him to your Lordship's questions."
(Underlining'1' is mine.)
In the circumstances of stress explained in the above-quoted two notes, the majority answered the questions as follows:-- Answer to first question:-- "In answer to which question, assuming that your Lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the ciimc committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land."
Answers to questions Nos. 2 and 3-- "And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be 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 oil the ground of insanity, it must be clearly proved that, at the time of the committing of 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 know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the diflerence between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not, as wo conceive, so accurate when put generally and in the abstract, as when put with reference to be party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to be knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction ; whereas thq law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. 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 party accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course we think is correct, accompanied with such observations and *[Here in Italics] explanations as the circumstances of each particular case may require."
Answer to question No. 4-- "To which question the answer must of course depend on the nature of the delusion, but, making the same assumption as we did before, namely, that he labours under such partial delusion only, 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."
Answer to question No'. 5-- "In answer thereto, we state to your Lordships, that we think the medical man, under the.circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right."
Apart from other innumerable peculiarities of answers some conclusions can be clearly drawn from them: Firstly, that the mental abnormality assumed in the answers was only partial delusion and not any other type of insanity. Secondly, that the burden of proof about mental state was heavily and squarely placed upon the accused by direction to the jury that every person is presumed 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 the committing of the act, the party accused was labouring under such a defect of reason." First a presumption is raised in favour of the prosecution and then a burden is cast on the accused to dispel the presumption by clear and satisfactory proof. Thirdly, on the question of substantive law as to the state of mind, which is required to be proved for establishing plea of insanity, the answer is not only insufficient, but also vague. It has been so demonstrated by subsequent research and developments in the science of psychology, medicine and psychiatry. And lastly, on the question of procedural law, suffice it to say that the difficulties mentioned by the learned Judges themselves influenced even the attitude of Lord Chief Justice Tindal. I have quoted his Lordship's formulation of the charge to the jury in M' Naghten's case before the Judges were confronted with an awkward situation in the House of Lords and also the answer to the first question, which lays down a different rule as to what the jury is to be told. Before the answers, it appears, the learned Chief Justice, did not hold the same view in this behalf as he held after the question. His Lordship did mention the fact that the answers were unanimous (so far as the majority was concerned) but the above difference in the two views of the learned Chief Justice himself at two occasions: in the same year about the same law in England, it. is difficult to understand and explain except that they were hypothetical answers to the hypothetical questions and as expressed by Maule, J., the answers by the Judges were likely "to embarrass the administration of justice."
If AT Naghten's Rules were exclusively to govern the law in Pakistan the matter would end by stating the conclusions drawn by me in preceding paragraph, but it does not end here. The Rules do not lay down such a law as to be followed by Courts in Pakistan. One obvious reason is the background and the circumstances in which the answers were given. I have made enough though brief, comment on this aspect of the matter. In my view, the Rules should not be held to be definite propositions of law nor are they for all times to come. In American and Commonwealth Courts "it is not accepted as fully expressing the directions proper to cases of irresistible impulse." (Russell on Crime, 1964 Edition, Vol. I, p. 109 footnote No. 28). Leaving aside Scotland where the rules were not always treated as of binding validity, even in England "in the hundred and more years which have passed since the M' Naghten's rules were formulated they have been subjected to criticism from both medical and legal quarters." (See Russell on Crime, Vol. I, p. 110, footnote No. 31). In this behalf, the author has made reference to the Report of the Royal Commission, 1953, Cmd. 8932, paras.
227-228 ; Stallybrass, "Comparison of Criminal Law" in Modern Approach to Criminal Law, Chap. 20, p. 415 et seq.; Maudaley, "Responsibility in Mental Diseases," Sullivan, Crime and Insanity," Hall, "Mental Disease and Crime," (1); Meredith, "Insanity as a Criminal Defence" (2). According to Russell, the M' Naghten Rules adopted the limitations of the older law which had been advanced by Erskine in Hadfield's case (3) and had "not recognized any ground of excuse based upon weakness of will- power, upon moral insanity, nor upon disease of the emotional system: moreover they have been held not to admit that irresistible impulse, due to mental disease, could be a defence." The Royal Commission on capital punishment, in 1953, reported at length on the M' Naghten Rules dealing with their history, interpretation and criticism. It was stated in the report:-- "(17) We consider (with one dissentient) that the test of responsibility laid down in England by the M'Naghten Rule is so defective that the law on the subject ought to be changed.
(2) (1947) 25 Can. B R 251
(3) (1800) 27 St. Tr. 1281
(19) We consider (with three dissentients) that a preferable amendment of the law would be to abrogate the M'Naghten Rules and leave the jury to determine whether at the time of the act the accused was suffering from disease of the mind or mental deficiency to such a degree that he ought not to be held responsible."
In England, the efforts of the Medical Profession, the Bench and the Bar bore fruit and the English Homicide Act of 1957 Mental Health Act of 1959 and Criminal Procedure (Insanity) Act of 1964 brought about a considerable change in the law. lt is significant to note that the Commission was of the view that the substantive law contained in M'Naghten RuIes was so defective that it required a change and also that the M'Naghten Rules needed abrogation so as to leave the jury the liberty of determining whether an accused was not to be held responsible due to mental disorder. The Commission noted that the Rules were strongly attacked not only by the members of the Medical Profession but also by lawyers, notable by Fitz's James Stephens. The Commission observed that, "although case-law and the general trend of legal discussion have firmly rejected Stephen's interpretation, the Courts have developed in practice an elasticity of the sort he was seeking. As long ago as 1896 a Committee of the Medico-Psychological Association observed that 'the Judge generally have not hesitated so to interpret the law as to bring within its exonerating scope cases in which its narrow literal interpretation would have had a different result', and where it is clear that the prisoner is insane and that his crime was due to his insanity, the Rules have often been "so construed or so avoided as to dispose satisfactorily of the cases which come before the Courts." It is noted in Taylor's Medical Jurisprudence (1965 Edition) : "One effect of the act (Homicide Act of 1957) which has been salutary, has been to reveal the high proportion of homicide in which the perpetrator is in varying degree mentally disordered." A table giving statistics of the working of the Homicide Act during its first five years' operation from 1957 to 1963 (at page 479, (Vol. I) demonstrates the high incidence of temporary or enduring emotional derangement ; whether temporary from provocation or enduring from mental disorder, in fatal acts of violence, is most vividly illustrated. Taylor concludes, "We have at last moved forward from the notion that mental disorder affects only reason and intellect as far as the legal interpretation is concerned. The effect of emotions upon normal and abnormal behaviour, and the possibility that responsibility may be diminished as well as abrogated in mental disorder are now firmly established." The author then mentions certain cases from legal history in England to demonstrate that had M'Naghten Rules not been there and had the law of England been properly interpreted, the results in those cases would have been different. In view of the above discussion, it is legitimate to presume that the M'Naghten Rules were not destined to leave a good precedent and thus stay as permanent law in the country of their origin and the Courts and the Legislature have already rejected them. For these reasons also we, in Pakistan, are not supposed to follow those Rules.
Some recent cases decided by the English Courts are of some help in interpreting the law on the plea of insanity, I refer here to only one of them. In R. v. Bryne (1) it was observed that, "In a case where the abnormality of mind is one which affects the accused's self-control the step between 'he did not resist his impulse and he could not resist his impulse' is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad common sense way. This Court has repeatedly approved directions to the jury which have followed directions given in Scot ,cases where the doctrine of diminished responsibility forms part of the common law. We need not repeat them. They are quoted in R. v.
Spriggs (2). They indicate that such abnormality as 'substantially impairs his mental responsibility' involves a mental state which in popular language (not that of the M'Naghten Rules) a jury would regard as amounting to partial insanity or being on the borderline of insanity.'' Thus the principle of : borderline insanity j partial insanity based on the concept oj substantial impairment of mental responsibility, which can be determined "on the balance of probabilities'' has already been established as law. This, in my view, is also the correct approach to both the questions posed in para. 2 above in so far as the law in Pakistan is concerned. Analysed further, the answer to question No. I would be that if the accused is able to prove substantial impairment to his mental responsibility due to even partial or borderline insanity so as to affect his knowledge as provided in section 84, P. P. C. he would be entitled to a favourable verdict on the plea of insanity. As to how he is to establish the above requirement, the answer[1] is that the fact need not be proved as scientifically certain but can be established on the balance of probabilities and on proper resolution of doubts, as held in Sardar All v. The Crown (3).
In cases of insanity, the burden of poof has been the subject of considerable comment in English law' as an independent question; Undoubtedly, in M'Naghten Rules it was squarely placed on the accused. I have made enough comment to show that the M'Naghten Rules did not lay down the correct law and have been rejected. The wisdom of laying the burden entirely on the accused has been doubted. The effect of the stringency of the Rule was sufficiently diluted in R. v. Carr-Briant (4).
It was held that where either by statute or at common law some matter is presumed against an accused person unless the contrary is proved, the jury should be directed that it is for them to decide that the contrary is proved, and that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that this burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish. The principle was
(2) (1958) 1 Q B 270
(4) 1943 K B 607 reiterated on R. v. Dunbar (1). The Lord Chief Justice (Lord Goddard) ruled that the trial Judge should have pointed out to the jury that the onus of proof on the defence, when they entered a plea of diminished responsibility, was not as heavy as the onus of proof on the prosecution when they alleged murder. It needs to be mentioned here that in a passing reference in Attorney- General for South Australia v. Brown (2) the Judicial Committee of the Privy Council thought that attempts to temper the harshness or unscientific nature of M'Naghten Rules even though supported as they were by high authority were never successful till the change of law by the Legislature and that the Rules remained in full force till then. In my view as discussed in detail above, the erosion of the Rules started much earlier. Nevertheless it may be pointed that in an earlier case Sodeman v. R. (3) their Lordships themselves were pleased to observe in respect of burden of proof that, "In fact there is no doubt that the burden of proof for the defence is not so onerous." It has not been very definitely defined. The Canadian case of R. v. Clark was referred to, but even there the Judges were not able to find a very satisfactory definition, but it is certainly plain that the burden in cases in which an accused has to prove insanity may fairly be stated as not being higher than the burden which rests upon a plaintiff or defendant in civil proceedings. That this is the law is not challenged, and no Court in Australia has decided otherwise." The view in Sodeman's case was specifically approved in Brown's case. Therefore it is, with respect, pointed out that the thinking of the Board in Brown's case was firstly not in line with the decisions of the other Courts, and responsible opinion expressed on these questions, in England, as discussed above ; aud secondly, the rigour of burden of proof as laid down in M'Naghten Rules was already reduced by the Privy Council in Sodeman's case. In R. v. Podola (4) it was held that in cases in which plea of insanity is raised "as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance or probabilities that the accused's insanity has been made out." ln another interesting case of Staff-sergeant Willis Eugene Boshears, the facts of which are mentioned at page 486 (et seq) of Taylor's Medical Jurisprudence, 1965 Edn; Justice Glyn Jones asked the jurors to use their common sense in deciding the question of the guilt of the accused where plea of mental disorder was raised. The jury gave the verdict in favour of the accused, because, "There was a doubt, and it was resolved in the accused's favour." The learned author in 'Russell on Crime', Vol. I atp. 105 observed that, "It'was in accordance with the ancient doctrine of strict liability that the defence of insanity should be narrowly restricted. This restriction lasted into the eighteenth century ; the view which seems to have been regularly accepted by the Courts was that no mentally deranged person should escape unless it should appear that the delinquent "is totally deprived of his understanding and memory, and doth not known that he is doing, no more than an infant, than a brute,
(1) (1958) 1 QB l
(3) (1936) 2 AUER 1138 or a wild beast . . . {Arnold's case (1). This was the old rule which passed through the stage of M'Naghten Rules and has since been drastically modified. The entire position past and present is summed up to page 102 of 'Russell on Crime', Vol. I thus; -- "In the older cases *it was stated that it lay on the accused to prove that he was insane at the time of the commission of an oifence, so as not to be liable to punishment as a sane person. But the modern rule is not so strict since the case of Woolmington v.D.P.P. in 1935, and it is now established that the prisoner need do no more than adduce evidence {or draw their attention to evidence adduced by the prosecution), which raises in the minds of the jury a reasonable doubt as to his sanity. The jury may draw the inference of insanity from direct evidence, or from the appearance and conduct of the accused at his arraignment or trial." *R. v. Stokes (1884) 3 C & K 185 ; R. v. Layton (1849) 4 Cox 149 ; R. v. Oliver Smith (1910) 6 Cr. App. R 19. (1935) A C 462.
(Underlining* is mine).
It is clear that according to Russell, the law laid down in the case of Woolmington is fully applicable to a case where plea of insanity is raised. Some doubt may be raised on the correctness of this proposition (as stated by Russell), in so far as the law in England was concerned, but I am in no doubt that it fully applies in Pakistan.
It is true that in Woolmington's case it was observed that the facts therein had "nothing to do with the circumstances in M'Naghten's case" and that the latter case was "quite exceptional." It was also noted that all the Judges had given answers to the House of Lords upon "the test of insanity."
After introducing in brief the above background, their Lordships observed that, "In M'Naghton's case the onus is "definitely" and "exceptionally" placed upon the accused to establish such a defence." A reference then is made to another case Rex v. Oliver Smith (2) in which it was held that although it was not proper for the prosecution to call evidence of insanity, but that any evidence in the possession of the Crown should be placed at the disposal of the prisoner's counsel to be used by him if he thought fit. This subject was concluded by the observation that, "It is not necessary to refer to M'Naghten's case again in this judgment for it has nothing to do with it." Near about the end of the judgment, again a reference is made to what had already been said "as to the defence of insanity and subject also to any statutory exception." This gives some indication about the thinking of the learned Judges who were deciding Woolmington's case. They noticed some of the unusual procedure of "answers to the House of Lords" upon the "test of insanity;" that that case "stood by itself"; that it w'as "quite exceptional"; that the question of "onus was definitely and exceptionally placed on the [2] accused"; and further that the Crown is bound to place at the disposal of the prisoner's counsel evidence which may support him in establishing the defence of insanity. The last observation in the context of the present law and procedure means that the prosecution, if in possession of such evidence, is bound to disclose the same and may be required to produce the same. The circumstances in which the M'Naghten Rules were stated and the developments for about a century must have been in the minds of the learned Lords who decided Woolmington's case. They did not consider it proper to go into its details ; but nothing prevents the Courts in Pakistan to go into the details and circumstances of that case which I have, with respect, done. The observations, therefore, in Woolmington's case that M'Naghten's case has nothing to do with the facts of Woolmington's case, which were undoubtedly with mental reservation, need not be adopted by the Courts in other countries. The question of law involved in Woolmington's case was with regard to the burden of proof on an accused person who raises a general or a special plea of any exception.
The principles laid down in Woolmington's case therefore, unless special reasons are shown otherwise, would fully apply to the plea of insanity raised as a general-special defence to a charge of murder. This conclusion reached by me is not without ample support of authoritative pronouncements by the superior Courts in Pakistan. I proceed to examine some of the ruling.
In the case of Lai Khan v. Crown (I) in the leading judgment written by S. A. Rehman, J. on the question of burden of proof, the Rules in M'Naghten's case were fully relied upon as law and it was held that Woolmington's case did not change that law. The position of law in Pakistan was summarised thus at page 513 : "The position, therefore, is that the accused person setting up a defence based on a general or special exception has to "disprove" the absence of alleviating circumstances as otherwise under the law their absence is to be held as "proved". Although it sounds like placing the burden of proving a negative on the accused, it is really not so. He is in fact called upon to prove the existence of circumstances that would provide an answer to the prosecution case."
And at page 514 of the report as follows :-- "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 definilion of "not proved" given in the Act. In view of the clear language of section 105, it would be anomalous to hold that, although [3] the exceptional circumstances were not proved, yet the accused was entitled to have the benefit of a doubt arising on the whole case."
Muhammad Munir, C. J. agreed with the above interpretation of law as to burden of proving unsoundnesS of mind, but in a separate judgment concluded 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 the Woolmington'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." With respect, it may be pointed out that S. A. Rehman, J., had also referred to there being cases in which the defence taken may cast a doubt on the existence of the requisite intehtion or mens rea which makes a necessary ingredient of the offence. In such cases it is conceivable that the accused may succeed in securing an acquittal on the strength of reasonable doubt created on that point. But his Lordship maintained his verdict on the question of burden of proof by observing that, "where the circumstances of the defence plea do not affect the ingredients of the offence established by the prosecution evidence, e.g., where the right of private defence or circumstances of grave and sudden provocation are pleaded, no such question can possibly arise and the accused must "prove" his defence plea within the meaning of the Act." As such cases involving plea of special or general exception were distinguished by his Lordship by making reference to the provisions of the Evidence Act, in particular section 105 thereof and the definitions of "proved," "disproved" and "not proved". It is thus clear that according to the ratio decidendi in Lai Khan's case, despite diiutary effect of some of the observations made by Muhammad Munir, C. J., it was held that the provisions contained in Evidence Act require the accused raising a plea of insanity to prove his plea and that he could not get benefit of doubt in that behalf. This case was decided in the High Court on 7th of December 1951. On 5th of December 1952 the Federal Court of Pakistan on an appeal from Lahore High Court decided the very well-known case of Sardar Ali (1). The precise question as to interpretation of section 105 of the Evidence Act came to be considered and decided by Federal Court in this case, on a special plea (self- defence). It was different from special plea (insanity) in the case of Lai Khan. In the leading judgment by A. R. Cornelius, J., the principles laid down in Woolmington's case were held to be applicable in Pakistan despite the statutory provisions contained in the Evidence Act. In particular section 105 thereof, and his Lordship observed as follows :-- "This conclusion seems to me to be so clearly inescapable that I consider it unnecessary to deal in detail with certain cases decided in the Indian High Courts notably those of Parbu [4] (ILR 1941 All. 843) and Sakur (AIR 1047 Bora. 28) where the view appears to have been taken by certain of the Judges who participated in these decisions, that to transplant the statement of the law from Woolmington's case (L R 1935 ACP 462) into Indian law would, in effect, be to allow that an accused person may satisfy the statutory requirement of section 105, Evidence Act. By merely raising a "reasonable doubt" regarding the existence of matters upon which he rests his special plea in avoidance of the charge against him. The "reasonable doubt" on which the learned Lord Chancellor has laid stress is one going to the very root of the matter, viz. malice in a case of murder, and the references to the accused's special pleading are not addressed to the proper mode in which it is to prove, but are confined to the statement that, if it is proved to the satisfaction of the jury, the accused is entitled to be acquitted, but even if it is not accepted, the supporting circumstances and evidence must still be considered along with the rest of the evidence and circumstances in the case, for deciding the general issue of the accused's guilt or innocence. I do not read the Indian and Pakistan laws in any different sense."
Ilis Lordship further explained Safdar All's cose in another judgment which is reported as Muhammad Aslam alias Aslam v. The Crown (1). It was observed that, "in order to give a verdict on the whole case, it is not enough for the Court to be satisfied only as to whether the special pleading of the accused has been established or otherwise. It is not correct to say that in such a case, the prisoner must discharge the burden of proving his innocence. Having put forward a special pleading, it is undoubtedly for him to prove it by evidence of a quality and character such as will satisfy the conditions of the definition of the expression "proved" contained in the Evidence Act. But should he fail to prove his special pleading, that is not the end of the case, for the verdict of the Court must be given upon and as the result of the whole of the case." It is, no doubt, true that both the cases, namely, of Safdar Ali and Muhammad Aslam, arise out of the plea of self-defence, but this being also a special plea as that of insanity and several others in the Pakistan Penal Code, his Lordship while interpreting section 105 of the Evidence Act, was not visualizing any distinction between one special plea and another special plea or between one (general) exception and another exception in the form of a proviso in the Penal Code of Pakistan. The ratio decidendi in the judgment is based on the reasoning and assumption that despite statutory provisions contained in the Evidence Act, in Pakistan the principles laid down in Woolmington's case are applicable. It is, with respect, pointed out that his Lordship did not lay down a different law on plea of insanity. Out of the three learned Judges in the Federal Court, who decided the case of Safdar Ali, Shahabud Din, J. was pleased to express agreement with Cornelius, J., and added some of his own observations but no exception is made in these observations with regard to the plea of insanity. Abdul Rashid, C.
J., however, while agreeing with Cornelius, J., added his own remarks and observed that, "The general observations
(l) PLD 19S3 F CUS made above shall not be taken to apply to any question relating to insanity as no such question arises in the present appeal." His Lordship did not mJ any observation which would apply to plea of insanity in particular, meaning thereby that his Lordship did not express any opinion on his question. In my view, with respect, the learned C. J. did not like to decide the question of interpretation of section 105 of the Evidence Act and the effect thereon of Woolmington''s case in cases of insanity. The observation noticed above does not mean that his Lordship if he would have examined this question in detail, would not have agreed with the general proposition of law laid down by Cornelius, J., while interpreting the said provision in the Evidence Act. The conclusion, therefore, is that while two learned Judges did not make any exception with regard to any general or special exceptions, as are contained in the Penal Code, for purpose of interpreting section 105 of the Evidence Act, the third learned Judge left the question of interpretation of section 105, Evidence Act, qua insanity open.
The precise question as to the effect of the ruling of the Federal Court in Safdar All's case on the plea of insanity in Pakistan came to be considered in the case of Ghulam Yousaf v. The Crown. Mr. Manzoor Qadir, who appeared for the appellants, raised argument that, "in the case of Lai Khan 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 cases of Safdar Ali 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 the case 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 remarks of the other two learned Judges should be fully applicable to cases of insanity." In an elaborate judgment Kayani, J. (later on C. J.); did not agree with Mr. Manzoor Qadir's argument.
One particular reason which may have influenced his Lordship's entire judgment to a considerable extent was that his Lordship did not consider the judgment of the Federal Court in Safdar All's case as if it laid down any law or that it was binding on the High Court. After referring to Fatal Elahl v.
Crown (1) and quoting from Lord Halsbury's observations in Ouinn v. Leathern (2), his Lordship expressed himself as follows:-- "These weighty observations of the Federal Court and Lord Chancellor if I may say so with profound respect, founded as they are on a recognition of humation limitations, have an invigorating elfect on our legal system: they foster independence of thought and repel intellectual subsurvience. If this is clearly realized--and this is not always clearly realized--it will be possible [5] to distinguish between pronouncements which are declarations of law and those which are more generalizations from particular facts, the former being binding, the latter only entitled to respect, but not infrequently distinguishable on facts."
I have, with respect, received inspiration from the views of Kayani, J., on the subject and have ventured to repel intellectual subsurvience by attempting to show that M'Naghten Rules are no more to be followed in Pakistan, lt is, however, pointed out, with profoundest respect, that for a Judge of the High Court there is a limitation for fostering independence of thought. It is that he should not try to become entirely independent of the law laid down by the Supreme Court, particularly, when he is supposed to follow it as much as a Statute Law. I will not go into the details of the questions as to whether in the ruling in Safdar Ali's case the Federal Court laid down law to be followed by all Courts, including the High Courts, in Pakistan, because during, these 18 years since the decision in Ghulain Yousaf's case, it has been accepted by all the superior Courts that the Federal Court did lay down the law to be followed by all the Courts. The Supreme Court of Pakistan itself is no exception. Their Lordships have always treated Safdar Ali's case as deciding and laying down an important question of law as to interpretation of the provisions of Evidence Act and also with regard to the burden of proof in criminal cases. If the above is kept in view, the rejection of the argument of Mr. Manzoor Qadir by Kayani, J. gets explained to a considerable extent. Another aspect noticed by Kayani, J. while rejecting the argument that Safdar All's case has altered the burden of proof was that, "The Federal Court is not a legislative body, and it could not have intended to lay down a principle repugnant to section 105". Again with profoundest respect, it is pointed out that it is the difference of approach to the interpretation of section 105 of the Evidence Act which led to this remark. If interpreted, as in Safdar Ali's case the Federal Court in my view did not intend to lay down any principle repugnant to that provision. Yet another circumstance noticed by Kayani, J., was that their Lordships of the Federal Court had not specifically referred to the case of Lai Khan, in which, of course, it is assumed that the High Court has interpreted section 105, Evidence Act, differently. Therefore, an inference was drawn that the Federal Court did not disapprove of the views contained in that case (Lai Khan's) or that they regarded that case distinguishable on the ground of insanity. Again, with respect, it is pointed out that Mr. S. A.
Mahmood (later on Mr. Justice S. A. Mahmood), who was then Asstt. Advocate-General, had pointed out during the argument in Ghulam Yousaf's case that the case of Lai Khan was cited before the Federal Court during the arguments in Safdar Ali's case. His Lordship (Kayani, J.) accepted this statement of fact, but did not give due effect to it. The important cases mostly relied upon by the learned Judges while deciding Lai Khan's case and the reasoning based on those cases were noticed by Cornelius, J., in Safdar AH's case at page 111 of the report, as has been quoted above. It appears that his Lordship with whom Shahabuddin, J. agreed did not approve of the decision in Lai Khan's case. As to why his Lordship did not in particular refer to Lai Khan's case and specifically overrule it, it is not necessary to examine. Yet another circumstance which influenced Kayani, J., was that the principles laid down in Woolmington's case were accepted in Safdar All's case while interpreting section 105 of Evidence Act and because in Woolmington's case the rules stated in M'Naghten's case qua insanity were accepted, therefore, the Federal Court should be presumed to have done the same in Safdar All's case. It has already been explained that by 1952/1953 the M'Naghten Rules had lost their force even in the country of their origin and the Federal Court in Safdar Ali's case must have noticed it. That is why it appears that the exception made in Woolmington's case with regard to insanity was not even noticed in the two judgments in Safdar Ali's case. Only the learned C. J. appears to have kept the matter open. Moreover, in Woolmington's case the exception was made in respect of insanity for special reasons of M'Naghten's case and also on a general observation as to special rule of burden of proof in some cases including those of insanity and those governed by Statute. In our system of law on the subject, the question of burden of proof is governed by statutory provision and in that provision there is absolutely no distinction between one special plea (or insanity) and another special plea (of self-defence). Therefore, that aspect of the principles laid down in Woolmington's case was obviously neither applicable in Pakistan nor could it be imported by way of general interpretation. Kayani, J., accepted this position and observed:-- "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 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."
As the exception made out in Woolmington's case was not relevant for the purpose of interpreting section 105 of Evidence Act, therefore, their Lordships of the Federal Court did not make any special mention thereof in Safdar Ali's case. After going through the judgments in the case of Lai Khan, Safdar Ali and Ghulain Yousaf, with profoundest respect, l do not argee with Kayani, J. that the Federal Court did not overrule the High Court's judgment in Lai Khan's case in respect of burden of proof in cases involving plea of insanity. The argument then raised by Mr. Manzoor Qadir, referred to above, appears to me to be based on correct appreciation of law and I accept the same.
On question of the substantive law as to what is required for an accused person viz-a-viz unsoundnesS of mind to prove so as to succeed on plea of insanity, Kayani, J. himself criticised the rules in M'Naghten's case and did not agree with the limited scope of law stated therein. I have said enough on that subject. On that question I, with respect, agree with the observation of Kayani, J. in Ghulam Yousaf's case.
Lest I may be understood to have tried to overrule a Division Bench judgment of this Court with regard to interpretation of Safdar All's case, I may, of course, again, with profoundest respect point out that the views expressd by Kayani, J. in Ghulain Yousaf's case as to the interpretation and eifect of Safdar Ali's case were not shared by Muhammad Jan, J., who wrote a separate judgment and held at page 244 of the report that: "There is no difference between the plea of insanity and any other exception recognized by law in Pakistan." On the facts in that case his Lordship observed that, 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 consitute 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." In contrast to the approach of Muhammad Jan, J., who acquitted the accused by giving him the benefit of doubt as could be done in any other plea involving special or general exception, Kayani, J., had held that, "although the accused may have known that he was shooting he did not know that he was shooting his wife or son. He did 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 any intention to kill his wife." I have, therefore, in coming to the above conclusions; firstly; followed the law laid down by the Federal Court, and; secondly, have not, in any way, tried to dissent from the ruling of a Division Bench of this Court, because on the question involved both the learned Judges did not agree.
It is not for the first time that after the judgment of Kayani, J. in Ghulain Yousaf's case it is being pointed out that the law laid down in Safdar Ali's case governs the cases of plea of insanity. In PLD 1960 Lah. Ill, of course, without making auy reference to Ghulam Yousaf's case (in this behalf, though it was mentioned in another connection) Sajjad Ahmad, J., at page 121 of the report, after quoting section 84, P. P. C. observed that, "in cases of insanity arising in Courts, the first thing to be considered is that the issue of insanity at the time of the commission of an offence is in the nature of a defence raised by an accused person, or on his behalf, to criminal responsibility and, therefore, it has to be proved either from the prosecution evidence or independently by the defence. In law, until the contrary is proved, every man is presumed to be sane and possessed of a sufficient degree of reason to be responsible for his actions. This clearly follows from section 105 of the Evidence Act, which provides that the burden of proving that the case of an accused falls within an exception is on him. However, as remarked by their Lordships of the Federal Court in Safdar Ali v.
The Crown this position is not inconsistent with the "rule of reasonable doubt" which pervades our criminal jurisprudence and according to which a doubt occurring in the matter will re-act on the prosecution case as a whole resulting in a benefit of doubt to the accused." In another case cited by the learned State counsel before us, nameley, The Stale v. Balahari Das Sutradhar Salahuddin Ahmad, J., was pleased to observe that neither the case of Safdar Ali nor that of Woolmington's had any application to the facts of the case before their Lordships because, "none of them was a case of insanity." The reason for this conclusion has been mentioned by his Lordship in para. 28 of the judgment and it appears to be the same which in part prevailed with Kayani, J., in Ghulain Yousaf's case. But his Lordship, it is with respect pointed out, appears to have also noted in para. 37 of the judgment; may be with some approval, the views expressed by Muhammad Jan, J., in Ghulam Yousaf's case, namely, that, "there is no difference between plea of insanity and any other exception recognized by law in Pakistan." This supposition is supported by sub-paras, (//) and (///) of the summing up in para. 45 of the judgment where his Lordship held that: "(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.
(/ii) 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."
These observations can directly flow from the law laid down in Safdar Ali's case. I, therefore, am of the view that what I have said about the binding force of the law laid down in Safdar Ali's case in cases of plea of insanity in Pakistan, does not necessarily go against the views expressed by East Pakistan High Court. 1 It has been noticed that, despite the above explained position of law, the learned trial Courts still tend to follow the law, in cases involving the plea of insanity, as laid down in Lai Khan v. The Crown as approved by Kayani, J., in Ghulam Yousaf v. The Crown and do not apply the law laid down by the Federal Court in Safdar Ali v. Crown to such like cases. This amounts to not following the law laid down by the Supreme Court. Moreover, there is serious apprehension of justice not being done in accordance with the law in such cases. Lest it may become too late and as some observers are now commenting in England that due to wrong law in M'Naghten Rules there might have been some wrong decision in such like cases in that country, it is necessary that the position in Pakistan should be clarified. It is, therefore, held that the cases involving plea of insanity are also governed by the law laid down by the Federal Court in Safdar Ali's case and the Courts in Pakistan are bound to follow that law.
It is neither necessary nor possible to visualize all thel circumstances in which the plea of insanity, as contained iar section 84, P. P. C. would be had to have been proved. But it can be laid down with certainty that the rules stated in M' Naghten's case in this behalf are no more applicable in Pakistan. The question of determination of "unsoundnesS of mind" and the question whether the accused was "incapable of knowing" the nature of an act and other circumstances connected with his knowledge are to be decided like any other question of fact and no generalizations like those in M' Naghten Rules will deter the Court from drawing correct inferences from the evidence before it. One question which has agitated my mind for some time needs however to be stated. In cases where the accused is able to prove the requisites of the section 84, P. P. C. before and after 'the act* reliable evidence even including medical and psychiatric, he, techically speaking, is still required under the section to prove that "at the time of doing it" he was of "unsound mind" and due to that his knowledge was in diminished state. The same position is sometime stated thus: If the accused has been able to prove that before and after the act he was suffering from such unsoundnesS of mind still, unless he proves otherwise, it will be presumed that "at the time of doing it "he had" lucid interval in mental condition". This kind of approach firstly may not go strictly in line with the law laid down in Safdar Ali's case secondly in a large majority of cases it will be almost impossible for the accused as it was in this case, to produce direct evidence vlz-a-viz particular moment of "doing the act;" as obviously neither he would have been subjected to an examination at the time of doing the act nor immediately within moments thereafter; and thirdly, if the accused was suffering from unsoundnesS of mind and the lucid interval was of short moments, as could be in this case, the accused subsequent to the act after some time may not, at all, due to the unsoundnesS of mind, recollect as to what might have happened during the act. If he himself is not able to recollect it will be unreasonable to expect that he will be able to instruct his relations or his counsel as to what actually was his state of mind at that time. In these circumstances, to presume that he must have had lucid interval at that time, unless proved otherwise, will amount to laying a dangerous proposition. The rigour can be reduced by following the rule laid down in Safdar Ali's case, namely, that from the entire circumstances of the case put forth by the prosecution as well as by the defence, it will have to be seen whether the accused has been able to create a reasonable doubt so as to entitle him to the benefit of acquittal. The generally held concept with regard to lucid interval and the burden of proof in respect thereof needs, at least, a re-orientation so as not to insist on strict proof of the exact state of mind at the time of doing the act. It would be sufficient if the accused by making reference to the attending circumstances, even if they have been shown by the prosecution in the Court, is able to establish by preponderance of probabilities that a reasonable possibility cannot be excluded that at the time of doing the act it was not a lucid interval. He would have thus discharged the burden. The evidence of insanity "before or after the time" can be relevant as tending to show the state of mind existing "at the time" of the commission of the offence. This view has been adopted by some of the Courts in America (see Shultz v. State (1), People v. Kirby (2), Cochran v. State (3), Carter v. State (4).
Some more aspects relating to the plea of insanity need brief comment. First, in view of the latest research and developments in the sciences of medicine psychology and psychiatry it would not be proper to insist that medical insanity is something totally different from legal insanity. The one has a profound effect on the other and the proof of one will be a strong circumstance to be noticed in the other. The two cannot, in view of the present day knowledge on the subject, be treated in isolation from each other and in water tight compartments. Second, no general rule can be laid down with regard to the visible symptoms of unsoundnesS of mind. They can be in the form of delusions, impulses, hallucinations, obsessions and other forms of mental phenomenon. Tbe singular existence of any of them or combination thereof may prove the existence of unsoundnesS of mind; but that will be decided on the facts and circumstances of each cases. Third, premeditation, design and the conduct of avoiding arrest after the act by themselves individually are not to be taken as positive proof of unsoundnesS of mind. They are very important relevant factors which must be taken note of in a case involving plea of insanity; but may not be enough to be made the basis of any definite finding. Similarly the absence of motive may be taken as a supporting circumstance for plea of insanity, but in no case it can be treated as proof thereof. This is also a circumstance which, while considering the mental condition of the accused so as to find unsoundnesS of mind at the time of the act, should be considered as only one of the relevant circumstances. As held in some cases, this circumstance is not entirely to be ignored. It would be better to close this discussion, with a quotation from 'Law of Insanity' by George A. Smoot Chap. 14, page 372: "One of the essential ingredients of crime is intent. Intent involves an exercise of the reasoning powers, in which the result of the criminal act is foreseen and clearly understood. Another essential element of crime is animus. Animus involves an exercise of reasoning powers, in which the result of the criminal act is recognized as being contrary to the rules of law and justice. If a person is mentally unsound, one or both of these elements may be, and usually are, wanting. An idiot may set fire to a house, without understanding that it will result in the destruction of the house, or that it is forbidden by law. In such case, there would be an absence of both intent and animus. A monomaniac may kill a man under the insane delusion that the man is an enemy who is about to kill him. Here there is an intent, as the monomaniac clearly understands that the act will result in the victim's death ; but there is a lack of animus, because he believes that he is justified, and that the act, therefore, is right in the sight of the law. It is clear, then, that where the mind of the perpetrator is so diseased as to exclude the presence of an intent or animus in the commission of the crime in question, he should not be punished as a criminal."
Order of the Court Jn the light of the discussion in the two judgments written by us with which we both concur, this appeal is accepted and the conviction and sentence of Abdullah appellant is set aside. The appellant, however, is directed to be detained in a Mental Hospital in accordance with the provisions of section 471, Cr. P. C., and xcport to this effect be sent to the Provincial Government. .