' Ghulam Mustafa son of Muhammad Hanif Khan, Rajput, resident of Moaza Pajyan, P.S. Kahna, District Lahore, was tried by the Additional Sessions Judge, Lahore for the murder of Allah Rakha.
The trial Judge by judgment, dated 22-11-1980, held him guilty. He was sentenced to imprisonment for life and a fine of Rs,4,000 or in default one year's R.I. The fine, if recovered, half of it was ordered to be paid to the legal heirs of the deceased.
2. The occurrence in which Allah Rakha was alleged to have been killed, took place on 10-2-1979, at about 7-00 p.m. In the area of Moaza Pajyan, P.S. Kahna. The report Exh.P.D. Was lodged by Riaz Ahmad son of the deceased, which was recorded by Fazal Khan Sub-Inspector, Police Post, Jia Bagga, at 10-00 p.m. On the basis of which formal F.I.R. Exh.P.D. /1 was registered by Mohammad Yasin Moharrir A.S.I. Police Station, Kahna, at 12-05 hours in the night.
' The motive was that prior to the occurrence Iftikhar and Zulfiqar brothers of Ghulam Mustafa accused were involved in a theft of tractor. The information in this 'case was passed on to the police by Allah Rakha deceased. The appellant was offended by that. In retaliation, he killed Allah Rakha.
3. On the day of occurrence, Allah Rakha, Mohammad Salim Khan, Riaz Ahmad and Boota were sitting in the house of Boota in Moaza Pajyan. The accused turned up. He asked Boota to bring tea.
Boots left. Ghulam Mustafa talked to Allah Rakha and told him that he had, falsely implicated his two brothers in the theft of a tractor. Allah Rakha denied the allegation. Ghulam Mustafa insisted and said that the information was given by him. He then drew the attention of Allah Rakha to the electric meter telling him that it was running fast. When Allah Rakha looked towards the meter, he brought out a Toka from underneath his Chaddar and with it he gave repeated blows on his face, head and right hand. Mohammad Salaam P.W. Tried to intervene. He was pushed back. Allah Rakha fell on the ground and died instantaneously. Ghulam Mustafa took to his heels carrying the blood- stained Toka with him.
4. Riaz Ahmad son of the deceased who lodged the First Information Report Exh.P.D. Repeated the same story on oath before the trial Court which he had mentioned in his report to the Police Officer.
However, in his testimony before the trial Court, he said that his father received ten injuries; seven on the face, two on the head and one on the right hand.
5. Mohammad Salim is the next eye-witness. He was present in the house of Boots. Allah Rakha deceased, Ghulam Mustafa accused and Boots were there. Allah Rakha and Ghulam Mustafa asked Boota to go and bring tea. Boots left. Ghulam Mustafa stood in the door and drew the attention of Allah Rakha towards the electric meter saying that it was running fast. Allah Rakha started looking towards the meter when Ghulam Mustafa brought out a Toka from underneath his Chaddar and gave repeated blows to the deceased; first on his head and the second on his back.
The third injury was given on his face. Allah Rakha deceased fell and died. Mohammad Salim tried to intervene. He got some blood stains on his Chaddar. Ghulam Mustafa accused ran away.
6. Mohammad Boots was also examined. His version was that at about 8-00 p.m., he returned to his house and saw Ghulam Mustafa accused, Allah Rakha deceased, Mohammad Salim P.W. And others standing there. He then went to fetch tea. When he returned, he saw the dead body of the deceased lying in the house. He wag told by Mohammad Salim that Allah Rakha had been killed by Ghulam Mustafa who ran away. The witness further said that he then informed Akbar P.W. About the incident and the party kept sitting for two hours waiting for Riaz Ahmad P.W. Who had gone to Lahore at his work.
' The A.P.P. Sought permission to cross-examine the witness because he did not tell the truth. The witness was cross-examined by the A.P.P. And thereafter on behalf of the accused. The witness said that the deceased was involved in two theft cases in addition to a murder case. Allah Rakha and Iqbal were the accused in the murder case of Barkat Mirasi. They were however, acquitted. Few days prior to the occurrence, Iqbal was attacked by some unknown persons. Thereafter, the deceased and Iqbal became very careful. The witness said that the deceased used to indulge in theft, gambling and black-marketing etc. Along with Barkat.
' Muhammad Akbar is the recovery witness. He took Muhammad Sherif Chaukidar along and accompanied Boota to his house. The dead body of Allah Rakha was lying on a cot. Riaz Ahmad and others were present near the dead body. He accompanied Riaz Ahmad to the Police Post, Jia Bagga. From there, Riaz Ahmad went to Police Station, Kahna. The witness accompanied the Investigating Officer. In his presence, blood-stained earth was taken into possession and the accused led to the recovery of blood-stained Toka as well.
' Muhammad Siddiq deposed about the motive. He is also witness for the recovery of blood-stained cot from the spot.
' On 11-2-1979, at 1-00 p.m. Dr. Ijaz Ahmad Bhatti, Medical Officer, in the office of Police Surgeon, punjab, Lahore, conducted autopsy of the deceased and noticed ten incised wounds of different dimensions caused with sharp-edged weapon. In the opinion of the doctor, injury No,1 individually was sufficient to cause death in the ordinary course of nature while injuries Nos. 3 to 7 also contributed towards the causation of death collectively.
7. Ghulam Mustafa was examined by the trial Court. He denied the allegations. He said that he did not know anything about the occurrence. He came to know of it when he was arrested. He further denied that he ever absconded, nor was aware that he was ever declared proclaimed offender. He denied the recovery of Toka. He said that it was planted by the police, and the same did not belong to him. He said that he had been involved due to some misunderstanding. In defence he produced Dr.Ejaz Haider, Incharge Unit 'B', Mental Hospital, Lahore. The doctor did M.B,B.S. From the University of the Punjab, M.R.C.P. And D.P.M. From London and P.H.D. From Eden. In the year 1971, he was working as a Specialist in the Mental Hospital. He knew the appellant. He was admitted in the hospital on 18- 4-1980. He was referred by the District Magistrate Vehari. The appellant was discharged on 2-6- 1980. The doctor brought the history of the patient. While the appellant was in the hospital, he was under the treatment of the doctor. The doctor examined him on ten different occasions. His condition on admission was:- "He was aggressive, abusive, had pressure of talks. He talks too much and at times became irrelevant. His behavior was disturbed and emotionally no control on himself. He was very demanding. He had sleep disturbances and addicted to Charas smoking."
' On 30-4-1980, the doctor made the following observations:- "He was aggressive and is now calm down. His talk is relevant at times. It is reported that he shouts during night. He is an aggressive psychopath with history of Charas addiction."
' On 8-5-1980, the doctor again examined the appellant and reported: "His mood was fairly calm. His sleep was improving. Emotionally he was better. He was able to converse and admitted to be a Charas addict for the last 4/6 years,"
8. Learned counsel for the appellant in the first instance contended that the prosecution has not been able to prove its case beyond doubt. The presence of the witnesses was highly doubtful. So far as Boota was concerned, he did not support the prosecution. No reliance could be placed on the testimony of Mohammad Salim because he did not give the details of the injuries. Riaz Ahmad, the first informant, was the real son of the deceased. His presence is also doubtful because according to Boota, he was not there.
' Last of all, learned counsel laid great stress on the testimony of doctor in order to bring his case within exception of section 84 of the Pakistan Penal Code. In other words, he took up the plea of insanity and submitted that the evidence of the doctor leave no room for doubt that the appellant was of unsound mind. He was not a normal human being. He could not be held responsible for his acts.The essential ingredients i.e, menswear and Actus reus were lacking in this case.
9. I would like to deal with the ocular version first.
Riaz Ahmad though son of the deceased gave a sound explanation of his presence at the spot.
Keeping in view the time and place, his presence cannot be doubted. He then gave a correct account and true picture how his father was done to death. The post-mortem report of A the deceased shows that the injuries suffered by him could be caused by Toka. The dimensions and locations of the injuries show that those could be caused by a weapon like Toka.
Muhammad Salim also blamed the appellant for the attack. The mere fact that he did not give the details of the injuries does not mean that he was not present at the spot.
' Boota was never an eye-witness. He had gone out on the asking of the appellant. When he came he found Allah Rakha lying dead. So, even his testimony could be pressed into service as corroborative piece of evidence to this extent.
10. The evidence of Dr. Ejaz Haider shows that the appellant was a Charas addict. This was a bad habit. He is to blame none except himself. On this ground he cannot avail of plea of insanity. Even C otherwise, this plea was not taken expressly at any stage. It was a mere afterthought.
11. The conduct of the appellant shows that he was of sound mind and acted cleverly by asking Boota to go out and then drew the attention of Allah Rakha to the electric meter. These acts cannot be attributed to a man of unsound mind. In view of this I do not think the appellant has successfully established the plea of insanity.
12. For the foregoing reasons I am of the view that the prosecution has been able to prove its case beyond doubt. This appeal is accordingly E dismissed .
' The amount of fine in full shall be paid as compensation to the legal heirs of the deceased for which the Collector concerned is directed to take immediate steps for its realization and payment.