AGHA ALI HYDER, J.-This appeal from the judgment of the learned Sessions Judge, Kalat, convicting the appellant for an offence under section 302, P. P. C., and sentencing him to transportation for life, arises in the following circumstances :-
2. The appellant was employed as an Inspector, in the Land Customs Department. In January 1965, he was posted at Suntsar, but was also holding the additional charge of Gabad post. On the 5th of January, he had arrived at Babad, and was staying in a room, adjacent to his office. His camel- man and the staff attached to the Babad post, were living in the huts nearby. The town of Gabad is three or four furlongs away. The only other building in the vicinity was a mosque.
3. The prosecution story succinctly stated is that the appellant, though fasting, (it being the month of Ramzan) had stopped eating from the 11th of January, and shut himself up in his room. All entreaties from some members of the staff proved of no avail. It is alleged that on the 12th January, near about 2-30 p.m., he announced the intention to return to Suntsar. A little later he is stated to have shot down Washdil, inside his room. As the room was closed, nobody from the staff could go inside. Gul Muhammad, the Naik, sent letters to the Superintendent, and the Deputy Superintendent, of Customs. Saghir Ahmad, the Deputy Super--intendent, arrived from Gawadar on the 15th January at about 3-30 p .m., and found the members of the staff surrounding the office. He went behind the office, and shouted his arrival When on Invitation, he went to the front of the room, he found the appellant, standing by the side of the window. It is alleged that Saghir Ahmad, after a brief conversation, asked the appellant to hand over the arms. After some hesitation, the appellant is stated to have handed over the revolver, and twelve bullets, in the bandolier, and after a little persuation, also the rifle, which was passed on to Gul Mohammad. The appellant thereafter opened the door. Saghir Ahmad enquired about the empty shell and learnt that the same was lying in the drawers of the table. Saghir Ahmad picked it up and later gave it over to Gul Muhammad. He also went to the other room, and found the dead body of Washdil lying on the ground, covered with a sheet. Saghir Ahmad left for Jiwani, at about 6 p.m. And at about 7-30 p.m., Syed Siraj Hussain, the Superintendent of Customs, reached Babad, accompanied by S. H. O. Fazal Hussain. The first information report of the, incident was lodged by Gul Muhammad who later produced the revolver, the rifle, the empty shell and the cartridges before the S. H. O. The S. H. O. After preparing a memo.
Sealed these articles. He then went to the room, where the corpse was lying and prepared the inquest report and secured the blood--stained earth. The appellant was arrested and inquiries were made from some witnesses. The next day, the S. H. O. Secured the blood-stained clothes of the deceased and a3 the corpse was in a state of decomposition and there was no chance of a Medical Officer being available in time, the dead body was handed over to the relations of the deceased for burial. On the 19th of January, with the permission of the District Magistrate, Makran, the dead body was exhumed and Dr. Abdul Qayum, Medical Officer, Civil Hospital, Turbat, performed the post-mortem examination. The charge-sheet was later submitted in the Court of a Magistrate in Makran, culminating in the trial.
4. The appellant in his statement at the Court of. Inquiry denied the various allegations made against him. At the trial, inter alia, he had the following to say :- "During the days of occurrence I did not keep a good health and used to get fits and used to get unconscious and for this reason I had also applied for long leave. On 10th in Gabad post I became seriously sick as a result of which I did not take my meals. On 11th I became unconscious and remained so till the arrival of the police, i.e. 15-1-65. I do not know what happened from 11-1-65 to 15-1-65 as I all time remained unconscious in my room and falsely charged at the instance of my enemies and police. I am innocent."
5. As for the death of Washdil, apart from Fazal Hussain, there is the word of Rasool Bakhsh, the mashir of the Inquest report, who has described the injury on the shoulder of the dead body. It is true that the autopsy was held, after the body had been exhumed on the 19th January yet in the circumstances disclosed. There is no room for any doubt, that some other grave had been disinterred or that the corpse was not properly identified. The injuries according to Dr. Abdul Qayum were :--
(1) An oval wound --' in front of the chest in the sternum bone at a level between the 3rd and the 4th ribs. The akin surrounding the wound was scorched and tattoed and the adjacent hair were singed.
(2) A lacerated wound 1--x 1-- with irregular and ranged torn edges, was found at the back at a level between the 6th and the 7th ribs corresponding to a line drawn from the inferior angle of the Scapula.
The internal examination showed the following injuries on the thorax
(1) Sternum was fractured at the level of the 3rd and the 4th ribs, and a round hole was at that level.
(2) Pleura of the right lung at the medial line was injured.
(3) Left lung at the same level was found injured and torn at medial side,
(4) Blood vessels leading to the heart were also found cut.
(5) Posterior pleura of the left lung and the left lung were wounded at 5th, 6th and 7th ribs. The size of the wound was 2 --" x 2 -- ".
(6) Fracture of the 5th, 6th and 7th ribs at the level of the exnit hole.
The Injuries, according to the Medical Officer, were ante mortem. The injury No.1 was the entrance wound by a fire arm, while the injury No. 2 was the exit wound. The death hail occurred as a result of fracture and haemorrhage due to the injuries, which were sufficient in the ordinary course of nature to cause death.
6. It is an admitted position, that nobody had seen the actual firing. Gut Mohammad has deposed that on the 11th, learning that the appellant was not even breaking his fast, accompanied by some members of the staff, he had gone to enquire about his health and found the room closed. The appellant had declined to have any thing to eat and had asked him to go away. The next day he was informed that the appellant had even refused to have any `Saheri'. He again went to the room, and tried to talk to the appellant, but there was no response. Realising that all was not well, he sent the letter Exh. P. B., through P. W. Hussain, to the Deputy Super--intendent Customs, at Jiwani, which was 25 miles away. At about 2-30 p.m., Washdil came to his but and informed him, that the appellant was leaving for Suntsar. Then Washdil went away. After a while, he came out of the hut.- Murad Bakhsh, Ali Mohammad, Gheraz Gut and Charshambe sepoys were with him to see off the appellant. After they had covered half the distance, they had heard a gunshot report and rushed towards the room of the appellant. While still 6.7 paces away from the room, they had seen the appellant, standing by the side of the partly opened door. He had warned them not to come near.
He did not see anything in the hands of the appellant, but his companions Murad Bakhsh, Ali Muhammad, Gheraz Gul and Charahambe had informed him, that the appellant was holding a revolver. He had immediately retreated, and directed his companions to guard the room, from some distance. He had then gone to Gabad and sent a letter to the Superintendent of Customs.
Half an hour later, he had stealthily walked to the room and peeping through the chinks, found Washdil lying prostrate on the ground. The appellant, however, could not be noticed by him at that time. Then he narrated the arrival of Saghir Ahmad on the 15th, and the handing over the rifle, the revolver, the empty shell and the catridges to the latter by the appellant.
7. The other witness, who has deposed about the happenings in the afternoon is P. W. Ali Mohd. He corro--borates Gut Muhammad in regard to the hearing of the gun fire and further mentions seeing the revolver in the hands of the appellant. At the Court of Inquiry he had not stated, as brought on the record, whether the shot had been fired inside the room or the office. But he has not said so at the trial either. It could not be possible to say for definite. However, his version that he also had later seen the dead body of Washdil, through the chinks is not to be found in his statement made to the police.
8. P. W. Charshambe, is absolutely reticent about being with Gut Muhammad and others, or seeing the appellant shortly thereafter. He confined himself to the message which he had carried later in the night. The learned Advocate-General, would have it that it was not' necessary, that all the witnesses examined should have repeated the story. Since Charshambe had entered the witness- box, it was open to the defence to extract whatever they could, out of him. The contention of Mr. Mahmood Ali Qasuri was that the decision whether a witness was to be examined by the prosecution rested with the Public Prosecutor. However, if he was examined, and main--tained sphinx-like silence on the material aspects of the case, the presumption would be that he was not prepared to support the prosecution case on that score. It would have been unpardonable if the defence had contributed to the filling up of the gaps in the prosecution case. The argument is not without force, but this flaw cannot in any way affect the credibility of the witnesses that have been produced. Nor would any adverse conclusion be drawn, if the evidence actually given, is sufficient and unimpeached, as it is in the instant case. The fact, that Gut Mohammad failed to notice the revolver with the appellant would not mean much. After all, on his own showing Ali Muhammad and others were going ahead of him. Nothing smacks of bias or prejudice in Gut Muhammad and Ali Muhammad and we are satisfied that they are witnesses of truth.
9. It also stands made out that the members of the staff, had kept surrounding the building till the arrival of Saghir Ahmad on the 15th of January. None of the witnesses has stated that he had seen him stirring out. Even the appellant has stated at the trial, that he had remained confined in the room, as he was unconscious. However, when Saghir Ahmad arrives, the appellant, after some reluctance, hands over the rifle and the revolver, and ultimately allows him to enter the room. We will be reluctant to accept the evidence of the extra judicial confession solely on the ground, that Saghir Ahmad had not mentioned it in his statements at the Court of inquiry. The witness has stated that the appellant had pointed out the drawer, and he had taken out the empty shell. Then he goes to the other room, and finds the dead body of Washdil, lying on the floor, covered with a sheet. The rifle and the empty shell were sent to the Ballistic Expert and Mr. Ashraf Malik, for the reasons given by him, has testified, that the empty shell had been fired from the rifle in question.
The fact, that Saghir Ahmad had left the weapons and the crime empty with Gut Muhammad is understandable. He had to leave Gabad, to set the machinery of law in motion and he, as well left it with a member of the staff. Gut Muhammad, or for the matter of that nobody else in the case, had any motive to fabricate any false evidence against the appellant.
10. Mr. Mahmood Ali Qasuri, learned counsel for the appellant, however, contended that the testimony of the Ballistic Expert, would have no evidentiary value, as the crime weapon, had been sent to him, after a delay of about 2 months. He has sought reliance from Rehman and others v.
The State (PLD 1966 Lah. 464), in which a delay of 2 weeks was considered to be fatal. It is true, that inordinate delay in the despatch of crime weapons, would detract from value of evidence' provided by such weapons, but we are also cognizant of the conditions in Baluchistan; the difficulties of communication and transport and the long distances involved. In Wazir and others v. The State (PLD 1960 Kar. 674) there was a delay of about 3 months and the weapons of crime were not sealed at the spot. In the circumstances of the case we have chosen to accept this piece of evidence.
11. It was admitted by Gut Muhammad that two men of the Customs Staff had been killed by the smugglers. As to when and where, they met their end, was not explored. Faiz Muhammad who was an Inspector at Kulatoo, 7-8 miles away from Gabad, has categorically stated that he had no information, official or otherwise that there was any raid at all by the smugglers at the Gabad post throughout the month of January 1965. He was a batch-mate of the appellant, and could have no ostensible reason for keeping any cover.
12. The record makes out that the appellant's behaviour, from the 11th January was a little abnormal. He was moody and withdrawn. It is also established that Washdil was seen alive till a few minutes before the shot was fired. The appellant never stirred out of the building till the arrival of Saghir Ahmad. The dead body of Washdil was found inside the room by Saghir Ahmad, and by the S. H. O., later in the evening. The latter was accompanied by the Superintendent of Customs.
There is also the word of Rasool Bux and others. The appellant had a rifle and knew the exact place where the empty shell was lying. It was this rifle which had been fired from. All that the appellant has to say is that he had remained unconscious in his room from the 11th up to the 15th. This was introduced by him for the first time at the trial. All that speaks for itself. It is true, that nobody had seen the actual firing but all these chains of inculpatory circumstances, lead to the inescapable conclusion, that Washdil died at the hands of the appellant. There are no facts set up by the appellant to rely as exculpatory circumstances, sufficient to cast a doubt over the prosecution case (See The State v. Manzoor Ahmad (PLD 1966 SC 644) and Allahditta v. The State (PLD 1958 SC (Pak.) 290).
13. It was, however, argued by Mr. Mahmood Ali Qasuri, learned counsel for the appellant, that on the showing of the witness, the appellant from the 11th onwards was not quite himself and his cognitive faculties seemed to be impaired. For two days at a stretch he had refused to have a morsel of food, and had shut himself up inside the room. Even Raiz Muhammad, who knew the appellant since 1963, had admitted that during the training period he (the appellant) would confine himself to his room for a day or two and would not mix up with his colleagues. Even during the talks, all of a sudden, he would lapse into silence. He also added that the appellant used to frequently visit the hospital for consulting the physicians. However, he has unequivocally stated that the appellant was never incoherent in his speech, or had any attacks of confusion. There is nothing to show that there was anything wrong with him till the 11th of January. All that could be noticed till the incident, was that he was withdrawn and incommunicative, and had stopped eating or drinking.
From the afternoon of the 12th, till the arrival of Saghir Ahmad, nobody tried to come near him. It is however, made out that he bad moved out of the adjacent room, to be away from the eerie and weird atmosphere with a corpse by his side, which had started decomposing later. What transpired between him and Saghir Ahmed does not betray any abnormality. Even after the arrest, he was referred to the Medical Officer, where he had remained under observation for a few days. The Medical Officer, has deposed that he was physically fit and mentally wound. The antecedent and subsequent behaviour of an accused is relevant to see, what was the state of mind at that time, when the act was committed. There is a distinction between "medical insanity" and "legal insanity".
Ground for exemption from criminal responsibility can be invoked only in cases of legal insanity, "where a person 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". The inadequacy or absence of motive will be neither here nor there. As held in Muhammad Shafi v. The State (PLD1962SC472) "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." The burden under the law, was upon the appellant to establish that he was entitled to the benefit of exemption as held in Said Amir Shah v. The State (1969SCMR805) and Jalal Din v. The State (1968 P Cr. L J 187). Nothing is discernable that way. The conviction of the appellant therefore is not open to any exception. He was also given the lesser punishment under the law.
14. In the result, we will affirm the conviction and sentence and dismiss the appeal.