1. SHAH ZAMAN BABAR, J,- -Muhammad Ishaq, aged 35 years, son of Nur Hussain, resident of Mohar Kalan, Police Station Bagnotar, Tehsil Abbottabad, District Hazara, was tried under section 302, P. P.
2. C. For the murder of Mst. Mukhtar Begum, aged 25/26 years, wife of Muhammad Waheed, which he allegedly committed on 15-5-72, at 5 p.m. In village Mohar Kalan. The trial was held by Mr. Abdul Khaliq Khan, Sessions Judge, Hazara, at Abbottabad, and he by his judgment dated 28-4-73, convicted Muhammad Ishaq under section 302, P, P. C. And sentenced him to suffer death, subject to confirmation of the death sentence by the High Court.
3. Muhammad Ishaq condemned convict has appealed. Proceedings of murder reference under section 374, Cr. P. C. Are also before us. This judgment will dispose of the appeal as well as the murder reference.
2. The parties are residents of village Mohar Kalan, in the jurisdiction of Police Station Bagnotrar. P.
4. W. Said Khan, his son P. W. Sabir Sultan, Mst. Mukhtar Begum (deceased) wife of Mohammad Waheed, son of Said Khan, and P. W. Mst. Hamida, daughter of Said Khan and wife of Khan Afsar lived in one house in different kothas, with a common courtyard. Muhammad Ishaq appellant is son of Nur Hussain Pesh-i-Imam of the mosque of the locality in which the parties lived, Muhammad Ishaq appears to be a married person having children. There is a water tap beside the mosque on the roadside for public use: Women folk of the locality take water from this tap. About six months prior to the present occurrence Muhammad Ishaq, allegedly, had molested Mst.
5. Mukhtar Begum. The matter was patched up by NBA Hussain, father of the appellant, through a Jirga.
6. On 15-5-72 at about 5 p.m. P. W. Hamida and Mukhtar Begum (deceased) had come to the water- tap outside the mosque to take water in their pitchers. The two ladies were returning home.
7. Hamida was going ahead of Mukhtar Begum by about 10 paces. Both the ladies had pitchers full of water on their head. Near the mosque, it is alleged, the appellant was standing armed with a chhuri. The appellant started giving chhuri blows to Mukhtar Begum. The pitcher fell from her head and broke into pieces. Hamida put her pitcher on the ground and raised cries. P. W. Said Khan was near about the scene of occurrence while coming on his way to the mosque for offering the digar prayers. Said Khan heard the outcries and saw the appellant giving knife blows to Mst. Mukhtar Begum from a distance of about 20 yards. The appellant ran away towards his house situated in the vicinity of the mosque. Mukhtar Begum succumbed to the injuries at the spot. P. W. Sabir Sultan was ploughing his field when one Haji Ahmad called him from the field to rush to his house. Sabir Sultan came to the spot and saw Mukhtar Begum lying killed. His father Said Khan informed Sabir Sultan that Mukhtar Begum was murdered by Muhammad Ishaq and that he (Sabir Sultan) should go and lodge a report at the police station. Sabir Sultan came to P. S. Bagnotar, distance 8 miles from village Mohar Kalan, and lodged his report Exh. P. A. The same day at 8-30 p.m. He charged the appellant for the murder and stated that he had come by foot on the hilly tract to the Police Station.
8. The report Exh. P. A. Was scribed by S. I. Mumtaz Khan, then S. H. (J. P. S. Bagnotar. The S. I. Proceeded to the spot reaching there at 10-30 p.m. He found Mukhtar Begum lying dead on the spot, which is a pathway. The S.1. Prepared the injury sheet and inquest report of the dead body and gent it to the mortuary. The S. I. Then inspected the spot. He picked up blood-stained earth Exh. P. 1, blood- stained pebbles Exh. P. 2, pieces of brokep pitcher Exh. P. 3, and a shoe Exh. P. 4, belonging to the deceased, vide memo. Exh. P. B. In the presence of P. W. Muhammad Sultan. The accused was arrested from his kotha in the early hours of 16-5-72. It is clear from the police diaries and the statement of D. W. Sher Zaman that the accused had chained the door of the kotha from inside.
9. The accused when arrested, had blood-stains on his shalwar Exh. P. 5 and shirt Exh. P.
6. The S. I, therefore, took the clothes of the appellant vide memo. Exh. P. C. In the presence of P. W.
10. Muhammad Sultan. The S.I. Then prepared the site plan Exh. P. X., recording his observation notes thereon, at the instance of P. Ws. Mst. Hamida and Said Khan. P. W. Rabnawaz F. C. Brought the shalwar Exh. P. 7, the shirt Exh. P. 8 and dopatta Exh. P. 9, all blood-stained belonging to the deceased, from the mortuary. The S. I. Took them into possession vide memo. Exh. P. D., in the presence of P. W. Muhammad Sultan. On 16-5-72, the appellant, while in police custody, led the S. I.
11. To the place from where the blood-stained earth and pebbles were recovered at his pointing out in the presence of P. W. Muhammad Sultan vide memo. Exh. P. E. The S.I. Sealed the blood-stained earth and pebbles in one parcel, the shalwar and shirt of the accused bearing bloodstains in the second parcel, and shalwar, shirt and dopatta of the deceased in the third parcel and sent them to the Chemical Examiner. The Chemical Examiner vide his report Exh. P. I. Opined that all the contents of the three parcels were stained with blood and forwarded them to the Serologist for opinion. The Serologist vide his opinion Exh. P. K. Found all the exhibits in the parcels to be stained with human blood. However, he found that the material on the earth and pebbles and shirt of the accused (in parcel Nos. 1 and 2) was in--sufficient for blood grouping. The shalwar of the accused (in parcel No. 2) and the shirt, 3halwar and dopatta (chaddar) of the deceased m the third parcel were found to be stained with blood of group `O'.
12. On 17-5-72 the S. I. Produced the accused appellant before P. W. Muhammad Sarwar Khan, Magistrate, Abbottabad for recording his confessional statement. Muhammad Sarwar Khan, Magistrate after observing all legal formalities recorded the confessional statement Exh. P. W. 8 of Muhammad Ishaq accused appellant. The confessional statement of the appellant has been rendered into English by the learned trial Judge in his judgment in para. 15, which runs as under:- "Some days back he was going to his shop. Mst. Mukhtar Begum was washing her feet and when some drops of water fell over him he stopped for a while. Mst. Mukhtar Begum deceased asked him angrily as to why he bad stopped. He was silent. Mst. Mukhtar Begum went a few paces and then called her (him) names (be-ghairat). He returned and caught hold of Mst. Mukhtar Begum. The dispute changed into love. They were closeted to each other and he gave kiss (chak) on the cheek of the deceased. She cried. They were seen by some women. He ran towards the mosque while Mst.
13. Mukhtar Begum pelted a few stones. Said Khan etc. Came and abused and insulted him. As his father, however, apologised, there--fore, the matter was settled. On the day of occurrence, after digar prayer, he was going home when Mst. Mukhtar Begum and Baida daughter of Yaqub were standing with pitchers. Mst. Mukhtar Begum threw water of the pitcher on him and caught bold of his string. In order to save himself he pushed her. Mst. Mukhtar Begum and Baida caught hold of his legs. He had a churri and gave blows after blows to the deceased."
14. The accused was sent to the judicial lock-up on the same day, viz.17-5-72.
3. Lady Dr. Mah Jabeen performed the post-mortem examination on the dead body of Mst. Mukhtar Begum on 16-5-72 at 6 a.m. She found the following external injuries
(1) An incised wound on the right elbow measuring 2" x 1-- into muscles deep.
(2) An incised injury 5" below the right shoulder joint 3" x 1-- into muscles deep.
(3) An incised wound below the right elbow joint 1" x 1-- into muscles deep.
(4) Superficial scratches on the right elbow joint, neck and chest.
(5) An incised wound measuring 3" x 1-- into tissue deep into right 11th and 12th ribs entering into cavity. Ribs were fractured.
(6) An incised wound measuring 3" x 1-- into tissue deep on the left side of back of chest on the 11th, and 12th ribs which were fractured.
(7) An incised wound measuring 2" x 1" into lumbo-sacral vertebra on the back; vertebras were crushed.
(8) An incised wound on the front of chest on the sternum measuring 3' x -- into tissue deep.
(9) An incised wound below the right breast measuring 1--" x 1' x deep tissue
(10) Incised wound 1" below injury No. 9, 1" x 1-- into tissue deep.
(11) An incised wound on the front right side of chest 2" x 1" into 11th and 12th rib deep into the cavity; ribs were fractured.
(12) An incised wound 1" below injury No. 11, 3" x 1-- into tissue deep.
(13) An incised wound on the left side back of hand 1" x 1--.
(14) A scratch on the left elbow,
(15) A contused wound on the left knee joint.
15. On internal examination the doctor found thoracic walls injured having incised wound on the sternum 2" x 1-- as well as ribs at the effected area. Pleurae were ruptured at the affected area.
16. Pleural cavity was full of blood. Right lung had a lacerated wound on the lower side of the middle lobe while left lung had also a lacerated wound on the apex and middle lobe. Stomach was empty.
17. Right side liver was lacerated and injured. There were multiple lacerations on the spleen. Right kidney on the middle side was lacerated. White thick discharge was in the vagina and two vaginal swa bs were taken. Milk in the breast was present. Uterus was of normal size.
18. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of injury to both the lungs, liver, right kidney and spleen. Except injuries 14 and 15 all the injuries were caused by sharp pointed weapon. Probable time that elapsed between injury and death was about half an hour and that between death and post-mortem was 12 to 18 hours. Shirt and shalwar had cuts of sharp weapon. Injuries 6, 7, 8, 9, 11 and 12 individually were sufficient to cause death in the ordinary course of nature. The rest of the injuries were collectively sufficient to cause death. The doctor when questioned opined that from the dimensions of the injuries she could guess that more than one weapon of offence had been used, but on re-examination she stated that she did not rule out the use of a single weapon in view of the fact that the dimension of different injuries may depend on the quantum of force relative to each injury.
19. Dr. Aslam Malik had examined the injuries on the person of Muhammad Ishaq accused on 17-5-72 at 9-30 a.m. And found:
(1) Two bruises each about 3' long and 2' apart one above the other, behind left knee and leg, 1/2' broad.
(2) An abrasion 1/4' long, radial side, of right index-finger.
(3) Two superficial cuts skin thickness oblique each about 1/4' long on the palmer surface, unlar side of base of palm.
(4) Two abrasions each 1/4' long between wound No. 3.
(5) An abrasion 1/4" on the base of left palm, unlar-side.
20. The nature of injuries were simple. Injury No. 3 was caused with sharp-edged while 1, 2, 4 and 5 with blunt means Duration was about 18 to 36 hours. .
21. Dr. Aslam Malik had gone abroad for further studies. His handwriting on the injury sheet Exh. P. H. Of Muhammad Ishaq was identified by Dr. Muhammad Ayub who was acquainted with the handwriting of Dr. Aslam Malik.
4. The accused when examined by the committing Magistrate stated on 23-11-72: Q.It is in evidence that some days before the occurrence you had teased Mst. Mukhtar Begum deceased which was reported by the latter to her relations and you nursed a grudge on account of the' ensuing disgrace suffered by you?
22. A. I do not know anything about the murder.
23. Q. Did you on 15-5-72, at 5 p.m. At village Mohar Kalan commit the murder of Mst. Mukhtar Begum by stabbing her to death?
24. A. It is never considered an offence if committed by exercising the right of self-defence.
25. Q. How do you explain the presence of blood specks on your shalwar and shirt recovered by the police on 16-5-72?
26. A. I do not know anything about the stains of blood on my shalwar and shirt.
27. Q. Did you lead the police in custody to the spot?
28. A. I was taken by the police to the spot. There I did not know whether the dead body lying there was of male or female. I did not make any pointation of the spot.
29. Q. Did you voluntarily make confessional statement before a Magistrate?
30. A. I did not make any confessional statement before any Magistrate.
31. Q. What is your statement and why are yon charged by the prosecution witnesses?
32. A. I am innocent and falsely implicated in the murder case. Some persons did not let me, say my prayers in the mosque of the village and the witnesses deposed against me due to enmity.
33. Certified under section 364, Cr. P. C."
34. A charge under section 302 was framed against the accused appellant on 23-11-72 when he was committed for trial under section 302, P. P. C. Within the cognizance of the Court of Session. This charge was read over and explained to the accused, to which he pleaded not guilty and wished to produce defence in Sessions Court.
35. At the commencement of the trial the charge framed against the accused appellant was read over to him and the purport thereof was explained in the language, which the accused understood.
36. The accused pleaded not guilty to the charge.
37. At the trial the accused appellant made the following statement on 23-4-73.
38. Q. You have heard your statement recorded by the committing Magistrate. Is it correct?
39. A. Yes..
40. Q. It is in evidence that about two months prior to the occurrence you had molested the deceased and she had complained about your misbehaviour over which you were annoyed. What have you to say?
41. A. It is incorrect.
42. Q. Did you on 15-5-72 at 5 p.m. Commit the murder of Mst. Mukhtar Begum deceased by giving her knife blows within the limits of village Mohar Kalan?
43. A. No. Q. Did you on 17-5-72 make confessional statement Exh. P. W. 8 before Muhammad Sarwar Khan, M.
44. I. C., Abbottabad?
45. A. No. Q. Did you on 16-5-72 while in police, custody lead the police to the place from where blood- stained earth was recovered by the police at your instance?
46. A. No. Q. Why are the P. Ws. Deposing against you?
47. A. The witnesses are partisans and closely related to the deceased.
48. Q. What is your statement and why are you charged?
49. A. Some six months prior to the occurrence, while I was going to a shop to purchase' snuff, the deceased alongwith some other women abused me and I made a complaint as regards it to her parents. A compromise was effected. In spite of it the father of the deceased charged me on suspicion and I was sent to Dhodial for my mental examination. I was inside my house on the day of occurrence when I was informed that Mst. Mukhtar Begum has been murdered. I have no hand in her murder. I am innocent and made a scapegoat.
50. Q. Do you wish to produce defence?
51. A. I want to produce Faqir Khan and, Sher Zaman in my defence. They are not present nor have I cited them as witnesses. The name of father of Faqira is Faiz Ahmad while that of Sher Zaman is A.I Zaman, both residents of Mohar Kalan.
52. R. O. & A. C.
53. (Sd.) Abdul Khaliq Khan.
54. Sessions Judge, Hazara.
55. Dated 23-4-73.
56. Certified that the statement of the accused person was taken in my presence and hearing that it was read over to him and was admitted to be correct and that it is a full and true account of the statement made by the accused.
57. (Sd.) Abdul Khaliq Khan, Dated 23-4-73. Sessions Judge, Hazara."
5. Out of the two D.Ws. Namely, Faqira Khan and Sher Zaman named by the accused appellant at the trial only D. W. Sherzaman was produced and the accused vide his statement dated 25-4-73 did not wish to produce any more evidence in defence.
6. The prosecution case is supported by the retracted concession Exh. P. W. 8 of the appellant and the ocular testimony of P. Ws. Said Khan, father-in-law of the deceased Mukhtar Begum and Mst.
58. Hamida sister-in-law of the deceased. The retracted confession was made on the second day of the arrest of the accused appellant. On perusal of the evidence of F. W. Muhammad Sarwar Khan, Magistrate and the other circumstances of the case, it appears that the confessional statement is true and voluntary. It is corroborated by the pointing out of scene of occurrence by the accused appellant (within the purview of section 27 of the Evidence Act), the recovery of blood-stained earth, with blood-stained pebbles, broken pieces of pitcher, and a shoe of the deceased from the spot pointed out by the accused appellant, the presence of blood of `O' group (which is the group of the blood of the deceased) on the shalwar of the accused appellant and the ocular testimony of the P. Ws. In State v. Minhun alias Gul Hassan (PLD 1964 SC 815) it was held; "`Retracted confessions' whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.
59. Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
60. P. W. Said Khan is the father-in-law of the deceased Mukhtar Begum. The house of Said Khan is shown to the north east of the spot. Said. Khan deposed that he was coming to the mosque for offering digar prayers when he was attracted by the outcries of the deceased and Mst. Hamida -- and he saw from a distance of about 20 paces that the appellant was --inflicting knife blows on Mukhtar Begum. Mst. Hamida deposed that she: was accompanying the deceased to the water tap of the mosque for taking, water and on their return she was going ahead of the deceased when the accused appellant inflicted several chhuri blows on Mukhtar Begum. Her presence is admitted in the confessional statement. The motive for the offence shown by the prosecution is virtually admitted by the accused appellant in his retracted confession Exh. P. W.
8. D. W.
1. Sher Zaman has deposed that the accused had murdered the deceased and he was attracted to the spot. He was fleeing from the spot and the witness apprehended, him and locked him in the room. The witness added that the mental condition of the accused is normal. Thus, in our view, the retracted confession of the accused, which is duly corroborated by the circumstantial and the ocular evidence, the ocular testimony of the two witnesses and the evidence of D. W. Sher Zaman is sufficient to establish the charge of' murder against the accused appellant.
7. This appeal was heard on merits on 5th of May, 1974. Mufti Muhammad Idris, Advocate, learned counsel for the appellant, did not-- seriously contest the killing of Mst. Mukhtar Begum at the hands of the appellant. He, however, argued that the accused was of unsound minds and entitled to the benefit of section 84 of the P. P. C. The learned counsel has taken this aspect of the case in the grounds of appeal and has-- also applied under section 375, Cr. P. C. For permission to adduce additional evidence in support of the plea of unsoundness of mind of the appellant. --The specific grounds relating to the benefit of section 84, P. P. C. Viz. Grounds Nos. 2 to 7 and 10 are reproduced below: "2. The father of the appellant long before the occurrence had made reports in Police Station, Bagnotar about the insanity of the appellant, particularly the report of 3rd April 1972, prior to this date another report was also made by the father of tie appellant about the insanity as a consequence of which the then A. S. I. Khushal Khan of Police Station, Bagnotar apprehended the appellant and took him to Mental Hospital, Dhodial, where the appellant was lodged for treatment and remained there for 23 days till one --day the appellant escaped from the Mental Hospital and became at large. The receipt of expenses issued by the Superintendent, Mental": Hospital, Dhodial, is attached with this appeal as Appendix `A'.
(3) Even in the year 1968 the father of the appellant lodged report about the insanity of the appellant at Police Station, Abbottabad as a consequence of which the appellant was hauled up and sent to jail.
(4) Even after the occurrence when the power of attorney was drawn up on behalf of the appellant in favour of his father, the Sub---Registrar went to jail in connection with the registration of the power of attorney, gave a note on the original document that, the appellant is mentally deranged.
61. The original is appended herewith as Appendix B'.
(5) The appellant was represented before the trial Judge by a State Counsel being a pauper case.
(6) All the details and the documentary evidence could not be brought to the notice of the trial Judge, as the appellant could not possibly instruct his counsel due to his mental dis-equilibrium.
(7) The appellant is submitting a separate application alongwith the appeal under section 375, Cr.
62. P. C. For additional evidence on this point.
(10) The number and the nature of the injuries on the person of the deceased and the scene of occurrence clearly indicate the state of mental torture and mental disorder at the time of occurrence, even if the prosecution is to be believed at all."
63. We accordingly had adjourned the case to 13th of June 1974, for the limited purpose of taking additional evidence of the doctor under whose treatment the appellant was a patient in Government Mental Hospital, Dhudial and A. S. I. Police Khushal Khan of P. S. Bagnotar. The A. A.-G.
64. Was also allowed to produce evidence, in rebuttal, of police officers and Superintendent Jail, Abbottabad in whose custody the appellant remained in the police station and judicial lock-up.
8. Dr. Muhammad Urfan and A. S. I. Muhammad Khushal Khan were examined with reference to the application for additional evidence on behalf of appellant. Fida Muhammad Khan, H. C. Police Station Batagram and Dilawar Shah then Superintendent Jail, Abbottabad were examined in rebuttal of the evidence of the former two witnesses. Dr. Muhammad Urfan, Mental Specialist deposed that Muhammad Ishaq had remained under his care as mental patient from 18-10-71 to 9-11-71 when he was brought to the hospital by his father. The doctor recorded the history (copy of Exh.D.W.1/1) of the mental ailment of Muhammad Ishaq as given, by his father. The doctor was of the opinion that, Muhammad Ishaq was Patient of Maniac depressing illness and needed treatment. Muhammad Ishaq was, therefore, admitted as indoor patient in the hospital. During the period the patient remained in hospital, the doctor kept him under observation, gave him electric treatment on 4 different dates along with other medicines administered to the patient orally. The doctor opined that the type of mental imbalance with which Muhammad Ishaq was suffering may create in ham the tendency of homicide. The doctor further added that Muhammad Ishaq while under treatment in the hospital, had run away from the hospital. He was called back to the hospital but the doctor received a written communication (copy Exh. D. W.' 1/2) from the father of the patient that Muhammad Ishaq was doing well and there was no need to re-admit him. The doctor also opined that from the type of disease from which Muhammad Ishaq was suffering, it would be entirely unpredictable as to when he would be gripped by the fits as a consequence of which he would lose his sense of proportion. In cross-examination by the A. A.-G. The doctor deposed that Muhammad Ishaq was admitted as a voluntary patient, although be was not in possession, of two certificates from doctor recommending him for admission, because he was unaware of the law as provided by sections 4 and 4-A of the Lunacy Act, 1912. The doctor stated that he interviewed Muhammad Ishaq, gave him psychiatric examination, observed his facial expression and formed the opinion that he was not a normal man and was not feigning insanity. The doctor proceeded on to state that Muhammad Ishaq was watched by the Head Attendant and Attendants, who had no specialized training and not by him himself, to exclude possibility that Muhammad Ishaq was not feigning insanity. The doctor did not produce the register in which the secret observations of the patients were recorded although he was summoned to produce all relevant documents. The doctor admitted that the father of Muhammad Ishaq would not readmit him in the hospital because Muhammad Ishaq was in full control of his senses and this answer of the father of Muhammad Ishaq convinced him (sue doctor) and, therefore, he discharged Muhammad Ishaq from the hospital. The doctor admitted that Muhammad Ishaq was suffering from mild form of malady known as pyromania. Concluding his statement the doctor deposed that after Muhammad Ishaq was discharged from the hospital, the doctor had no opportunity to examine him for his mental sickness. The observation of the Court in the following words needs reproduction "The demeanour of this witness exuded no confidence whatever. He was shaky, would avoid answering questions directly unless pressed by the Court, appears to be immature and not sure of himself and the impression that he left with the Court was as if he was not telling the truth."
65. Muhammad Khushal (retired S. L. Police) was posted at Police Station Bagnotar and remained there till 18-4-72. While at Bagnotar Police Station, neither a Nur Hussain, the father of the accused (whom he knew) nor anybody else on his behalf had ever made application to the witness that Muhammad Ishaq was mental patient thereupon the witness had referred him to the Mental Hospital. Dhudial.
66. Fida Muhammad Khan, Muharrir H. C., Bagnotar had brought his Station House Diary for 3-4-72. The diary contained no entry dated 3-4-72 with respect to any application given by Maulvi Nur Hussain' the father of the appellant, in regard to the latter's insanity. This register was for the period from 1- 4-72 to 1-7-72 but on no date any entry about the application by Maulvi Nur Hussain was contained therein.
67. Dilawar Shah then Superintendent Jai's. Abbottabad when shown the appellant present in Court deposed that lie had remained as under trial prisoner in his custody in the Central Jail, Abbottabad The witness pro--duced jail register (copy Exh. D. W. 1/3) which showed that at serial-No. 555 on 17- 5-72. Muhammad Ishaq was admitted to the jail the witness stated that according to the jail manual under trial prisoners are periodically checked by the jail doctor and the same rule was observed pit the case of Muhammad Ishaq and that on no occasion there was any report made to the witness from any quarter that Muhammad Ishaq was insane of that his behaviour was abnormal in any manner whatsoever. The witness deposed that the doctor after periodical check- up of an under-trial prisoner enters his opinion in the register shown in Court, but the doctor maintains no separate register. The witness added that insane prisoners are kept separately from other prisoners and separate register is maintained for that purpose.
9. For the purpose of appreciating the legal and factual aspect of the plea of insanity raised by the learned counsel for the appellant, and the evidence adduced in support of the plea, the provisions of law applicable may be produced with benefit.
68. Subsections (4), (5) and (10) of section 3 of the Lunacy Act, 1912, defines 'Criminal lunatic', `lunatic' and `reception 'order', as under: "(4) 'Criminal Lunatic' means any person for whose detention in, or removal to an asylum, jail or other place of safe custody and order has been made in accordance with the provisions of section 466 or section 471 of the Code of Criminal Procedurek1898, or of section 30 of the Prisoners Act, 1900, or of section 103-A of the Indian Army Act, 1911 or of section 130 of the Pakistan Army Act, 1952."
(5) `Lunatic' means an idiot or person of unsound mind.
(10) `Reception order' means an order made under the provisions of this Act for the reception into an asylum of a lunatic other than a lunatic so found by inquisition."
69. Subsection (1) with Proviso of section 4, and section 4-A are reproduced below: "4.-(1) No person other than a criminal lunatic or a lunatic so found by inquisition shall be received or detained in any asylum without a reception order save as provided by sections 4-A, 8, 16 and 98: Provided that any person in charge of an asylum may, with the consent of two of the-visitors of such asylum, which consent shall not be given except upon a written application from the intending boarder, receive and lodge as a boarder in such asylum any person who is, desirous of submitting himself to treatment.
70. 4-A.-(1) Subject to the provisions of this section a person who is suffering from 'mental illness and is likely to benefit by temporary treatment but is for the time being incapable of expressing himself as willing or unwilling to receive such treatment, may on a written application duly made in accordance with the provisions of this section but without a reception order, be received as a temporary patient for the purpose of treatment in an asylum.
(2) An application under this section must be in the form prescribed must be made to the person incharge of an asylum and must be made by the husband or wife or by a relative of the person to whom it relates and shall contain a statement of the connection of the applicant with the person to whom it relates and of the circumstances in which he makes the application.
(3) The application shall be accompanied by a recommendation in the form prescribed, signed, by two medical practitioners,' one of whom shall be a medical practitioner who is not the usual medical attendant of the person to whom the application relates.
(4) Each of the medical practitioners by whom a recommendation under this section is to be made shall, before signing the recommen--dation, examine the person to whom the recommendation relates either separately or in conjunction with the other and shall specify in the recommendation the date on which he so examined the said person and the grounds on which he bases his recommendation.
(5) A recommendation shall be of no effect for the purposes of this section if there is a greater interval than five clear days between the dates on which the person to whom the recommendation relates was examined by the two medical practitioners respectively and any such recommendation shall cease to have effect or the expiration of fourteen days from the date on which the person to whom the recommendation relates was examined by the two medical practitioners, or if he was examined by those practitioners on two different dates on the expiration of fourteen days from the later of those dates.
(6) Where a person is received as a temporary patient under this section, notice of his reception together with a copy of the application on which he was received aid of the recommendation accompanying the application shall, before the expiration of the second day on which he was received, be sent by the person in charge of the asylum to the visitors appointed under section 28.
(7) If a person so received dies in or departs from the asylum, notice of the fact shall before the expiration of the second day after the day of the death or departure be sent by the person in charge of such asylum to the visitors.
(8) Within one month of the reception of any person received as a temporary patient under this section he shall be visited by two or more of the visitors, one of whom shall be a medical officer.
(9) If the visitors making the said visit are of the opinion that the patient should continue to be detained they shall sign a statement to that effect and shall leave it with the person in charge of the asylum, but if they are of the opinion that it is not proper that the patient should continue to be detained they shall, before the expiration of the second day after the day of the said visit, by an order in writing, direct his discharge and give notice of the said order to the officer incharge of the asylum.
(10) Subject to the provisions of this section a person received as a temporary patient may be detained for a period not exceeding six months but shall not be detained as such for any longer period.
(11) If a person who has been received as a temporary patient becomes capable of expressing himself as willing or unwilling to continue to receive treatment, he shall not thereafter be detained for more than twenty-eight days unless in the meantime he has again become incapable of so expressing himself."
71. Subsection (3) of section 4-A makes it mandatory that the application shall be accompanied by a recommendation in the form prescribed, signed by two medical practitioners. Dr. Muhammad Urfan when confronted with the provisions of sections 4 and 4-A, stated that he was ignorant of this provision of law. Ignorance of law is no excuse particularly for a specialist in charge of a lunatic asylum, which law, governs the reception, care, treatment and other affiliated matters, with respect to lunatics. In Nasir Ahmad v. King-Emperor (AIR 1936 P C 253) it is laid down:--- "The rule which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not a all. Other methods of performance are necessarily forbidden."
72. Thus the opinion of Dr. Muhammad Urfan is of no value in law and we have already doubted the credit of the witness.
10. From the perusal of the record of the committing Court and the trial Court it is amply established that the provisions of section 464 and sections 465, Cr. P. Code, were not observed because neither the Magistrate holding inquiry had reason to believe that the accused is of unsound mind and consequently incapable of making his defence, nor the Sessions Judge at the trial found the appellant to be of unsound mind and incapable of making his defence. Both sections 464 and 465, Cr. P. C. Relate to unsoundness of mind at the time of inquiry or trial and not at the time of the commission of the offence.
73. Section 84. P. P C. Lays: "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."
74. Section 45 of the Evidence Act provides that the opinion of experts upon a point of science is a relevant fact. Illustration (b) of section 45 days: "The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
75. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant."
76. Section 105 of the Evidence Act and Illustration (a) are also reproduced :- "105. Burden of proving that case of accused comes within exceptions.-- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code, or within and special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
77. Illustrations
(a) A, accused, of murder, alleges that by reason of unsoundness of mind lie, did not know the nature of the act. The burden of proof is on A.
(b) . . . .
78. "Expert evidence should be approached with considerable, care and caution. An expert witness however impartial is naturally biased in favour of the party who calls him. He is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interest (Divansingh v. E., 34 Cr. L J 735). Norman, J. Observed: `The evidence of a medical man or other skilled witness, however, eminent, as to what he thinks may or may not have taken place under a particular combination of circumstances, however, confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible, human knowledge is limited and imperfect.
79. New and previously unobserved phenomena, which till they have been recorded are supposed to be impossible, are-- constantly being noticed. (R. v. Ahmad A.I 11 W R Cr. 25). The Supreme Court of India held that the Court should not rely upon medical textbooks to discredit medical evidence, without putting: these passages to the medical witness. (Bhagwandas v. Sate of Rajasthan 1957 Cr.
80. L J 889 (SC). Medical evidence is not direct evidence and the value of such evidence lies only on the extent to-- which it supports and lends weight to the direct evidence of eye--witnesses or contradicts that evidence and removes the possibility that the injury could take place in the manner alleged by those witnesses. (Najindra Bala v. Sunil 1960 Cr. L J 1020 S Q."
81. "Section 105 applies only to criminal trials. The cardinal principle that the accused is entitled to get the benefit of reasonable doubt stands --unaffected by section 105 (Netal 1957 Orissa 168). There being a presumption of innocence in favour of the accused, as a general rule, the onus of proving his guilt lies on the prosecution even though, proof of negative is involved."
82. Again, under the caption "Prima facie proof of an exception is sufficient in criminal case English law" he has, observed: "Under the English Law there is a distinction between the burden on the prosecution and the burden on the accused. The burden on the accused is lighter than that of the prosecution, even in cases where the law throws the onus of proof on the defence. The burden of proving insanity is not so onerous as that on the pr-secution to prove guilt. In Sodeman v. R. (2 All E R 1138, 1140 per Hailsham, I.C). The Judicial Committee said The burden in cases in which an accused had to prove insanity may fairly be stated as not being higher thane the burden which nests upon the plaintiff or defendant in civil proceedings.' This dictum was approved in the leading case of Rex v. Carr. Briant (1943 K B 607). There is a subtle but fundamental, distinction between the degree of certainty required in cases where the burden of proving the fact is on the 'prosecution and those where it is on the accused. When the burden of the issue is on the --prosecution, the case must be proved beyond a reasonable doubt. When, however, the burden of an issue is upon the accused, he is -- not, in general, called on to prove it beyond a reasonable doubt, or in default to incur a verdict of guilty it is sufficient if he succeeds in proving a prima facie, case, for then the burden of such issue is shifted i.e., to the prosecution which has still to discharge its original and major onus that never shifts that of establishing, on the whole case, guilt beyond a reasonable doubt (Phipson, 7th Edition, 34)." ---The Supreme Court of Pakistan in Muhammad Aslam v. Crown (1952 FC R 288) observed that it is not incumbent on the accused to-- establish his plea in mitigation or justification of an offence with the same rigidity and exactitude as the prosecution. Even where am accused fails to prove his special pleading the verdict of the Court must be given upon and as the result of the whole of the case including evidence adduced by the defence and if upon such a review, a reasonable doubt is created the accused is entitled to acquittal."
83. At pages 265 and 266 under the caption "Insanity", the learned author has, observed:- "Legal insanity as contemplated in section 84 of the Indian Penal Code is different from medical insanity (State v. Balhari Das PLD 1962 Dacca 457). In dealing with cases of insanity, the first thing to be considered is that the issue of insanity at the time of 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 inconsistent with the rule of reasonable doubt' which pervades our criminal jurisprudence and according to which a doubt occurring in the matter wilt react on the prosecution case as a whole resulting in a benefit of doubt to the accused- -(Ata Muhammad v. State P L I? 1960 Lah. 111)."
11. The facts of the case have been mentioned in detail above. From the prosecution evidence as well as the additional evidence, it is not prima facie established that at the time of the killing of Mst.
84. Mukhtar Begum, Muhammad Ishaq appellant by reason of unsoundness of mind was incapable of knowing the nature of the act or that he was doing what was neither wrong or contrary to law. No plea of unsoundness of mind was taken at the time of the inquiry or at the time of trial. The testimony of P. W. Sher Zaman Shows that Muhammad Ishaq was of normal mental condition when he committed the murder. This evidence further indicates that the plea of unsoundness of mind was suggested by the defence at a very belated stage and probably a last resort in prejudging the fate of the case. None of the prosecution witnesses was put and question with respect to the unsoundness of mind or the behaviour of the appellant at the time of the commission of the crime.
85. On the other hand, the answers of the appellant at the time of his statement in the inquiry Court, the framing of the charge against him, the explanation of the purport of the charge against him at the commencement of the trial and the answers, which he gave while examined at the trial, would show that he gave rational answers to the questions and was capable of knowing the nature of his act, with which he was charged. The number of injuries inflicted on the deceased and the vital parts on which most of the injuries were inflicted, would also show that it was a premeditated brutal, and intentional murder. The conduct of the accused in fleeing away from the scene of occurrence after the commission of the murder and his shutting himself in his kotha would prove that he acted like a man with normal mental condition. The appellant had confessed his guilt before at Magistrate on the 3rd day of the murder viz. 17-5-72. The appellant was lodged in jail as under-trial on 17-5-72 and according to the testimony of additional witness Dilawar Shah he was enjoying perfect health and no complaints were received from any quarter, that Muhammad Ishaq was insane or his behaviour was abnormal in any manner whatsoever.
86. The learned counsel for the appellant cited .The case of Abdullah v. The State (1972 P Cr. L J 1041). He particularly, sought assistance from the undermentioned observation of 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 All v. The Crown, PLD 1953 FC 93."
87. The observation of the learned Judge in our view will not assist the appellant in any manner. The evidence of Muhammad Urfan Specialist even if relied upon would show that during his admission in the Mental Hospital from 18-10-71 to 9-11-71 Muhammad Ishaq was given electric a treatment on four occasions besides medicines administered to him, and thereafter he ran away from the asylum. The statement of the father of Muhammad Ishaq coupled with the treatment he was given at the Mental Hospital convinced the doctor that Muhammad Ishaq did not require readmission because he was in full control of his senses and that after rare was discharged from the hospital the doctor had no opportunity to examine Muhammad Ishaq for his mental sickness. Mst. Mukhtar Begum was killed on 15-5-72 and thus it leaves us in no doubt that after the discharge of Muhammad Ishaq from Jail on 9-11-71 he was in possession of full senses and was not of unsound mind at the time of the commission of the offence. In Mahomed Ashraf Ghulam Mahomed v.
88. Emperor (AIR 1940 Sind 16) it was held that the burden of proving the existence of circumstances bringing a case within the provisions of section 84, Penal Code, must always under section 105 Evidence Act, lie upon the accused, and the mere fact of detention in a mental institution is not sufficient to establish the necessary degree of insanity. The following observation at pages 164 and 165 may be reproduced: "The burden of proving the existence of circumstances bringing a case within the provisions of section 84, Penal Code, must always under section 105, Evidence Act, lie upon the accused.
89. Considering the facts and circumstances of this case in the light of those principles we are unable to find that it has been shown that the appellant at the time of the murder of Prithipal was by reason of unsoundness of mind incapable of knowing the nature of his act or that he was doing something which was wrong or contrary to law. The learned Advocate for the appellant has taken us through the entire record and we have had the benefit of very full arguments from him. In addition to the defence evidence the learned Advocate has relied upon the circumstances attending the shooting as described by the prosecution witnesses. We are of the opinion that the evidence of the defence witnesses who deposed to the appellant having exhibited various peculiarities previous to the commission of the crime is unworthy of serious consideration. It appears to us significant that no record of the Civil Hospital, Hyderabad has been produced to substantiate the story of the witness Yarmahome4rthat the appellant spent four or five days in that hospital before being removed to the Punjab by his father. Had the appellant been so detained and had he at that time exhibited signs of mental aberration, evidence from the hospital to this effect would have afforded material support to his case."
90. Again the relevant discussion at pages 166 and 167 is reproduced: "We now therefore come to Dr. Deumal's evidence, as to insanity. In the first place his evidence read as a whole does not, in our opinion, give satisfactory reasons for his conclusions, but this may not be his fault; it may merely be due to the omission to examine him adequately. The doctor has said that the appellant was irrational, violent, moody, excitable and destructive. The facts he actually observed have not been specified. That signs of violence or excitability the appellant displayed, when or how he manifested his destructive tendencies, and what acts he committed to indicate that he was irrational, have not been disclosed. No attempt was made by the defence or the prosecution or even by the Court itself to ascertain by direct and intelligible questions the opinion of the doctor as to the capability of the appellant to comprehend the nature of his act. Such questions were probably advisedly omitted by the defence but we consider the Court might with advantage have interrogated Dr. Deumal in order to elicit a definite opinion as to the appellant's state of mind in relation to the requirements of section 84, I. P. C."
91. The appellant's recovery after Dr. Deumal had relinquished charge of the mental hospital strikes us as phenomenal. The appellant was according to the defence, a homicidal maniac at the time he killed Prithipal. It was the defence case that for a year or year and a half previously the appellant had behaved in a markedly abnormal manner. Dr. Deumal had certified him in February 1936 as being mentally, unfit to be tried. The appellant had thereafter for two years until January 1938 been under Dr. Deumal's supervision in the mental hospital. Dr. Deumal relinquished charge in January 1938 and up to this time the appellant's condition had, if anything, deteriorated, for the doctor had said: ---Up to December 1937 I had observed that in addition to the symptoms mentioned by me already the accused had developed another symptom, `Dullness".
92. Between January and June 1938 the appellant so quickly recovered that it was possible in June 1938 to certify him fit to be tried. Dr. Deumal said that: The accused started showing signs of recovery after 13th June 1938, On a careful consideration of the medical evidence, we find we are unable to accept it as establishing the degree of unsoundness of mind contemplated by section 84, I. P. C. We would point out that in 23 Cal. 604 the accused had originally been certified unfit to stand his trial and had been in a mental institution for a year previous to his trial. The mere fact of detention in a mental institution is not sufficient to establish the necessary degree of insanity.
93. Finally, we turn to the circumstances attending the actual shooting. The learned Advocate has argued that the appellant had no apparent motive for shooting Prithipal, and has referred us to the statement of Mahomedgul that the appellant had first pointed his rifle at him. It was also argued that the appellant could have had no reasonable hope of escaping from the consequences of his act and taking these various circumstances into consideration they indicate that the appellant was insane at the time.
94. We do not consider that these circumstances establish that the appellant was unable to appreciate the nature of his act or that he was not aware that what he was doing was wrong, Even assuming that it was appellant's intention to shoot Mahomedgul, dais P, rant sufficient to entitle the appellant to the benefit-of section 84, I. P. C. We consider however that Mahomedgul may well have been mistaken when he said that the gun was first pointed towards him because he and Prithipal were sitting within four feet of each other. There are other circumstances, which indicate that the appellant knew what he was doing and that it was Prithipal he intended to kill. These are that the appellant walked quietly on to the perade ground, took over his ammunition, loaded his rifle and shot Prithipal. He proceeded to reload but was overpowered. He managed however to extract his bayonet and instead of assaulting the two Mahomedan Constables who had over powered him, he made towards the main gate as, though to escape. He was there confronted by another constable on duty who levelled his rifle at him. Apparently realizing that he was in danger from this constable he retreated and made another attack upon Prithipal and in doing so remarked: Are you not yet dead?
95. The crime was undoubtedly a strange one and no motive has been established, but clearly the circumstances do not warrant the concul--sion that the accused was unaware that what he was doing was wrong. It appears to us that he set out to kill succeeded in inflicting the most severe injuries with his gun and then made an attempt to escape. This is our view, of the verious aspects of the case to which we have given our close attention. The learned Advocate has argued that the cumula--tive effect of all the evidence is sufficient to enable his client to take advantage of section 84, I. P. C., but to this also we are unable to subscribe. We definitely disbelieve the oral testimony as to the signs of insanity exhibited prior to the commission of the offence. We consider that the medical evidence and the circumstances attending to the actual commission of the crime are not sufficient to attract the provisions of section 84, .I. P. C.
96. "Every man is presumed to be sane and to possess `sufficient degree of reason to be responsible for his crime until the contrary is proved. Every sane person is presumed to intend the natural and probable consequences of his acts.
97. Under section 103, Evidence Act, the onus is on the accused to establish legal insanity within the meaning of section 84, Penal Code. The mere fact that an act or omission is without apparent motive is not b itself sufficient to establish insanity. But if there is other evidence of insanity such a fact may be of importance as helping to prove insanity.
98. "An accused who has been proved to have killed the deceased is not entitled to any benefit of doubt as to his insanity because the burden is on him to prove strictly that he committed the act in a moment of insanity. The exemption of insanity must be clearly made out before it is allowed. It is not every kind of idle and frantic humour of a man, or something in accountable in his' actions, which will show him to be such a mad man as is to be exempted from punishment; but where a man is totally deprived of his understanding and memory, does not know what he is doing, any more than an infant, or a wild beast, he will properly be exempted from the punishment of the law."
99. PLD 1953 Lah. 213), the following observations of Muhammad Jan at page 214 are worthy of reproduction--- "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."
100. PLD 1960 Lah. 111) it was held:- "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 inconsistent 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.
101. Medical and legal standards of sanity are not identical. From the medical point of view, it is probably correct to say that the act o murder by itself denotes an unhealthy and abnormal state of mind of the murderer, but from the legal point of view he is sane as long as he can understand that his act is contrary to law. If an accused person is aware that the act is one, which he ought not to do and the act at the same time is contrary to law, he is punishable. Therefore, to establish successfully a defence on the ground of insanity, it must be proved that an accused person at the time of committing the act was labouring under such a defect of reason, from disease of the mind as not to know the nature of his act and that what he was doing was wrong and contrary to law. On this legal concept of insanity no amount of queerness in habit, morbidity of temper, peculiarities of character by occentricities of behaviour, or even aberrations of mind resulting in abnormality will constitute insanity for the purpose of section 84 of the Pakistan Penal Code although they may be relevant factors for determining whether or not the accused was insane."
7. The second objection was with reference to section 84, P. P. C. On the plea that nothing was an offence which was done by a person, who at the time of doing it, is by reason of unsoundness of mind, incapable of knowing the nature of the acts or that he is doing what is either wrong or contrary to law. The contention was that at the time the appellant committed the acts with which he has been charged, and the circumstances surrounding them, considered with the testimony of the various prosecution witnesses, that his conduct amounted in law to legal insanity, and he was, therefore, not respon--sible for it, and was entitled to an acquittal.
8. We have set out in some detail the defence of the appellant during the committal proceedings.
102. At that stage the appellant was clearly raising a plea of self-defence. He made no reference whatsoever to his state of mind. This statement was made on the 1st of September 1962. More than two months thereafter, in his statement before the learned Additional Sessions Judge, the appellant for the first time set up a plea of `his head being not right and of his not being in his senses at the time of the incident, and, therefore, of not knowing anything'. He further stated: 'I am a Hindu. It is Zulum with me'.
9. The point for determination is the state of the mind of the appellant at the time of the commission of the offence. Mr. Murtaza Hussain, how--ever, has urged us to consider the reasonable probability that the accused has acted within the scope of legal insanity upon the evidence examined in the case. Reliance is placed on Ghulam Yusaf v. The Crown in which the, late Kayani, J. Has defined and explained what is Hallucination, 'Illusion' and 'Delusion'. He has also dealt with the question of burden of proof under section 105 of the Evidence Act.
10. ''In State v. Balahari Dag (PLD 1962 Dacca 467) a comprehensive review of the taw on this aspect of the case was made, and it was observed that:- "In the case of a special plea of insanity under section 84 of the Penal Code, 1860 the burden of proof is on the accused, and the mere creation of doubt as to the existence or otherwise of circumstances bringing the case within the exception of section 84 of the Code is 'not enough.
103. Where the plea is taken the Court should keep the following principles in view:-
(i) 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 of the existence of conditions entitling him to claim the exception.
(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.
(iii) 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 prosecu--petition 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 eccentricity 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, and
(vi) If the facts are clear so far as the act complained of is concerned,-- motive is irrelevant.
104. This decision was arrived at after a comprehensive review of the relevant law on the point before their Lordships.
11. In Ramdulare v. State (AIR 1959 Madh. Pra. 259) it was pointed out that: "The law presumes everyone to be of `sound mind' until the contrary is --proved, and the burden of proving that he was not criminally responsible for the crime by reason of his unsoundness of mind' is on theaccused. Even in cases where a person subject to attack of insanity, has lucid intervals, the law presumes the offence to have been commit--ted in a lucid interval. The accused would therefore, be better advised when setting up the plea of 'unsoundness of mind' to specify the -- type of disorder because mental disorders have now been fairly well classified and their essential characteristics described in some detail in medical textbooks, which make it easier to appreciate the evidence bearing on the point in record.
105. Speaking generally, the pattern, of the crime, the circumstances-, under which it has been committed, the manner and method of its---execution, the behaviour of the murderer before and after the commission of the crime, furnish some of the important clues to as certain whether by reason of unsoundness of mind the accused was incapable of knowing the nature of the act, or that he was doing what was-- either wrong or contrary to law."
12. There is nothing on the record of this case through which we have been taken in detail by Mr. Murtaza Husain to indicate that the appellant-- had suffered from any fits of insanity or indeed that he was not aware of---what he was doing at the time. It is true that the incident in the present case took place on the spur of the moment. It must be conceded that this was not a preconceived crime, and that although some aspect of the appellants --conduct at and immediately following the crime, do appear to a certain extent peculiar, yet there is nothing on the record to indicate that his conduct amounted to what in law is termed as legal insanity.
13. In Hayat v. The State (PLD 1959 Lah. 474) it was pointed out that being accentric, slightly weak in head, or subnormal in intellect, does not amount to unsound--ness of mind as contemplated by section 84, P. P. C. Which draws a clear-- distinction between ordinary unsoundness of mind and legal unsoundness-- of mind. A person may be of unsound mind for the purposes of those interested in diseases of the human brain, and yet may not be of unsound mind for the purposes of those who have to administer the law, because the unsoundness of the mind which the Courts can recognise is that which deprives the perpetrator of a crime of the capacity to understand the nature of his act and of the knowledge that what he was doing was wrong or contrary to law.
14. Similarly in Atta Muhammad v. The State, a distinction has been made between legal insanity and medical insanity, and it was observed:--- "No amount of queerness in habit, morbidity of temper, peculiarities of character or eccentricities or behaviour, or even aberrations of mind resulting in abnormality will constitute insanity for the purpose of section 84 of the Pakistan P. C. Although they may be relevant factors, for determining whether or not the accused was insane."
15. In the context of these weighty judicial pronouncements and what is the well-settled law and that the plea of insanity, and that the support of, section 84 of the Penal Code has been urged for the first time before us, we have had no difficulty in concluding that the appellant is tot entitled to claim exemption from the liability for the murder under section 84 of the Penal Code.
106. "The learned counsel for the appellant at the very outset of the arguments in the present case conceded that as far as the commission of the crime of murder and the inflicting of injuries to his daughters was concerned, he had no arguments to offer. He only pleaded insanity on behalf .Of the appellant and relied upon the statement of some of the P. Ws. In this respect. We have discussed most of the case-law on the point in order to show under which circumstances plea of the insanity can be availed of. It has been laid down by almost all the authorities cited above, that the burden of proof lies on the accused to show that at the time when the crime was committed, he was suffering from unsoundness of mind and could not know the nature and quality of the act he was doing and did not know that he was doing that, what was wrong or contrary to law. It is, however, true that the burden of proving that the case .Of an accused person falls within the exception as contained in section 84, P. P. C. 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, but in the present case as discussed above, in detail, nothing has been brought on record to show that the appellant was suffering from unsoundness of mind at the time when he committed the crime or he did not know the nature of the act or that he was doing that what was either wrong or contrary to law. As discussed above, the appellant behaved quite normally before the committing Magistrate as well as before the learned Sessions Judge and his answers to various questions put to him by the Courts were quite rational. He may be a man of abnormal mind, and labouring under some disease of the mind, but that would not cover his case by the exception as contained in section 84, P. P. C."
107. The facts and legal aspects of the last case cited above, (1973 P Cr. L J 693) are more akin to the facts and legal aspect of the case in hand before us. As a result of the above detailed discussion, we are of the view that no evidence or circumstances have been brought on record to show that the appellant was suffering from unsoundness of mind at the time when he committed the murder of Mukhtar Begum or that he did not know the nature of his act or that he was doing that what was either wrong or contrary to law. The appellant behaved quite normally at the time of the commission of the offence, he behaved normally before the committing Magistrate, as well as at the trial before the Sessions Judge and answered the questions put to him quite rationally. His case is, therefore, not covered by section 84, P. P. C. We, therefore, dismiss the appeal and confirm the death sentence passed on the appellant.
108. K. B. A,