Z. A. CHANNA , J.-Appellant Ibrahim, who was a Head Master in a Primary School, has been convicted by the learned Sessions Judge, Thatta by his judgment delivered on 31-5-1973, under section 302, P. P. C., for the murder of the appellant's uncle and father-in-law, and has been sentenced for the said offence to imprisonment for life. The appellant has submitted an appeal from jail to impugn his conviction and sentence. While admitting the appeal a notice for enhancement of sentence was issued to the appellant.
2. The facts of the case, shortly stand, are that m April 1, 8, tile: appellant was employed as a Head aster in the primary school in Gasri village, Taluka Jati. 'The appellant used to suffer from occasional bouts of mental disturbances and become temporarily deranged in mind, but after sometime would become normal again. About two days prior to the incident which is the subject- matter of this appeal, the appellant is said to have again suffered from a bout of mental unbalance and left his village for an unknown place, from where he returned on the next day. The same day he again suffered from this mental illness and quarrelled in the Mosque with a school teacher by name Mubarak, but some persons intervened and separated them. That very day, in the afternoon, deceased Abdul Rahman came to the school where the appellant was employed and on his questioning the appellant as to his actions on that day and the previous day, the appellant gave out that he had lost his mental balance and gone to his Ustad at Sujawal from where he returned to Jati and there again his mind was upset and so be had a quarrel and when he became calm he returned to his school. Deceased Abdul Rahman was requested by first informant Muhammad Saleh to look after the appellant otherwise the matter would re rel) orated to the police. Abdul Rahman promised to take away the appellant to their village on the following day, That night, the appellant went to sleep in the Otag of first informant Muhammad Saleh while deceased Abdul Rahman slept in the village Mosque nearby. On the following morning, i.e. On 28- 4-1968, at dawn, first informant Muhammad Saleh heard cries coming from the Mosque, whereupon he went running to the Mosque. His maternal uncle Ramzan, Siddiq and Ismail similarly went to the Mosque on the cries. They found the deceased lying on the ground in the Mosque and the appellant sitting over him raising slogans. The deceased was bleeding from his injuries. The first informant and the others who had turned up made enquiries from the appellant but he made no reply. In the meanwhile Abdul Rahman died on account of his injuries.
3. The F. I. R. Was recorded by A. S. I. Imam Bux, who accompanied the first informant to the scene of offence. After preparing an inquest report in respect of the deceased, the A. S. I sent the body of the deceased to SujawalHospital for post-mortem examination. The A. S. I. Found a wooden board or platform used for performing allusion lying at the scene of offence and also a bedding. Both these items were stained with blood. The A. S. I. Secured the same in presence of mashirs and prepared Mashirnama Exh.
20. The A. S.I. As') arrested the appellant and found him wearing a bunyan which was blood-Stained. The A.S.I secured the same under mashirnama, E. X. H 21. The A. S. I. The next recorded the statement of P W3. Ismail, Ramzan, Siddiq and phatto.
4. The inquest on the deceased was conducted by Dr. Abdul Ghafoor of Sujawal Hospital, who found the following external injuries on the deceased :- "(1) Incised wound 1 -- ' x -- --- x skin deep over left side of the forehead.
(21 Incised wound 2" x -- x skin deep over middle of the forehead.
(3) Lacerated wound 1 -- --- x -- ' x skin deep over right side of forehead.
(4) Lacerated wound' -- x -- into skin deep over right angle of right eye.
(5) Lacerated wound 2 x --` x skin deep over right side of nose. ,6) Lacerated wound 2 -- " x 1/3x skin deep over right mastoid report of skull.
(7) Lacerated wound 3 -- x -- deep over temporal region of right side anterior to right ear. There is fracture of right temporal bone.
(8)Lacerated wound 3'x 2 skin deep over right fore arm."
The doctor has opined that death of the deceased was due to shock and haemorrhage as a result of the above injuries. He has further opined that, while injuries Nos. 1 & 2 appeared to have been caused by a sharp weapon the a sharp pointed nail or a small knife or a piece of glass or the edge a wooden plank, the remaining injuries may have been caused by a blunt weapon like a wooden plank or a stick. According to him, injury No. 7 was sufficient in the ordinary course of nature to cause death.
5. The appellant, when called upon to enter his defence, stated that as he was not in proper senses he is unable to say what actually transpired and whether he went to the Mosque and caused the fatal injuries to the deceased. His contention is that he has no knowledge or recollection of the incident, but has only heard from the P. Ws. Who say that he has murdered his uncle, Abdul Rahman. He further stated that possibly the occurrence took place as the P. Ws. Have deposed, but he has absolutely no entry or recollection of the incident.
6. There is overwhelming evidence to show that the appellant battered deceased Abdul Rahman to death with a wooden board used for performing allusion. As many as four witnesses, namely, first informant Muhammad Saleh, Muhammad Ramzan, Muhammad Ismail and Siddiq have deposed having gone to the Mosque of their village on bearing cries and to wing seen the appellant with a wooden platform, which was blood-stained, acting over the chest of Abdul Rahman, who was lying down and who had a number of injuries, including a crushed head. They have further deposed that a short while after they came to the Mosque, the deceased breathed his last and that they had bound the appellant with his turban to a pillar in the Mosque. None of these witnesses have been cross-examined as to the actual incident and hence their evidence in this respect remains unchal- -lenged. In addition to the ocular testimony, there is evidence of Labor Shah and A. S. I. Imam Bux that the appellant, when he was apprehended, was found wearing a blood-stained bunyan. As already stated, the appel--lant has not denied the incident or having fatally assaulted the deceased. His defence is that because of his mental derangement he has no knowledge or recollection of the incident.
7. We are satisfied on the testimony which has come on record and which consists not only of the ocular testimony of as many as four witnesses, but also the circumstantial evidence of the appellant being found, at the time of the incident, wearing a blood-stained bunyan and the recovery of a blood-stained board, that the appellant did kill deceased Abdul Rahman. The main question, however, which falls for consideration in the instant case is whether the appellant is criminally responsible for the death of Abdul Rahman. In other words, whether the appellant was sane or so mentally deranged as not to be criminally responsible or liable for his act.
8. The concept of degree of criminal responsibility of a person whose mind is deranged or diseased or unbalanced has undergone progressive and far-reaching changes during the last 100 years or so. This is due to the fact, as pointed out by Harry Elmer Barnes and N. K. Teeters in "New Horizons in Criminology" (3rd Edition) that "there is probably nothing) more confusing in the realm of jurisprudence than the degree of moral responsibility of the offender, especially with the more repugnant crimes such as murder, rape, or wanton violence." In the eighteenth century, even the humanitarian Classical School of Penology did not excuse lunatic from his acts. This was subsequently modified by the jurists of the Nee. Classical School, who contended that the adult insane for his crime and eventually Courts came to recognize t:)at if a person suffering from some obvious and serious mental disorder, an essential elements in the commission of a crime was lacking, namely, sense of responsi--bility. This view, in fact, was based on the doctrine of mews rue, which is now considered to be an almost indispensable element of every crime, except when the statute may expressly provide otherwise. In the eighteenth century England, the Courts adopted what is known as the "Wild Beast" test, according to which if a person was to be exempted from punishment it had to be shown that he was totally deprived of his understanding and memory and knew no more than an infant, a brute or a wild beast. Later the "delusion" test was evolved which was applied in the famous case of James Had field who was tried for attempting to take the life of George III. The law on the subject, however, was criticized in the M'Naghten case, in which the House of Lords enunciated the famous M'Naghten Rules which postulate that a person is punishable, according to the nature of the crime admitted, if he knew at the time of such crime that he was acting contrary to law of the land and that every man is presumed to be sane until the contrary is proved. Furthermore, the said Rules postulated that to establish a defence on the ground of insanity it must be proved that at the time of nominating the act, the accused was labouring under such a defect of reason, from disease of mind, as not to know the nature and the quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The psychiatrists have taken strong exception to these rules19751 which according to them are based on an extremely narrow conception of the nature of insanity. Some of the American Courts took the view that insanity was proved if the accused had no power of control or his moral or intellectual powers were so deficient that he had no sufficient will or if he did" the act for an irresistible and uncontrolled impulse. Out of this arose the "irresistible", which has been adopted by a number of States in the. S. A. Some of the States in U. S. A. Adhere to the "right and wrong test" while others follow the "knowledge of nature" and "equality test" The M'Naghten Rules have been departed from and replaced in the District of Columbia by the Durham Rule, which postulates that an accused is not criminally responsible if his unlawful act was a product of a mental disease or mental defect.
We may also refer to what is known as the Briggs Law of Massachusetts, used in 1921, which provides that when a person is indicted by a grand jury for a capital offence or is indicted and is known to have been indicted for any other offence more than once in the past, or to have been previously convicted of a felony, the department of mental diseases is to examine the person concerned to determine his mental con--dition and the existence of any mental disorder that would affect his criminal responsibility. Finally, we may mention that it was the Islamic Law, as has been admitted by John Briggs in his "The Guilty MindPsychiatry and the Law of Homicide", that made the first clear distinction between homicide by the mentally sound and by the deranged person, which took Eurone several centuries to evolve.
9. In our country, the law with regard to defence on the plea of insanity is contained in section 84, P.
P. C. Which runs as under "84. 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 the law."
10.A bare perusal of the above section makes it clear that it is based on the famous M'Naghten Rules enunciated as far back as 1843. This section has come up for interpretation in a number of decisions of our Courts, notably in the cases reported as Lai Khan v. Crown (PLD 1952 Lah. 502), Ghulam Yousuf v. Crown (PLD 1953 Lah. 213), Atta Muhammad v. State (PLD 1960 Lah. 111) and Aurangzeb v. State (1971 P Cr. L J 1285). The Supreme Court also in Muhammad Shafl v. The State (5 PLD 1962 SC 472 had occasion to consider the scope and field of application of section 84, P. P. C.
And held that unfortunately the law in this country does not recognise such lesser forms of mental abnormality and, apart from unsoundness of mind which renders a person incapable of knowing either the nature of the act o that what he is doing is wrong or contrary to law, the plea of a diminished responsibility is not available a9 a defence in a criminal prosecution as under the English Act. It was observed that under the existing law even in a case of impulsive insanity or mania it is necessary to establish that the maniac was incapable of knowing what he was doing at that point of time.
11. The question, however, that still requires consideration is that since men---s rea is an ingredient of a criminal offence and intention has to be proved before a person can be convicted of murder, can it be said that a man had the requisite intention and the necessary men---s rea if his cognitive faculties are so impaired, either momentarily or permanently, that he was, at the relevant time, either incapables of" fax wing any definite resolve intention or that his actions were riot controlled or that his mind was so diseased and his whole thinking processes so paired that he was not responsible for his acts. Coupled with this question is tyre all question rather in all cases the burden of proof falls on the defer to establish 3 plea of insanity. The normal rule undoubtedly is that where air act has been committed, which but for a specified exception, would amount to an offence, the exception has to be established by the person relying thereon. However, there may be cases in which circumstances suggest that the exception is applicable and in that case the burden will be danced to have been discharged by the defence and it would be then the duty of the persecution to show, if they can, rah the exception is not applicable. The statutory principle laid downier Stuffier. Crown (PLD 1953 FC 93), on the basis of the Wilmington---s case, has been summarised by Abdul Rashid C. J., as follows;- "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence.
If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence, put the forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."
12. In the latest case of the Supreme Court, reported as State v. Rab Nawaz (PLD 1974 SC 87), the principle laid down in Wilmington---s and Safdar A.I's cases was reviewed, and while concurring in that principle, it has been clarified that the emphasis in these cases and in the case of Muhammad Aslam v. Crown (PLD 1953 SC 115) was upon the review of the "entire evidence" and upon the examination of the whole case" in contra-distinction with a particular facet in isolation. In other words, a case has to be viewed in its entirety and if upon a consideration of the whole evidence in the case an except--petition is fairly made out, the accused has to be given the benefit of the same.
13. In the instant case, the F. I. R. Itself shows that the appellant had bouts of insanity and that one such bout was two days previous to the incident in question, and the second was a day later. All the eye-witnesses have also in their evidence in Court spoken of these sudden bouts of insanity of the appellant. P. W. Muhammad Ismail has testified that when the deceased used to get such bouts he used to raise slogans and strike against the walls and that at such times his eyes used to get red, he could not recognise any person and used to fight with persons. Other witnesses have also mentioned these insane actions and conduct of the appellant. P. W. Muhammad Rarnzan has further deposed that when the appellant used to C have these bouts of insanity, his features used to change and he used to say that be could not understand what he had been doing. The eye- witnesses have all deposed that at the time of the incident the appellant was raising slogans of "Allah-o-Akbar". P. W. Muhammad Ismail has further testified that at the time of the incident they found him in the same condition o abnormality as when he used-to have bouts of insanity, I.e. His features were changed. There is no evidence whatsoever to suggest that the appellant had any motive to kill the deceased, who was not only his uncle but also his father-in-law. Furthermore, tire weapon with which he killed tire deceased, namely, a wooden platform for performing allusions, could hardly be used by abnormal and a san man for the purpose killing. Finally, there is evidence to show that when the witnesses asked him why he hart committed murder, he made no reply, did not attempt to run away and kept quiet. At! These circumstances, together with the previous history and conduct of the appellant, clearly suggest that the deceased was not really of what he had do; a and that it could fairly be said that at the time of the incident he was capable by reason of unsoundness of mind, of knowing the real nature of his act.
14. The evidence of medical Superintendent Mental Hospital, Hyderabad, however, suggests that the appellant is quite sane. The Medical Superintendent examined the appellant twice, once in May 1968, and again from February to April 1972. It is not known for how long the appellant was kept under observation by the Medical Superintendent in May 1968 but from his behaviour, actions and manners, the Medical Superintendent came to the conclusion chat chore was nothing to suggest that the appellant was Mentally ill at the time that he was kept by him under observation. On the second occasion, the appellant was kept under observation by the Medical Superintendents from 26-2-1973 to 19-4-1973 and again the Medical Superintendent came to the conclusion that the appellant did not appear to be insane or mentally deranged. On the other hand, there is a certificate of the Medical Superintendent of the District H. Q. Hospital, Thatta, of February 1972, Exh. 4, to the effect that the appellant was a lunatic and a prop' r person to be taken charge of and detained for treatment in the mental hospital. This certificate is based on the observations of the Medical Superintendent, Thatta, that the patient was furious, shouting at the top of his voice and striking his head against the wall. The evidence of the Medical Superintendent of the Mental Hospital, in the context of the certi--ficate of the Medical Superintendent, Thatta, and the other material in the case, suggests that though the appellant might have been perfectly sane when he was examined and kept under observation at the mental hospital, he certainly did suffer from bouts of insanity and there is material to indicate that at the trine of the incident he was mentally deranged and killed the deceased while he was, by reason of his unsoundness of mind, incapable of knowing the nature of his act. We think it highly improbable that the appellant would, without any cause whatsoever, have killed his uncle and father in law and that too with an unusual weapon like a wooden platform, unless his mind had been so seriously impaired as not to know the nature of his fact. In this view of the matter, we hold that the appellant is entitled to the benefit of section 84 of the Pakistan Penal Code. We accordingly order, in accordance with the provisions of section 471, Cr. P. C., that the appellant "re detained in safe custody in the Mental Hospital at Hyderabad, and that report of this order be made to the Provincial Government. The notice for the enhancement of the sentence of the appellant stands discharged.