' IRAHAD HASAN KHAN, J.---This appeal, with the leave of the Court, is directed against the judgment of the Lahore High Court, Lahore dated 29-11-1992 passed in Criminal Appeal No,323 of 1996, whereby the appeal filed by the appellant against the judgment dated 16-2-1986 by which the learned trial Court convicted him under section 295-B, P.P.C. And sentenced him to life imprisonment, was dismissed.
2. The prosecution story in nutshell is that on 29-8-1982 at about 3-15 p.m. Mubeen Khan, P.W.5/complainant alongwith Khalid Mahmood, Munir Ahmad and Muhammad Moazzam, P.Ws.
Were travelling with other passengers in a bus bearing No,6145-JG of Shaheen Bus Service, Jhang.
The appellant/convict recited some verses contrary to the contents of the Holy Qur'an and had thereby deliberately and maliciously outraged the religious feelings of the passengers. He was also accused of keeping a copy of the Holy Qur'an in a bag lying in his feet in which he had kept a pair of embroidered shoes, and thus, wilfully defiled, damaged an ad desecrated the Holy Qur'an. Co- accused Walayat was also reciting some verses derogatory to the Holy Qur'an.
3. The learned trial Court, after appreciating the prosecution evidence in juxtaposition with the defence version, came to the conclusion that the prosecution had failed to prove the guilt of the co-accused Walayat to was acquitted accordingly of the offences charged. As regards the appellant/convict, it was held that the prosecution had succeeded to prove the guilt against the appellant beyond reasonable doubt under section 295-B, P.P.C.
4. Leave to appeal was granted to consider the plea of insanity raised by the appellant, in that, on the record there was report of the Medical Board wherein he was stated to be suffering from Homic Depressive Psychosis but fit for trial on 29-6-1985. The occurrence took place in 1982.
5. Learned counsel for the appellant vehemently argued that at the time of occurrence the appellant by reason of unsoundness of mind, was incapable of either knowing the nature of the act he was doing or that what he was doing was wrong or contrary to law. In support of his contention reliance was placed on the testimony of Syed Mazhar Hussain Shah D.W.1, Sajjad Hussain D.W.2 and Tahir Hussain D.W.3. We have been taken through the evidence of the said defence witnesses.
These witnesses merely say that the appellant was insane much prior to the occurrence but no one stated that he 'suffered from a fit of insanity at the time of occurrence.
' Muhammad Saleem, Inspector, Police Station Pasroor P.W.1, Azhar Hussain, A.S.I. Incharge Police Station Mandi Bahauddin P.W.2 and Muhammad Sarwar, S.I., Police Station Saddar, Sialkot P.W.3, appeared as witnesses on behalf of the Investigating Agency. They were the relevant witnesses to be questioned about the mental state of the appellant at the time of occurrence but no question was put to them as to the alleged mental insanity of the appellant. Similarly no question was put to the eye-witnesses in this behalf. They have lent support to the prosecution story and apparently have no axe of their own to grind in this case.
6. There is unrebuttable evidence on record that at the time of occurrence the appellant did not suffer from any mental abnormality at all. In the trial Court he behaved in a normal way, understood the proceedings of the Court and got recorded his statement under section 342, Cr.P.C.
We are, therefore, not inclined to agree with the learned counsel for the appellant that the appellant should have been exculpated on ground of insanity at the time of committing the crime or that he was unable to understand as to what he was doing was contrary to law. We are also unable to agree with the submission made by the learned counsel for the appellant that the very act attributed to the appellant establishes that he was insane person at the time of commission of the crime.
7. It is well-settled that where protection is claimed under section 84, P.P.C. On the plea of insanity, the burden is on the accused to prove unsoundness of his mind at the time of occurrence. The mere abnormal conduct of accused is not covered by exception contemplated by the said provision. In Jalal Din v. The State (1974 SCMR 214), this Court observed that under section 84, P.P.C.
The crucial point of time at which unsoundness of mind should be established is the time when the act constituting the offence is committed and the burden of proving that the accused is entitled to the benefit of this exemption is upon him.
8. Clearly, protection under section 84, P.P.C. Is not available where a person is capable of knowing the nature of his acts or that what he is doing is either wrong or contrary to law. Refer Lal Khan v.
The Crown (PLD 1982 Lahore 105) and Ghulam Yousaf v. The Crown (PLD 1953 Lahore 213). Also, refer Fazal Haider v. The State (1973 SCMR 295) wherein it was held: "It cannot be accepted that if at any stage subsequent to the incident the culprit suffers from a fit of insanity then it must be presumed that he was insane or suffered from fits of insanity even at the time the crime was committed by him."
' In Muhammad Shafi v. The State (PLD 1962 SC 472), Hamoodur Rehman, J. (as he then was), observed: "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 or that what he is doing is wrong or contrary to law, the plea of a diminished responsibility is not available as a defense in a criminal prosecution as in England now under the English Homicide Act of 1957. Under the existing law even in a case of impulsive insanity or melancholic homicidal mania it is necessary to establish that the maniac was incapable of knowing what he was doing at that point of time."
' It would be advantageous to reproduce paragraph 10 of the impugned judgment which reads thus: "The P.Ws. Have supported the prosecution case in tooth and nail as contained in the complaint Exh.P.A. According to the statement of Muhammad Moazam P.W.4, Zia-ul-Hassan appellant recited some verses from a book with him which were not found by them in the Holy Qur'an. He, however, displaying the said book containing film songs claimed that it was more sacred than the Holy Qur'an and thereafter, took out a bag lying in his feet in which he was keeping a copy of the Holy Qur'an with a pair of embroidered shoes. Mubeen Ahmad P.W.5 corroborating the statement of Muhammad Muazam P.W.4 on each material point with no omission or addition deposed that Zia- ul-Hassan appellant did not at all appear to be an insane person at the time of occurrence. The gist of the evidence of the P.Ws., is that the appellant at the first instance quoted some verses from the book in question containing film songs awarding the same, the status of the versus of Holy Qur'an and thereafter, took out a copy of the Holy Qur'an kept in the bag with a pair of embroidered shoes."
Learned counsel for the appellant was unable to show that the inference drawn by the learned Judge in Chambers was not supported by evidence on record. The appellant has failed to prove that he was suffering from a mental disease, at the time of occurrence. The prosecution evidence shows that the appellant was not mentally abnormal at the time of commission of the crime nor was he in a disturbed condition in any manner whatsoever.
9. Having given anxious consideration to the facts of the case in the light of the case-law referred above, we find no force in this appeal, which is hereby dismissed.