' Z. A. CHANNA , J.-This I an appeal from jail by appellant Muhammad Ismail, who has been convicted by the learned Sessions Judge, Tharparkar at Mirpurkhas, of an offence punishable under section 302, P. P. C., for committing the murder of one Isro Kolbi, and sentenced for the said offence to imprisonment for life.
2. The incident which has given rise to the present appeal occurred on 29-1-1975, at about 9,00 a.
In., in front of a hotel in Mirwah, at a distance of about 400 feet from Police Out-Post, Mirwah. The prosecution case is that on that day, in the morning, the deceased alongwith his sons, Gajo, and his two relations, Sono and Rawato, had gone to take tea at the hotel of one Soomro. After taking tea Gajo, Sono and Rawato remained sitting in front of the hotel while deceased Isro went a short distance to take the sunshine, when all of a sudden the present appellant turned up and stabbed the deceased in the back with a dagger and was attempting to pull out the dagger when the witnesses rushed up to rescue the deceased and to apprehend the appellant. Seeing the witnesses, the appellant tried to run away but was apprehended and was taken by complainant Gajo to the Police Out-Post, where he handed over the appellant to Head Constable Ghulam Sabir, and also lodged his first information report at 9-30 a. m.
3. The Head Constable, after arresting the appellant and recording the F.
1. R., accompanied the complainant to the scene of offence where he saw deceased Isro Kolhi lying unconscious with a dagger sticking in his back. He immediately sent the injured for examination and treatment to the Civil Hospital, Mirpurkhas, and thereafter, prepared Mashirnama of the scene of offence and then returned to the Police Out-Post where he recorded the statements of witnesses Sono and Rawato. He also recorded the statement of Mohammad Qasim, the owner of the hotel where the witnesses were taking tea, and the occupiers of some neighbouring shops. His investigation was verified by Ahsan Ahmed Soomro. Who challaned the appellant on 14-2-1975.
4. The deceased was examined by Dr. Pardhan, who was then Medical Officer at the Civil Hospital, Mirpurkhas. He found the following external injury on the person of the deceased "Incised wound 2" x 3/4" x deep to the cavity of the thorax on the right lower back at the 8th infercostal space."
' The injured was treated at the Civil Hospital and appeared to be improving when suddenly, on 7- 2-1975, his condition deteriorated and he died the same day at 8-15 p. m. An autopsy was thereafter conducted on the deceased and it was found that his chest cavity was full of blood, his abdomen cavity had been penetrated by the dagger injury and the liver also had an incised injury, having dimensions of 3/4" x 1/10" Y. 1/4".. In the opinion of the doctor the death of the deceased was due to shock and haemorrhage, resulting from the injury sustained by the deceased to the liver.
The doctor has deposed that this injury was sufficient in the ordinary course of nature to cause death. The doctor has testified that every possible medical aid was given to the deceased but because of the injury to his liver it was not possible to save his life and he succumbed to that injury.
5. The defence of the appellant is one of complete denial. His contention is that he has absolutely no knowledge of the assault on the deceased and that he was arrested by the police and taken to the police Out-Post while he was working on the road. He has further stated that he has been falsely involved in the case at the instance of one Hameed Soomro who has enmity with him over a plot. He also alleged enmity with one Mohamir of Mirwah, whose name he was unable to give.
6. In his defence, the appellant examined Mohammad Ali, Mohammad Qasim and Dr. Sultan Mahmood Arain. Mohammad Ali, who was a Naik at the District Jail, Mirpurkhas, where the appellant was kept in custody, has deposed that the appellant was confined in the District Jail, Mirpurkhas, for about 30 to 35 days, whereafter, he was transferred to the Central Prison, Hyderabad. He has further testified that at the time when the appellant was received at the District Jail, Mirpurkhas, he was found insane. This conclusion was reached by the witness from the conduct and behaviour of the appellant who was found tearing his clothes and sometime he used to put off his clothes completely and make himself naked. He was, however, unable to say when the appellant was received at the District Jail. Furthermore, he is admittedly not a witness qualified to testify about the sanity or insanity of a person. D. W. Mohammad Qasim has testified that he knows the appellant for the last 15 to 20 years and that he used to have occasional fits, during which he used to give rounds without any purpose. He has further stated that once the appellant had tried to throw himself in the Phuleli Canal at Tando Mohammad Khan. The witness, in his cross- examination, has admitted that the appellant was arrested by the Police on the day of the incident in connection with the incident. He has furthe'r admitted that the appellant used to live all alone in his house at the village of Soomros, which is 8 to 10 acres away from Mirwah Gochani, where the incident resulting in the death of deceased Isro occurred. Dr. Sultan Arain, the third defence witness, has deposed that an injury to the liver cannot be detected definitely by external examination or even by X-ray examination and that if an injury of the dimension of l/4' or 1/2' is caused to the liver, the patient may survive up to 10 days.
7. The case against the appellant rests on the ocular testimony of first informant Gajo and P. Ws.
Sono and Rawato. Ali 3 of them have deposed to have seen the incident, apprehended the appellant on the spot, while he was trying to run away, and to have produced him forthwith at the nearby Police Out Post. The learned Sessions Judge, in his judgment, has observed that no witness actually saw the appellant causing the fatal injury to the deceased. This observation is not supported by the evidence on record. First informant Gajo has deposed that "We saw that the accused Ismail present in Court had stabbed my father from his back side with a dagger and was trying to pull out the dagger." His evidence, as to his seeing the fatal blow being given to the deceased, however, is not very specific, for in his cross-examination he has admitted. "We rushed outside and saw my father having fallen down and accused pulling out dagger from his body."
Much more specific evidence on this point, however, has been given by P. W. Sono, who was the nearest person from among the eye-witnesses examined, to the deceased. He has deposed that "The accused present in Court went to him (Isro) and stabbed him with a dagger from behind." We are inclined to accept the testimony of this witness, not only because he was the nearest witness to the deceased, and as it appears from the sketch of the scene of offence prepared by the Tapedar had an unobstructed view of the incident, but further it was he who had grappled with the appellant and was the first person who had apprehended him.
8. We are satisfied on the basis of the evidence of the 3 eye-witnesses, Gajo, Sono and Rawato, that the learned Sessions Judge reached the correct conclusion that it was the present appellant who had caused the fatal injur to the deceased. This injury, as deposed by Dr. Pardhan and also D. W. Dr. Sultan Mihmood Arain, was sufficient in the ordinary course of nature to cause A death. A person who causes such a deep injury in the abdomen of a person as to cut his liver, is ordinarily to the presumed to have the intention of killing the person to whom he caused such an injury.
9. There is however, an important aspect of the case which merits close consideration. At the trial of the appellant, a plea was raised on his behalf that he was insane at the time of committing the homicide and therefore his case falls within the exception stated in section 84 of the Pakistan Penal Code. At the request of the learned counsel for the defence, the appellant was in fact examined by the Civil Surgeon, Mirpurkhas, who, however, found the appellant quite sane. The plea of insanity of the appellant is founded on the following 4 circumstances :-
(a) That the appellant had absolutely no motive for committing the act which resulted in the death of the deceased ;
(b) That at the time when he inflicted the fatal injury to the deceased, he was shouting that he had killed a 'Kafir', as deposed to by first informant Gajo and P. W. Rawato ;
(c) That according to D. W. Mohammad Ali, the Naik at the District Jail, Mirpurkhas, the appellant was found insane at the time of his admission to the jail ; and
(d) the following statement made by the appellant under section 342, Cr. P. C. In the Sessions Court :- "I had lost my parents. I have neither a brother nor a sister. I was leading a desperate life. I used to have fits. On one occasion. I had attempted suicide and thrown myself into Phuleli waters from a bridge at Tando Mohammad Khan but since I was not destined to die, I was removed by some persons. Thereafter, 1 joined service as Beldar in order to earn my livelihood and just has days of life. When I used to have fits, my caste fellows used to confine me at a Dargah of Saint and I used to be alright after having nap there. After my arrest in this case, I got a `Taveez' (ambulate) from one co-prisoner for cure from the ailment. When I was referred to the hospital from the Jail. I was administered intoxicative drugs."
10. We have given very careful consideration to all these circumstances, but have reached the conclusion that they do not lead to the inference that the appellant by reason of unsoundness of mind was incapable of knowing the nature of the act resulting in the death of deceased Isro, or that he was doing what was either wrong or contrary to law. In Mohammad Hussain v. Emperor (1) it was found that the appellant, who had killed his wife, had been suffering for 3 to 3i years, immediately preceding the incident which resulted in his trial. It was contended in that case before the Oudh Chief Court, that the appellant had committed the murder while he was of an unsound mind and that he was entitled to the benefit of the general exception of section 8I of the Indian Penal Code. Repelling this contention, it was held that the evidence as to the appellant's mental condition did not prove that at the time that he committed the murder he was incapable of knowing the nature of his act and that on the contrary there was a suggestion that he was conscious that the act that he had committed was wrong. It was observed in that case that with the exception of imbecilic and idiots, the majority of lunatics are usually perfectly conscious of the nature of their acts, and more often than not understand when they are doing what is either wrong or contrary to law.
11. Reference may also be invited to the decision in Ghinua Uraon v. Emperor (2) in which it was held that where a person otherwise sane but labouring under the influence of an insane delusion commits an act of revenge for some supposed grievance or injury, he is nevertheless punishable according to the nature of the crime committed, if, at the time he understood that he was committing a wrong and unlawful act.
12. In Mani Ram v. Emperor (3) it was held that mere absence of motive, the absence of secrecy, multiple murders, want of pre-arrangement and want of accomplices does not fulfil the requirement of section 84. A distinction was also drawn in that case between insanity in the sense in which the term may be understood by the alienist, and unsoundness of mind as defined in section 84. A similar distinction was drawn in two other Lahore cases, reported as Jalal v. Emperor
(4) and Baqqa v. Emperor (5).
13.In State v. Bcdhari Das (6) Salahuddin Ahmed, J., after an exhaustive review of a number of rulings on the point, summarised his conclusions as follows :- "Thus the sum total of the principles deducible from the decisions discussed above may be condensed as follows:-
(i) If the accused raises any special plea or claims exoneration on the {{FOOT NOTE}}
(1) 14 Cr. L J 81 (2) AIR 1918 Pat. 179
(3) AIR 1927 Lab. 52 (4) 30 Cr. L J 1024
(5) AIR 1931 Lab. 236 (6) PLD 1962 Dacca 467 {{FOOT NOTE}} basis of any special or general exception he must prove his special plea or the existence of conditions entitling him to claim the exoneration.
(ii) Irrespective of the success or failure of the special plea raised by the defence or its claim to exonerate 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 to the requisite intention or wens rea which is a necessary ingredient of a particular offence, this will react on the whole prosecution 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 instance 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.
(vi) If the facts are clear so far as the act complained of is concerned motive is irrelevant."
14. The questions as to when the plea under section 84 of the Pakistan Penal Code is reasonably available and on whom is the burden cast to establish that plea have been authoritatively dealt with by our Supreme Court in .41oharnmad Shafi v. The State (I) and falai Din v. The State (2) In Mohammad Shafi's case, the appellant was charged with the murders of two minor sons of his younger brother and for the attempted murder of his own brother Saeed AhmeJ, the latter's wife, another son and daughter of theirs and two of his own daughters. There was evidence to show that some 12 years prior to this incident, Mohammad Shafi had met with an accident while working in a factory, as a result of which he was in a hospital for about a month, but even thereafter he used to have fits from time to time during which he would behave in a strange manner. Furthermore be used to tell the people that Thoots' often visited him. On these grounds, a plea was sought to be raised that he had committed the murders while he was non cornpus mentis. Repelling this plea Hamoodur Raman, J. (as he then was), who delivered the judgment on behalf of the Supreme Court, held as follows :- "There can be no doubt that the appellant was not free from abnormality, for, otherwise he would not have so grievously assaulted his own minor daughters without any rhyme or reason. The question, however that arises for consideration is whether in law such abnormality can be treated as sufficient to exculpate the appellant for the heinous crimes committed by him, even though it falls shalt of legal insanity.
' Unfortunately, the law in this country does not recognize 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 {{FOOT NOTE}}
(I) P D 1962 SC 472 (2) 1974 SCM R 214 {{FOOT NOTE}} what he is doing is wrong or contrary to law, the plea of a diminished responsibility is not available as a defence 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 maniac it is necessary to establish that the maniac was incapable of knowing what he was doing at that point of time. There is no such evidence in this case. The appellant never behaved in such a violent fashion before. The only evidence of violence is that on occasions when he had such fits he used to flourish whatever he could lay his hands upon, but he never struck anybody. After his injury he bad, according to his employer, worked for some 5 years as a normal worker at his factory. After this incident also he had displayed no signs of any abnormality. In these circumstances, we are unable to accept the contention that the appellant was on the night of the incident in such a state of unsoundness of mind that he was incapable of knowing what he was doing. The evidence is, by no means sufficient to establish that he was incapable of realising the consequences of his own acts.
Immediately after he was disarmed he again became normal. So far as that the Police Officer, when he arrived at the spot, found him in a perfectly normal condition and speaking like a sane man."
15. In Jalaldin's case, it was held 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 offence is committed and the burden of proving that the accused is entitled to the benefit of this exemption is upon him".
16. The mere fact, therefore, that the appellant acted in a particular manner, apparently without a motive, and the other circumstances to which we have previously adverted in our judgment, do not reasonably indicate that at the time when the appellant committed the act alleged against him he was non compos mends and is thus entitled to the exception under section 84 of the Pakistan Penal Code. On the contrary his conduct in attempting to run away, when he was being apprehended by the eye-witnesses, which fact has been testified to by all of them, clearly indicates that the appellant' cognitive faculties were not impaired and he knew that his act of stabbing the deceased was wrong and contrary to law.
17. The upshot of the above discussion is that we hold that the appellant intentionally killed the deceased by stabbing him with a knife and we accordingly agree with the finding of the learned Sessions Judge that he is guilty of murder. We therefore, uphold the conviction and sentence and dismiss his appeal.