JAVED IQBAL, J.--This petition for leave to appeal is directed against judgment dated 7-9-1999 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the judgment dated 30-6-1994 passed by learned Additional Sessions Judge, Rawalpindi, has been kept intact by whom the petitioner was tried under section 302, P.P.C. For alleged murders of Muhammad Asad (minor) and Mst. Sameena and after having found him guilty convicted under section 302(b), P.P.C. And sentenced to death. He was also convicted under section 324, P.P.C. For an attempt to Qatl-e-Amd of Mst.Banaras and sentenced to undergo R.I. For 10 years and to pay a fine of Rs,5,000 or in default of payment of fine to undergo R.I. For one year, and further convicted under section 3 , P.P.C. For an attempt to Qatl-e-Amd of Farman and sentenced to undergo R.I. For 10 years and a fine of Rs,5,000, or in default thereof to undergo R.. For one year. He was also convicted under section 324, P.P.C. For an tempt to Qatl-e-Amd of Mst Kaki Jan and sentenced to undergo R.I. For ten years and a fine of Rs,5,000 or in default of payment of fine to undergo R.I. For one year. He was convicted under section 324, P.P.C. For an attempt to Qatl-e-Amd of Mst. Saleema and sentenced to undergo R.I. For ten years and a fine of Rs,5,000 or indefault of payment of fine to undergo for one year R.I.
2. Briefly stated "the prosecution case as revealed from the statement of Mst. Banaras Jan, complainant, P.W.4, on which the formal F.I.R. No,37/94 dated 7-3-1991, was registered at Police Station Murree, District Rawalpindi, at about 10-00 a.m. Is that about three months prior to the occurrence Meharban alias Mum son of Karim Bakhsh, caste Niyal Rajput, resident of village Davel, Tehsil Murree, District Rawalpindi, abused and insulted Mst. Kaki Jan, her mother-in-law, whereby Mst. Kaki Jan told about her insult to her sons, namely, Qayyum and Ishtiaz who went to village Kahia and brought Meharban in village Dewal and reprimanded him. Thereafter, the elders of the Biradari, effected a compromise between the parties. Meharban had been advancing threats to take revenge for his insult. On the day of occurrence, at about 10 a.m. Meharban was quarrelling with his brother Farman alias Baidu and on their seeing Meharban injured his brother Farman alias Baidu with Churri. Baidu's wife Mst. Saleema came to rescue her husband and Meharban gave a Churri blow at her head and blood started coming out of the injury. She ran away from there. It is stated in the F.I.R. That a minor daughter of Muhammad Ramzan, namely, Mst. Sameena was standing there and the accused gave a Churri blow in her belly, blood came out of the injury and she fell down. Mst. Kaki Jan and mother-in-law of the complainant refrained the accused from assaulting the abovesaid persons, whereupon, he said that she had insulted him prior to that and today he will kill her whole family. The accused, Meharban, with a Churri in his hand ran towards Mst. Kaki Jan and Muhammad Asad minor son of the complainant who were standing at the back of the house and gave a Churri blow to Mst. Kaki Jan at her breast, blood started coming out of the injury and she fell down. Whereafter, Mehraban accused gave a Churri blow to minor Muhammad Asad at his left flank, blood started coming out of the injury and he became unconscious.
Meharban accused then ran towards the complainant (Mst. Banaras Jan) who took a refuge in the room and closed the door. The accused opened the door forcibly and gave a Churri blow to the complainant but she saved herself by taking Churri into her right hand. This occurrence was witnessed by Tariq Pervaiz son of Munammad Rmaq Abbasi and Muhammad Safeer son of Abdul Sattar. On seeing them Meharban accused ran away from the spot after crossing the iron fences and also suffered injuries. The injured persons were taken to the Civil hospital, Murree, whereas, Muhammad Asad minor son of the complainant succumbed to the injuries in the way". After completion of usual investigation the petitioner was sent up for trial and on conclusion whereof he was convicted by learned Additional Sessions Judge, Rawalpindi, and sentenced as per details mentioned hereinabove. Being aggrieved an appeal was preferred which has been dismissed by means of impugned judgment, hence this petition.
3. It is mainly contended by Mr. Javed Aziz Sindhu, learned Advocate Supreme Court on behalf of petitioner while admitting the guilt that the murders were committed due to insanity mentioned whereof has been made by Tariq Pervaiz (P.W.8) and Muhammad Ramzan (P.W.9) and accordingly no conviction could have been awarded. No other contention whatsoever was adduced on behalf of petitioner.
4. We have carefully examined the contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. The judgment dated 30-6-1994 passed by learned trial Court and impugned judgment were perused thoroughly. The entire evidence which has come on record has been thrashed out with the eminent assistance of learned counsel. The plea of insanity has been taken in a casual manner and that too on first occasion before this Court.
We, however, have considers the plea of insanity in depth in the light of provisions as contained in section 84, P.P.C. To examine as to whether any benefit mentioned therein could be given to the petitioner on account of insanity. Section 84, P.P.C. Is reproduced hereinbelow for ready reference.- - "84. Act of a person of unsound mind.--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." A bare perusal would indicate that there are four important ingredients of the said section, which are as under:--
(a) Commission of an offence;
(b) unsoundness of mind;
(c) incapability of knowing the nature of the act/offence;
(d) distinction between right and wrong.
5. It may be kept in view that word "insanity" has not been used in the said section but on the contrary the Legislature has chosen the word "unsoundness of mind". It is not an accidental choice but a deliberated one because an unsoundness of mind covers almost all the ailments concerning mind. The very intendment of the Legislature as manifested in the said section seems to be that provisions as contained therein should be considered in a broader spectrum. The pivotal question, however, would be as to whether the petitioner was capable enough to know the nature of the act duly committed, whether he was permanently incapable (antecedents, subsequent and past conduct, family history and medical expert's opinion are to be seen) or is incapable during certain intervals and thereafter cause/causes for permanent or temporary incapability will have to be examined which can possibly be as follows:--
(1) Lunacy.
(2) Idiocy/imbecility.
(3) Non compos mentis.
(4) Temporary paroxysms.
(5) Insanity/insane delusions.
(6) Somnambulism.
(7) Frantic humour and its gravity.
(8) Maniacal trend.
(9) Periodic epileptic fits.
(10) Delirium tremens.
(11) Irresistible impulsive insanity.
(12) Obsession.
(13) Mania.
(14) Amentia.
(15) Dementia.
(16) Melancholia. None of the above mentioned causes were ever referred by the learned counsel except that he was an insane person that too without any evidence. The plea of unsoundness of mind cannot be agitated if at the time of commission of offence accused was capable enough and can make distinction in between right and wrong. It is also to be examined as to whether his cognitive facilities were impaired due to unsoundness of mind and if so up to what extent. It is well settled by now that "the crucial point of time for deciding whether the benefit of this section should be given or not is the material time when the offence takes place. If at that moment a man is found to be labouring under such a defect of reason as not to know the nature B of the act he was doing or that, even if he knew it, he did not know it was either wrong or contrary to law, then this section must be applied. In coming to that conclusion, the relevant circumstances like the behaviour of the accused before the commission of the offence and his behaviour after the commission of the offence, should be taken into consideration. (Thiruvathammal v. Vagunathan AIR 1952 Mad. 479, Madho Singh v. State 1953 Cr.L.J. 382). The case in hand has been examined on the touchstone of the criterion as mentioned hereinabove and in the light of evidence which has come on record. The learned Advocate Supreme Court has referred the statement of Tariq Pervaiz (P.W.8) and Muhammad Ramzan (P.W.9) to substantiate the plea of insanity but lost sight of the fact that not even a single word has been' uttered by the above named witnesses showing that petitioner was an insane person or suffering from any such-like disease. There was nothing to show that any kind of hallucination or frenzy was observed at the time of commission of alleged offence. As mentioned hereinabove the plea of insanity was never raised before the learned forums below. It transpires from scrutiny of record that incident occurred on 7-3-1991 and thereafter neither any complaint was made regarding the mental ailment of the petitioner by anyone nor he was ever referred to mental hospital or medical expert for such treatment. In absence of any evidence that' the petitioner was an insane person and further to establish a defence on the ground of insanity it must clearly be proved that at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong. If he did know it, he was responsible.(Emperor v. Harka 4 Cr.LJ 88). It may be kept in view that it is not every person suffering from mental disease that can avoid responsibility for a crime by invoking the plea of insanity. There is a distinction between medical insanity and legal insanity and the Courts are only concerned with the legal and not with the medical view of the question. (Bagga v.
Emperor (1931) 32 Cr.LJ 1230, Emperor v. Sajjan Singh (1991) 32 Cr.LJ 816). There is no cavil to the proposition that there is a clear difference between medical insanity and legal insanity. It is only legal insanity which furnishes a ground for exemption from criminal responsibility. There can be no legal insanity unless the cognitive faculties of the accused are, as a result of unsoundness of mind, completely impaired. In order to constitute legal insanity the unsoundness of mind must be such as should make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law. (1952) Patiala 254).
6. It is worth mentioning here at this juncture that where the plea of insanity is taken the burden of proving such degree of insanity which exempts the petitioner from criminal liability is on the accused himself. In this regard reference can be made to the following authorities:-- State v. Balahari Das PLD 1962 Dacca 467. Safdar Ali v. Crown PLD 1953 FC 93, Lal Khan v. Crown PLD 1952 Lah. 502, Madhya Pradesh v. Ammadulla AIR 1961 SC 998, Emperor v. Sajjan Singh 32 Cr.LJ 816 (Lah.).
7. There is no denying the fact that every person shall be presumed to be sane tilt proved otherwise and in view of the provisions as contained in Article 121 of the Qanun-e-Shahadat Order, 1984 the onus rests on the accused which can be discharged by adducing cogent and concrete evidence regarding the behaviour of the accused prior and after the commission of alleged offence subject to one exception that if it is apparent from the evidence then certainly the accused would not be required to produce additional evidence. As mentioned hereinabove the record is silent and no iota of evidence is available in this regard.
8. It is well settled by now that section 84 of. The Penal Code and section 105 read with section 4 of the Evidence Act places a heavy burden on the defence before an offence can be excused. The effect of section 4 of the Evidence Act interpreting the words shall presume is that the Court shall regard the absence of unsoundness of mind as proved unless and until it is disproved. The mere fact that the accused's mind was partially deranged or that he was subject to some uncontrollable impulse due to insanity will not do. So long as the accused was not so insane as to make it impossible for him to know the nature of the act or to realise that his act was wrong or contrary to law, he would be guilty of the offence committed by him. Therefore the evidence ought to be sufficient for a categorical finding that at the time when the accused committed the act, he was of unsound mind to such an extent that he was incapable of knowing that he was doing was wrong or contrary to law. [AIR 1963 Orissa 33 (DB), AIR 1961 Pat. 355, AIR 1929 Cal. 1, 30 Cr.LJ 494 (DB), AIR 1960 Madh. Pra. 102, AIR 1960 Mys. 48, AIR 1955 Sau. 13, AIR 1953 Pepsu 17, AIR 1951 Punj. 302 (DB), 11 Cri.LJ 105
(DB) (Lah.)]. Mere inadequacy of motive is no proof of insanity. (AIR 1959 Mad. 239). "A person cannot be said to be insane where all that is established is that he was moody, irritable and conceited and may be said to have been peculiar but at no time did he suffer from insanity of such nature or degree as to preclude him from knowing the nature of his acts or to obscure the distinction between right and wrong." [Umar Khan v. The Crown (1931) 32 PLR 804, Umar Khan v.
Emperor 33 Cr.LJ 186].
9. In the light of what has been discussed hereinabove and the fact that the onus of proof could not be discharged by the petitioner, in our considered opinion the plea of insanity is fabricated and appears to be an afterthought. It is worth mentioning that charge was framed on 13-3-1993 which was read out to the petitioner who professed innocence and denied the accusation. It was a denial simpliciter and no mention whatsoever was made regarding the insanity. Similarly, his statement was got recorded under section 342, Cr.P.C. And while answering various questions the plea of insanity which could have conveniently been agitated but it was not done for the reasons best known to the petitioner or the learned counsel. The answer to Question No,9 and its answer is reproduced hereinbelow for ready reference:-- "Q.No,9.--It is evident that Mst. Kaki Jan mother-in-law of Mst Banaras Jan complainant refrained you not to do so, upon which you threatened her that you will kill the whole of her family to take the revenge of his insult and that you rushed towards Mst Kaki Jan, P.W. At that time and inflicted Churri blow on her chest? You also irflicted a Churri blow to minor Asad which hit him on his left Wakhi, who fell down and became unconscious, whereupon Mst. Banaras Jan raised hue and cry and you ran after her. Mst. Banaras Jan took refuge in a room and opened the door by use of force and gave her a Churri blow and she caught hold of the Churri by her right hand? Ans. I was not in full senses. There was a sudden flare-up. I inflicted injuries as stated in the question to Mst. Kaki Jan, minor Asad and Mst. Banaras Jan."
A bare perusal would reveal that plea of sudden flare-up was agitated but not insanity. A mention has been made that he was not in full senses which cannot he equated to insanity. The guilt was admitted in an F unambiguous manner while answering question No,17. No statement on oath was recorded. No defence evidence whatsoever was led to substantiate the plea of insanity. We have also examined the case of petitioner as set up in the trial Court which is as under:-- "During the course of arguments the learned defence counsel made a very concise submission and made a prayer that since there is a strong case against the accused person and he has also confessed his guilt in his statement under section 342, Cr.P.C. And the accused is a young man, therefore, while awarding the sentence a lenient view he taken."
' A bare reading would make it implicit that only being a young man leniency was prayed for and no submission regarding insanity was made.
10. We have carefully examined the entire record and we are of the considered view that the prosecution has established the case beyond shadow of doubt. There is no reason whatsoever to discard the eye account of Mst. Banaras Jan, Mst. Kaki Jan and Tariq Pervaiz. The eye account is confidence-inspiring, worthy of credence and consistent which has rightly been considered and relied upon by the learned trial and Appellate Courts. Besides the trustworthy ocular evidence, blood-stained Churri was also recovered. The positive report of Chemical Examiner (Exh.PAA) and the report of Serologist (Exh.BB) cannot be ignored. The medical evidence also lends full support to eye account. The plea of insanity as mentioned hereinabove is an afterthought which was neither agitated nor substantiated by any evidence and cannot be considered at this stage which in fact never existed.
11. In the light of foregoing discussion the petition being devoid of merit is dismisse.