ALI NAWAZ CHOWHAN, J.--This judgment shall dispose of Criminal Appeal No,43 of 1998, Criminal Revision No,42-A of 1998 as well as Murder Reference No,130 of 1998.
2. Juma Khan appellant was convicted under section 302(b) of the Pakistan Penal Code and sentenced to death. He was also directed to pay a compensation of Rs,1,00,000 to the legal heirs of the deceased. Besides, he was convicted under section 324, P.P.C. On the second count, for injuring Muhammad Azam, P.W., sentenced to five years' R.I. And to a fine of Rs,25,000, or in default thereof, to further undergo six months' R.I. On the third count, he was convicted under section 324, P.P.C. And sentenced to five years' R.I. And to pay a fine of Rs,25.000 because of a murderous assault on QamarFarooq, P.W.
3. The .Matter arises on account of F.I.R No,274 dated 13-12-1996, registered under sections 302, 324, P.P.C. At Police Station City Attock.
4. Muhammad Zargham (P.W.10), the complainant in this case, is a Ticket Collector and during the relevant time was posted at Jand Railway Station. He was then residing in the Railway Colony, Attock, and knew Juma Khan appellant who was employed in the MES Kamra. According to him, on 12-9-1996 at about 10 a.m. He was standing outside his house. His brother, Muhammad Kamran deceased, along with Muhammad Azam and Muhammad Farooq, injured P.W., and some other boys were playing cricket in front of the Railway Running Room. When the appellant came there armed with a gun and asked them not to play cricket there. The response from Muhammad Kamran deceased was that it was Government property where they were playing cricket and as a private person he could not stop them from playing. At which, Juma Khan appellant fired a shot with his gun hitting Muhammad Kamran on his forehead, who fell on the ground. Juma Khan again repeated the fire which hit Muhammad Farooq P.W. On his thigh. The third fire was shot by him hitting Muhammad Azam on his abdomen. Both the. P.Ws. Fell down. Besides the complainant, the occurrence was also witnessed by Sohail Arshad and Rashid P.Ws. Muhammad Kamran, the brother of the complainant had expired by then. People had gathered at the spot and the deceased and the injured P.Ws. Were taken to the Hospital, whereupon the statement of the complainant (Exh.PL), the F.I.R was registered. Muhammad Kamran was a student of B.A. In the Government Degree College, Attock. A relevant excerpt from complainant's testimony is reproduced below:-- "I had stated in my complaint Exh. PL that the pellets had hit the deceased on the forehead and head. I did not interrupt at the time when Juma Khan had addressed the boys as to why they were playing cricket there. I had however seen him coming out armed with a gun. The accused and the deceased had talked in a loud voice. The talk was going on between the deceased and the accused. The accused and the deceased were at that time at a distance of 10/12 paces from the house of the accused."
5. Ameer Shah (P.W.8) has not seen the occurrence taking place. He had only heard about it while he was sitting in his house and while proceeding to the place of occurrence. He surrounded the appellant with the help of some persons, present there, and snatched the single-barrel gun from him which also have two live cartridges. He handed over the appellant and the gun and cartridges to the Sub-Inspector Rafaqat Hussain which, were taken into possession by him vide memo. Exh. PK.
6. Qarnar Farooq (P.W.11) is the injured P.W. Who supported the prosecution version as an eye- witness. Two relevant excerpts from his testimony are reproduced below:-- "It is incorrect to suggest that our ball frequently went into the house of the accused and he was telling us that as he had done his duty during the night therefore we should not disturb him. It is incorrect to suggest that when our ball went into his house, we had gone to his house where hot words were exchanged between us and we injured him. It is also incorrect that after being injured at our hands the accused went to his house and chained his house from inside."
"It is also incorrect to suggest that the accused being a mentally upset person as we were raising alarm saying Juma accused to come out from the house and that we will not spare him. It is incorrect to suggest that Jama on seeing this came out of his house and we all injured persons were standing close to each other he fired a single shot in his self-defence and ran away."
7. Muhammad Azam (P.W.12), the second injured P.W., supported the prosecution story. The following excerpts from his statement are reproduced below:-- "It is also incorrect to suggest that the accused being a mentally upset person and on the other hand we were raising alarm saying and addressing Juma to come out of his house and that we will not spare him."
"It is incorrect to suggest that actually we were the aggressor and we all had broken the door of the house of Juma Khan accused andwanted to kill him."
8. Dr. Muhammad Zubair (P.W.6) had conducted the autopsy on the dead body of the deceased Muhammad Kamran on 13-12-1996 and found the following injuries on his person:--
(1) A fire-arm entry wound 2 c.m. Above left eye on forehead.
(2) A fire-arm entry wound 3 c.m. Above injury No,1 . No blackening was present around the wound.
(3) A lacerated wound 1 c.m X 1/2 c.m. X skin deep on right side of face. The skull was fractured and the membranes and brain were perforated. The following was his opinion:- "Cause of death was haemotoma formation within brain due to collection of blood. This haemotoma suppressed the brain as well as profuse bleeding led to shock and ultimate in death.
Injuries Nos.1 and 2 were sufficient to cause death in the ordinary course of nature and were ante- mortem and were caused with fire-arm. Injury No,3 was simple and ante-mortem." Exh.PC is the carbon copy of the post-mortem report, whileExh. PC/1 is the pictorial sketch of the injuries.
9. On the same day, he had also medically examined Muhammad Azam, P.W., and found the following fire-arm injuries on his person:-- '
(1) A fire-arm entry wound on outer side of right fore-arm just above wrist. Profuse bleeding from the wound crept of bone indicate that underlying bones were fractured.
(2) A fire-arm entry wound on right side of abdomen in line of umbilicus, corresponding cut was present on the Qamiz.
(3) A fire-arm entry wound on right side of chest, approximately in middle, corresponding cut was present on the Qamiz. Exh. PD is the carbon copy of the Medico-Legal Report.
10. Qamar Farooq, the second injured P.W., was medically examined by the same doctor on the same day and the following injuries were noted on his person:--
(1) A fire-arm entry wound on upper part of right thigh (near the junction' of thigh with abdomen).
Profuse bleeding from the wound, corresponding cut was present on Shalwar which was bloodstained. Exh. PE is the carbon copy of the Medico-Legal Report.
11. The appellant Juma Khan was also medically examined by the same doctor i,e, Dr. Muhammad Zubair on 13-12-1996, the same day, and the following injuries were found on his person:-
(1) Swelling of bluish colour skin below on right eye.
(2) Complain of pain with slight swelling of the right side of faith, plus headache.
(3) A lacerated wound 2 c.m. X 1/2 c.m. X 1/4 c.m. Deep on the outer side of left eye. These injuries were caused with blunt weapon and were declared as Shuja-e-Khafifa. Exh. PT is the copy of the Medico-Legal Report in respect of Juma Khan, appellant.
12. Muhammad Azam, Sub-Inspector (P.W.13) learnt about the occurrence. He proceeded to the D.H.Q. Hospital, Attock. Where he took down the statement of Zargham, the complainant, and later forwarded this to the police station for registration of the F.I.R. He prepared the injury statement of the deceased as well as his inquest report and handed over the dead body to a Constable for post-mortem examination. He also prepared the injury statements of Qamar Farooq and Muhammad Azarn and sent them for their medical examination. Qamar Farooq was not in a position then to record his statement and so it was not recorded then. The same also happened in the case of Muhammad Azam. At the spot he took into possession three empties (P-6/1-3) vide memo. Exh. PH, and made them into a sealed parcel, which was attested by P.Ws. Mushtaq and Hafeez Ullah. He prepared the informal site plan and recorded the statements of Sohail Arshad and Rashid Mehmood (P.Ws.) at the spot. He later received the last-worn clothes of the deceased after the autopsy, which were taken into possession vide memo. Exh. PA. When he was at the Police Station, Juma Khan appellant was produced before him by Rafaqat Hussain, M.H.C., alongwith his .12 bore gun and two live cartridges. These were taken into possession vide memo. Exh.PK. He prepared the sealed parcel of the gun and arrested the appellant on the same day. He later handed over the parcels containing blood-stained earth, empties and the gun, to Rafaqat, Muharrer/Head Constable. He got the site plans formally prepared (Exh.PK and Exh.PK/1) and endorsed his own notes on the same. According to him, the appellant then was in an injured condition and, therefore, he got him medically examined. Two excerpts from his testimony are:-- "It is incorrect to suggest that when we proceeded towards D.H.Q. Hospital, Attock, the accused met us at Bus-Stand Attock City and he told us that actually Qamar Farooq, Kamran and Azam attacked him, injured him and fired many shots at his house and that he, under the apprehension that the above-mentioned persons would not let him alive, he fired a single shot, and disclosed that he is going to Police Station for informing the police."
"It is incorrect to suggest that actually the deceased and the two P.Ws. Attacked the accused house and a person was found murdered on the opposite side. I recorded complaint on the asking of the complainant and withheld the actual facts."
13. Amongst the formal witnesses, we have Muhammad Sarwar, who had delivered the parcel containing blood-stained earth to the Chemical Examiner and the parcel containing empties to the Forensic Science Laboratory on 18-12-1996. Ameer Abdullah had taken the dead body of Muhammad Kamran for autopsy. He received his last-worn clothes which he delivered to the Investigating Officer. Ghulam Ishaq on 18-12-1996 took the gun recovered from the appellant Juma Khan to the Forensic Science Laboratory. On 20-12-1996 he received the report and gave it to the Muharrer/Head Constable. Muhammad Hanif (P.W.4) identified the dead body. Muhammad Hanif, Draftsman (P.W.5) had prepared the site plans (Exh.PB, Exh.PB/1 and Exh.PB/2). Before Rafaqat Hussain (P.W.7), the appellant was produced by some persons including Ameer Shah, the son of the complainant, who produced the gun recovered from him as well as two live cartridges. He handed over the appellant to the Sub-Inspector later on when the Sub-Inspector came back to the police station. He also handed over the live cartridges and the gun to the Sub-Inspector who took the same into possession vide memo. Exh.PK. He is the one who had prepared the formal F.I.R and had stored the case property safely in the Malkhana which was given over to him. Mushtaq Ahmad is the witness of the recovery of the blood-stained earth and the three empties taken into possession vide memo. Exh.PM and Exh.PN.
14. The report of the Chemical Examiner- (Exh.PU), report of the Serologist (Exh.PV) and that of the Forensic Science Laboratory (Exh.PW) were produced in evidence. All these reports were in the positive.
15. In the statement under section 342, Cr.P.C.,Juma Khan appellant stated that some boys were playing cricket at the relevant time but he did not stop them from playing cricket. That the gun which he was carrying, was a licensed but no cartridges were recovered. He took the following plea:-- "I had fired only one shot and the empty was in the gun when I produced the said gun before the police. The police might have taken into possession the empty cartridges which were fired with Kamran gun by Kamran deceased. It is possible that the police after taking gun from me fired one two shots and the empties alongwith the gun were sent to the Forensic Science Laboratory."
"I am working as a labourer in MES Kamra the night between 12/13-12-106 I was on duty. I returned home early in the morning on 13-12-1996. In front of my house there is uneven land and for that reason no one can play cricket there. Actually the deceased along with other injured and other persons used to play cricket towards the western side of Railway Running Room. On the day of occurrence, their playing ball came in my house. They knocked the door. I got up from half sleep. I am a psychiatrist patient and as such remained in C.M.H. Attock from 20-12-1995 to 18-1-1996 and the doctor advised me for permanent taking of doze. I asked the deceased and as well as the other persons present outside of my house that they should not, disturb me and I refused to return their ball upon this the deceased and the injured persons and the other persons started beating me.
After this I rushed to my house and bolted the outer gate of my house. Kamran deceased brought out .12 bore gun with him from his house whereas the two injured P.Ws. Took wicket and bat in their hands and shouted upon me that they will not let me alive. Simultaneously Kamran deceased started firing on my house. As I was psychiatrist patient I felt that the persons present outside my house will not spare me as such I took my gun and to save myself I fired a single shot and started running towards the police station. Otherwise the people present outside of my house as they were breaking the door of my house they will not let me alive after breaking the same. After a short while I reached at lorry Adda where I narrated the whole occurrence to the police. I was seriously injured but the police with the connivance of the complainant party he involved me in this false case without recording the facts narrated by me. The police even did not get me medically examined till 1-45 p.m. When an officer of police came to the police station and on seeing me they ordered the Investigating Officer to get me medically examined. The complainant is the brother of the deceased while the two injured P.Ws. Deposed against me to suppress their highhandedness and the complainant deposed against me due to the relationship with the deceased. All the other P.Ws.
Are police officials they deposed against me as an employee of police and showing their Karwai in this case as they are interested on my conviction."
"As I early stated that the deceased and injured P.Ws. Gave me beating when I refused to give their ball which was lying in my house. I was seriously injured and was feeling pain in my whole body but the police showed only three injuries on my person and the doctor with the connivance with the complainant party did not hospitalize me,"
16. The occurrence, therefore, is not denied. Only on what happened, there are two versions. The appellant did not suffer from any serious injury but he did have injuries simple in nature on his body when he was. Examined. There is no substantial evidence on record to suggest that his house door was broken or he was assaulted at his house which gave him a cause for shooting at the deceased and others in his self-defence neither was this, plea substantiated by him either through production of defence evidence or through his own statement under section 340(2), Cr.P.C.
17. The learned counsel appearing on behalf of the appellant stated that he was not a mentally sound person. In this connection, he referred to the suggestion of the counsel for the appellant during the cross-examination of an injured P.W., reproduced above. He went on to say that an application had been moved for production of his medical record but this application was not disposed of. In this connection, reference has been made to the proceedings before the learned Sessions Judge, Attock, dated 24-2-1998. The application written in Urdu for summoning of the medical record of the appellant has also been seen. It is destitute of any plea of insanity being raised on behalf of the appellant. But, anyhow, we have seen Mark-A on the file, a Specialist's report pertaining to his health condition and although it was, not accepted below. This was referred to. It pertains to the year 1996 and shows that the appellant could not attend to his duty because he suffered from severe depressive illness since a year before 1996 and he experienced severe hallucinations and delusions alongwith paranoid ideas. He had been aggressive and violent at home. But at the time of his discharge, he was found fit but had been advised treatment from a psychiatrist on a fortnightly basis. The psychiatrist had recommended that his absence from period be waived and he be allowed to join hi, duty.
18. Admittedly, the appellant had not brought his case under the provisions of section 84 of the Pakistan Penal Code and it appears that he is trying to raise the plea of diminished responsibility, not available under section 84 of the Pakistan Penal Code now before this Court.
19. The defence before the trial Court attempted to procure the record about his mental abnormality and applied for it even though at a belated stage, but no action was taken. The psychiatrist view (Mark-A) on his mental condition in the year 1996 has come on record. This was not exhibited, but it can be looked into as it does help us in appreciating the conditions of mensrea or automatism. It also saves the parties for a remand order which will further delay the case.
20. Section 84 of the Pakistan Penal Code is one of the general exceptions, recognized by law. This section is based on what is popularly known as M'Naghten Rules which were laid in the M'Naghten's case (1843) 10 CI & F 200. Which imposes restrictions on complete defence based on lack of mensrea or automatism. According to the rules laid, the accused falls under the limb of the rules if he was unaware that his act was wrong". Which leans more towards establishing a complete insanity. The special verdict of ' not guilty by reasons of insanity' has been further provided by the English Trial of Lunatics Act, 1883.
21. But we already know that the concept of the degree of criminal responsibility of a person has undergone progressive and far-reaching changes because of the advancement of medical and psychiatrist sciences. However, our law based on the M'Naghten Rules has remained static and not dynamic. Even though, we find that life is becoming more and more complicated, difficult and stressful with the result that more and more people are suffering from mental diseases of various degrees.
22. Therefore, the acceptance of the Doctrine of Diminished Responsibility and giving it the shape of law, was certainly a requirement which has been overlooked. We are aware that the English Law took help from the Scottish Doctrine of Diminished Responsibility. They introduced it into law now known as Homicide Act, 1957. Section 2 of the said Act says:--
(1) Where a person kills or is party to the killing of another he shall not be convicted or murdered if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it."
23. The principle of M'Naghten Rules has been now expanded by this Act which is certainly more progressive and gives as wider meaning of "defective reasoning". In a leading British case Byrne (1960) 2 QB 396, Lord Parker, CJ defines 'abnormality of mind' by saying:- "a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. 'It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong but also the ability to exercise willpower to control physical acts in accordance with that rational judgment."
24. Byrne who was sexual psychopath and who found it difficult, if not impossible, to control his perverted sexual desires, and who had horrifyingly mutilated the body of a young woman after strangling her, was benefited by the decision in the Byrne's case.
25. Reference may also be made to another leading case of Vinagre (1979) 69 Cr. App. R.
104. Here the accused according to the medical reports was said to be suffering from "Othello Syndrome", i,e, unfounded suspicion that his wife was having an affair, and successfully pleaded diminished responsibility. It was observed that well-founded jealousy caused depression or some other condition that might be described as disease would no doubt made a successful plea possible.
26. In the case of Reynolds (1988) Crim.LR 679, it was observed that post-natal depression and premenstrual tension can constitute a disease and can give rise to diminished responsibility.
27. If our laws remain stagnant and are not developed,.We can always look towards more progressive views of other countries for keeping ourselves afloat in the comity of civilized world and can use these views for the welfare of our people. In the meanwhile, leaving it for the law giver to avail the opportunity of bringing the laws up-to-date and in line with the development taking place elsewhere.
28. It may be pointed out that when a plea of abnormality short of unsoundness of mind was raised in the case of Muhammad Shafi v. The State (PLD 1962 SC 472). It was not thrown away, rather the reduced punishment which was given to the convict Muhammad Shafi who had murdered two minor sons of his younger brother and had attempted at the life of his brother and his sister-in-law and some other members of the same family, was kept intact although he was not acquitted.
29. There is no motive to the occurrence. Appellant shot at the deceased and P.Ws. As he was disturbed by their game of cricket. Even if no ball fell into his house as has been pleaded in defence or his door not broken, causing him provocation. The fact of the matter is that it was on account of the abnormality afflicted on him which put him out of control and he committed the act. This could be on account of his abnormal condition. And as this probability is there, we feel bound in applying to this case the Doctrine of Diminished Responsibility and in accepting it as a mitigating circumstance. We. Therefore, reduce his sentence from death to life imprisonment while keeping intact the compensation part of the trial Court's judgment. The Criminal Appeal No,43 of 1998 is decided accordingly and the Murder Reference No,130 of 1998 is answered in the negative.
30. The accompanying Criminal Revision No,42-A of 1998 is dismissed keeping in view of the above observations.
Sentence reduced.