NOOR ALI SHAH Versus

1. SHAH ZAMAN BABAR, J.-- Noor Ali Shah (aged 35 years) son of Hidayat Ali Shah, caste Sayed, of Bai Bala Police Station Oghi, Tehsil Mansehm was tried under section 302, P. P. C. for having committed the murder of Mst. Zaffarun Nisa wifa of Hikmat Shah of Bai Bala on 27-10-1971 (month of Ramazan) at peshin vela by firing at her with rifle in village Bai Bala. The trial was held by the then Sessions Judge Hazara, Mr. Abdul Khaliq Khan, who by his judgment dated 21-7-1973 convicted Noor Ali Shah under section 302, P. C. and sentenced him to imprisonment for life on the grounds that the occurrence of murder has taken place suddenly and the relationship between parties were normal. Noor Ali Shah has appealed. Hikmat Shah husband of the deceased lady has come up on private revision petition praying for the enhancement of the sentence of the convict to that of the normal penalty of capital punishment. By order dated 17-10-1973 of this Court, it was ordered that this revision petition should come up in motion when the appeal comes up for final hearing. This judgment will dispose of the appeal as well as the revision petition- for enhancement of sentence.

2. The parties are residents of village Bai Bala in the jurisdiction of Police Station Oghi. They are Sayed. The house occupied by the deceased is opposite to the house occupied by the appellant and separated by a street about 10 feet wide. The Balthak (point 6 of the site plan) of the house of the appellant has one door opening towards the courtyard of the house and another opening towards the street. Mst. Zaffarun Nisa deceased is the wife of P. W. Sayed Hikmat Shah. P. W. Habib Ali Shah is cousin of Noor Ali Shah appellant. The appellant is also a cousin of Sayed Hikmat Shah, P. W. Mst. Mir is a maid-servant of Sayed Hikmat Shah. P. W. Shaukat Hussain Shah aged about nine years, is the son of Hikmat Shah. P. W. Abdullah is a land and house tenant of Hikmat Shah. Hikmat Shah is a school teacher in the Government School, Dambori distant two miles from Bai Bala. On 27-10-1971 (Wednesday) Hikmat Shah had gone to attend to his duty at Dambori. At about 1-30 p m. P. W. AbduIlah approached Hikmat Shah at Dambori School and gave him a message of Habib Ali Shah to the effect that Noor Ali Shah appellant had murdered Mst. Zaffarun Nisa wife of Hikmat Shah. Hikmat Shah came to his house at Bai Bala and found his deceased wife lying in his house. Many persons had collected there. P. W. Mir Janey on enquiry by Hikmat Shah revealed that Mst. Suffur-un-Nisa (D. W. 2) sister of the appellant and the appellant were having a row in their house. Mst. Zaffarun Nisa went to the courtyard door of her house and advised Mst. Sulfur-un-Nisa that she should refrain from having a row with the appellant because the appellant is an ill-tempered man. On this, the appellant fired at the deceased Zaffarun Nisa with a rifle which hit her and the injuries proved fatal Mst. Mir Janey had also informed Hikmat shah that his son Shaukat Huassain Shah was also present in the house at that time.

3. P. W. Muhammad Iqbal A. S. I. then posted at Police Post Battal was on patrol with two-three F. Cs. in the Ilaqa when Hikmat Shah lodged the report Exh. P. A/1 to the A. S. I. at 4-30 p. m. The distance between Battal and Bai Bala is three-four miles. The A. S. I. found Zaffarun Nisa lying dead in her house and prepared her injury sheet and inquest report and sent the dead body for post-mortem examination. The A. S. I. then inspected the spot and prepared the site plan Exh. P. B.

4. Point No. 1 on the site plan denotes the place where Zaffarun Nisa was fired at Blood-stained earth and three small pieces of wood broken from the courtyard door Exh. P. 1 to Exh. P. 3 were taken into possession. Point No. 2 denotes a place (in the courtyard door of the house of the ac cused) wherefrom he had fired at the deceased. Distance between points No. 1 and 2 is 10 feet. An empty shell of 303 bore Exh. P. 4 was recovered from this place. Points 3 and 4 indicate the places where Mst. Mir Janey and Shaukat Hussain Shah respectively were present at the time of occurrence, Distance between points Nos. 1 and 3 is 13 feet while between points 1 and 4 is 5 feet. Distance between Points 2 and 4 is 15 feet. Point No. 5 depicts the place where Zaffarun Nisa after receipt of the injury sat down. This Point is at the corner of the Batihak of the house of the appellant. Blood was also picked-up from here. Point 6 represents the Baithak of the appellant where his sister Sulfur-un-Nisa was present at the time of the occurrence and came out at Point 5 after the occurrence. The wooden chips, the empty shell and blood from the two points were picked up vide Memo. Exh. P. C. in the presence of P. W. Shad Muhammad Khan. The A. S. I. searched the house of the appellant and recovered a village-defence rifle of 303 bore Exh. P. 5 loaded with a cartridge in its chamber (Exh. P. 6) from the kotha of the house wherefrom the appellant was arrested vide Memo. Exh. P. D. in the presence of Shad Muhammad Khan. The appellant was not formally arrested by the A. S. I. but was made to associate with him in the investigation and sit with the A. S. I. in the hujra of Sultan Shah, Ex-Chairman rill the arrival of P. W. Muhammad Khan S. H. O. P. W: Muhammad- Ashraf S. I. took over investigation on 27-10-1971 at 9 p.m. He registered the case vide F. I. R. Exh. Y. A. incorporating Exh. P. A. in it at Police Station Oghi. The S. I. arrived the village of occurrence at 8 a.m. on 28-10-1971. The S. I. took over investigation from A. S. 1. Muhammad Iqbal. The S. I. took into possession a piece Exh. P. 10 from the plank of the door of courtyard of the house of the deceased vide Memo. Exh. P. W.2/1. The portion of the door had a bullet hole through and through. Shad Muhammad Khan P. W. attested this Memo. also. 14 pieces of bullets besides the clothes of the deceased sent by the doctor were also taken into possession vide Memo. Exh. P W. 2/2. The S. I. formally arrested the appellant on 28-10-1971 at 4-30 p.m. '303 bore rifle recovered from the kotha wherein the accused was arrested and with which the accused had allegedly fired alongwith the empty recovered from inside the courtyard door of the house of the appellant were sent to Arms Expert, Peshawar. P. W. Bashir Ahmad Fire-arm Expert opined that the crime empty was fired from the rifle in question.

5. Lady doctor Surriya Jabeen held the autopsy on the dead body of Mst. Bibi Zaffarun-Nisa aged about 33 years on 28-10-1971 at 8-30 a.m. and found the following external injuries:--

(1) Entrance bullet wound " x " on lateral axillary line near armpit, at left side.

(2) Exit wound 2 " x 2 " of left side of chest and shoulder below the clavical.

(3) Multiple abrasion on the left arm and chest mostly on the left side.

2. On internal examination, the doctor found vessels of left side injured. Left shoulder blade, at laternal end, was fractured. Upper end of the humerous was also fractured. Stomach was empty.

3. Probable time that elapsed between injury and death was about half an hour to one hour while that between death and post-mortem is 10 hours.

4. Death, in the doctor's opinion, was due to shock caused by injury of blood vessels on left side and fractured bones.

5. Injuries 1 and 2 were caused by fire-arm. Bullet pieces, 14 in number, were removed and handed over to the police. Similarly shirt of the deceased stained with blood, haying corresponding opening, was also handed over to the Police. Post-mortem report Exh. P. W. 11/1 and the remarks on the injury sheet Exh. P. W. 10/2 are is the doctor's hand and correct. In the doctor's opinion, injury No. 1. was sufficient in ordinary course of nature to cause death. In cross- examination, the doctor stated that in her opinion the wounds of entrance and exit were caused by a bullet.

6. Orders on the order-sheet of the commitment Court Mansehra dated 27-11-1971, 16-2-1972 and 21-3-1972 in particular and other orders from the order-sheet in general would show that the accused appellant was not defended by a counsel. As such no legal assistance for the conduct of the case in defence was available to him. Before the committing Court, the accused denied the charge of murder. He stated that the prosecution witnesses deposed against him because they are related and interested and that he is innocent and falsely charged. He had added that he will produce defence in the Court of Session. Before the com mencement of the trial on 20-6-1972, counsel for the defence submitted an application that the accused is insane and is incapable of understanding the proceedings and defending himself at the trial. He, therefore, requested for the adjournment of the trial for obtaining the verdict of the Mental Specialist. The learned Sessions Judge mentioned in the order "in order to judge the competency of the accused I have put him some questions in Court and found that his replies are incoherent, he indulges in mental ravings and does not answer the question properly. His looks are vacant and he appears to be quite divorced of the reality and his environments." The trial was, therefore, adjourned and a letter was addressed to Civil Surgeon, Hazara to examine the accused in respect of his mental condition and report whether he is capable of understanding the proceedings and defending himself at the trial. The accused appellant was examined by a Board of Specialists on 15-8-1972 in the Government Mental Hospital, Peshawar. The Board gave the following finding and opinion :--

6. "After examination and keeping in view the report of Mental Specialist, the Board is of the opinion that accused Noor Ali Shah is a man of unsound mind and suffering from Schizophranic illness. He is unable to defend himself or comprehend the proceedings of the Court."

7. The trial was, therefore, again adjourned. On 11-2-1973 doctor Muhammad Shafiq, Medical Superintendent. Government Hospital, Peshawar submitted the following report (Exh. C. W. 1/2):-

8. "Mr. Noor Ali Shah is much better. He can understand the proceeding of the Court. However, during the rest of his life he must have Tab Heloperidol 1.5 mg. 2 tablets at night to remain well."

9. Before the trial could be commenced, C. W. 1. doctor Muhammad Shafiq, Medical Superintendent, Government Mental, Hospital, Peshawar was examined on 5-4-1973. The witness, after giving evidence in relation to Exh. C. W. 1/1 and Exh. C. W. 1/2 added:-

10. " The accused is not fit to understand the proceedings and defend himself at the trial. However, the nature of the illness is such that unless maintenance doses prescribed by me in C. W. 1/2 is discontinued his illness is likely to relapse. If the accused is kept in the hospital, proper treatment will be provided to him and he will be able to take his trial."

11. The trial thereafter commenced from 30-5-1973. At the trial, the appellant when examined stated that he was incapable of making defence due to unsoundness of mind in the enquiry Court. He admitted that P. W. Habib Ali Shah is the son of his paternal uncle and that he is also related equally to the complainant and the deceased that he had no recollection of having quarrelled with his sister me. Saffur-un-Nisa because at that time hp was of unsound mind. When questioned about the murder of Mst. Zaffarun Nisa on 27-10-1971 at 12.45 p. m. he stated that at the time of the occurrence, he was of unsound mind and did not know the nature of his act or that what he was doing was wrong or contrary to law. He further added that being of unsound mind, he did not recollect whether he after the commission of the murder, had chained the door of his house from inside and had remained there till he was arrested by the investigating officer. He also on account of unsoundness of mind did not recollect whether A. S. I. Muhammad Iqbal had recovered rifle Exh. P. 5 with a live cartridge in its chamber. When questioned why the P. Ws. are deposing against him, he stated that they are closely related, partisan and inimical towards him and they had developed the story into murder knowing it fully well that it was an act of insane person. In explanation of the charge he stated :-

12. "I had advanced attack of insanity and was removed in the first instance from Karachi and admitted into Mental Hospital, Dhodial. After sometime I had a relapse and again remained in the Mental Hospital, Dhodial, and was discharged from there about five months prior to the occurrence. I submit herewith certified copies of an application of my brother Muzammil Shah Exh. D. C., certificate of Medical Superintendent, Dhodial Exh. D. D., and reception order by the S. D. M. Exh. D. E. I also submit the original chits dated 13-5-1971 Exh. D. E/1. Another chit dated 13-5-1971 Exh. D. F. I also produce two other chits Exh. D. G. and Exh D. H. as also an undated chit Exh. D. J. and the discharge slip of the Hospital Exh. D. K. showing that I was suffering from chronic Schezophrinia and had returned home about five months prior to the occurrence. I also produce a certificate issued by Consulate of Purtugal Exh. D. L. in support of my statement. I had a relapse during the days of occur rence and was again of unsound mind on the day of occurrence. The deceased was a close relative of mine and I have every sympathy with her."

13. He produced his brother Sayed Muzammil Shah and his sister Mst. Saffurun-Nisa in defence.

14. 6-A. It is worth mentioning that the report Exh. P. A/1 of P. W. Hikmat Shah was recorded by P. W. A. S. I. Muhammad lqbal at village Bai Bala. P. W. Mst. Mir Janey has deposed in cross-examination that Zahir Jan a servant of the husband of the deceased (Hikmat Shah) had proceeded to the Police Post, Battal to lodge the report before the arrival of Hikmat Shah P. W. The police was brought to the scene of occurrence by Shad Muhammad Khan P. W. She further added that when the police came to the spot alongwith Shad Muhammad Khan, they sat in the hujra of Sultan Muhammad Khan, Chairman who is nephew of Shad Muhammad Khan. P. W. F. C. Taj Muhammad Khan bad accompanied the dead body of the deceased from the spot to the mortuary. This witness has deposed in cross-examination that he accompanied the A. S 1. Muhammad lqbal from Police Post, Battal to the spot. The complainant also accompanied us from the Police Post, Battal to the spot. P. W. Shad Muhammad Khan had deposed that the distance between Battal and Bai Bala is three-four miles. He also deposed that the deceased was the daughter of his younger sister and that the step-mother of Sultan Shah Ex-Chairman is his sister. P. W. Shad Muhammad is an attesting witness to the Memos. Exh. P. C., Exh. P. D., Exh. P. W. 2/1 and Exh. P. W. 2/2. Although the First Infor mation Report Exh. P. A/l of Hikmat Shah was recorded in Bai Bala but We are of the view that there appears to be no concoction or manipulation in setting up the prosecution case. The parties are closely inter-related and there could be no motive for setting up a false prosecution case against the appellant. The prosecution case is supported by an alleged oral dying declara tion made by Mst. Zaffarun Nisa deceased to P. W. Habib Shah and the evidence of Sayed Hikmat Shah P. W. P. W. Mst. Mir Janey, P. W. Shaukat Hussain and P. W. Habib Ali Shah, P. W. Sayed Hikmat Shah is the husband of Mst. Zaffar-un-Nisa deceased. He is a teacher in Primary School, Dambori distant about two miles from village Bai Bala. He was informed of the occurrence by his servant P. W. Abdullah. He came to his house where P. W. Mst. Mir Janey, his maid-servant, apprised him that Mst. Saffur-un-Nisa (D. W. 2) sister of the appellant and the appellant were having a row in their house. Mst. Zaffarun Nisa (deceased) went to the door of her house and told Mst. Saffur-un-Nisa that she should refrain from having a row with the accused-appellant as the latter was an ill-tempered man. On this, the appellant fired at the deceased with a rifle which hit the deceased and she died thereafter. Mst. Mir Janey had also informed Hikmat Shah that his son Shaukat Hussain P. W. was also present in the house at the time of occurrence. In cross -examination, Sayed Hikmat Shah stated that Habib Ali Shah though present in his house when he reached there from the school did not inform him that Mst. Zaffarun Nisa, while in injured condition had talked to him and had charged the appellant for her fatal injury. The witness adds that the appellant is the son of his maternal aunt. P. W. Mst. Mir Janty maid-servant of the deceased is a natural witness of the occurrence. She deposed that at about Peshin time she besides Mst. Zaffarun Nisa deceas ed and her son P. W. Shaukat Hussain were present in the house. Mst. Saffur-un-Nisa sister of the appellant had a row with him in their house. Mst. Zaffarun Nisa went to the door of her house and asked Saffur-un-Nisa to refrain from entering into a row with the appellant as he is ill-tempered (Oski-Khu-Sakht-Hai). On this, Noor Ali Shah appellant fired with a rifle at Zaffarun Nisa who fell injured in the lane in front of her house. Habib Ali Shah P. W. arrived at the spot. The injured Zaffarun Nisa charged the appellant before Habib Ali Shah. The appellant then chained the door of the kotha from inside. She deposed in cross-examination that except the accused-appellant and his sister Saffur-un-Nisa there was nobody else present in the house of the accused. P. W. Shaukat Hussain aged about 9 years is the son of the deceased. During the days of the occurrence he was a student of second class in Primary School Bai Bala. He felt headache on the day in the school and came to his house. The learned Sessions 8 Judge after putting some questions to P. W. Shaukat Hussain found him capable of making an intelligent statement. P. W. Shaukat Hussain fully supported the evidence of Mst. Mir Janey. He also stated that his injured mother had charged the accused before P. W. Habib Ali Shah and that Hahib Ali Siah had a-prised Hikmat Shah of this fact. P. W. Habib Ali Shah is related to Hikmat Shah. P. W. Hikmat Shah is the son of maternal aunt of Habib Ali Shah aid his sister is married to the brother of Hikmat Shah. Hahib Ali Shah heard the report of fire shot at his house followed by alarm. He came to the house of fist. Zaffarun Nisa and found her in inured condition. On his inquiry, the injured lady charged Noor Ali Shah appellant for firing at her and injuring her. In cross-examination, Habib Ali Shah has deposed that he had not informed Hikmat Shah about the oral dying declaration of the deceased. Although he was present when Hikmat Shah lodged the report, he did not talk to Hikmat Shah to the effect that the deceased made an oral dying declaration to him. The evidence about oral dying declaration is therefore discard-able. D. W. 2 Zaffarun-Nisa was examined by the police as a prosecution witness. Before she could be examined by the committing Magistrate on 27-3-72, Hikmat Shah submitted an application to the committing Court that Saffurun-Nisa is sister of the accused that she was not prepared to depose the truth and that for this reason she should be abandoned. Mst. Saffurun-Nisa was, therefore, abandoned during the proceedings before the committing Magistrate. She was also abandoned on 30-5-73 at the trial. Mst. Saffurun-Nisa was, therefore; examined as a defence witness. She stated that on the day of occurrence at about 1 p m. she was kneading flour when the appellant came from outside and enquired as to why she was kneading flour and that the appellant stated that he would not take food prepared from this flour because she was mixing poison into food in order to kill him. The accused appellant turned his back to go inside the room. She apprehended that the accused may not pick up some axe etc. from the house and attack her. She, therefore, went into the baithak of the house and after a short while she heard a report of fire shot. She opened the door of the baithak opening into the street and went outside. She saw Zaffarun Nisa lying injured. She added that Mst. Mir Janey was present with the deceased and that she had also seen Mst. Mir Janey P. W. present with the deceased at the time of occurrence. From the above discussion of evidence, it is established beyond doubt that nobody else than the appellant has killed Zaffarun-Nisa. The parties had no previous enmity. They are closely inter-related and there appeared to be no reason to falsely implicate the appellant for the murder of Zaffarun-Nisa. At the trial, the learned counsel for the defence in view of the observations of the learned Sessions Judge in para. 15 of the judgment had not seriously contested that the injuries which led to the death of Zaffarun- Nisa deceased were inflicted by the accused appellant. However, the learned defence counsel had argued that the case of the appellant was covered by section 84, P. P. C. in that by reason of unsoundness of mind the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The learned Sessions Judge after discussion of evidence and circumstances, on the application of section 84, P. P. C. to the case of the appellant, came to conclusion in para. 23 of the judgment that the defence taken by the accused had not been established from the record and that the protection under section 84, P. P. C. would not be available to him.

7. S. Usman Ali Shah, learned counsel for the appellant while arguing the appeal did not utter a word mentioning that the appellant had not com mitted the act of killing of Mst. Zaffarun-Nisa. However, he claimed the benefit of section 84, P. P. C. for the appellant and canvassed that the appellant, it appears, had an attack of Schizophrenic illness at the time of occurrence and thus by reason of his unsoundness of mind he was incapable of knowing the nature of the act committed by him or that what he was doing was either wrong or contrary to law. Section 84, P. P. C. relates to an act of a person of unsound mind and lays:-

15. "Act of 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."

8. We-have closely scrutinized the record of the case besides the prosecution and defence evidence in order to arrive at a conclusion on the point of legal insanity of the appellant and his mental condition at the time of the commission of the murder of Zaffarun-Nisa. History of the unsoundness of mind of the appellant has been partly given by his brother D. W. Sayed Mozammil Shah and partly in the certificate Exh. D./D. issued by doctor Mohammad Irfan, Medical Superintendent Government Mental Hospital, Dhodial. Mozammal Shah has deposed that in 1965, the accused and his wife were residing at Karachi. The wife of the appellant had died during the course of delivery. After her death the appellant began losing his mental equilibrium. The appellant would say that his wife was killed by some con spiracy by the doctor by giving her some injection and that he would go and take out his deceased wife out of the grave. Gradually the accused started picking up rows with people and began apprehending that there were conspiracies aimed at his life. On one night the appellant saw his face in the mirror at the house and started saying that some C. I. D. man was there. He threw his Chappal and broke the mirror into pieces. The witness admoni shed him for doing so and the accused attacked him with knife and injured him. The witness was then an employee of Purtugal Embassy at Karachi. A few days after breaking the mirror, the accused, during a party at the embassy entered there and said that the people had collected there to kill him. The accused was handed over to policy of Police Station, Ferozabad under the instructions of the Consulate. The accused was kept in Mental Hospital for 8 months and Exh. D. L. dated 9-3-71 was issued, which reads as under:

16. Consulado De Portugal

17. 32-1/A, P. E. C. H. S.

18. Karachi-29.

19. To whom it may concern

20. Syed Noor Ali Shah was taken into custody by the Ferozabad Police Station, about 8 months ago, being mentally deranged and for security reasons, and has been lodged in the Central Jail, Karachi. There is no case or claim for indemnification pending against him. His brother Sayed Mozammil Shah is working for this Consulate for the last 14 years.

21. This Consulate understand Sayed Noor Ali Shah is ill in the Jail and needs immediate attention including surgery.

22. It would be appreciated if the needful is done as early as possible.

23. Karachi, March 9, 1971.

24. (Seal)

25. ..

26. Doctor.

27. Mozammil Shah then brought his brother, the appellant, to his village. Mozammil Shah produced the appellant before Doctor Mohammad Irfan, Medical Superintendent. Government Hospital, Dhodial who after examina tion of the appellant issued the certificate Exh. D. D. which is reproduced below:-

28. "Certified that I examined Noor Ali Shah son of Syed Hidayat Ali Shah village Bai Bala Battal brought by his brother Syed Muzattar Shah.

29. This patient was admitted in this Hospital in 1967 (April) through Reception Order and was discharged by the Board of Visitors Com mittee. After his discharge he remained reasonably manageable and somewhat sociable. During this time he went to Karachi and worked in private capacity.

30. For the last one year he is again disturbed and gets episodes of violent behaviour. Has attacked brother with knife.

31. On examination he was difficult to communicate. His behaviour was prone to aggression. Had no insight. Only complained of Insomnia. In view of his relapse it is requested that necessary Reception Order may kindly be issued."

32. Mozammil Shah then applied vide application Exh. D/C. to the S. D. M., Mansehra for the issue of Reception order for admission of the appellant into the Mental Hospital, Dhodial. The certificate Exh. D/D was placed with the application. The Assistant Commissioner, Mansehra issued the following Reception Order, Exh. D. E:-

33. "I, Mohammad Shuaib Khan, P. C. S., Acting Assistant Commissioner and S. D. M., Mansehra having caused Noor Ali Shah son of Hadayat Shah of Bai Bala Battal examined by you and being satisfied that the above non-criminal patient is unsound minded and requires further treatment in your asylum hereby direct you to receive him for further treatment. The expenditure for one month to be received from the heirs of the patient and decision for the remission shall be made after wards when the report of the Tehsildar Mansehra about the financial position will be received by this office."

34. The appellant was admitted into the Mental Hospital on 16-4-71 and dis charged therefrom on 13-5-71 vide Exh. D. K. The document Exh. D. W. 1/1 relating to the examination of the appellant by the Board of Specialists and the Medical Superintendent, Government Mental Hospital, Peshawar and the order sheets of the learned Sessions Judge dated 20-6-7Z relating to the unsoundness of mind of the appellant has already been referred to earlier.

9. D. W. 2 Mst. Saffurun-Nisa sister of the appellant, as earlier stated, was examined by the police as a prosecution witness but she was abandoned and not produced as a prosecution witness before the committing Magistrate and the trial. She was, therefore, produced as a defence witness. She deposed on oath that the appellant had become violent about five days prior to the occurrence. He used to say that his enemies had come and he used to beat his shadow during these five days. The accused appellant was suffering from Insomnia and was restless going out and coming in again and again to the house and walking in the courtyard saying that his enemies had come. She stated in cross-examination that when the police came to arrest the appellant, he was inside the kotha and did not run away. P. W. Habib Ali Shah when cross-examined, stated that the appellant was insane about two years prior to the occurrence but he had recovered and was looking after the house where he had been left under the care of his sister (Saffurun-Nisa) and that he was also looking after his Zamindara work. He further stated that after the occurrence, the accused was kept under test because once again he had relapsed. P. W. Hikmat Shah was confronted with his F. I. R. and contradicted the F. I. R. to the effect that while the appellant was having a row with Mst. Saffurun-Nisa, the deceased advised Saffurun-Nisa not to interfere with Noor Ali Shah who is a `Papal' and let him do whatever he likes. Hikmat Shah though closely related to the appellant and their houses are separated by a lane of ten feet width, deposed in cross-examination:-

35. It is not in my knowledge that the accused 'is suffering from insanity since 1967. It is incorrect to suggest that the accused had previously attempted on the life of his brother by giving him knife blows. I do not know if the accused had been a patient in Dhodial Mental Hospital twice before the occurrence."

36. Denial of knowledge by Hikmat Shah about the insanity of the appellant on previous occasions is apparently a suppression of an established fact by him. P. W. Mst. Mir Janey was confronted with her police statement and she deposed in cross-examination that it is incorrectly recorded in her state ment before the police that Saffurun-Nisa was instructed by the deceased not to annoy the accused that he was `Pagal'. P. W. Shaukat Hussain Shah was also confronted with his statement before the police and he denied to have stated therein that his mother called out from her own door to Mst. Saffurun-Nisa that Noor Ali Shah was `Pagal'. In the Medical Certificate Exh. D. D. issued by the Medical Superintendent Government Mental Hospital, Dhodial about five months before the present occurrence, it was opined that the appellant was difficult to communicate. This behaviour was prone to aggression; he had no insight and complained of Insomnia. The doctor also opined that the appellant had then a relapse of unsoundness of mind. This certificate is evidence of the facts mentioned therein, under subsection (3) of section 18 of the Lunacy Act. Subsection (3) of section 18 of the Lunacy Act reads:-

37. "18. (1) .....

(2) ..

(3) Every medical certificate made under this Act shall be evidence of the fact therein appearing and of the judgment therein stated to have been formed by the person certifying on such facts, as if the matters therein appearing had been verified on oath."

38. We have gone through the police diary about the spot inspection by A. S. I. Mohammad Iqbal. While taking aid from his observations of the spot inspection particularly relating to the plank of the courtyard door where the deceased was allegedly standing at the time of occurrence, bullet hole in the plank of the door created by the bullet allegedly fired by the appellant and the position of the entrance bullet wound No. 1 on the body of the deceased on the lateral axillary line near arm pit at left side, it can be reasonably inferred that the appellant on hearing the word `Pagal' from the mouth of the deceased, aimed his rifle at the deceased, the deceased took shelter behind the plank of the door and the appellant even then fired at the door resulting in bullet striking the plank of the door, passing through it and then caused the fatal entrance wound on the body of the deceased.

10. From the above discussion of the prosecution evidence, defence evidence and circumstantial and medical evidence, it can be presumed that the appellant, at the time of occurrence, had an attack of his Schizophranic illness resulting in unsoundness of his mind by reason of which he was incapable o_ knowing the nature of the act or that he is doing what is either wrong o contrary to law. Section 105 of the Evidence Act lays:

39. "105. When a person is accused of any offence, the burden of proving the existence of circumstance bringing the case within any of the General Exceptions in the Pakistan (Penal Code, or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstance."

40. Illustration (a) to this section reads:-

41. "A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A."

42. M. Monir in his "Law of Evidence" (1969 Edition) has dealt with this subject of insanity at pages 265 and 266. The learned Commentator while relying on State v. Balahari Das (P L D 1962 Dacca 467) and Atta Mohammad v. State (P L D 1960 Lah. 111) has observed:

43. "Insanity:--Legal insanity as contemplated in section 84 of the Pakistan Penal Code is different, from medical insanity. In dealing with cases of insanity the first thing to be considered is that the issue of insanity at the time of commission of an offence is in the nature of a defence raised by an accused person, or on his behalf, to criminal responsibility and, therefore, it has to be proved either from the prosecution evidence or independently by the defence. In Law, until the contrary is proved, every man is presumed to be sane and possessed of a sufficient degree of reason to be responsible for his actions. This follows from sec tion 105 of the Evidence Act, which provides that the burden of proving that the case of an accused person falls within an exception is on him. However, this position is not inconsistent with the "rule of reasonable doubt" which pervades our criminal jurisprudence and according to which a doubt occurring in the matter will react on the prosecution case as a whole resulting in a benefit of doubt to the accused.

44. In the case of Safdar Ali v. The Crown (P L D 1953 F C 93) Justice Shahabuddin, J. held as under:--

45. "Section 105 of the Evidence Act was enacted obviously to relieve the prosecution from the necessity of proving the ab3ence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt.

46. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading. The decision in Woolling -ten's case is, therefore, applicable to this country and far from being inconsistent with section 105 it serves as a valuable guide for its inter-pretation."

47. In Deurao son of Ramji v. Emperor (A I R 1946 Nag. 321), the principle of law laid down with respect to section 84, P. P. C. and section 105, Evidence Act, is:--

48. "(i) Penal Code (1860), section 84-Insanity-Burden of proof-Evidence Act, section 105.

49. Every man is presumed to be sane and to possess sufficient degree of reason to be responsible for his crime until the contrary is proved. Every sane person is presumed to intend the natural and probable consequences of his acts. Under section 105, Evidence Act, the onus is on the accused to establish legal insanity within the meaning of section 84, Penal Code. The mere fact that an act or omission is without apparent motive is not by itself sufficient to establish insanity.

50. But if there is other evidence of insanity such a fact may be of impor tance as helping to prove insanity.

(j) Penal Code (1860), section 84-Plea of legal insanity set up-Cir cumstances which should be considered, stated.

51. In all cases where legal insanity is set up it is most material to consider the circumstances which have preceded, attended and followed the crime whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to conceal ment; whether after the came the offender showed consciousness of guilt and made efforts to avoid detection and whether after the arrest he offered false excuses and made false statements."

52. In Ghulam Yusuf v. The Crown (P L D 1953 Lah. 213) Muhammad Jan, J, observed:-

53. "Even if the evidence did not positively prove that the appellant was mad when he committed the crime, I am clearly of the opinion that there is a reasonable possibility that the defence put forward on his behalf might be true. There is no difference between the plea of insanity and any other exception recognised by law in Pakistan and the evidence regarding insanity in this case is sufficient to cast a doubt on the question whether the act of the appellant was done with the intention or knowledge required to constitute the offence of murder. The appellant is, therefore, entitled to the benefit of doubt."

54. In Ghazi Khan and another v. The State (P L D 1965 Quetta 33), it has been observed:-

55. "For entitlement to the benefit of an exception meriting acquittal, the test is not whether the accused has proved beyond a reasonable doubt that he comes within any exception but whether in setting up any defence he has created reasonable doubt in the case of prosecution and thereby earned his right of acquittal. Even if the evidence fails to satisfy the Court affirmatively of the [existence of circumstances bring ing the case within the exception pleaded, the accused will clearly entitle himself to acquittal if upon a consideration of the evidence, as a whole, a reasonable doubt is created in the mind of the Court. (Whether the accused is or is not entitled to the benefit of the exception)."

56. In Abdullah v. The State (1972 P Cr L J 1041) Muhammad Afzal Zullah, J. observed

57. "If the accused is able to prove substantial impairment to his mental responsibility due to even partial or borderline insanity so as to affect his knowledge as provided in section 84, P. P. C. he would be entitled to a favourable verdict on the plea of insanity. As to how he is to establish the above requirement, the answer is that the fact need not be proved as scientifically certain but can be established on the balance of probabilities and on proper resolution of doubts, as held in Safdar Ali v. The Crown Y L D 1953 F C 93."

11. In view of the principle of law laid down in the above-quoted precedent decisions of superior Courts, we are of the view that the appellant is guilty of the commission of the act -f lolling of Msr. Zifrun-Nisa but on the balance of probabilities, he at the time at which he was alleged to have D committed the act he was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law, and thus he is entitled to the benefit of section 84,1 P. P. C. We, therefore, while accepting the appeal, Set aside his conviction and sentence under section 302, P. P. C. and acquit him. However, in view of the finding and opinion of the Special Medical Board contained in Exh. C. W. 1/1 and the evidence of C. W. I Doctor Mohammad Shafiq Khan, Medical Superintendent, Government Mental Hospital, Peshawar and having found that he had committed murder of Mst. Zaffarun-Nisa, order that Noor Ali Shah appellant be detained in safe custody in the Government Mental Hospital, Dhodial where he will be looked after and treated for his B mental illness and also report this action taken to the Provincial Government under section 471, Cr. P. C.

12. The revision petition in motion automatically fails and is dismissed.

58. S. A. H. Appeal accepted.