MUHAMMAD IQBAL Versus THE STATE

ABDUL JABBAR KHAN, J.‑-- Muhammad Iqbal son of Wahab Din aged 40/50 years, has been sentenced to death for the double murders of Mst. Fatima and Jahandad, under section 302, P. P. C., as well as a fine of Rs. 1,000, on each count, or in default of payment of fine, to undergo a further sentence of one year's R. I., by the learned Sessions Judge, Rawalpindi vide his judgment dated 19th May 1973. By the same judgment this convict has been further sentenced to five years' R. 1. with a fine of Rs. 500, on two counts, under section 307. P. P. C. for committing murderous assault on Mst. Resham Jan and Said Hassan P. Ws. In default of ,payment of fine to undergo further six months' R. I. on each of the counts. He has appealed against his conviction and sentences and there is also a Murder Reference before us, for the confirmation of his death sentence. We will dispose of both, the appeal as well as the Murder Reference by this single judgment.

2. The occurrence took place on 13 th August 1969, at about 6‑45 p.m., in the area of mauza Jatal, District Rawalpindi, at a distance of 10 miles from Police Station Mandra. F.

1. R. Exh. P. C. was lodged by Shah Sawar complainant P. W. 10, at 1 a.m. on 14th August 1969, which was registered at Police Station Mandra, by Ghulam Murtaza S. H. O., P.W. 21.

3. The motive as set up by the prosecution is that Muhammad Iqbal appellant abducted Mst. Maqsood Jan P. W. 18, the daughter of Shah Sawar P. W. 10, 2/3 years prior to the occurrence alongwith others. Mst. Maqsood Jan P. W. returned to her home a month after the said abduction. Shah Sawar P. W. instituted criminal proceedings against Muhammad lqbal appellant and his other co‑accused, but all of them were ultimately acquitted. He betrothed his daughter to Nazir Ahmad, a brother of Said Hassan P. W.

12. Fazal Hussain, Jahandad (deceased) and Said Hassan P. W., gave active support to Shah Sawar in getting the machinery of law set into motion, against Muhammad Iqbal appellant and his companions. Mst. Maqsood Jan P. W. started living with Said Hassan after she was engaged to his brother Nazir Ahmad. Muhammad Iqbal appellant contended that Mst. Maqsood Jan P. W. was his lawfully wedded wife and she was snatched forcibly by her parents from him. The case of the prosecution is that due to the above‑mentioned incident of abduction and restoration, Muhammad Iqbal appellant nursed grudge against Shah Sawar and his supporters for his prosecution as well as for taking away Mst. Maqsood Jan P. W. from him.

4. The detail of the incident has been narrated by Shah Sawar in F. I. R. Exh. P. C. which is as follows :‑

On the fateful day at about 6 p.m. Shah Sawar complainant P. W. 10, was present at his house. He was entertaining the visitors on account of the death of his grand‑daughter Mst. Aisha. His relations Said Hassan P. W. and Mir Afzal had come to condole with him while his real nephew Fazal Hussain son of Jehandad who was working in paper Mill, Naushehra had also come to meet him. Fazal Hussain, his nephew, took Said Hassan and Mir Afzal alongwith him to show them his newly built house. When all of them reached near the house of the complainant Shah Sawar, they found Muhammad Iqbal appellant standing with a revolver in his right hand and chhura in his left. As he saw these persons arriving he challenged them and fired with his revolver at Said Hassan who was hit at his face and on the left side of his nose. This Said Hassan P. W. also received bullet injuries under his right ear, on his left arm and on his right shoulder. After injuring Said Hassan P. W., the appellant ran towards Jahandad deceased whom he found standing before his own house and inflicted stab wounds with his chhura on his neck. Jahandad deceased fell down at the spot and succumbed to his injuries. This attack was also witnessed by Fazal Illahi P. W. 11 and Mst. Irshad Begum P. W. 16, besides the complainant himself. After killing Jahandad, the appellant ran towards southern lone while holding revolver and blood‑stained chhura, in his hand. He came across Mst. Resham Jan P. W. 14 who was returning from the house of Ghulam Hussain after offer ing her condolence and firmed at her with his revolver. She was hit under her left ear. Mst. Karam Noor and Muhammad Khan P. W. 13 witnessed this incident as they happened to be there. Then the appellant straight away proceeded to the house of Fazal Hussain where he found Mst. Fatima (deceased), the widow of Jahandad (deceased), kneading flour. He lifted her face upward and fired three shots in succession which hit, on her left eye, below the left ear and her mouth. This occurrence was also seen by Mst. Irshad Begum P. W. 16 and Mst. Farzan P. w. 17 who happened to be present in the house of the deceased. These ladies raised hue and cry on which the appellant made good his escape with his weapons. He was seen running by Mst. Sahib Ji who had also arrived at the spot.

5. After recording the F. I. R. Exh.

11. C., the Investigating Officer Ghulam Murtaza S. H. O. (P. W. 21) reached the spot of 6 a.m. on 14th August 1969. He prepared inquest report Exh. P. U. and injury statement Exh. P. T. in respect of the dead body of Jahandad deceased. He also prepared injury statement Exh. P. R. and inquest report Exh. P. S. relating to the dead body of Mst. Fatima deceased. Mst. Resham Jan was examined by this witness and her injury statement was prepared by him vide Exh. P. Q. He also prepared injury statement of Said Bussan vide Exh. P. O. After spot inspection he collected blood‑stained earth from the place where Mst. Fatima deceased was murdered and took it into possession vide memo. Exh. P. G. Some pieces of bricks which were blood‑stained were also taken into possession where Jahandad deceased was injured, vide memo Exh. P. F. He sent the injured for medical examination and forwarded the dead bodies for autopsy to the mortuary. He got prepared site‑plans Exh. P. N., Exh. P. N./1 and Exh. P. N./2, through Qamar‑ud‑Din Siddiqui Draftsman. The accused was arrested by him on t 5th August 1969, and on the same day he recovered revolver P. 1 and chhura P. 2, at the instance of the appellant with live cartridges five in number P. 3/1‑5, empty cartridges nine in number P. 4/ 1‑9, lying above the rafter of the ceiling of the cattle shed, from where these articles were recovered. He took them into posses sion and made three separate sealed parcels for revolver P. 1, chhura P. 2 and for empty cartridges. He prepared memo. Exh. P. D. in respect of the revolver, live cartridges and empty‑cartridges and memo. Exh. P. E. in respect of chhura P.

2. All the above mentioned sealed parcels were deposited with Muharrir A. S. I. Abdul Ghafoor alongwith other articles taken into possession by him.

6. On 14th August 1969, Dr. Muhammad Yamin conducted post‑mortem examination on the dead body of Mst. Fatima deceased vide post‑mortem report Exh. P. Y., and found the following injuries on her person:‑

(1) One gunshot wound of entrance ' x ' x through and through oblique on the front of neck in the middle. Its margins were blackened and tatooing.

(2) One gunshot wound of exit ' through and through on, the left side of neck below occipital back to the left ear. On dissection it communicated with injury No. 1.

(3) One gunshot wound of entrance "x 'x 1' on the left eye. The eye was collapsed. Upper left eyelid was black trachea is perforated through and through under injury No. 1.

In his opinion the death was caused due to shock and haemorrhage resulted from injury Nos. 1 and 3 which were fatal and sufficient to cause death in the ordinary course of nature.

The same doctor performed autopsy on the dead body of Jahandad son of Allah Dad deceased vide his report Exh. P. Z. and found the following injuries on his person:‑

(1) One punctured wound 2 ' x 1' x 2' on the right side of back and outer part of neck and going towards the centre line. Right side of neck showed big blood clots.

(2) One punctured wound 2' x 1/2' x 2' on the back and outer side left side of neck going to the contre, ante-mortem.

(3) Incised wound 1' x ' x ' on the outer side of left fore‑finger. Body of 5th cervical vertebra is partially cut under both the injuries and the cut is in bone.

In his opinion death was caused due to shock and haemorrhage resulted from injury No. 1 which was sufficient to cause death in the ordinary course of nature. The injuries Nos. 1, 2 were caused with a sharp‑edged pointed weapon.

On 14th August 1969, Lady Doctor Hamida Ejaz W. M. O. Civil Hospital, Gujjar Khan, medically examined Said Hassan P. W. and found the following injuries on his person:‑

(1) A firearm wound ' x ' on the right side of nosal bridge.

(2) A firearm wound ' x ' in front of the left ear.

(3) A firearm wound " x ' on the medial side of the right fore‑arm 4' from the right wrist.

(4) A firearm wound ' x ' about 1 ' from the injury No. 3.

(5) A firearm wound 'x on the left buttock at the upper part.

Charring on till the wounds; present. All the injuries were simple in nature.

On the same day at 1‑30 p.m. Lady Doctor Hamida Ejaz P. W. 1, medically examined Mst. Resharn Jan P. W. and found the following injuries on her person:‑

(1) A fire arm injury ' x ' on front of the right ear.

(2) Charring was present.

The injury vas: declared simple.

7. The case of the appellant was that of bare denial. He however, stated before the Committing Magistrate that Mst. Maqsood Jan P. W. was forcibly snatched from him by her parents on account of which he occa sionally became lunatic. While making his statement before the trial Court under section 342, Cr. P. C he expressed his ignorance about the occurrence.

8. It will be useful to point out that the appellant when produced before the Inquiry Magistrate, made an application to the effect that fie was of unsound mind, on 26th November 1969, 11 days after the challan was received in that Court. On 24th February 1970, a letter alongwith a medical certificate was received which disclosed that the appellant was suffering from, epileptic fits etc. and it was suggested that the matter he referred to Mental Hospital so as to ascertain whether the appellant was fit to stand his trial. On 4th March 1970, a request on behalf of the appellant was made for his medical examination in the Mental Hospital. On 4th April 1970, the Court passed an order that the appellant be sent to Mental Hospital. The appellant, in consequence of this order, remained in Mental Hospital from 8th March 1970, to 21st December 1970. On 18th December 1970 in the meeting of six Months' Visitors Committee it was held that the appellant was fit to stand his trial. The appellant was transferred to Camp Jail on 22‑12‑1970. On 2nd January 1971, the Committing Court passed an order to start commitment proceedings against the appellant arid on 16th January 1971, the appellant appeared in the Court under the police custody. It was on 10th February 1973, that the, commitment proceedings were completed against the appellant and he was committed to the Court of Session. The defence has placed on record Exh. D. Q., a nikahnama between Mst. Maqsood Jan and the appellant dated 7th March 1968, Exh. D. D., dated 16th August 1969., a robkar from the Court to, the effect that the appellant be confined in judicial lock‑up; Exh. D. J. (copy) and Exh. D. Q. (in original) dated; 14-2-1970, a letter from the Medical Superintendent D. ff. CC. Hospital. Rawaipindi, to the Magistrate for referring the appellant to the Mental Hospital, Exh. D. H. dated 4th March 1970, a letter from the Court (with reference to letter dated 14‑2‑1970 Exh. D. .T. and D. O.) to the Mental Hospital for obtaining medical report; Exh. D. F. dated 8‑3‑1970, is an admission sheet of Mental Hospital; Exh. D. E. dated 8th March 1970, is a document by which the relation of the patient is required to give consent for his treatment; Exh. D. K. dated 28th April 1973 is a letter from the Mental Hospital to the Magistrate saying that the appellant who was admitted in the hospital on 8th March 1970, was still under observation;

Exh. D. G. dated 24th December 1970, is just a reminder from the Court to the Mental Hospital authorities for sending medical report.

It will be advantageous to mention that the appellant produced in his defence three Defence Witnesses namely D. W. 1 Dr. M. Rashid Chaudhry Visiting Neuropsychiatrist Mayo and Mental Hospital, Lahore Mushtaq Hussain son of Lal Khan, a real nephew of the appellant and Dr. Shari" Khan A. M. O. District Jail Rawalpindi. We will discuss this evidence at its proper place but first we will deal with the evidence produced by the prosecution as it is well settled law that it is for the prosecution to establish its case beyond a shadow of doubt so as to warrant the conviction of persons charged with any offence.

9. The case of the prosecution rests on the following categories of evidence:---

(i) the evidence of motive.

(ii) the ocular evidence ;

(iii) the evidence of recovery of revolver P. I and blood‑stained chhura P. 2;

(iv) the evidence of Ballistic Expert and the Serologist; and

(v) the medical evidence.

10. We find that Shah Sawar complainant P. W. 10 reported the matter to the police without any delay and has been fully corroborated on all material points by Said Hassan and Mst. Resham Jan, both the injures witnesses. The story of motive has been stated by Ms;. Maqsood Jan P. W. was the daughter of Shah Sawar, and Said Hussain P. W. 12 with whose brother Nazir Ahmad, this Mst. Maqsood Jan P. W. was engaged and was living under his protection at the time of the incident. Moth these witnesses have Supported Shah Sawar P. W. 10 regarding the story of abduction and restoration of Mst. Maqsood Jan P. W. and this finds further support from the appellant's own admission before the Committing Magistrate where he has clearly stated that Mst. Maqsood Jan e. W. was forcibly snatched by her parents from the appellant. The evidence of motive provided by Said Hassan and Mst. Resham Jan P. W. is quite con vincing as these witnesses were in a position to know about it, as being closely related to Shah Sawar complainant. It is clearly made out from their evidence coupled with the appellant's own admission that he was nourishing grudge against Shah Sawar P. W. as well as his supporters and relations who were instrumental in depriving him from the physical company if Mst, Maqsood Jar; P. W. Thus it can be safely presumed that Muhammad Iqbal appellant had a direct motive to wreck vengeance against Said Hassan Hasan P. W. and Jahandad deceased and also against others who were on their side.

11. The perusal of evidence disclosed that Fazal Ilahi P. W. 11, a relation of Shah Sawar P. W. 10, has narrated the occurrence relating to Die death of Jahandad deceased in a straightforward and impressive manner and lass givers full support to the version of this incident as given in the F. I. R. by Shah Sawar Y. W. Similarly. Muhammad Khan P. W. 13 has provided an eve‑witness account of the attack on Mst. Resham Jan P. W. He has corroborated Mst. Resham Jan's version in toto and without any contradiction. This witness although a relation of Mst. Resham Jan natural witness who was living close to the place of occurrence. Mst Resham Jan P. W. alongwith Mst. Karam Noor had gone to his house to offer condolence of his niece. Although he has admitted in his cross‑examination that the appellant had filed a case under section 498, P. P. C. against him and his wife but this fact in no way makes him a false witness, as he had no other enmity besides this incident and his testimony which is otherwise true and impressive cannot be excluded, for the mere reason that a case under section 498, P. P. C. has been lodged by the complainant against him as the offence under section 498, P. P. C. is just a bailable and a non‑cognisable offence. Such like petty litigations or criminal proceedings do not provide a strong motive to the person complained against to commit perjury in a serious offence of murder. Mst. Irshad Begum P. W. 16 and Mst. Farzan P. W. 17 had given a vivid account about the murder of Mst. Fatima deceased at the hand of the appellant, fully supported by the medical evidence. We have no reason to discard this evidence in any manner whatsoever. These ladies being the inmates of the house, were the most natural witnesses and thus their evidence is worthy of full credence. The above mentioned ocular evidence finds corroboration from the recovery of revolver P. 1 and their chhura P. 2, recovered from the appellant, at his instance. The attesting witnesses of these recoveries are Bashir Ahmad P. W. 19 and Muhammad Sharif P. W. 20 who have given truthful account and there is nothing on the record to show that these witnesses were either interested or inimical towards the appellant. Their testimony is worthy of reliance and the learned trial Court was fully justified to place implicit faith on their evidence. The learned trial Court has elaborately discussed the entire evidence and our review of the same fully confirms the conclusions arrived at by it and thus we are of the considered opinion that Muhammad Iqbal appellant has rightly been held responsible for committing the murders of Jahandad and Mst. Fatima deceased and also for committing murderous assault on Mst. Resham Jan and Said Hassan P. Ws. by the learned trial Court.

12. We have been addressed by the learned counsel for the appellant who has neither controverted the testimony of the prosecution witnesses nor has seriously challenged the factum of murders of Jahandad and Mst. Fatima committed by Muhammad lqbal appellant and murderous assault made by him on Mst. Resham Ian and Said Hassan P. Ws. The learned counsel has come forward only with the plea that the crimes committed by Muhammad Iqbal appellant were not punishable under the law as the appellant was an insane person at the time he committed these crimes. He has further submitted that in view of Abdullah v. State (1972 P Cr. L J 104) there was no burden of positive proof as required by section 105 of Evidence Act, 1872, on the appellant to establish his insanity and that the appellant would be consider. ed to, have discharged the burden if the entire evidence for the prosecution and defence, if any, furnishes some reasonable grounds for inference that by reason of unsoundness of mind, at the time of the commission of the offence the accused was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. He has placed reliance on Safdar Ali v. Crown (P L D 1953 F C 93). In view of the above legal position he has pleaded that Muhammad Iqbal appellant was certified by the Medical Superintendent, D. H. Q., Hospital, Rawalpindi (the person holding a decree of M. R. C. P.), vide Exh. D. N., as a person who was violent‑with memory past and present impaired and suffering from epileptic fits. He has also relied on the report of Medical Officer Exh. D. 1, wherein it was stated that Muhammad Iqbal appellant was unable to tell his name or parentage or the name of his brother. He talked of irrelevant matters and was violent. The learned counsel contended that Exhs. D. L. and D. N. were duly proved by Dr. Sharif Khan D. W. 3, A. M. O., D. H. Q. Hospital, Rawalpindi, as both the Doctors who had made the observation regarding the appellant and his mental condition being out of the country. The learned counsel has also contended that the above‑mentioned observations indicated towards the affected mind of the appellant which was noted by the experts and found further support from the past history of this person, in the evidence of Mushtaq Hussain D. W. 2, the real nephew of the appellant. According to this witness the appellant was having fits of insanity two years before his arrest and had a fit only 15 days before the present occurrence whereupon his father tied him down with a cot. It was further stated by this witness that 20 days before the occurrence the appel lant had killed a she‑calf by giving blows by a danda and was also tied down on that occasion.

13. It may be mentioned here that the appellant summoned Dr. M. Rashid Chaudhry, in his defence who appeared as D. W. I but concluded that he failed to find anything abnormal in the behaviour of the appellant although he i.e. the appellant remained under his observation from 8th March 1970 to 21st December 1970. He declared that he was ultimately of the view that the appellant was nothing but a malingerer. This Doctor was recalled at the request of the learned counsel for the appellant, by us, despite the fact that this request was vehemently opposed by the learned State counsel. Our decision to allow the defence to produce this piece of additional evidence was motivated for our quest to know from this expert as to why he came to the conclusion that the appellant was a malingerer, as in his earlier evidence as D. W. 1, we could not find any reasons given by him to this effect. An elaborate and exhaustive cross‑examination was led by the learned counsel for the defence, for two successive dates, which has been brought on the record and which we will refer while discussing the plea of insanity raised by the learned defence counsel. Before we discuss the merits of the defence evidence produced by the appellant it has become necessary for us to discuss the disease of epilepsy which the defence has characterised as a form of insanity by itself. According to the learned defence counsel this disease impairs the brain tissues of the victim and makes him incapable of understanding the result of his acts.

14. Before entering into the definition and description of epilepsy it will be useful to quote from 'Law of Insanity' by George A. Smoot, Chap. 14, page 372:‑

"One of the essential ingredients of crime is intent. Intent involves an exercise of the reasoning powers, in which the result of the criminal act is foreseen and clearly understood. Another essential element of crime is animus. Animus involves an exercise of reasoning powers, in which the result of the criminal act is recognized as being contrary to the rules of law and justice. If a person is mentally unsound, one or both of these elements may be, and usually are, wanting. An idiot may set fire to a house, without understanding that it will result in the destruction of the house, or that it is forbidden by law. In such case, there would be an absence of both intent and animus. A monomaniac may kill a man under the insane delusion that the man is an enemy who is about to kill him. Here there is an intent, as the monomaniac clearly understands that the act will result fn the victim's death; but there is a lack of animus, because he believes that he is justified, and that the act, therefore, is right in the sight of the law. It is clear, then, that where the mind of the perpetrator is so diseased as to exclude the presence of an intent or animus in the commission of the crime in question, he should not be punished as a criminal."

15. Oliver Wendell Homes (cited by Von Storch, 1930) said "If I wished to show a student the difficulties of getting at truth from medical experiment, I would give him the history of epilepsy to read."

The history of epilepsy is a long one, perhaps as long as man himself. In. the olden days when all men believed the world to be peopled by unseen spirits and when they saw a man suffering from an epileptic attack, they considered it not a disease but an invasion by gods, demons or evil spirits. We find in the history of the mankind that instead of curing this disease people turned to magic and to incantations for its cure and looked to supernatural powers, for relief. This disease has been given dozens of names by the advent of centuries. In Greece it was known as the disease of Hercules, "Morbus Horculi" as well as "De Morbo Sacro", i.e. the sacred disease; Romans called it as "Malum Comitiale" or "morbus comitialis", the committal disease. Plato, the famous doctor and Philosopher referred to epilepsy as the "divine" disease. While in later period Martin Luther, the reformer, called it "morbus demoniacus". These views prevailed for a very long time and it was only that the "Hindu system of medicine" came into light and it was considered as a disease in which an individual loses the faculty of past cognitions. The 'Sushruta Sambita' a very famous work of the Hindu system of medicine, has classified this disease into four distinct types; viz: Vataja. Pittaja, Kaphaja an Samipataja, meaning thereby that they were borne of the wind, bile, phlega and of all the faults together respectively. We find that in (130‑201 A. D.) Galen found that "But if e is not only convulsion of the whole body, but also interruptions of the leading functions, then this is called 'epilepsy' ". In middle ages Hally hen Abbas, who died in 994 A. D. agreed with Galanic idea of epilepsy and according to him the ,person sufi'ering from it fell down and had epileptic convulsion . . . . an evil ascended in the interior of the body from the thumb to the head. This Arabian Writer contributed to the view that epilepsy "is a sickness which prevents animation of the members, the operation of the senses, movement, and standing erect, and that is because of obstruc tion from a harmful substance coming to the anterior ventricles of the cerebrum." It was in (149'7‑4558) that the writers and medical men started thinking epilepsy as curable although the medical men in the earlier period considered this as an incurable disease. Temkin on page 159 on his strategy, writes:‑

"It is the physician's office to know everything about diseases and in particular about such severe afflictions as epilepsy. Doctors who . . . pretend that epilepsy is incurable, are frauds. If the physician loves his patients, then he will obtain the necessary knowledge for his cures, for God has provided remedies against all diseases including epilepsy."

It is interesting to note that this disease was also considered 'contagious', All Professors in the 15th century wrote: "Therefore, neither talk nor bathe with them, since by their mere breath they infect people." The entire medical history of this disease if traced will show that it was considered almost devastating and dreadful disease and its patients were considered torpid, dispirited, dejected and sometime it was considered that it created disorders in the understanding to such a degree that a total infatuation took place. It was in 1621‑75, 'that this came under pathological study supple mented by extensive clinical observations. In 19th century by organization of Mental Hospitals, in which epileptic patients were also cared for, the study of epilepsy entered a new phase. There was a demand for special institutions for epileptics and it was in response to this demand that the National Hospital for the Paralysed and Epileptic, Queen Square, London, was founded in 1859. With the accumulation of new facts and more knowledge through E. C. G. it was found by all the modern workers that epilepsy is a symptom and not a disease per se. With this change of concept, the old superstitions. misunderstandings, the pessimism and antipathy, towards the diseased started disappearing. All what we found from the study made by various Authors of eminence the fact emerges as irrebuttable that epilepsy is always a physiological event and physiologically it may be D regarded as a disturbance in the electro‑physico‑chemical activity of the discharging cells of the brain, a disturbance that may be produced by a variety of irritative stimuli impinging upon them from within or without.

It may be mentioned here that the above discussion regarding the history of epilepsy, we have relied on a desertation written by Dr. Muhammad Rashid Chaudhry, in his book "Mental Deterioration in Epileptic Children".

16. N. J. Modi, in his book on Modi's Medical Jurisprudence and Toxicology, has dealt with the subject of Epileptic Insanity from page. 406 to 407. According to him "Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but a great majority of them suffer from mental deterioration. Religiosity is a marked feature in the commencement, but the feeling is only emotional and per verted. Such patients are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest cause. The disease is generally charac terized by short transitory fits of uncontrollable menia followed by complete recovery. The attacks, however, become more and more frequent. Lastly, there is general impairment of the mental faculties with loss of memory and self‑control. At the same time hallucinations of sight and hearing occur, and are followed by delusions of a persecuting nature. Epileptic insane persons deprived of all moral sensibility are given to the lowest forms of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long standing cases there is usually feeble mindedness leading to progressive dementia of the most degraded character. True epileptic insanity is that which is associated with epileptic fits. This may occur before or after the fits, or may replace them, and is known as pre‑epileptic insanity, post‑epileptic insanity and masked or psychic insanity."

He has also referred to pre‑epileptic insanity and has observed:‑

"This is very common and may replace the epileptic aura, lasting in some cases for hours or even days. It is characterised by violent fits of maniacal excitement or by depression, fussiness, suspiciousness and general malaise. Hallucinations of various kinds are experienced and, owing to delusions, the patient may commit violent assault, or may bring false charges against innocent persons. Sometimes, the patient may refuse to take any food."

He has defined post‑epileptic insanity in the following terms:‑‑‑

"In this condition stupor following the epileptic fit is replaced by automatic acts of which the patient has no recollections. The patient is confused, fails to recognize his own relatives, and wanders aimlessly about. He is terrified by visual and auditory hallucinations of a religious character and delusions of persecution, and consequently may commit crimes of a horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempts to conceal them at the time of perpetration but, on regaining conscious ness, may try to conceal them out of fear."

In view of the above discussion it clearly emerges that epilepsy is a disease fraught with dangers to the life of the persons who suffer from it and to the persons who come in close contact with him, but to determine whether an epileptic person is insane and thus not responsible for his acts, it would be advantageous to refer to the observations of Dr. M. Rashid Chaudhry; C. W. 2, who has clarified the position regarding this crucial issue. The learned Doctor in his statement, stated that epilepsy does exhibit mental dullness; slowness of disassociated thinking; impairment of memory; apathy; clouded state of mind; daze reaction; anxiety; violence and suspiciousness but observed that these symptoms are usually present in an epileptic personality but not in an epileptic person. He further added that these symptoms usually appear after the fit and if the fits are more frequent, then the patient may become psychoactive. According to him this state was called epilepsy psychoneurosis and it might stimulate schizophrenia. According to this learned witness epilepsy was a disease which can be of three types only i.e. minor, major and psychomotor. Minor epilepsy was more prevalent among children and a patient had numerous fits in a day without loss of consciousness. In case of major epilepsy the patient would have a convulsive attack and would have lost consciousness during a fit. Psychomotor epilepsy was epilepsy of new variety, according to him. In such case the patient would not necessarily lose consciousness but there would be psychological disturbance. This new variety was also known as temporal lobe epilepsy. He however, stated that all the three types were physiological and the disease resulted from psycho chemical changes in the brain tissues. He also confirmed to our earlier discussion that the disease was because of brain damage either to its tissues or to its chemistry. He was of the opinion that in all cases resulting in epilepsy there had to be soma injury to the brain. The learned Doctor made distinction between cases in which persons had occasionally attacks of epilepsy and thus did not categorise them in the class of persons who were prone to act oblivious to the consequences except in cases of epileptic personality. He positively stated he had not come across such like cases except in the advance cases of epileptic personalities because those persons could behave pre‑post or during a fit because it was a part of their personality. He denied the suggestion that pre‑epileptic insanity is characterized by violent fits of maniacal excitement or by the expression fussiness and suspiciousness and general malaise. According to him the term pre epileptic personality was not a universally accepted expression and thus he refused to contribute to the above suggestion. When asked whether an epileptic may suffer from hallucination of various kinds or during such hallucination may commit violent assault, he only conceded this phenomenon in advance cases of epileptic personality.

In the instant case what we have to decide is whether Muhammad Iqbal appellant was in fact an epileptic patient or not and whether be had com mitted the crime with which he is charged while understanding the nature of his act or it was the result of the disease by virture of which he was rendered insane. Dr. M. Rashid Chaudhry, C. W. 2, while dealing with the condition of the appellant who remained under his observation, for about nine months has stated that during his stay in the Mental Hospital the appellant did not suffer from any epileptic fit. Nothing was brought to his notice during the period he was under his observation in the hospital that he had a history of being an epileptic as he had never suffered a fit during his stay in the hospital. According to him if the appellant would have been suffering from epileptic fits, then he must have been put on Phenabarbitone (tablets) while in the jail hospital, a drug which is anti‑convulsive. In his opinion if a patient who once gets a fit of epilepsy and is administered Phenabarbitone or any anti‑convulsive drug of the same kind, then he is likely to have more fits when these drugs are withdrawn. In the case of the appellant he was of the opinion that as he did not suffer from any epileptic fit during his stay in the Mental Hospital, the opinion given by the jail Doctor that the appellant was an epileptic person, seems unwarranted, if he would have been administered Phenabarbitone after the fit which he should have been administered normally, then there was no reason that be should not get more fits during his long stay in the Mental Hospital. This witness was of the firm opinion that the close study of the appellant by him as well as by his assistants, fully revealed that the appellant was a person who was posing himself to be what he was not. Thus he was declared by him as a malingerer. He further deposed that he examined the appellant on different occasions and after having observed him so, for some time, he eventually arrived at a conclusion that pattern of his behaviour did not show any abnormalities and thus he was feigning of a disease by which he was not suffering.

To an answer while examined by the learned counsel for the State he categorically stated that there was no evidence before him that the appel lant was suffering from epileptic insanity at the time of commission of crime. He also conceded that there was no record by which it could be inferred that the appellant was ever admitted in any of the Mental Hospitals before. In his opinion, in advance case of epileptic insanity where persons got successive or frequent fits of epilepsy for long duration of time and thus developed an epileptic personality resultant from frequent attacks of epilepsy, causes deterioration of mind. While taking into consideration the evidence of Mushtaq Hussain D. W. 2, the real nephew of the appel lant, we are of the considered opinion that his mere bald statement without any strong corroborative evidence and that too from the mouth of a very close relation, does not inspire confidence. This witness, if he had any data regarding the past history of epilepsy of the appellant, would have come forward either before the police or before the Committing Magistrate, to advance his proposition and thus his failure to associate himself with the investigation and the inquiry of this case, makes his statement unworthy of reliance. Moreover we do not find him coming forward even at a stage when he was sent to Mental Hospital to assist D. W. 2 Dr. Muhammad Rashid Chaudhry (now C. W. 2) or any of his assistants, with the, past history of the appellant. The learned trial Court has correctly rejected his evidence as of no consequence. On the other hand we do not find any reason to discard the weighty evidence of Dr. Muhammad Rashid Chaudhry (C. W. 2), an eminent expert who has proved in an unequivocally terms that the appellant was never an epileptic patient. The appellant in this H case even by his conduct has not behaved like an insane person. He was selective in choosing his enemies and has attacked and killed only those persons who were connected directly or indirectly with Mst. Maqsood Jan P. W's. family. If he would have been a person of deranged mind he would certainly have remained available at the spot because he would have been hardly conscious of his acts but we find that he ran away from the place of occurrence in order to avoid his arrest. He further acted in a crafty manner by concealing weapons of offence which leads us to believe that he was capable of thinking and was acting with designs. Thus we feel fortified in our view, by the observation quoted in the earlier part of our judgment by George A. Smoot, on law of insanity, that the mind of the appellant was not so diseased as to exclude the presence of an intent or animus in the commission of this crime.

18. In the light of our above discussion we are of the firm belief that Muhammad Iqbal appellant committed the murders of Jahandad and Mst. Fatima deceased and launched a murderous assault on Mst. Resham Jan and Said Hassan P. Ws., while in full possession of his senses, in order to eliminate those who had taken away Mst. Maqsood Jan P. W. from him, whom he claimed to be his wife. There appear no extenuating circum stances in his favour which may call for any leniency and the learned trial Court was fully justified to impose capital punishment for his dastardly and violent acts. We dismiss his appeal; maintain his conviction and sentences awarded to him by the trial Court. The sentence of death imposed upon him is hereby confirmed.

Appeal dismissed.