SHAUKAT Versus STATE
SAJJAD ALI SHAH, J.--- Appellant, named above, has been convicted for offence under section 302, P. P. C. and sentenced to death vide impugned judgment dated 25-11-1980, of learned Vith Additional Sessions Judge, Karachi. There is also reference before us for confirmation of death sentence and we propose to dispose of both the appeal and the reference by one common judgment. After hearing the learned counsel for each side on 3-11-1982 by short order we have dismissed the appeal with modification that sentence is reduced from death to life imprisonment and rejected the reference for reasons to be recorded later, which follow now :-
2. Prosecution case in nut-shell is that appellant inflicted knife blows to his wife Mst. Sabira Bibi in their house situated near Mushtaq Masjid on Islam Road No. 2, Afshani Gali in Kalakote area on 6-8-1978 at about 6.00 p. m. on her cries P. W. 5 complainant Ghulam Rasool, Muhammad, Khan Muhammad and Karim Bux were attracted to the spot. The door of the house was locked from inside and the witnesses forced open the door in the result whereof latch of the door got broken down. Witnesses went inside and saw appellant in the process of giving knife blows to his wife, who fell down injured. Appellant on seeing witnesses threatened them with knife and ran out from the house and witnesses raised cries of "Pakro! Pakro!". Outside Ghulam Nabi attempted to catch the appellant but succeeded only in grabbing blood-stained knife from him and appellant ran further but was soon over-powered by two constables Abdul Wali and Abdul Razak, who happened to pass by and responded to the call of witnesses. Ghulam Nabi handed over the knife recovered from appellant to the constables. Complainant and other witnesses went inside the house and took injured Mst. Sabira Bibi in the car to the hospital. On the way on inquiry by complainant, Mst. Sabira disclosed cause of attack by the appellant to be the fact that appellant demanded from her golden bangles for sale and she refused on the ground that they were given to -her by her father. However, before reaching the hospital Mst. Sabira succumbed to her injuries. In the meantime, constables who apprehended appellant, took him to the police station and S. H. O. Imdad Ali, who came to know about the incident rushed to the Civil Hospital. He recorded statement of the complainant and sent it to P. S. Kalakote for incorporation in 154, Cr. P. C. register. He then recorded statements of other witnesses, prepared inquest report and handed over the dead body for post-mortem examination. S. H. O. then visited scene of offence and recov6red blood-stained dopatta and a piece of cloth and broken latch of the door. He prepared Mashirnama of scene of offence and recorded statements of witnesses. Back at. the police station he recovered blood-stained clothes of appellant and sealed them. He sent clothes and knife recovered from appellant to the laboratory of Chemical Examiner. After completing all steps of investigation challan was presented in the Court.
3. Before the trial Court prosecution has examined in all 14 witnesses in support of the case. P. W. 1 is complainant Ghularn Rasool, who is wrongly typed as.P. W. 3 in the index of paper-book. Complainant is an eye-witnesses. P. W. 2 Karim Bux, P. W. 3 Muhammad and P. W. 4 Khan Muhammad alias Annan are also eye-witnesses. These four eye-witnesses have fully supported the prosecution case. P. W. 5 is Ghulam Nabi, who snatched blood-stained knife from the appellant and was present at the time of his apprehension. He has also attested memo. of seizure of knife. P. W. 6 is constable Abdul Razak, who alongwith another constable appre hended the appellant near the place of occurrence. P. W. 7 is Mashir Muhammad Siddique, who has attested Mashirnama of scene of offence Exh. 14 and Mashirnama of recovery of blood-stained clothes from the spot Exh.
15. P. W. 8 is Mashir Karim Bux, who has attested Mashirnama of recovery of blood-stained clothes from appellant Exh.
16. P. W. 9 is Muhammad Khan A. S. I., who registered F. I. R. and produced the same in the court as Exh.
18. P. W. 10 Mahboob Hussain constable, who is corpse-bearer and produced report of post-mortem examination in the Court as the doctor had obtained his signature thereupon for delivery of the same to the S. H. O- P. W. 11 is Dr. Iqbal Ahmed, who has conducted autopsy on the dead body of Mst. Sabira and found four incised wounds on left side of chest. According to the doctor injury No. 3 was sufficient to cause death in the ordinary course. Death was due to shock and haemorrhage resulting from injuries which were caused by sharp cutting weapon. P. W. 12 is Mr. Ali Anwar Shah, Additional City Magistrate, who has recorded 164, Cr. P. C. statements of witnesses and produced the same as Exhs. 24 to 29. S. H. O. Imdad Ali has been examined as P. W. 13, who has investigated the case as described above. P. W. 14 is Dr. Anwar Ali, who examined appellant on 7-8-1978 and found one lacerated wound on his right eye-brow with no involvement of bone. Prosecution also produced report of Chemical Examiner Exh. 32, which is to the effect that Knife, clothes of appellant and deceased sent in separate sealed parcels were found to be stained with human-blood.
4. Before the trial Court appellant in his statement under section 342, Cr. P. C. denied . prosecution allegations and stated that clothes recovered from him were stained with his own blood which had oozed from his injury on right eye-brow. This injury was caused by P. W. Ghulam Nabi, who kicked him while he was taking his injured wife Mst. Sabira in his lap. Appellant further stated that eye-witnesses are related inter se and have falsely implicated him in this case. Appellant further before the trial Court gave his own version of the incident, which shortly stated is to the effect that he was sitting outside his house when he heard cries of his wife. He went and found the door of the house closed from inside. He kicked the door open with the result that latch became broken. He saw a person climbing over the wall leaving behind the knife near his wife, who was lying injured. He took his wife in his arms and asked her as to who had injured her but she could not reply and died. His clothes got soiled with her blood. In the meantime, P. W. Ghulam Nabi gave him a kick blow which hit him on his eye-brow and he became unconscious and regained senses at the police station. Appellant further stated that he has been falsely implicated in this case and declined to examine any witness in defence.
5. We have heard the learned counsel for appellant and for the State and have also appraised evidence brought on the record with requisite care. Prosecution has produced different pieces of evidence, such as ocular testimony circumstantial evidence and motive. So far ocular evidence is concerned, prosecution has examined four eye-witnesses, who have wholeheartedly, supported prosecution case and their evidence could not be successfully assail ed on any ground. The only thing which could be said against them is that out of four eye-witnesses three namely complainant Ghulam Rasool, Karim Bux and Muhammad are related inter se and to the deceased, complainant Ghulam Rasool is paternal cousin of deceased Mst. Sabira, who was also sister of wife of complainant. That way complainant and appellants are also related to each other. Likewise Karim Bux is cousin of deceased and maternal cousin of complainant. P. W. Muhammad also admits relationship. The remaining eye-witness Khan Muhammad is independent and unrelated. All these four eye-witnesses, have given satisfactory and convincing explanations to show their presence near the spot at the relevant time of incident to be attracted on cries. These eye-witnesses claim to be present in the house of another witness by name Ghulam Nabi and this house is adjacent to the house of appellant Even otherwise complainant lives in the same building on the ground floor and the house of appellant is on the first floor as is stated in mashirnama of scene of offence Exh.
14. Complainant has not claimed to be present in his own house but in the adjacent house as that is the correct version and this shows truthfulness. 1t is the case of the prosecution that other eye-witnesses were also present in the adjacent house. No question was put to the com plainant before the trial Court as to why he was present in the adjacent house. Had it been done complainant would have explained. However, P. W. Karim Bux has stated that Mst. Hajiani Zohra was ill in the house of P. W. Ghulam Nabi and he bad gone there to give her injection as he is compounder and he found complainant and other eye-witnesses present there alongwith family members. From this it appears that witnesses were present in that house to see the ailing lady. P. W. 3 Muhammad has stated in his deposition before the trial Court that he had gone to the house of his `Khala' where Hajiani mother of Mst. Sabira was sick and this house was adjacent to the house of appellant. This fact shows that P. W. Muhammad is also related and he has admitted this fact straightaway in. his examination-in-chief before the trial Court. Likewise P. W. 4 Khan Muhammad alias Annan has stated in his deposition that be had gone to the house of P. W. Ghulam Nabi to see Mst. Hajiani who was ill. There is nothing in the cross of this witness to show that he is related. These four eye-witnesses are unanimous and every consistent in their ocular version of the incident. Their evidence is free from dis crepancies. They claim that on cries they ran to the house of appellant but door was locked from inside and they forced, the door open and in con sequence the latch got broken and they- saw appellant causing knife blows to Mst. Sabira. On his visit to the scene of offence S. H. O. noticed broken latch, mentioned it in mashirnama Exh. 14 and recovered it which was then produced in the Court as art. `B'. P. W. 7 mashir Muhammad Siddique also has testified about this fact and identified art. B in the Court to be the same. Since this fact about the broken latch was so indisputable that even appellant in his statement under section 322, Cr. P. C. claimed in his own version of the incident that door of his house was locked from inside and he kicked it open and the latch broken down. We do not propose to discuss defence plea at this stage, which will be done subsequently but it will suffice to mention that appellant had no other alternative but to admit this already - overwhelmingly proved fact.
6. Most important part of ocular testimony is that appellant threatened eye-witnesses and ran out with knife but ire was chased by the eye-witnesses, who kept on raising cries and during the persuit knife was snatched from appellant by P. W. Ghulam Nabi, who is not an eye-witness and then appellant was apprehended by two constables. P. W. 5 Ghulam Nabi stated before the trial Court that while going to his house he heard commotion of shouts of "Pakro! Pakro!" and saw appellant running with blood-stained knife in his hand. He snatched the knife but could not catch appellant, who was then caught by two constables. P. W. 6 Abdul Razak constable has fully supported P. W. Ghulam Nabi before the trial Court. The eye-witnesses then removed injured Mst. Sabira in a case to the Civil Hospital but died on the way and the witnesses took her to the hospital. This fact is also not challeng ed and further confirmed by S. H. O. Imdad Ali who has stated before the trial Court that he recorded statement of complainant in the Civil Hospital, which was incorporated in 154, Cr. P. C. register and statements of other eye witnesses who were present in the hospital. There are no contradictions in the evidence of eye-witnesses. In the circumstances for reasons stated above we hold that eye-witnesses are reliable and they have spoken the truth.
7. Additionally, it can be said that deceased MR. Sabira on way to the hospital made dying declaration to the complainant in which she said that her husband appellant had given knife blows to her for bangles. All eye-witnesses have deposed on this point as well. They were all together taking her to the hospital in a car. There is no challenge to this evidence. Moreover we do jot find any reason or motivation for these witnesses to falsely implicate the appellant particularly when appellant is also related to three eye-witnesses by reason of his marriage to the deceased.
8. Another very strong circumstance appearing against the appellant is that he was caught red-handed in the sense that he was seen in the process of inflicting injuries with knife to his wife by' eye-witnesses and he attempted to turn away with blood-stained knife but did not succeed and was caught at a short distance from the spot. On this point we find no reason to doubt the evidence of P. W. Ghulam Nabi, who snatched the knife from appellant or constable Abdul Razak who apprehended him. Appellant has not been able to give any satisfactory explanation about this fact. He has stated in his 342, Cr. P. C. statement that P. W. Ghulam Nabi gave him a kick blow, which hit him on eye-brow and he fell unconscious and regained senses at police station. According to his own version this happened in the house but there is overwhelming evidence to prove that he was apprehended by Constables outside the house. So far injury of appellant is concerned it is medically proved and prosecution has not explained it but it appears from the circum stances that appellant received this injury in struggle. P. W. Ghulam Nabi was trying to catch him and snatch the knife. Further the story told by appellant in his statement does not appear to be convincing that he was sitting outside his house beard cries kicked open the door which was closed from inside and saw somebody climbing over the wall to run away and his wife lying injured and he picked her up in arms but she could not speak and died then he was given a kick blow by P. W. Ghulam Nabi and became unconscious. This line of defence was not put to eye-witnesses in their cross, which shows that this is an afterthought. On the contrary complainant and P. W. Karim Bux were cross-examined on the lines that complainant had illicit relations with Mst. Sabira and wanted to marry her and some persons were sent to kill appellant but not finding him killed his wife. This plea on the face of it appears to be false because in that case there was no point in killing Mst. Sabira by that man because she was to be saved for the complainant. Anyway these suggestions have been denied by complainant and P. W. Karim Bux and further realising their futility were not put to the other two eye-witnesses. We, therefore, hold that defence theory is false and fabricated as an afterthought and does not throw any doubt on the credibility of eye-witness and circumstantial evidence. Prosecution has proved its case beyond doubt on these points by incriminating evidence to connect the appellant with commission of crime as alleged.
9. During the arguments the learned counsel for the appellant submitted that appellant is insane. Plea of insanity was never raised before the trial Court. However, it was submitted that during the pendency of appeal before this Court on the report from Jail doctor by order dated 28-4-1981 Medical Board was constituted who examined appellant with regard to his mental health. This Court directed in that order that Board must include an expert on mental diseases. The Board had the appellant admitted in Psychiatric hospital. While the final report from the Board was being awaited, learned counsel for the appellant filed an application under section 428, Cr. P. C. for additional evidence on the ground that appellant was suffering from Schizo Pherenea. Request was made to call for some doctors as witnesses to prove mental ailness of the appellant. However, subsequently report was received from the Medical Board of which Dr. Hyder Ali Kazi Professor of Psychiatry, Sir C. J. Mental Hospital, Hyderabad, was a member and the finding of the Board is to the effect that "appellant did not show any sign or a symptoms of mental illness", therefore, he was declared as mentally fit. After the receipt of this report and in view of correct legal position with regard to plea of insanity, application for additional evidence was not pressed. Section 84 of P. P. C. envisages that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is not capable of knowing the nature of the act or that he is doing what is either wrong or contrary of law. The test lay laid down above is the test of legal insanity which is distinguishable from medical insanity. In Medical insanity a disease, for example, Schizo Pherenea is stated to be an affliction in which the patient suffers from occasional fits. It is submitted by Mr. Raja Qureshi that accord ing to Medical Dictionary Scbizo Pherenea has been described as disease of fits and these fits further make the patient prone to make violence in respect of himself for any other person. But the fact is that these fits occur occasionally and are controlled by the medicines. While patient does not have fits it is stated that he acts very normal. So far legal insanity is concerned, it will be deemed to be such when a person 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. Here the patient, who is alleged to be insane has to explain that he was incapable of knowing the nature of the act. The burden of proof for raising such plea of insanity entirely upon the appellant. He has to prove that at the time of incident he was suffering from the fits of Schizo Pherenea and was not capable to know the nature of the act. The plea was never raised before the trial Court where whole case was conducted and the appellant was represented by a counsel and with the consultation of the appellant the counsel has cross-examined all the witnesses and some pleas have also been taken which have been disbelieved and considered as false and fabricated. Such conduct of the appellant who has actively participated in the proceedings and has answered all the questions and has cross-examined the witnesses intelligently and in addition to that has raised some pleas for defence in his statement under section 342, Cr. P. C. shows that he was sane at the relevant time. By these pleas appellant purported to show that he has not committed the offence but has been implicated falsely by the witnesses. In the circumstances, we hold that appellant was not suffering from legal insanity at the time of incident. In the case of State v. Balahari Das Sutradhar (P L D 1962 Dacca 467) plea of insanity has been very effectively dealt with relying upon plethora of relevant case law on the subject. Relevant guide lines enshrined in this celebrated decision are reproduced as under
"In the case of a special plea of insanity under section 84 of Penal Code, 1860, the burden of proof is on the accused and the mere creation of doubt as to the existence or otherwise of circumstances bringing the case within the exception of section 84 of the Code is not enough. Where the plea of insanity is taken the Court should keep the following principles in view
(i) If the accused raises any special plea or claims exoneration on the basis of any social or general exception he must prove his special plea of the existence of condition entitling him to claim the exception.
(ii) Irrespective of the success or failure of the special plea raised by the defence or its claim to exoneration the prosecution must prove its case beyond any reasonable doubt.
(iii) if after an examination of the entire evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused may be true or that the evidence casts a doubt on the existence of the requisite intention or mens rea which is a necessary ingredient of a particular offence, this will react on the whole prosecution case entitling the accused to the benefit of doubt.
(iv) Legal insanity as contemplated in section 84, P. P. C. is different from medical insanity. If the cognitive faculty is not impaired and the accused knows that what he is doing is either wrong or contrary to law he is not insane. Merely being subjected to uncontrollable impulses or insane delusions or even partial derangement of mind will not do, nor mere eccentricity or singularity of manner.
(v) If there is evidence of premeditation and design or evidence that the accused after the act in question tried to resist arrest the plea of insanity may be negatived.
(vi). If the facts are clear so far as the act complained of is concerned motive is irrelevant."
10. In the reported case the accused after cutting the head of the deceased not only ran away from his pursuers and sought protection inside the sanctuary of his but also closed its door immediately on entering the hut. He concealed the severed head inside an earthen pot and put the pot on a loft. When he found his pursuers about to enter the hut, he broke open the southern fencing of his but and jumped out of it and ran again, chased by the people, to a ditch nearby and jumped into it and when one of the pursuers tried to secure him he strongly resisted by inflicting several injuries with knife, held, that all these circumstances unmistakably showed that the accused was perfectly same and that he was fully aware of the nature of his act. In this reported case after perusal of whole evidence on the record one particular factor impressed the learned Judges which was to the effect that accused was subjected to severe beating at the hands of the crowd which necessitated long course of treatment in the hospital and on that ground the sentence of death was reduced to transportation for life.
11. Mr. Raja Qureshi then cited before us the case of Pancha v. Emperor (A I R 1932 All. 233) in which the same principles on the subject of insanity have been reiterated and it is stated that for plea of insanity onus lies heavily on the accused. Mere fact that accused's mind is partially deranged or that he was subject to some uncontrollable impulse due to insanity would not do. So long as he is not insane as to-make it impossible for him to know he nature of the act or to realise that his act is wrongful or contrary to law, he will be guilty of offence committed by him. In the reported case it was observed that accused was of weak intellect subject to fits and was not possessed of a normal mind and owing to some feelings of revenge he was impelled to some uncontrollable impulse to attack the deceased brutally and the sentence of death was reduced to transportation for life.
12. Mr. Raja Qureshi then cited before us the case of Ramadhin v. Emperor (A I R 1932 Oudh 18). It is observed by the Court that the Court has to administer, in a trial for offence under section 302, P. P. C. is the law as it stands and not in form of medico legal theory that is opposed to that law: It was further observed that section 84 is unduly narrow or drastic is not a matter with which the Court is concerned. However, even in this case under report accused at the prospect of losing the object of his affection through excitement and jealousy of rage killed her so that if she was not his she could not be at any rate of no one else's and there was nothing to show that as regards his bodily health amused suffered from anything worse than minor ailments that all human flesh is heir to, and as regards his mental state there was no evidence to show that be suffered from anything more than eccentricity. It was held that accused was not incapable by reason of unsoundness of mind of knowing the nature of his act and was guilty of the offence under section 302, P. P. C. It was further observed that, however, the accused was not quite normal mentally and his act was not premeditated and was committed in a moment of extreme excitement the sentence of death was reduced to that of transportation of life.
13. Mr. Raja Qureshi submitted that father and mother of the appellant in the case under consideration have been suffering from mental disease and were receiving treatment from hospitals and further that the appellant himself also has been receiving such treatment before the incident. But in view of the guidelines laid down in the rulings cited above, the learned counsel conceded that even if an opportunity is given no doctor would be able to certify that at the time of incident appellant was suffering from Schizo Pherenea. The learned counsel for the appellant then prayed for reduction of sentence in conformity with cases cited above.
14. We have given anxious thought to this aspect of the case and are of the view that the circumstances in which this murder was committed or injuries were caused by the appellant to his wife he very well knew the nature of the act and that is why he threatened the witnesses with knife not to come near and attempted to run away from the spot and when P. W. Ghulam Nabi tried to apprehend him, appellant hit him but even then Ghulam Nabi succeeded in snatching the knife from him. Subsequently, right there appellant was over powered by two constables and he became subdued and surrendered com placently. Thereafter, he was taken to police station. This post murder conduct of the appellant coupled with conduct in the trial Court where he has e cross-examined the witnesses in the light of defence theories and also in his statement under section 342, Cr. P. C. he has given a long story which is his own version of the incident clearly is indicative of the fact that appellant-has acted normally and knew what he was doing. There is one other factor in this case which is that prosecution has set up motive as stated by Mst. Sabira before her death. According to her appellant demanded golden bangles from her and she refused on the ground that they were given to her by her father. No further probe was made by the prosecution on the subject. It was not verified whether there were golden bangles with the deceased or not. In any case, this motive as stated appears to us as weak. Furthermore none of the eye-witnesses have stated as to what transpired between the appellant and deceased before attack was made. Possibility is that there might have been same other talk or the deceased might have said something nasty or insulting which might have provoked the appellant to cause her knife injuries. Since there is no evidence with regard to the prelude before the attack, we consider that as a good ground coupled with the fact, that he has been receiving treat ment of Schizo Pherenes, which collectively impress us to reduce the sentence from death to life imprisonment. In the result, appeal is dismissed with modification that sentence of death is altered to sentence of life imprisonment; Reference for confirmation of death sentence is not accepted.
In the peculiar circumstances of the case, at the request of the learned counsel for the appellant, we propose to give benefit contemplated under section 382-B, Cr. P. C. In the result Jail authorities are directed at the time of computation of sentence to include the period of detention passed by the appellant as under trial prisoner during the trial proceedings.
Order accordingly.