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Petitioner: DAD VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, B. G. N. Kazi Title: DAD vs The STATE Case No.: Criminal Appeal No. J-224 and Criminal Suo Motu Revision No. 103 of 1978 Date of Judgment:1980-07-20 Reported As: PLD 1982 Karachi 360 Result: sentence is discharged
JUDGMENT
JUDGMENT NASIR ASLAM ZAHID, J.-Dad son of Khamiso has filed this appeal against his conviction under section 302, P. P. C. And sentence of imprisonment for life by the IV Additional Sessions Judge, Hyderabad, vide his judgment dated 29-6-1978. At the time of admission of this appeal, this Court had issued notice to the appellant for enhancement of sentence. 2. The charge against the appellant was that on 7-4-1976 at about 1 p.m. He killed his minor daughter Mst. Qaim Khatoon, aged about 6 years, by causing several injuries using a 'chhuri'. At the time of the incident the appellant was residing in village Gul Sahito, Taluka Hala along with his deceased daughter, his wife having died about 11 months prior to the incident. The house of the appellant as well as the house of his real brother P. W. Ramzan (complainant) are within the same enclosure. Accord--ing to the F. I. R. On the day of the incident, that is 7-4-1976, at about 1 p.m. Complainant Ramzan was sitting on a cot in front of the room of his house and his wife Mst. Sohni (who died before the trial of the appellant and as such could not give evidence) was cooking meal. At that time the deceased daughter of the appellant was playing in the courtyard of the house with Ghulam Muhammad son of the complainant aged about t0 years, and Mst. Razia daughter of the complainant aged about 8 years. Appellant Dad came out of his room and took away his minor daughter to his room saying that he was being taunted for being dependent on his brother, complainant Ramzan, and therefore, he would not spare his own deceased daughter. After a while on hearing the cries raised by the deceased Qaim Kbatoon, complainant Ramzan, his wife Mst. Sohni and his son Ghulam Muhammad went running to the room of the appellant and saw the appellant giving blows with a `chhuri' to his minor daughter who was lying on the ground. These 3 witnesses raised cries; which attracted Haji (P. W. 7), who is also a son of Ramzan, Noor
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Muhammad (P. W. 7) son-in-law of Ramzan, Ismail (P. W. 8) brother of deceased wife of the appellant, and Badal (P. W. 9) and others. They caught hold of the appellant and snatched the `chhuri' from him. The minor daughter of the appellant died on the spot. F. I. R. Was lodged by Ramzan (P. W. 5) on the same day at 2-30 p.m. At Police Post, Bhit Shah. Post-mortem was carried out by Dr. Lal Muhammad (P. W. 1) on the next day at 7-30 a.m. And the following external and internal injuries were found :- External Injuries "(1) One stab wound penetrating-- x 1/3' x chest cavity deep on the left side of the chest anteriorly 1" x below the left nipple. (2) One stab penetrating wound-- " x .l/3' x bone deep on the middle of sternum. (3) One stab penetrating woundx 1/3' chest cavity deep on the upper part of the right side of chest anteriorly. (4) Incised wound 1/3' x 1/8" X skin deep on the upper part of left side of chest. (5) One stab penetrating wound 1" x 1/3" x chest cavity deep on the lower part of right side of chest. (6) .One stab penetrating wound 3/4' x 1/3' x chest cavity anteriorly 1/4' above injury No. 5. (7) One stab penetrating wound -- x 1/10' x cavity deep on the lower part of left side of chest just lateral sternal region. (8) One incised wound 1/3" x 1/8' x skin deep in the left side of chest anteriorly, -- " below Injury No. 7. (9) One stab penetration wound -- ' x -- " x thorax cavity (back side) on the upper part of left side of back-- ' lateral from medial plane (vertiberal column). (10) One incised wound 1/3' a 1/8" x skin deep on the lower part of right side of chest 1' lateral from medial plane (vertiberal column)." Internal Injuries "There were marks of injuries on the walls of chest. The pleura was teared at left side of the chest. There were two lacerations over anterior surface of the left lung. The chest cavity was full of blood. The peritonium was congested. The liver was ruptured at two places on its anterior surface. Abdominal cavity was full of blood. Stomach contained semi-digested food." 3. Blood-stained earth, `chhuri and clothes of the appellant were secured and sent to the chemical examiner, whose report was positive. 4. The appellant had also made a judicial confession which later on he retracted. The judicial confession was made before the Mukhtiarkar and F. C. M., Hala, Haji Muhammad Yaqoob (P. W. 10). This judicial confes--sion was made by the appellant on 10-4-1976, three days after the incident: The confession was made in the following words :- "I have killed my daughter named Qaimee aged about 7-8 years by giving blows with kitchen knife due to `ghairat', as she was wandering and going with the boys without my permission. I had given her blows with kitchen knife. She had died then and there. I have not been given any threat etc. By anyone." In his statement under section 342, Cr. P. C., however, he denied having murdered his daughter and also retracted from his confes--sion. According to him, the prosecution witnesses had deposed against them due to pressure from Police. In his reply to the last question regard--ing anything else the appellant wanted to say, the following reply was given by him :- "I am innocent. I have not killed my daughter. My wife had died about 10 months prior to this incident. I was deeply in love with my wife. After the death of my wife 1 had become insane and I was not able to pursue my daily routine work. I do not know bow my daughter was killed and by whom." 6. In the grounds given in the memo. Of appeal submitted by the appellant from Jail he has given another version about the incident which is as follows :-
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"I, the appellant, beg to submit that I am quite innocent. The fact is that I and my brother both were fighting and beating each other. During quarrel, God knows, at whose hands my daughter was bit with `chhuri'. I do not hit her. I am quite innocent. I am filing appeal against the said judgment." 7. P. W. 5 Ramzan, the complainant who is the real brother of the appellant and who had lodged the F. I. R. Without any delay, has supported the version given by him in the F. I. R. When he gave evidence before the trial Court. P. W. 6 Haji (son of Ramzan), P. W. 7 Noor Muhammad. P. W. 8 Ismail and P. W. 9 Badal in their statements under section 164, Cr. P. C. Confirmed the version given in the F. I. R. However, in their depositions before the trial Court they were declared hostile inasmuch as, according to the learned Additional Sessions Judge, being closely related to the - appellant, they have tried to help him. Haji and Ismail in their statements under section 164, Cr. P. C. Had stated that they had heard cries coming from the house of the appellant and on rushing there had actually seen the appellant giving blows with the kitchen knife to the deceased girl but in their evidence before the trial Court their statement was that they had reached the scene of the incident immediately after the incident and saw the girl lying dead in the room with the appellant there and they were told by Mst. Sohni that the. Girl had been murdered by the appellant. I Noor Muhammad and Badal in their statements under section 164, Cr. P. C. Stated that they had heard cries and had rushed to the scene of the incident and saw the appellant being caught with the kitchen knife with the girl lying on the ground bleeding, but in their evidence before the trial Court they changed their statement by stating that they had reached the place some time after the incident. In the respective statements under section 164, Cr. P. C. Of all these five prosecution witnesses not a word is uttered or any indication given about the insanity of the appellant. But in their respective statements before the trial Court these witnesses gave evidence that the appellant had become insane after the death of his wife and he killed two goats belonging to P. Ws. Haji and Ismail. 8. The trial Court came to the conclusion that the case against the appellant had been proved relying upon the ocular testimony of appellant's brother Ramzan and also observing that the other eye-witnesses had changed their testimony in order to save the appellant. As corroboration - the trial Court relied upon the judicial confession, medical evidence and recoveries and the fact that the appellant had been caught red-handed on the spot. 9. We have heard Mr. Abdul Hakim Khan, learned counsel for the appellant, and Mr. Ghulam Ali Agha, learned counsel for the State. In his arguments in support of the appeal Mr. Abdul Hakim Khan has referred to some minor contradictions in the testimony of the witnesses and faintly contended that on account of these minor contradictions the testimony of the witnesses should be rejected. His further argument was that the 4 of the 5 eye-witnesses, namely P. Ws. Haji, Noor Muhammad, Ismail and Badal had turned hostile and in the circumstances it was unsafe to sustain the conviction of the appellant on the sole ocular testimony of Ramzan (P. W. 5). 10. We have not been impressed by the above contention of the learned counsel for the appellant. In this case the F. I. R. Was lodged promptly by the brother of the appellant the complainant Ramzan who, in spite of being the real brother of the appellant and no enmity being alleged with the appellant, confirmed the version given by him in the F. I. R. When he gave his statement before the trial Court. The evidence of P. W. Ramzan is very clear and the trial Court did not find any reason to disbelieve his testimony and we also do not find any reason to do so. Further even if the testimony of the other 4 eye-witnesses P. Ws. Haji, Noor Muhammad Ismail and Badal are taken as given by them before the trial Court that they bad not actually seen the incident but reached the place of the wardat after the incident, the evidence of all these 4 witnesses corroborates the evidence of P. W. Ramzan. These witnesses have given evidence that they saw the girl lying on the ground in the room of the appellant who was, present there; they were told by Mst. Sohni that the girl had been killed by the appellant but none of them have said that the appellant denied this. The
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ocular testimony is further corroborated by the recoveries as well as the fact that the appellant was caught red-handed on the spot. No enmity has been alleged at any stage by the defence or any other witness between the two brothers or between the appellant or any other witness. In view of the testimony of Ramzan, Haji, Noor Muhammad, Ismail and Badal and the corroboratory evidence of the Medical Officer, the recoveries and the judicial confession as well as the fact that the appellant was caught red-handed at the spot, we are of the view that the trial Court came to the correct conclusion that the prosecution has established its case against the appellant beyond reasonable doubt. 11. It is as regards the plea of insanity that great stress was laid by the learned counsel for the appellant' in his arguments before us. According to him, in view of the evidence of Ramzan, Noor Muhammad, Haji, Ismail and Badal to the effect that the appellant was not sane and his own statement under section 342, Cr. P. C. That he had become insane after the death of his wife and he did not know who had killed his daughter, action should have been taken by the trial Court under sections 464 and 465, Cr. P. C. And inasmuch as such action was not taken, the trial stands vitiated. 12. Sections 464 and 465 of the Criminal Procedure Code are reproduced here;- "464. Procedure to case of accused being lunatic.-(1) When a Magistrate holding inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the District or such other Medical Officer as the Provincial Government direct and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing. (1-A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466. (2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence he shall record a finding to that effect and shall postpone further proceedings in the case. 465. Procedure in case of person sent before Court of Session or High Court being lunatic.-(1) If any person before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case. (2) The, trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court." 13. We may also refer here to section 84 of the Pakistan Penal Code which is the basic section applicable in a case where a plea of insanity is raised. Section 84, P. P. C. Is worded as follows :- "84. 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 unsound--ness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." 14. The trial Court has dealt with the plea of insanity, raised on behalf of the appellant, in paragraph 13 of the judgment which may be reproduced here :--- "13. In his statement under section 342, Cr. P. C., the accused has taken the plea that after the death of his wife he had become insane and does not know as to who killed his daughter Mst. Qaim Khatoon. However, no evidence is led in defence to prove that accused Dad was insane at the time of incident and by reason of unsoundness of mind he was incapable of knowing the nature of his act. In other words, no evidence is led to prove legal insanity as distinguished from medical insanity.
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However, the complainant Ramzan and P. Ws. Noero, Ismail, Badal and Haji have stated that accused used to love his wife as well as his daughter deceased Mst. Qaim Khatoon and that after the death of his wife the conduct of the accused became abnormal and used to get fits of insanity. As already stated, the witnesses have tried to help the accused by giving obliging statements in his favour for the reasons discussed above and it appears that they have tried to help the accused by giving false statements regarding his insanity. The plea regarding the insanity does not seem to have been taken at the earliest opportunity during the investigation as otherwise accused would have been got medically examined. Even at the time of recording of the confes--sional statement by P. W. Haji Muhammad Yakoob plea of insanity appears not to have been taken as otherwise such note must have been made by P. W. Haji Muhammad Yakoob. Had the accused been insane P. W. Haji Muhammad Yakoob would have noticed it and made a note in the confessional statement. Had the accused been found insane by the Investigating Officers, namely S. I. P. Muhammad Shafiq and S. H. O. Noor Hussain Shah or P. W. Haji Muhammad Yakoob, they would have definitely referred him for medical treatment. The fact that soon after the incident accused was not even suspected. To be insane by P. Ws. Haji Muhammad Yakoob, Noor Hussain Shah and S. I. P. Muhammad Shafiq clearly shows that accused was never insane even at the time of incident. After all accused had killed his own minor daughter and therefore a fit of insanity 'would not have disappeared so soon and bad the accused been insane his insanity would not have gone unnoticed by P. Ws. Haji Muhammad Yakoob, S. H. O. Noor Hussain Shah and S. I. P. Muhammad Shafiq. For the above reasons, I find that plea of insanity of which the burden lies on the accused to prove, is not proved." 15. According to the learned counsel for the appellant the trial Court erred in not referring the appellant for medical examination which was necessary in view of the insanity plea made by the appellant as well as the evidence of the above-mentioned 5 prosecution witnesses to the effect that the appellant was insane. According to him the trial Court was under the law required to .Get the appellant medically examined to determine his mental condition. 'In support of his plea that this was a case where action was required to be taken under sections. 464 and 465, Cr. P. C., learned counsel for the appellant has particularly pointed to the heinous and callous nature of the crime which could be gathered from the 10 stab wounds found on the body of the girl out of which, according to the Medical Officer Dr. Lal Muhammad (P. W. 1), each of the six injuries were individually sufficient to cause death, inflicted by a loving father upon his only issue. Learned counsel has relied upon the case of Ata Muhammad v. The State PLD 1960 Lah. 111, (relating to the murder of Dr. Khan Sahib). This case decided by Shabbir Ahmad and Sajjad Ahmad Jan, JJ has clarified- and elucidated in some respects and confirmed in certain other respects the legal principles relating to the plea of insanity raised by an accused in a criminal trial. We may, with advantage, refer to the following several principles elucidated or confirmed by this judgment of the Lahore High Court :- "(a) Distinction between the legal and medical concepts of insanity with reference to section 84, P: P. C.-Medical and legal standards of sanity are not identical. From the medical point of view, it is probably correct to say that the act of. Murder by itself denotes an unhealthy and an abnormal state of mind of the murderer, but from the legal point of view he is sane as long as he can understand that his act is contrary to law. If an accused person is aware that the act is one which he ought not to do and the act at the same time is contrary to law, he is punishable. Therefore, to establish successfully a defence on the ground of insanity, it must be proved that an accused person at the time of committing the act was labouring under such a defect of reason, from disease of the mind as not to know the nature of his act and that what he was doing was wrong and contrary to law. On this legal concept of insanity no amount of queerness in habit, morbidity of
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temper, peculiarities of character or eccentricities of behaviour, or even aberrations of mind resulting in abnormality will constitute insanity for the purpose of section 84 of the Pakistan Penal Code although they may be relevant factors for determining whether or not the accused was insane. (b) Insanity at the time of commission of offence and insanity at the time of trial.-In point of time and as a matter of law the question of the insanity of an accused person at the time of the occurrence and at the time of the inquiry or trial are independent matters, to be adjudged separately, although his state of mind at different stages may be relevant to each other in formulating conclusions. (c) Words `has reason to believe' and `appears' used in sections 464 and 465, Cr. P. C. Refer to subjective reaction of Magistrate or Court to the state of mind of the accused.-The legal position which emerges from sections 464 and 465, Cr. P. C. Is that under section 464 the Magistrate must have reason to believe that the accused person before him is of unsound mind and incapable of understanding the proceedings, and under section 465- it should appear to the Court at the trial that the accused person suffers from unsoundness of mind and thus is incapable of making his defence. In either case the action is to follow the. Subjective reaction of the Magistrate or the Court to the situation that arises. Before him. If, during the enquiry, nothing comes to the notice of a Magistrate to induce a belief in him that an accused person is of unsound mind and if at the trial before the Sessions Court it does not appear to the latter that the accused is of unsound mind and consequently incapable of making his defence, there is nothing for them to do . Except to proceed with the inquiry or the trial in the normal manner. The words appear to the Court' are used in section 465 while the words `had, reason to believe' are used in section 464, but in practical effect they mean almost the same thing. The phrase `to appear' used in the context of section 465 in its meaning is nearest to the phrase `to be in one's opinion' as given in the Shorter Oxford Dictionary. The reasons for the belief of. The Magistrate may be based on his own observations from the conduct of an accused person before him, or other factors including evidence that may point to the unsoundness of the mind of the accused person. (d) Circumstances where the trial Court is required to investigate the fact of unsoundness of mind of the accused and refer him for medical examina--tion under section 465, Cr. P. C.-In a trial in the Sessions Court, an accused .Person may feign insanity, but if it appears to the Court, unable to detect the simulation that the accused may be of unsound mind, the question has to be tried as a fact and medical evidence on the point would, of course, be an indispensable necessity. But where the Court sees that insanity is a feigned one, it has simply to ignore it. And where it does not appear to the Court at all from its own observations or any other factor that the accused is because of unsoundness of mind incapable to make his defence, the Court is under no obligation to investigate the fact of unsoundness of mind. (e) Burden of proof of insanity under section 105 of the Evidence Act.-In dealing with cases of insanity, the first thing to be considered is that the issue of insanity at the time of the 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 respon--sible for his actions. This follows from section 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."
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16. We are in respectful agreement with the above enunciation of the legal principles relating to the question of insanity, but before we apply the principles to the facts of the present case we may refer to certain other judgments of the superior Courts which are relevant to the questions in issue. 17. In another case from Lahore High Court being Hayat v. State PLD 1959 Lah. 474a Division Bench has interpreted section 84, P. P. C., in the following words bringing out very clearly the distinction between ordinary unsoundness and legal unsoundness of mind :- "As its language plainly shows, section 84 of the Pakistan Penal Code which has been reproduced above, draws a distinction between ordinary unsoundness of mind and legal unsoundness of mind. A person may be of unsound mind for the purposes of those interested in diseases of the human brain and yet may not be of unsound mind for the purposes of those who have to administer the law, because the unsoundness of the mind which the Courts can recognise is that which deprives the perpetrator of a crime of the capacity to under--stand the nature of his act and of the knowledge that what be was doing was wrong or contrary to law. If a person, who has contravened the criminal law, is considered to be insane by ordinary persons and even by doctors is shown to have the knowledge that what he was doing was either wrong or contrary to law, he will be as liable for his criminal acts as a person considered thoroughly sane by doctors and ordinary persons. Any book on ailments of the human mind will show that unsoundness of mind is of varied kinds. There are persons who are of unsound mind in one respect only and entirely normal in all others. There are others who have many peculiarities of a pronounced character bit in some respects areas sane as any other living person. The mere fact that a person may not be able to understand the…
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