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Petitioner: MUHAMMAD IQBAL VS Respondent: THE STATE
1976 P Cr
1976 P Cr. L J 82
[Lahore]
Before Javed Iqbal and Abdul Jabbar Khan, JJ
MUHAMMAD IQBAL‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 392 and Murder Reference No., 93 of 1973, decided on 31st January 1975.
(a) Criminal trial‑
‑‑ Prosecution to establish its case beyond shadow of doubt so as to warrant conviction of person charged with any offence. [Conviction.]
(b) Penal Code (XLV of 1860)‑
‑‑ S. 302 read with S. 498‑Murder‑Evidence‑Proceedings under S. 498 lodged by accused against witness‑Held, cannot provide a strong motive to such witness as to commit perjury in serious offence of murder:‑[.Evidence‑Perjury].
(c) Insanity--
‑‑ Epilepsy‑History and description of disease‑Person suffering from epilepsy‑ Whether an insane and not responsible for his acts‑Determination.‑[Penal Code (XLV of 1860), S. 84.‑Insanity].
Oliver Wendell Homes (cited by Ven Storch, 1930); Dr. Muhammad Rashid Chaudhry on Mental Deterioration in Epileptic Children and Modi's Medical Jurisprudence & Toxicology, pp. 406‑407 ref.
(d) Penal Code (XLV of 1860)‑
‑‑ S. 302 read with S. 84‑Murder‑Plea of insanity‑Evidence of eminent expert proving that accused was never epileptic patient as alleged and never behaved like an insane person‑Conduct of accused showing that presence of intent or animus in commission of crime could not be excluded‑Accused, held, committed alleged murders while in full possession of his senses, in circumstances of case‑Conviction and sentence of death maintained.‑[Insanity --Expert evidence‑Conviction].
Law of Insanity by George A. Smoot, Chap. 14, p. 372 rel. M. Anwar and Mrs. Shehla Mahmood for Appellant.
Kh. Ghulam Qadir for the State.
M. A. Aziz for the Complainant.
Date of hearing: 16th December 1974.
JUDGMENT
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 13th 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…
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