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Criminal Appeal No. J‑122 of 1975, decided on 3rd June 1977.

‑‑ S. 84‑Plea of insanity‑Proof‑Defence to prove accused labouring 'under such a defect of reason as not to know nature of act, he was doing or what he was doing, was wrong‑Mere fact that on one earlier occasion accused suffered from derangement of mind‑‑Not sufficient to bring case within exemption‑Accused behaving normally and making a coherent statement before Court‑Neither trial nor conviction, held, open to any exception, in circumstances.‑‑[Insanity].

Appellant through Jail.

Usman Ghani Rashid. Asstt. A. G. for the State.

Date of hearings: 31st May and 1^st June 1977.

.‑The appellant was proceeded against for an offence under section 302, P. P. C. However, he was convicted, 'under section 326, P. P. C. and sentenced to undergo imprisonment for life. He has come in appeal through the jail authorities.

2. The prosecution story, in brief, is that on the 16th of March 1970 at about 7‑30 p. m,, the appellant had struck a number of knife blows to Bin Yameen near the Lea Market Area, Karachi. The appellant was apprehended at the spot by a number of people, including two police men. Bin yameen was taken to the Napier Police Station, where he lodged the First Information Report. Bin Yameen was rushed to the hospital. The S. H. O. had also secured the blood‑stained knife, which was produced before, him, and prepared a 'Mashirnama'. There was blood on the clothes of the appellant also and that came to be secured. Thereafter, he had gone to the 'Wardat; Which was near Sultan Hotel, Lea Market, and prepared the 'mashirnama'. There were some slight injuries on the person of the appellant also, and he also' was referred to the hospital. Thereafter, enquiries were made from Akbar Khan, Mirdad Abdul Karim and Bakhta Khan. Bin Yameen succumbed to his injuries on 18‑3‑1970 at the, hospital. The. S. H. O. had gone 'to the hospital, and prepared the inquest report. He had sent the blood‑staining clothes and the knife to the Chemical Examiner, and, after due investigation, submitted the charge‑sheet to the Court.

3. The appellant in his statement at the Court of Enquiry decided the various allegations made against him. At the trial, all that he had to say was that, at the time of the incident, he was sitting in his tongs at Lea Market, where he was arrested by the police. He also produced two doctors, namely, Dr. Ghulam Yaseen and Dr. Mobeen Akhtar, in defence.

4. Bin Yameen had the following injuries, as found by Dr. Moosa:‑

(1) Incised wound left lumber region 3' above illiac crest 2 ' v 1' x cavity deep. Edged sharp with corresponding cut on shirt and 'banyan'‑‑

(2) Incised wound right lumber mid axillary 1' x ' x muscle deep. Edged sharp with corresponding curt on 'banyan' and shirt.

(3) Incised wound left wrist oblique 3' x 1' m muscle deep. Edged sharp. Tendons and vessels cut.

(4) Incised wound back over 10 rib mid part edged sharp oblique and cut on 'banyan ' and shirt 1' x x cavity deep.

(5) Incised wound right upper arm back mid/out 1' x ' . x muscle deep. Edged sharp wrist cut on shirt.

(6) Incised wound right shoulder front. ' x x muscle deep. Edged sharp.

(7) Incised wound wrist ' x so muscle deep. Edged sharp.

According to hint, Injuries Nos. 1 and 4 were grievous and the rest were simple. These injuries had been caused by a sharp‑cutting weapon, like a knife. He stated that the patient had been admitted in Surgical Ward. However, the admitted position is, that no autopsy was held and, it was because of this reason, that the learned Additional Session Judge, convicted the appellant for an offence under section 326 P, P. C. alone.

5. There are as many as five witnesses of the incident namely, Abdul Karim, Muhammad Iqbal, Mir Dad, Bakhtiar Khan and Akbar khan. The last two were police men, who happened to be there. Abdul Karim had a shop near the 'Wardat; Muhammad Iqbal was working as a mechanic, while Mir Dad happened to be present in the vicinity at the time of the incident. None of these three witnesses had any interest in the matter. The last two witnesses are from the Police Department. Trey have alt deposed that the appellant had been arrested at the spot, and marched off to the Police Station, along with Bin Yameen. There is hardly any material on the record to looks askance at their testimony. Even the appellant edits his presence at the 'Wardat'. Pir Khan, the Mashir, has also stated that the knife bad been secured from the appellant by the policeman in his presence. There were two minor abrasions and two contusions on the person of the appellant, as found by Dr. Sakhi Sarwar, and the appellant does not say that these had been given by Bin Yameen. It cannot be ruled out that he might have been given a drubbing after he had been apprehended.

6. There is also the evidence of motive, as furnished by Fazal Ilahi, the father of the deceased. He has stated that there; was a tussle between the appellant and the deceased over a girl, by the name of Mat. Zubaida. To start with, he said that both of them were eager to get her hand, but in the cross‑examination he stated that the appellant wanted Mst. Zubaida to be married to his sister's son. He also stated that, even before the incident the relations between the two families were estranged for a number of years. So, it was not a motive less murder whatever the exact fact.

7. The evidence of Dr. Ghulam Yaseen and Dr. Mobeen Akhtar was to the effect that the appellant had been treated by them from 13‑10‑1969 till 23‑10‑1969, when he was discharged. The ailment, for which he had been treated, was schizophrenia, a disease in which the patient visualises things, which are nut real, and can act violently. It was also found that he was a charas addict. However, Dr. Mobeen Akhtar has clearly stated that, whoa the patient was discharged, he was in a normal condition mentally, and that, in some cases, there may be no relapse of the disease. There is nothing on the record to show that there was any recurrence of the trouble. Even the appel lant behaved in a very normal way before the incident, as he was at the Lea Market on his own. Criminal responsibility is allowed, where there is an insane person incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Section, 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind, and it is by this test, as distinguished from the 'medical test, that the criminality of an act is to be determined. To get the benefit of this provision of law , it had to be established that at the time of the committing of the act, the appellant was labouring under such a defect of reason, from diseases of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong. The mere fact that on one earlier occasion the appellant had been subject to delusion or had suffered from derangement of the mind would not be sufficient to bring his case within the exemption. The Court is only concerned with the state of mind of and accused at the time of act. Even a plea of insanity at the time of the trial would not have helped him, though he would have been tired in accordance with the special procedure laid down in the Code of Criminal Procedure. Even that plea was never taken; The appellant was before us at the hearing of the appeal, and behaved in a normal fashion, and made a coherent statement. I am, therefore, clearly of the opinion that neither the trial nor the conviction was open to any exception.

8. The appellant was convicted for all offence under auction 326, P. P. C for the reasons given by learned Additional Sessions Judge. And there was no appeal for the acquittal under section 302, P. P. C. It appears from the record that the appellant was in custody for about five years before the trial. The sentence of life imprisonment was legally wrong, because the offence bad taken place before the amendment of the section. I am, therefore, of the opinion that a sentence of six years' R. I. will meet the ends of justice. The sentence, therefore, is reduced on R. I. for six years only. With this modification the appeal is dismissed.

G. M. SHAH, J.‑I agree. Order accordingly.

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