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Criminal Appeal No. 30 and Confirmation Case No. 10 of 1982, decided on 26th August, 1982.

‑‑ S. 302 read with S. 84‑Murder‑Insanity‑Accused appellant charged for killing his own wife found to have pleaded guilty before trial Court but trial Court though competent to do so not convicting him on plea of guilty but choosing to record prosecution evidence in interest of justice‑Prosecution witnesses related both to appellant and deceased and no reason assigned as to why they deposed against appellant‑Some of witnesses in fact found to have tried to shield appellant by giving obliging statements‑Confession recorded after observance of all formalities and not open to challenge on any ground‑Accused in his confessional statement stating to have suspected his wife of having criminal liaison with her cousin and to have caused injury on her head with "kharo" found stained with human blood by Chemical Examiner‑Appellant seen by wit nesses emerging from his house soon after incident and running away‑Witnesses also seeing deceased lying injured and "khaho" lying beneath‑Circumstances corroborative of confession later retracted and read with extra‑judicial confession sufficient to bring home guilt to accused‑Appellant though proved to have some times suffered from mental infirmity but not proved to have so suffered at time of commission of offence of murder‑ Accused's case in circumstance, not covered by exception contained in S. 84, P. P. C. but deserved mitigation in sentence‑Sentence of death not confirmed and while maintaining conviction under S. 302, P. P. C. sentence of death reduced to one of imprisonment for life. [Sentence‑Insanity]. A‑I

State v. Balharidas Suttadhar P L D 1962 Dacca 467; Muhammad Shaf v. State P L D 1962 S C 472 ; Khawaja Usman Shah v. 'State P L D 1972 Kar. 77; Ali Muhammad v. The State 1973 P Cr. f, J 693 and Muhammad Ibrahim v. The State 1975 P Cr, L J 910 ref.

Khuda Bux Umrani for Appellant.

Niaz Ahmad for the State.

Dates of hearing : 24th, 25th and 26th August, 1982.

‑Appellant Ghulam Muhammad was convic ted for the murder of his wife Mst. Sher Bano under section 302, P. P. C. and sentenced to death by the Sessions Judge, Thatta (Syed Nasir Hussain Jafferi). vide his judgment dated 27th January, 1982. This appeal is direc ted against the said conviction and sentence and the case has also been referred to this Court for confirmation of the death sentence.

The complainant Muhammad Saleh, uncle of both the appellant and the deceased lodged F. 1. R. 27th November, 1979 at 5‑20 a. m. at P. S. Mirpur Sakro. It reads as under: ‑

Report is that Ghulam Muhammad Dharo is my nephew. Two years prior, he was mentally deranged and was treated in Nazimabad, Karachi, for about 3 months. After that he was normal and used to take tablets etc. About 1 years back he was married with Mst. Sher Bano daughter of my brother Punhoon, and both used to reside as husband and wife. He had one son aged about 7 months. Ghulam Muhammad Dharo used to work as labourer. After finish ing his day's work he used to return to his house at night. The house of Ghulam Muhammad is adjacent to the houses of his father Usman, my brother Rabo and mine. Tonight Ghulam Muhammad was present in his house. As usual after taking meal we all slept in our respective houses. At about 2‑00 a. m. (night), we heard the cries of "Ghora Ghora" of Mst. Sher Bano coming from the house of Ghulam Muhammad, on which I, my brother Rabo and my sister's sons Soomar and Allahdino immediately came out from our respective houses and rushed towards the house of Ghulam Muhammad and saw Ghulam Muhammad coming out of his house, and running towards West. We entered into the house, and on the light of the lantern, we saw Mst. Sher Bano lying on the cot and breathing her last. She died within our sight without talking. She had one injury on her head above the left ear and was bleeding. One Khaho' was also lying on the feet side of the cot. Back side of the Khaho' was blood‑stained. Usman, the father of Ghulam Muhammad who was sleeping at 'Khara' was then called and apprised of the incident. My brother Rabo also brought our Nekmard Muhammad Rahim, who was also narrated the whole story. He asked me to report the matter to Police. I then leaving all the above witnesses at the dead body of Mst. Sher Bano have come to lodge report that accused Ghulam Muhammad Dharo bad murdered his wife at 2‑00 a. m. (night) in his house by giving Khaho' blow on her head. Justice be done."

The A. S. I. Muhammad Bashic who was incharge of the Police Station registered the F. I. R. He accompanied by the complainant came to the place of occurrence which was located in the house of the appellant in village Bachal Dhari, Deh Dharki, Taluka Mirpur Sakro, about five miles away from the Police station. The A. S. I. found the dead body of Mst. Sher Bano lying on a cot, and one 'Khaho' lying towards the feet side of the cot on the ground. He took into his possession the said Khaho' and the 6Rilli' on which the dead body was lying. Both the ' Khaho' and the 'Rilli' were blood‑stained. He also secured blood stained earth and blood‑stained dopatta of the deceased woman. All the blood stained articles were sealed into parcels and later on sent to chemical examiner for report. The memo. of vardat (Exh. 27) with all the necessary details was prepared by the A. S. I. in presence of mashirs Allahdino and Luqman. The A. S. I. then prepared inquest report of the dead body (Exh. 28) in presence of the same mashirs. The dead body was forwarded by him to the Medical Officer, Mirpur Sakro for post‑mortem examination through P. C. 7aman. The A. S. I. also recorded the statements of P. W. Rabo, Soomar, Allahdino, Usman and Muhammad Rahim.

On the next day of the incident (i. e. 28th November, 1979) the A. S. I. learnt from Muhammad Rabim that the appellant was present in the 'Otak' of Karim Bux. Hearing this he rushed to the Otak and arrested the appellant from there in presence of inashirs Siddique and Ahmad vide memo. of arrest Exh. 30. He then recorded the statements of Karim Bux. Muhammad Saleh and Nabi Bux. On the same day on the instructions of the S. H. O. he produced the appellant before Mukhtiarkar and F. C. M Myrpur Sakro and got his judicial confession recorded. The statements under section 164, Cr. P. C. of P. Ws. Karim Bux, Muhammad Saleh, Raboo, Soomar and Allahdino were got recorded by the A. S. I. on 29th November, 1979. He then handed over the case papers to S. H. O. who after due verification of the investigation done by the A. S. I. sent up the appellant for trial in the Court of Sessions Judge, Thatta.

Dr. Ghulam Muhammad (P. W. 1) who was Medical Officer, Mirpur Sakro on 27th November, 1979 conducted the post‑mortem examination of the dead body of Mst. Sher Bano. His evidence discloses one external injury on the person of deceased which was a lacerated wound 22" x 1/2" upto the bone deep on the left parieto temporal region, with depressed fractures and the brain matter was protruding out of the injury. On internal examination, the Doctor noticed :‑

(1) Semi‑fluid material in the stomach, and small intestines and large intestine and bladder empty.

(2) Both chambers of heart empty."

From the external and internal examination of the dead body the Medical Officer formed an opinion that the death was result of shock and haemorrhage caused by the head injury which had damaged the vital organ namely brain. According to him the injury was ante‑mortem and caused with blunt substance such as back side of hatchet or similar other sub stance. When the Khaho' secured from the vardat was shown to the Medical Officer in the Court he opined that the injury could be caused by such implement. In his opinion the injury was efficient in ordinary course of nature to cause death. The appellant also does not dispute the factum of his deceased wife having died of the injury found on her person. We are therefore in no doubt that the death of Mst. Sher Bano was the result of the injury found on her person. The crucial point to be determined, however; is whether the appellant had inflicted the said injury. To prove this point prosecution have relied on Plea of guilty, Extra Judicial Confession, Judicial Confession and circumstantial evidence.

When the charge (Exh. 5) was read over to the appellant by the learned Sessions Judge, he pleaded guilty to the charge in the following words:‑

"I have committed this crime. I have committed a mistake and I may be excused". Vide Exh. 6.

As is provided in subsection (2) of section 265‑E, Cr. P. C. Sessions Court has power to convict the accused on his plea of guilty. However in the instant case the learned trial Court deemed fit to first hear evidence to be produced the prosecution. We may refer to the remarks of the learned Sessions Judge in this connection: ‑

"Through he pleaded guilty, but in the interest of justice 1 felt it neces sary to record the evidence of prosecution witnesses."

The plea of guilty by itself was enough for the purpose of convicting the appellant. However it is supported by other evidence which will b presently discussed.

According to the prosecution case as unfolded in the F. I. R. the complainant Muhammad Saleh (P. W. 4), Raboo (P. W. 5), Soomar (P. W. 10) and Allahdino (P. W. 11) lost no time to respond to the cries of the deceased. They are related to both the appellant and the deceased. The complainant Muhammad Saleh and Raboo are brothers and the appel lant is their nephew and the deceased is their niece. P. Ws. Allahdino and Soomar are their sister's sons. Apart from their close relationship with the parties, they are their close neighbours as they admittedly reside adjoining to the house of the appellant. Thus they are the natural wit nesses. Their quick arrival and presence at the place of occurrence immedi ately after the incident cannot be doubted. There is not even a remote hint that their evidence is motivated by any ill‑will or grudge against the appellant. On the contrary the evidence is not wanting that they attemp ted to favour him by giving obliging statements. Except for Soomar; the other three witnesses are unanimous in their evidence that on hearing cries of the deceased when they reached vardat, they saw the appellant emerging from his house and running away towards West. However Soomar has stated in his evidence that on arrival at the scene of offence, he learnt from his maternal‑uncle Raboo that the appellant had run away after giving blows to his wife. On entering the appellant's house, they all found Mst. Sher Bano lying on a cot with an injury on her head from which she was bleeding. According to them she was unable to talk and was taking last breaths of her life. Soon after she expired. They further noticed that one 'Khaho' stained with blood was lying on the ground on the side of deceased's feet. Raboo went to bring their 'nekmard' Muhammad Rahim and Usman father of the appellant was also called to the vardat. They were both apprised of the incident and on the advice of Muhammad Rahim, the complainant went to tae P. S. Mirpur Sakro and lodged F. I. R.

In their cross‑examination, we have come across certain admissions which are favourable to the appellant. They have stated that it was dark on the night of the incident, that they saw the appellant running away from a distance, and that they identified him from the manner of his walk. We are inclined to feel that they have twisted their evidence in an attempt to save the appellant from gallows. As pointed out above, they are not set up witnesses. Had they not identified the appellant, they would have said so in course of their examination‑in‑chief. Coming from the houses adjacent to the appellant's house, they must have reached the vardat well in time to see the appellant from a closest range. We have no doubt that appellant being their very close relation, they had made no mistake in identifying him. The favourable statements elicited from the above witnesses in their cross‑examination, we feel, are afterthought and far from truth. We attach no importance to these admissions which are B undoubtedly made, to oblige the appellant for obvious reasons. The evi dence furnished by above witnesses proves a strong circumstance linking the appellant with the commission of the murder. They have not only seen the appellant emerging from his house where the occurrence took place and running away in suspicious manner from the vardat but on entering the said house they also saw the deceased lying injured, taking last breaths of her life and blood‑stained Khaho' lying on the ground near the cot where Mst. Sher Bano was lying.

Further corroboration is provided by the evidence of Muhammad Bashir, A. S. I. (P. W. 14) and Mashir Allahdino (P. W. 12). They have proved the recovery of blood‑stained 'Khaho' and blood‑stained earth from the scene of offence which, they have confirmed, is situated in the house of appellant. It is also in their evidence that dead body of Mst. Sher Bano was lying on a cot at the vardat. The blood‑stained articles were admittedly sent to the Chemical Examiner and his report (Exh. 36) is positive, showing that the Khaho', earth and 'rilli' on which deceased was lying, were all stained with human blood.

Apart from above, the prosecution have relied on extra‑judicial con fession. In this connection two witnesses namely Saleh Muhammad (P. W. ID 9) and Karim Bux (P. W. 8) have been examined. Saleh Muhammad is servant of Karim Bux. He has stated in his evidence that the appellant Ghulam Muhammad had come to the Otak' of Karim Bux and as he is mureed' of Karim Bux, he served him meals and provided him bedding for the night. According to this witness the appellant informed him that he had given blow to his wife with Khaho' and had run away from his house. He says that on that night Karim Bux had gone to the village of Muhammad Rahim. On his return this witness apprised him of what the appellant Ghulam Muhammad had confessed to him. He further states that Karim Bux too confirmed that he too had learnt about the appellant having caused injuries to his wife and therefore Karim Bux required him to watch the appellant's movements. He is an uninterested witness. He has absolutely no reason to depose falsely against the appellant. His evidence is supported by Karim Bux (P. W. 8). He too has no motive to falsely implicate the appellant who has also said nothing against these witnesses in his statement under section 342, Cr. P. C. He admits having stayed in the 'Otak' of Karim Bux and taken meals there but denies that he mention ed about the murder of his wife. As stated above, neither of the above two witnesses has any motive to falsely implicate the appellant who according to their testimony is mureed of Karim Bux. Therefore we place implicit reliance on their testimony which is truth worthy and beyond any reproach. It is established from their evidence that appellant confes sed his guilt to Saleh Muhammad, servant of Karim Bux. Their evidence derives further strength from A. S. 1. Muhammad Bashir (P. W. 14) and Mashir Muhammad Sidiq (P. W. 13) who have testified that the appellant was arrested from the Otak' of Karim Bux. We see no reason to disbelieve them in this respect.

The last piece of evidence relied upon by the prosecution is the appel lant's own judicial confession. It is Exh. 38. The operative part of the con fession is as under :‑‑

I am residing in my village. I married with Mst. Sher Bano daughter of Punhoon according to Muhammadan Law and I have one son from her. Where his age is about 8‑10 months. All the villagers are maltreating me. The villagers have killed my mother and brother. They are maltreating me cruelly and my ribs have been broken (fractured). My wife has illicit terms with her cousin Imam Bux. I have never seen her with him in objectionable condition but I know she is bad character. I bad no respect before my wife, my parents were also maltreating me.

Yesterday night at mid‑night my wife was sleeping in a hut, I caused her two injuries with Khaho on her head. Thereafter I ran away towards the Otak of Karim Bux. I was wandering for the whole night and Nabi Bux Moulepota came there in morning, who gave me cup of tea and 1 narrated the above facts to him."

His confession was recorded by Mr. Muhammad Nooh Mukhtiarkar and F. C. M. Hala (P. W. 16). His evidence shows that he put the appel lant on guard by telling him that if he gave confession it might be used against him and further that he was not bound to give any such statement. On his inquiry if he had been given any threat, inducement or promises, the appellant replied in negative. He further told the appellant that in no case he would be remanded to the Police custody. He then gave him time from 11.30 a. m. to 3.00 p. m. to think over if he would like to give confession. He also examined the body of the appellant to see if he was maltreated. However no marks of violence were found on his person. At the expiry of the time given to him for thinking over he found the willing to give the confession saying that he was doing so of his own free will. Accordingly the Mukhtiarkar was satisfied that appellant was giving his statement without any coercion, fear or inducement. In his cross‑examination nothing has been brought out which might reflect on truthfulness of the Mukhtiarkar. The accused, has no doubt, retracted from confession but does not elaborate in his statement under section 342, Cr. P. C. as to why and how confession was extorted from him. He has made no allegation whatsoever against the Mukhtiarkar. When he was asked as to why the witnesses including Mukhtiarkar had deposed against him, his only reply was that he did not know. We are accordingly convinced that the confession is no only voluntary but is also true.

On perusal of this confession, it would appear that appellant was suspecting his wife to have criminal liaison with her cousin Imam Bux F even though he had not even seen them in an objectionable position. He further confessed having caused injury to his wife on her head with 'Khaho'. As pointed out above the appellant was seen by the witnesses. emerging from his house soon after the incident and running away. Further his wife was found lying injured inside the house and the 'Khaho' secured from the vardat was, according to the Chemical Examiner's Report, stained with human blood. All this evidence corroborates the retracted confession of the accused which has already been held to be voluntary and true. The evidence discussed above conclusively proves that appellant and none else was responsible for the murder of his wife.

However the learned defence counsel has raised the question of insanity of the appellant in course of his arguments. According to him he was not sane at the time of the commission of the murder and the insanity entities him to the exemption contained in section 84, P. P. C. which reads as under: ‑

84. Act of a 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.

The point for consideration is if the appellant committed the murder at a time when he was bereft of reason due to unsoundness of mind that he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. In order to prove that the appellant was mentally disturbed at the time of incident, the learned defence counsel has first of all referred us to the evidence of complainant Muhammad Saleh and P. W. Soomar. In his cross‑examination, it is stated by Muhammad Saleh that the appellant was mentally deranged prior to his marriage but after treatment in the Nazimabad Hospital, be was fully cured and it was thereafter that he had married. He further states that even after his marriage he kept on taking medicines and sometime he used to be mentally upset. Similarly according to P. W. Soomar the appellant was mentally ill before his marriage and therefore was under treatment for about three months. The learned counsel has next drawn our attention to the statement of Dr. Hyderali (P. W. 1). It shows that the appellant was admitted in the mental hospital, Hyderabad on 30th May. 1981 and was discharged from the hospital on 25th July, 1981. Again according to the medical certificate dated 21st November, 1981 issued by the same doctor, the appellant was suffering from Schizophrenic illness and if he did not take the prescribed dose of medicine regularly, he was likely to relapse. It is quite clear that neither complainant Muhammad Saleh nor P. W. Soomar nor again Dr. Hyderali has deposed that the appellant suffered from insanity at the time of occurrence. In fact plea of insanity was not raised in the trial Court. The appellant has said nothing in this behalf in his statement under section 342, Cr. P. C. Even the learned Trial Court has not referred to any such plea in the judgment. However in view of the appellant's past history of mental illness, the appellant was referred to mental hospital, Hyderabad where he remained under observation from 30th May, 1981 to 25th July, 1981. On his discharge, he was declared fit to understand the proceedings. Accordingly his trial began thereafter on 13th December, 1981. In view of the above position we have no doubt in our mind that the appellant was in fit mental state at H the relevant time and he fully understood what he was doing. Neverthe less on consideration of the evidence on record possibility cannot be ruled out that the appellant may be having periodical fits of insanity.

The appellant in his judicial confession has referred to his wife's illicit connections with her cousin but in the same breath he admits that he has never seen the two in objectionable position. Thus the origin of the fight between the husband and wife is shrouded in mystry. It cannot be said with certainty as to what made the appellant turn hostile to his wife so that he did not hesitate to kill her. All this evidence, at the most, creates doubt about the appellant's insanity. According to section 105, Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Pakistan Penal Code or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. This being the legal position, the appellant had to prove strictly beyond any shadow of doubt that his case is covered by the general exception contained above but such proof is not forthcoming.

We may now refer to authorities cited at bar wherein plea of insanity was raised and discussed. In the case reported as State v. Balharidas Suttadhar (P L D 1962 Dacca 467), the plea of insanity raised by the accused was considered in the light of case law and the principles deduced therefrom were recommended in cases of insanity for guidance. The said principles may be reproduced as under: ‑

(i) If the accused raises any special plea or claims exoneration on the basis of any special or general exception he must prove his special plea or the existence of conditions entitling him to claim the exoneration.

(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 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 either wrong or contrary to law be 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."

The next case is of Muhammad Shafi v. State (P L D 1962 S C 472). In this case too the plea raised on behalf of the appellant was that at the time of commission of offence he was insane by reason of unsoundness of mind and was therefore incapable of knowing either the nature of his acts or that what he was doing was either wrong or contrary to law. The High Court after assessment of the evidence came to the conclusion that the case of insanity was not made out and consequently the plea of insanity was not accepted by the Court. However having regard to the circumstances of the case the High Court did not confirm the sentence of death and altered it to one of transportation for life. The Supreme Court did not interfere with the High Court's decision, holding that in the circumstances of the case, the High Court had given the maximum benefit that could possibly be given to the appellant in the state of evidence on record.

The third case referred to by the learned defence counsel is of Khawaja Usman Shah v. State (P L D 1972 Kar. 77). It was held: ‑

The antecedent and subsequent behaviour of an accused is relevant to see, what was the state of mind at that time, when the act was committed. There is a distinction between 'medical insanity' and legal insanity'. Ground for exemption from criminal responsibility can be involved only in cases of legal insanity where 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. The inadequacy or absence of motive will be neither here nor there The burden under the law was upon the appellant to establish that he was entitled to the benefit of exemption as held in Said Ameer Shah v. State 1969 S C M R 805 and Jalaluddin v. The State 1968 P Cr. L J 187.

In the next case reported as Ali Muhammad v. The State (1973 P Cr. L J 693), the view taken was that the burden of proving that the case of an accused falls within the exception as contained in section 84, P. P. C. is not inconsistent with the rule of "reasonable doubt" which pervades our criminal jurispru dence and according to which a doubt occurring in the matter will react on the prosecution as a whole resulting in a benefit of doubt to the accused.

The next case to which reference is made is reported as Muhammad Ibrahim v. The State (1975 P Cr. L J 910) wherein the Sind High Court after considering the interpretation of section 84, P. P. C. made in the cases of LaI Khan v. Crown (P L D 19521ah. 502), Ghulam Yousuf v. Crown (P L D 1953 Lah.213). Atta Muhammad v. State (P L D 1960 Lah. 111), Aurangzeb v. state (1971 P Cr. L J 1285) made the following observations :‑

.unfortunately the law in this country does not recognize such lesser forms of mental abnormality and apart from unsoundness of mind which renders a person incapable of knowing either the nature of the act or that what he is doing is wrong or contrary to law the plea of a diminished responsibility is not available as a defence in a criminal prosecution as under the English Act. It was observed that under the existing law even in case of impulsive insanity or mania it is necessary to establish that the maniac was incapable of knowing what he was doing at that point of time."

Applying the principles enunciated in the aforesaid authorities to the facts of the present case we have no hesitation in holding that the defence has totally failed to prove that the appellant was insane at the time of commission of the offence so as to bring his case within the purview of the exception contained in section 84, P. P. C. As has been held above there is nothing in the evidence to cast any doubt on the question whether the act of the appellant was done with intention or knowledge as is required to constitute an offence under section 302, P. P. C. However the evidence on record shows that the appellant has undergone periodical fits of mental disturbance before and after commission of the murder. Taking this into consideration, we will not confirm the sentence of death awarded to the appellant. Accordingly while maintaining the conviction of the appellant under section 302, P. P. C. we reduce the sentence to imprisonment for life. We further direct that the jail authorities will give the full benefit of section 382‑B, Cr. P. C. to the appellant. Subject to these directions, the appeal is dismissed.

Appeal dismissed.‑ Sentence reduced.

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