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Criminal Appeal No.1101 of 1980, decided on 24th January,1987.

‑‑‑S. 302‑‑Motive‑‑Dispute over allotment of vacant plot‑‑Vacant plot in possession of maternal‑uncle and father‑in‑law of accused, allotted to deceased‑‑Possession of plot taken over by deceased, two months before occurrence‑‑Hot words exchanged between accused and deceased, a day earlier over said dispute‑‑Witness to motive having no enmity against accused‑‑Evidence supported by order of allotment of plot to deceased‑‑Accused and his maternal‑uncle, held, had motive against deceased in circumstances.

‑‑‑S. 302‑‑Ocular evidence, appreciation of‑‑Occurrence taking place in busy Bazar‑‑Two witnesses having their shops in same Bazar‑ Witnesses not related to deceased nor having any enmity against accused to falsely implicate him‑‑Complainant, son of deceased having no enmity with accused‑‑Witnesses making consistent statements‑‑No discrepancies found in their evidence‑‑Nothing favourable to accused found in their lengthy cross‑examination‑‑Accused apprehended at spot with blood‑stained Chhuri and wearing blood‑stained clothes‑‑Churri and clothes found stained with human blood‑‑F. I. R. lodged promptly‑‑Accused and witness found injured during scuffle for snatching Chhuri‑ Apprehension of accused at spot alongwith blood‑stained Churri and blood‑stained clothes, held, would lend strong corroboration to ocular account which in fact required no corroboration‑‑Eye‑witnesses were present at spot who witnessed occurrence and their evidence could not be excluded from consideration in circumstances.

‑‑‑Ss. 84 & 302‑‑Insanity, plea of‑‑Accused having mental disease in years 1975 and 1976‑‑Occurrence taking place in 1978‑‑No evidence on record showing recurrence of any fit of insanity after 1976‑‑No evidence to show lucid interval at time of occurrence‑‑No application for medical examination of accused by him or any of his relatives from time of his arrest till completion of trial‑‑Accused not claiming insanity and inability to understand proceedings at trial‑‑Accused making detailed, coherent and same statement under S. 342, Cr.P.C.‑‑Accused, attacking by singling out enemy of his uncle with whom he exchanged hot words a day earlier‑‑Accused not found insane by Investigating Officer at time of his arrest‑‑No evidence of any treatment of mental disease after year 1976‑‑Prosecution witnesses clearly stating him to be sane‑‑Accused selecting his victim, enemy of his uncle, from those against whom he bore no ill‑will, held, would establish crime not committed in sudden fit of insanity but one that exhibited premeditation‑‑Mere fact of suffering from any derangement of mind on some earlier occasion was not sufficient to bring accused's case within exemption under S. 84, Cr.P.C.‑‑Plea of insanity at time of occurrence was not proved on record in circumstances.

Muhammad, Ishaq v. The State 1977 P Cr. L J 977; Jalal Din v. The State 1974 S C M R 214; Aurangzeb v. The State 1971 PCr.LJ 1285 and Abdullah v. The State 1972 P Cr. L J 1041 ref.

Appellant through Jail.

Raja Abdul Ghafoor for the State.

Ijaz Hussain Batalvi assisted by M.A. Zafar for the Complainant.

Date of hearing: 24th January, 1987.

It was at about 5‑45 p.m. on 22‑5‑1978 when Haji Ahmad Jan deceased and his son Muhammad Iqbal P.W., after saying evening prayers came out of Sonehri Mosque, Bazar Sarafan, Chakwal Town. All of a sudden, Abdus Shakoor accused armed with Chhuri came there shouting Lalkaras and launched an attack on Haji Ahmad Jan deceased. The first Chhuri blow by Abdus Shakoor fell on the abdomen of Haji Ahmad Jan who fell down. Abdus Shakoor inflicted more Chhuri blows on the neck, head and back of the deceased who died at the spot. The occurrence was witnessed by Maqbool Hussain, Nemat Ullah and Allah Ditta shopkeepers of the Bazar besides Muhammad Iqbal Complainant. They rushed to the spot and apprehended Abdus Shakoor accused with Chhuri. In that process, Abdus Shakoor accused caused injuries on the person of Allah Ditta P.W.

The motive was stated to be a dispute over a plot between Haji Ahmad Jan and Habib Ullah, a maternal‑uncle and father‑in‑law of Abdus Shakoor accused. The said plot was allotted to Haji Ahmad Jan who obtained its possession about two months before this occurrence to the annoyance of Habib and Abdus Shakoor. There was exchange of hot words between the deceased and the accused a day earlier to this occurrence when Abdus Shakoor had threatened to take revenge.

Muhammad Iqbal complainant P.W.6 leaving the dead body of his father at the place of occurrence in the care of the witnesses went to Police Station Chakwal, about 4 Furlongs from the place of occurrence and lodged F.I.R. Exh.P.E. on the same day at 6‑15 p.m. recorded by A.S.I. Muhammad Yousaf P.W.3.

2. The police after registration of the case undertook investigation. The dead body of Haji Ahmad Jan aged about 60 years was found lying at the place of occurrence. It was sent for post‑mortem examination which was conducted by Dr. Asghar Hamid Qureshi P.W.1 on 22‑5‑1978 at 7‑00 p.m. The Medical Officer on external examination noted nine stab and incised wounds of various dimensions on chest, front of right shoulder, front and inner side of right upper arm, right front and left side of neck, interior part of scalp, chest and abdominal cavity and left index and middle fingers. Under injury No.9 it was noted that the stab wound was abdominal cavity deep over the left iliac fossa. Many loops of small intestines were lying outside the abdominal wall more on the left side. The small intestines were cut through and through at two places. On internal examination, right 3rd rib was found cut. Right 4th and 5th space between ribs had opened. There were cuts in the chest bone on the right side opposite injuries 2 and 1 respectively. The pleura was stabbed on both sides and ca v4ty was full of blood. Under injuries 1 and 2 right lung was found stabbed at many places and left lung had been stabbed under injury No.7. The pericardium was stabbed undue to injury No.1 and there were two stab wounds on the root of the ascending aorta, one on the right and interior side and the other on the left and posterior side due to injury No.2. Left oricle was also cut open. The abdominal wall and left side of diaphragm were stabbed. The spleen had been stabbed through and through under injury No.7. The death was due to injuries to pericardium, root of ascending aorta, spleen and intestines noted as injuries 1, 2, 7 and 9 respectively. These injuries were individually and collectively fatal and sufficient to cause death in ordinary course of nature. All injuries had been caused by sharp‑edged weapon. The time between injuries and death was a few minutes and post‑mortem was conducted in about 11 to 11 hours after death.

On 22‑5‑1978 at 10‑00 p.m., the same Medical Officer examined Allah Ditta P.W. and noted two superficial incised wounds each " x 1/8" going upward, backward and to the left outer side of chest 5" below left nipple. There were corresponding cuts on his shirt. The injuries had been caused by sharp‑edged weapon. These were of simple nature and of within six hours duration.

On 23‑5‑1978 at 11‑00 a.m., the same Medical Officer examined Abdus Shakoor accused and found five incised wounds of various dimensions on the inner half of right palm and fingers of right hand. All the injuries were of simple nature caused by sharp‑edged weapon and were of 16 to 18 hours duration.

3. On arrival at the place of occurrence the Investigating Officer found Abdus Shakoor accused in custody of the witnesses, he was arrested. On his personal search, some currency, watch and Tasbeeh were taken in possession vide memo. Exh.P.I. At that time Abdus Shakoor was wearing blood‑stained shirt P.8 and blood‑stained Shalwar P. 9. These were got removed by A . S . I . Muhammad Fareed P. W .9 and taken in possession vide memo. Exh.P.K. attested by Maqbool Hussain P.W.8 and Nemat Ullah P.W., not examined.

Allah Ditta P.W. at the time of apprehension of Abdus Shakoor accused at the time of occurrence, had snatched blood‑stained Chhuri P.1 from him. He produced the same before A.S.I. Muhammad Fareed P.W.9. It was taken in possession by him vide memo. Exh.P.H. attested by Allah Ditta P.W.7, Maqbool Hussain P.W.8 and Nemat Ullah P.W., not examined.

The blood‑stained earth was collected from the place of occurrence vide memo. Exh.P.J. The Chhuri P.1, shirt P.8, and Shalwar P.9 were found stained with human blood vide report of Chemical Examiner Exh.P.M. and that of Serologist Exh.P.N.

The accused was challaned after, completion of the investigation.

4. In support of its case, the prosecution examined nine witnesses in all. Muhammad Iqbal P.W.6, Allah Ditta P.W.7 and Maqbool Hussain P.W. were examined as eye‑witnesses. Nemat Ullah, another eye‑witness named in the F.I. R. was given up as unnecessary. Muhammad Anwar P.W.5 supported evidence on motive. Copy of order of Deputy Settlement Commissioner dated 17‑12‑1977 was tendered in evidence as Exh . P . G . The medical evidence was furnished by Dr. Asghar Hamid Qureshi P.W.1 as given in detail above. The case was investigated by A.S.I. Muhammad Farid P.W.9. The evidence of the rest of the witnesses was of formal nature.

The accused Abdus Shakoor aged about 35 years when examined after close of prosecution evidence denied the charge and pleaded innocence. He denied his apprehension at the place of occurrence and recovery of Chhuri P.1. In answer to question as to why this case against him, he made the following statement:‑

"I had fits of insanity lasting for considerable period of time since 1975. In this connection, I went for treatment to Karachi and remained under the treatment of Dr. Asghar for some time in 1975. At that time, I was feeling great depression and on obscession and delution. My condition was improved, and I came back to Chakwal. The improvement did not last long and again started for hallucination which culminated into violent fits. I was admitted in the Mental Hospital, Lahore in 1976, where I remained for some time. After being discharged from the hospital, I was got normal for some time but malady recurred with double force, so much so that I was kept in chains for quite long period till I had lucid intervals. I have no recollections about any occurrence in which I might have killed Ahmad Jan deceased. I had no motive to kill him. All that I remember is that I was put in chains in my house and later I found myself in the judicial lock‑up, where I learnt that I stood charged with murder of Ahmad Jan."

He, examined Dr. Ghulam Ali Asghar D.W.1 of Asghar Hospital Karachi who stated that Abdus Shakoor accused remained under his treatment in April 1975. It was stated by him that Abdus Shakoor had consulted him at four occasions. His diagnosis was that Abdus Shakoor suffered from Schizophrenia which in common parlance meant shattered personality which was one of the forms of insanity. Ghulam Qadir D.W.2 was a clerk, Government Mental Hospital, Lahore. He produced record relating to Abdus Shakooor accused showing that he was admitted on 23‑9‑1976 and discharged on 11‑10‑1976. Dr.M.A.A.Aziz, Medical Superintendent, Government Mental Hospital, Lahore D.W.3 stated that Abdus Shakoor was admitted in Mental Hospital on 23‑9‑1976 and discharged on the request of his relatives on 11‑10‑1976. He stated that on 2‑10‑1976, the patient had tried to run away from the hosptial. He diagnosed it as a case of schizo‑phrenia. Muhammad Siddiq D.W.4 was maternal uncle of Abdus Shakoor accused. His statement was recorded on 21‑6‑1980 during the trial. It was stated by him that about 10 years earlier, Abdus Shakoor was married to his niece Mst. Bilqees Begum. He divorced her about one month before the present occurrence. He further stated that about six years earlier, Abdus Shakoor had an attack of mental disease for which he was treated at Karachi and Mental Hospital, Lahore. He further stated that the accused used to be chained whenever found abnormal. It was stated by him that the accused used to have fits and sometime he behaved normally. He further stated that 5/6 days before this occurrence, he had seen the accused in chains.

The learned Additional Sessions Judge, Jhelum vide impugned judgment dated 26‑6‑1980 disbelieved the plea of insanity of the accused. He placed reliance on evidence of motive, incriminating recoveries and eye‑witnesses and sentenced him to imprisonment for life plus fine of Rs.3,000 or in default two years' R.I. under section 302, P.P.C. Hence this appeal through jail.

4. Muhammad Iqbal complainant filed Criminal Revision No. 884 of 1980 seeking enhancement of sentence and compensation under section 544‑A, Cr.P.C. This revision was not admitted. Vide order dated 1‑11‑1980 it was ordered to be heard alongwith the connected appeal. This judgment will dispose of both these matters together.

5. I have gone through the evidence and have also heard the learned counsel for the State as well as the learned counsel for the complainant.

The motive in this case is stated to be a dispute between Haji Ahmad Jan deceased and Habib maternal‑uncle and father‑in‑law of Abdus Shakoor accused. The evidence on motive is furnished by Muhammad Anwar P.W.5, a nephew of the deceased. It was stated by him that a vacant plot in Sarafa Bazar was allotted to Haji Ahmad Jan. It was in possession of Habib Ullah maternal‑uncle and father‑in‑law of the accused. The possession of this plot was taken by the deceased two months before this occurrence. He further stated that a day before the occurrence at about evening time, in Sarafa Bazar there was exchange of hot words on account of the said dispute between the deceased and the accused. In cross‑examination he admitted that the accused lived near Sonehri Mosque while his own house was at the back of the said mosque. He further stated that the disputed plot was about 15/20 paces towards the south of the house of the accused. This witness though a nephew of the deceased had no enmity to falsely depose against the accused. He is supported by the certified copy of the order Exh.P.G. passed by Deputy Settlement Commissioner, Jhelum on 17‑12‑1977 i.e. only about five months prior to the present occurrence. According to this order, the plot in dispute was allotted to Haji Ahmad Jan for the reason that the land all around this plot was owned by him. This order was passed in presence of Habib Ullah and Ahmad Jan. In view of the oral as well as documentary evidence, it is abundantly proved that Abdus Shakoor accused and his maternal‑uncle had a motive against the deceased.

6. The occurrence in this case was witnessed by Muhammad Iqbal P.W.6, Allah Ditta P.W.7 and Maqbool Hussain besides Nemat Ullah, given up P.W. The occurrence took place in a busy Bazar in front of Sonehri Mosque. Allah Ditta and Maqbool Hussain P.Ws. have their shops in the same Bazar. They were natural witnesses of the occurrence. These two witnesses were not related to the ‑deceased. They had no enmity with the accused to falsely implicate him in this case. Muhammad Iqbal P.W.6 is a son of Ahmad Jan deceased. He also had no enmity with the accused. He cannot be disbelieved simply because of his relationship with the deceased. The three eye‑witnesses made consistent statements during the trial. I have gone through their evidence. There was no discrepancy in their statements. They were subjected to lengthy cross‑examination but nothing favourable came out in that. They denied the suggestion that the accused was insane. The accused was apprehended by the witnesses at the spot at the time of occurrence In that process, both Allah Ditta P.W.7 and Abdus Shakoor accused were injured. Chhuri P.1 was secured by Allah Ditta P.W. who later produced the same before the Investigating Officer. The apprehension of ac6used at the place of occurrence alongwith blood‑stained Chhuri P.1 lends strong corroboration to the ocular account of this case, which in fact required no corroboration. The Investigating Officer on arrival at the place of occurrence found the accused wearing blood‑stained shirt P.8 and blood‑stained Shalwar P.9. These clothes were also taken in possession by him. These clothes also corroborate the eye‑witnesses of this case. The F.I.R. was lodged without any delay. In my view, the three eye‑witnesses were present at the spot and witnessed the present occurrence. There is no circumstance to exclude their evidence from consideration. They apprehended the accused at the time of occurrence. They snatched Chhuri P.1 from him which was later produced by Allah Ditta P.7 before the Investigating Officer. This evidence coupled with the injuries on the person of Allah Ditta P.W. and Abdus Shakoor accused fully corroborates the prosecution story.

7. I have examined the question of insanity of the accused at the time of present occurrence. It will be proper to first examine defence evidence led by the accused during the trial. Dr. Ghulam Ali Asghar D.W.1, a private medical practitioner at Karachi gave treatment to Abdus Shakoor in April 1975. According to him, the accused suffered from schizo‑phrenia which means shattered personality. He was again given treatment in Government Mental Hospital where he remained admitted from 23‑9‑1976 to 11‑10‑1976. It was stated by Dr. M . A . A . Aziz that on 11‑10‑1976, he found the accused "relevant and orientated and his father applied for discharge. The patient was accordingly discharged.

The patient was discharged on his being cured." Muhammad Siddiq D.W.4 is a brother of the mother of Abdus Shakoor accused. His niece Mst. Balqees Begum was married to the accused. It was stated by him that accused had a mental attack about six years earlier and was treated in Karachi and Lahore. He further stated that the had seen the accused in chains 5/6 days before this occurrence. He admitted in his examination‑in‑chief that he did not visit him on the day when this occurrence took place and that in fact he had not seen him for the last 4/5 days. A perusal of the evidence led in defence would show that Abdus Shakoor accused had some mental trouble in the year 1976. The certificates Exhs. D. C . , D. D. , D. E. , and the card marked as C. A. also prove that he was sick in the year 1976. The statement of Muhammad Siddiq D.W.4 at its best indicates that Abdus Shakoor was mentally sick about 4/5 days before the present occurrence. There is no evidence to show that the accused was insane at the time of present occurrence. According to the eye‑witnesses, the accused was in his senses and was not insane at the time of the present occurrence. Secondly, since the time of his arrest on 22‑5‑1978 till the completion of trial against him, the accused or any one of his relatives did not apply for his medical examination. Even during the trial it was not pleaded by Abdus Shakoor that he was insane and unable to understand the proceedings. He was G represented by a counsel. He made a detailed coherent and sane statement under section 342, Cr.P.C. All these facts prove that he was sane and not insane at the time of occurrence. Mere fact that on one earlier occasion, Abdus Shakoor had suffered from derangement of mind was not sufficient to bring his case within the exemption under section 84, P.P.C. As held in Muhammad Ishaq v. The State 1977 P Cr. L J 977, the onus of proof that the "accused was labouring under such a defect of reason as not to know nature of fact he was doing or what he was doing was wrong, lay heavily on him." Medical insanity and legal insanity are not same things. It is for the accused to prove special plea of section 84, P.P.C. to claim exemption from criminal liability. The legal insanity must be established by direct evidence in a case. As held in Jalal Din v. The State 1974 S C M R 214, it was necessary for the accused 'to prove that at the time when he committed the offence he was incapable of knowing that what he was doing was either wrong or contrary to law." In the instant case, it is apparent that the attack by Abdus Shakoor was directed against Haji Ahmad Jan, an enemy of his uncle and with whom he had exchanged hot words a day earlier. The fact that he selected his victim from those against whom he bore no ill‑will establishes that it was a crime not committed in a sudden fit of insanity but one that exhibited premeditation. As held in Aurangzeb v. The State 1971 P Cr. L J 1285 "it was necessary for the appellant to establish legal insanity in the context of reasonable doubt at the time of committing the offence." There is no material on record to establish that by reason of unsoundness of mind the accused in the instant case was incapable of knowing the nature of his own act or that what he had done was either wrong or contrary to law. This being an appeal through jail I have also examined the defence plea of insanity keeping in mind the judgment in Abdullah v. The State 1972 P Cr. L J 1041. In the case of Abdullah, their Lordships as a fact came to the conclusion that Abdullah appellant was instance at the time of occurrence. It was observed by their Lordships that:‑---

"The rigour can be reduced by following the rule laid down in Safdar Ali's case namely, that from the entire circumstances of the case put forth by the prosecution as well as by the defence, it will have to be seen whether the accused has been able to create a reasonable doubt so as to entitle him to the benefit of acquittal. The generally held concept with regard to lucid interval and the burden of proof in respect thereof needs, at least, a re‑orientation so as not to insist on strict proof of the exact state of mind at the time of doing the act. It would be sufficient if the accused by making reference to the attending circumstances, even if they have been shown by the prosecution in the Court, is able to establish by preponderance of probabilities that a reasonable possibility cannot be excluded that at the time of doing the act it was not a lucid interval. He would have thus discharged the burden."

On a perusal of the evidence on record of this case, I find, as held above, that Abdus Shakoor accused was having some mental disease in the years 1975 and 1976. He was discharged from hospital at the request of his own father. There is no evidence or circumstance to indicate that after the year 1976, he ever suffered from a fit of insanity. There are no attending circumstances in this case to show preponderance of probabilities that a reasonable possibility cannot be excluded that at the time of doing the act it was not a lucid interval. The evidence is that Habib father‑in‑law, of Abdus Shakoor appellant had dispute over allotment of property with Haji Ahmad Jan deceased. Some persons were coming out of mosque after saying prayers. Many others were moving about in the Bazar but the accused singled out Haji Ahmad Jan deceased and inflicted Chhuri blows on his person. He was arrested at the spot. He was not found insane by the Investigating Officer at the time of his arrest. There is no evidence that he was given any treatment for any mental disease after 1976. The prosecution witnesses are clear in their statements that accused was sane at the time of occurrence. In my view, the plea of insanity at the time of present occurrence, set up by the accused was not proved on record. This view also finds support from the fact that Abdul Shakoor at 11 a.m. on 23‑5‑1978 was medically examined by Dr. Asghar Hameed Qureshi P.W.1 who did not find him insane at that time. He did not even note any trace or semblance of insanity in him. The accused himself also did not complain] of any insanity at that time.

8. In view of the above discussion, I find no merits in this appeal which is accordingly dismissed. The conviction and sentence of Abdus Shakoor appellant is maintained.

9. Abdus Shakoor appellant was convicted vide impugned judgment dated 26‑6‑1980. The connected criminal revision was filed in November 1980. It was not admitted and only ordered to be heard alongwith the appeal. It has now come up in motion hearing after about 6 years of the passing of the impugned judgment. In view of this and also in view of the above decision in appeal, the connected revision is dismissed in limine.

The appellant be informed of the result of this appeal in prison.

S.A./A‑11/L Appeal dismissed.

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