2014 P Cr. L J 113
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
NOOR UDDIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.347 and Murder Reference No.24 of 2009, decided on 23rd May, 2013.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 84---Criminal Procedure Code (V of 1898), S.465---Qanun -e-Shahadat (10 of
1984), Art.121---Qatl -e-amd---Act of a person of unsound mind--- Insanity and unsoundness of
accused, proof ---Counsel for accused had s ubmitted that, accused was an insane person, and had
been suffering from "Paranoid Schizophrenia", and that his case was fully covered by the
provisions of S.84, P.P.C.---Validity ---Provision of S.84, P.P.C. had provided that nothing was
an offence, which was done by a person, who, at the time of doing it, by reason of unsoundness
of mind, was incapable of knowing the nature of the act; or that what he was doing, was either
wrong or contrary to law ---Principle embodied in S.84, P.P.C., was based upon the ma xim "actus
non facit reum nisi mens sit rea" i.e. an act was not criminal, unless there was a criminal intent---
Every person who was suffering from mental disorder, ipso facto, was not exempted from
criminal liability ---Any person, who would seek the benef it of S.84, P.P.C., must prove that at
the time of committing the act, he was of unsound mind---Onus would be on accused to prove by
Expert's evidence that he was suffering from such a mental disorder, or mental condition that he
could not be expected to be aware of the consequences of his act ---Expression 'unsoundness',
though had not been defined in the P.P.C., but ordinarily it was treated as equivalent to insanity --
-Onus of proof always would remain on the prosecution, and accused was only required to s how
that there was a reasonable possibility of his case falling within the exception clause ---Standard
of proof of a plea bring the case of accused within the exception clause, need not be similar to
the decree of proof as expected of the prosecution, but it was equally true that, if an accused
would raise a defence, falling within the exception, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the Pakistan Penal
Code, was upon him; and the court would presume the absence, of such circumstances as
contemplated under Art.121 of the Qanun- e-Shahadat, 1984---Nothing was on record to infer
that accused was of unsound mind at the time of occurrence ---Behaviour of accused at the time
and subsequent to t he commission of the crime, had clearly indicated that he knew and was
capable of knowing the nature of the act done by him ---Being annoyed with the attitude of
deceased, accused appeared to have taken a conscious/sensible decision of committing the
murder of the deceased ---Behaviour of accused, at no point of time, was shown to be abnormal --
-Opinion of Medical Standing Board, also did not indicate that accused was not capable of
knowing the consequences of his act ---Accused was sane and understood the impl ications of the
act done by him, and in no case was having unsound mind within the meaning of S.84, P.P.C. at
relevant time ---Trial Court rejected defence plea on sound reasoning, and no exception could be
taken to such reasoning.
Khizar Hayat v. The S tate 2006 SCMR 1755 rel.
Khizar Hayat v. The State 2006 SCMR 1755 and Aurangzeb v. The State 1971 PCr.LJ
1285 ref.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence ---Accused was nominated as a sole
perpetrator in the F.I.R.---Day -light occurrence had taken place in the house of deceased and the
matter was incorporated in Police Roznamcha--- Ocular account, furnished by the prosecution
witnesses, had been fully corroborated by the medical evidence, as well as the recovery of crime
weapon, followed by positive report of Forensic Science Laboratory ---Despite lengthy cross -
examination, the defence failed to create dent in the ocular account, furnished by the prosecution
witnesses ---Prosecution witnesses were inmates of the house, where the deceased was done to
death, and their presence at the place of occurrence, or at the time of incident could not be
doubted being natural witnesses ---Two prosecution witnesses, though were the sons of the
deceased, but only on account of their relationship with the deceased, they could not be termed
as interested witnesses, for the reasons that they had no direct animosity with accused, who had
been implicated in the present case as a sole perpetrator ---Accused, in circumstances, was rig htly
found guilty of the charge by the Trial Court ---Murder Reference was answered in affirmative, in
circumstances.
Muhammad Amin v. The State 2000 SCMR 1784 and Muhammad Akhtar Ali v. The
State 2000 SCMR 727 rel.
Syal Khan Durrani for Appellant (in Criminal Appeal No.347 of 2009).
Abdul Sattar Durrani, Additional Prosecutor -General for the State (in both Appeal and
Reference).
Syal Khan Durrani for the Counsel (in Murder Reference No.24 of 2009).
Date of hearing: 6th May, 2013.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This judgment will dispose of
Criminal Appeal No.347 of 2009 and Murder Reference No.24 of 2009, both arising out of
judgment dated 27th October, 2009 (the "impugned judgment"), passed by the learned
Additional Sessions Judge, Killa Abdullah at Chaman (the "trial Court"), whereby appellant
Noor -ud-Din son of Haji Muhammad Usman was convicted and sentenced under section 302(b)
of the Pakistan Penal Code, 1860 (P.P.C.) to suffer death as tazir and to pay an amount of
Rs.100,000 (Rupees one hundred thousand only) as compensation to the legal heirs of deceased
Haji Muhammad Siddique as provided under section 544- A of the Criminal Procedure Code,
1898 (Cr.P.C.), or in default whereof to further undergo six (6) months simple imprisonment
(SI), subject to confirmation of death sentence by this Court.
2. Complainant Haji Muhammad Essa son of Haji Muhammad Siddique (P.W.1), in his
Fard-e-Bayan (Exh.P/1- A) dated 12th November, 2008, alleged that he is resident of C haman
and having business at Hong Kong. That his younger brother, namely, Allah- ud-Din informed
him in Hong Kong via telephone that on 6th November, 2008 at about 8 -15 p.m., their father
Haji Muhammad Siddique has been killed by his cousin Noor -ud-Din (appellant) by means of
firing with Kalashnikov and that the incident had been witnessed by the complainant's son Nazar
Ali and Rahim -ud-Din son of Haji Muhammad Gul. That on receipt of this information, the
complainant reached Chaman from Hong Kong and, after consultation with his brothers, lodged
F.I.R. No.251 of 2008, under section 302 of the P.P.C. at Saddar Police Station, Chaman District
Killa Abdullah.
3. The record shows that P.W.7 Gul Muhammad, SI, on 6th November, 2008, after carrying
out proceeding s as provided under section 174 of the Cr.P.C., released the dead body of deceased
Haji Muhammad Siddique to its legal heirs vide receipt, as the legal heirs told him that since the
elder son of the deceased i.e. the complainant was in Hong Kong and as he reaches Chaman, they
will move for the registration of an F.I.R. SI Gul Muhammad reduced this into writing vide
Report No.44 in the Roznamcha dated 6th November, 2008. When the complainant reached
Chaman, on his Fard- e-Bayan the F.I.R. was lodged on 12th N ovember, 2008 and he (P.W.7)
commenced the investigation. He placed on record the F.I.R. (Exh.P/7- A), inquest report
(Exh.P/7- B) and receipt (Exh.P/7- C). He took into possession the bloodstained clothes of the
deceased produced by the complainant through r ecovery memo and sealed it in Parcel No.1. He
obtained death certificate, recorded the statements of P.Ws., prepared site sketch (Exh.P/7 -D),
took into possession 4 crime empties, sealed it in parcel No.2 and arrested the accused on 12th
November, 2008. On 14th November, 2008, accused Noor -ud-Din made disclosure that he can
recover the Kalashnikov, with which he had committed the murder of his uncle Haji Muhammad
Siddique, at which disclosure memo was prepared and, consequently, the recovery of
Kalashnikov was effected on his pointation from his house, which was taken into possession
through recovery memo, sealed it in Parcel No.3 and murasila was sent for registration of
separate F.I.R. On 27th November, 2008, the accused was remanded to judicial custody and
incomplete challan (Exh.P/7- F) was prepared. On receiving report (Exh.P/7- G) of Forensic
Science Laboratory (FSL), challan (Exh.P/7 -H) was prepared and the appellant was sent up to
face the trial.
4. On the stated allegations, a formal charge was framed and read over to the appellant, to
which he did not plead guilty and claimed trial. In order to prove its accusation, the prosecution
examined seven witnesses. P.W.1 Muhammad Essa is complainant of the case, who placed on
record his Fard -e-Bayan (Exh.P/1- A). P.W.2 Allah- ud-Din, P.W.3 Nazar Ali and P.W.4 Rahim -
ud-Din alleged to have witnessed the occurrence. P.W.5 Dr. Khalid Saeed, Medico Legal
Officer, Casualty Department, DHQ Hospital, Chaman, examined the dead body of the deceased
and issued certificate (Exh.P/5- A). P.W.6 Saad Anwar, ASI, is witness to the recovery memos
(Exh.P/6- A & C) regarding crime empties and Kalashnikov as well as disclosure memo
(Exh.P/6- B) of the accused and P.W.7 Gul Muhammad, SI, is the Investigating Officer of the
case. Then t he prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of facts levelled against him by the prosecution and
professed his innocence. He did not opt to record his statement on oath under section 340(2) of
the Cr.P.C., nor produced any witness in his defence.
6. At the conclusion of trial, the trial Court found the prosecution's case against the
appellant to have been proved beyond reasonable doubt, thus, he w as convicted and sentenced,
as detailed above.
7. The learned counsel for the appellant submitted that the appellant is an insane person and
has been suffering from paranoid schizophrenia and his case was fully covered by the provisions
of section 84 of the P.P.C., but the learned trial Court erred in law while rejecting his plea of
being insane. As per the learned counsel, the appellant had taken a specific plea at the time of
framing of the charge as well as in his examination under section 342 of the C r.P.C. and had
proved the same through medical evidence, but the learned trial Court has failed to consider the
aforesaid aspect of the case in its true perspective and has drawn conclusions contrary to the
record. He further submitted that the appellant w as taking medicine qua the said disease at the
time of occurrence, therefore, it was obligatory upon the learned trial Court to have treated the
case of the appellant as provided by the provisions of section 84 of the P.P.C., but it has failed to
do so, as such, the impugned judgment is liable to be declared as of no legal effect.
8. On the other hand, learned Additional Prosecutor -General opposed the appeal and stated
that the learned trial Court, after taking into consideration the material available on record, has
rightly convicted and sentenced the appellant, which do not call for interference by this Court.
9. We have heard the learned counsel for the parties at length and have gone through the
record with their valuable assistance. Before we proceed to dilate upon merits of the case and the
legal issues involved in the present appeal and murder reference, a reference to section 84 of the
P.P.C. as well as the medical opinion furnished by the Balochistan Provincial Standing Medical
Board, Quetta woul d be relevant, which speak as under: --
"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 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."
"MEDICAL OPINION
Accused Noor -uddin son of Haji Muhammad Usman, appeared before the Balochistan
Provincial Standing Medical Board on 7- 7-2009 and 14- 7-2009, we the members of Balochistan
Provincial Standing Medical Board are of the opinion that
"On current mental state examination, he is suffering from Paranoid Schizophrenia,
currently is controlled with medicines (treatment).
This mental illness is of a chronic nature, where patient does not remain sound- mind
during active process of illness.
On current mental state examination he is able to face the proceeding of honourable
Court.
He is advised to continue treatment."
10. The aforesaid provision of law clearly provides that nothing is an offence, which is done
by a person, who, at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that what he is doing is either wrong or contrary to law. The
principle embodied in section 84 of the P.P.C. is based upon the maxim "actus non facit reum
nisi mens sit rea" i.e. an act is not criminal unless there is a criminal intent. It is settled
proposition of law that it is not every person, who is suffering from mental disorder, ipso facto, is
exempted from criminal liability. Any person, who seeks the benefit of section 84 of the P.P.C.,
must prove that at the time of committing the act, he was of unsound mind. The onus would be
on the accused to prove by expert's evidence that he is suffering from such a mental disorder or
mental condition that he could not be expected to be aware of the consequences of his act.
Though the expression `unsoundness' has not been defined in the P.P.C., yet ordinarily it is
treated as equivalent to insanity. Section 84 of the P.P.C. has been interpreted by the Hon'ble
Supreme Court in the case of Khizar Hayat v. The State, 2006 SCMR 1755, while reiterating the
view taken in Balahari Das's case. The relevant observation is as follows: --
"(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 d efence 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 of 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 he 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."
11. It is true that the onus of proof always remains on the prosecution a nd the accused is only
required to show that there is a reasonable possibility of his case falling within the exception
clause and the standard of proof of a plea bringing the case of an accused within the exception
clause need not be similar to the decree of proof as expected of the prosecution, yet, it is equally
true that if an accused raises a defence falling within the exceptions, the burden of proving the
existence of circumstances bringing the case within any of the General Exceptions in the
Pakistan Penal Code is upon him and the Court shall presume the absence, of such
circumstances, as contemplated under Article 121 of the Qanun- e-Shahadat Order, 1984.
Reference can also be made to the above noted citation i.e. in the case of Khizar Hayat v. The
State 2006 SCMR 1755, wherein it was observed as under: --
"It is settled maxim in law, until the, contrary is proved every man is presumed to be sane
and possessed of a sufficient decree of reasons to be responsible for his actions. This clearly
follows f rom Article 121 of the Qanun- e -Shahadat Order, 1984 which provides that the burden
of proving that the case, of an accused person fails within an exception is on him."
12. Medical and legal standards of sanity are not identical. From the medical point of view, it
is probably correct to say that act of murder by itself denotes an unhealthy and 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. The mere fact that at the time of examining the appellant, the
Medical Standing Board found the appellant suffering from Paranoid Schizophrenia, is not
sufficient to hold the appellant of unsound mind within the meaning of section 465 of the Cr.P.C.
or under section 84 of the P.P.C., because queerness above is not sufficient to hold the appellant
of unsound mind and incapable of making defence. In this regard, reference can be made to the
case of Aurangzeb v. the State, 1971 PCr.LJ 1285, wherein it was held as under: --
"If benefit was to be had from section 84, P.P.C., 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 he was
incapable of knowing the nature of his own acts or that what he had done was either wrong or
contrary to law. All that appears on record is queer behavior before the occurrence. This by
itself; even if we were to accept that he acted in that manner, would not throw light on his mental
imbalance at the time he had committed the offence in the context of legal insanity."
13. There is nothing on record to infer that the appellant was of unsound mind at the time of
occurrence. His behavior , at the time and subsequent to the commission of the crime, clearly
indicates that he knew and was capable of knowing the nature of the act done by him. Being
annoyed with the, attitude of the deceased, he appears to have taken a conscious/sensible
decisi on of committing the murder of the deceased. At no point of time, his behavior is shown to
be abnormal. The plea, though not strictly but by implication appears to have been taken by the
appellant for the first time when charge was framed in the following words: --
"I do not plead guilty and claimed trial. As I do not know what happened."
Similarly, while answering question No.19 during his examination under section 342 of the
Cr.P.C., the appellant replied as under: --
14. We have found no record, allegedly, showing the appellant to be of unsound mind. The
opinion of the Medical Standing Board also does not indicate that the appellant was not capable
of knowing the consequences of his act. Even at the time of examination in the year 2009, he was
diagnosed as suffering from Paranoid Schizophrenia and was capable to face the trial. We are
satisfied that the appellant was sane and understood the implications of the act done by him and
in no case was having unsound mind within the meaning of section 84 of the P.P.C. at the
relevant time.
15. As has observed, at the time of framing charge, the appellant pleaded not guilty and took
the plea that he does not know what happened, shows that he fully understood the charge and
was capable of making defence. I t is true that the appellant was suffering from Paranoid
Schizophrenia, the most common, which is subtype of Schizophrenia, in which the patient has
delusions, auditory hallucinations and personally grandeur i.e. false belief, hear things that are
not real and a false belief that he is much greater, more powerful and influential than he really is,
but it is equally true that in the ordinary course of nature, the patient of Paranoid Schizophrenia
remains in normal condition and it is also worth mentioning that as per opinion of the Standing
Medical Board, the appellant was capable facing the trial.
16. In the light of above discussion, we are satisfied that the appellant was not suffering from
any such mental disease, which could make him incapable of makin g defence. The appellant has
badly failed to prove that, at the time of commission of the offence, due to active process of
illness, he remained not sound minded. There is nothing on record to establish that due to active
process of illness at the time of commission of the offence, the appellant, by reason of
unsoundness of mind, was incapable of knowing the nature of the act. Mere suffering from
derangement of mind on some earlier occasion is not sufficient to diminish the criminal liability.
The learned t rial Court also took into consideration the defence plea and rejected the same on
sound reasoning and no exception could be taken to such reasoning.
17. Reverting to the merits of the case, it may be noted that the appellant is nominated as a
sole perpet rator in the F.I.R. The occurrence took place in the house of deceased Muhammad
Siddique, situated at Killi Muhammad Siddique, Chaman, District Killa Abdullah, at about 8- 15
p.m. on 6th November, 2008, which was a daylight occurrence and the matter was inc orporated
in Police Roznamcha No.44 dated 6th November, 2008. The ocular account, furnished by P.W.2
Allah -ud-Din, P.W.3 Nazar Ali and P.W.4 Rahim -ud-Din has been fully corroborated by the
medical evidence as well as the recovery of crime weapon, followed by positive report of FSL
(Exh.P/7- G). Despite lengthy cross -examination, the defence failed to create any dent in their
veracity, except a few discrepancies, which are immaterial and not fatal to their evidence. They
are inmates of the house, where the de ceased was done to death and their presence at the place of
occurrence or at the time of incident could not be doubted being natural witnesses.
18. No doubt P.W.1 Muhammad Essa and P.W.2 Allah- ud-Din are the sons of deceased
Muhammad Siddique, yet only on account of their relationship with the deceased, they cannot be
termed as interested witnesses, for the reasons that they have no direct animosity with the
appellant, who has been implicated in the instant case as a sole perpetrator. By holding this view ,
we are fortified from the case of Muhammad Amin v. The State, 2000 SCMR 1784, wherein it
has been held by Hon'ble Supreme Court of Pakistan as under: --
"An interested witness is one who has a motive for falsely implicating an accused, is a
partisan an d is involved in the matter against the accused. Friendship or relationship with the
deceased will not be sufficient to discredit a witness particularly when there is no motive to
falsely involve the accused."
Likewise, the Hon'ble Supreme Court in the c ase of Muhammad Akhtar Ali v. The State, 2000
SCMR 727, held as under: --
"Moreover, we find that none of the two eye -witnesses could be termed as interested
witness because none had any previous ill -will or grudge against the petitioner. Merely, because
P.W.4 is father of the deceased and P.W. belongs to the "Baradari" of the deceased would not
make them interested as they, had no reasons to substitute the petitioner for the real killer."
In view of what has been discussed above, we are of the conside red view that the
appellant was rightly found guilty of the charge by the learned trial Court, thus, Criminal Appeal
No.347 of 2009, being without merit, dismissed and Murder Reference No.24 of 2009 is
answered in affirmative.
HBT/60/Q Appeal dism issed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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