' EJAZ AFZAL KHAN, J.--- Inayatullah, appellant herein, who was charged in a case registered against him under sections 302/324, P.P.C. 7, A.T.A., 1997 and 13, A.O., vide F.I.R. No,.384 dated 5-11- 2002 of Police Station Saddar D.I. Khan, was sent to the Anti-Terrorism Court, D.I. Khan for trial. When the learned Court on its conclusion sentenced the appellant to death on three counts under section 302, P.P.C. Read with 7(a) of the A.T.A. And to pay a compensation of Rs,50,000 to the legal heirs of each deceased under section 544-A, Cr.P.C., or in default to undergo five years' S.I. And to six months' R.I. Under section 13, A.O. Vide its judgment dated 28-4-2004, he preferred this appeal.
2. The learned counsel appearing on behalf of the appellant contended that when it was palpable from the record that the appellant was not of sound mind and capable of understanding the proceedings he should not have been proceeded against without investigating this aspect. The learned counsel to support his contentions placed reliance on the cases of Fauqul Bashar v. The State 1997 SCM R 239; Sirajuddin v . Afzal Khan and another PLD 1997 SC 847 and Ghulam alias Ghulama v. The State decided by this Court in Criminal Appeal No,9 of 2002.
3. As against that, the learned counsel appearing on behalf of the State argued that where this plea was not specifically taken by the appellant, the Court was not bound to inquire and investigate it. The learned counsel, however, in the alternative urged that if at all there is any necessity to justify the examination of the appellant by a board consisting of a Psychiatrist besides others, that can well be done by this Court without upsetting the impugned judgment.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. Before we discuss and decide the instant controversy, it is worthwhile to refer to section 465, Cr.P.C. Which reads as under:-- "465, Procedure in case of person sent (for trial) before Court of Session or High Court being lunatic.
(1) If any person before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.
(2) Trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."
6. A look at the above mentioned provision would reveal that in cases of trial before the Court of Session or a High Court, if it appears to the Court at the trial that an accused person is of unsound mind and thus, incapable of making his defence, the Court shall at the first instance, try the fact of such unsoundness and incapacity. The tenor of the provisions and the words it is couched in clearly show that it is a meaningful mandate to be complied with rather than an unmeaning casual direction to be flouted with, moreso when the record abounds with material necessitating such inquiry.
7. Now we are to see whether there was any such material to call for such an inquiry. The record reveals that the appellant moved an application for his medical check up on the ground that he was serving as a tube-well Operator in the Gomal University and was removed from his service when he after having been examined by a Medical Board was found to have been suffering from Schizophrenia. But strange is the fact that his application was rejected by the trial Judge without application of mind and without appreciating the ratio of the judgment referred to in his order, moreso when it was also admitted by one of the P.Ws. In his statement and unequivocally so that the appellant was thought to be abnormal by all and sundry after the occurrence. We just fail to understand what was the haste on the part of the learned trial Judge to deal with this aspect of the case in such a summary and slipshod manner notwithstanding the fact that it is a mandate of the Statute itself. The learned Judge did not realize altogether that if such plea on an inquiry envisaged by the above mentioned provision is found false, it at its worst, would prolong the trial for a month or so but if found true, it at its best, would save a person from mounting on gallows unnecessarily.
When the stakes in the latter case as compared to the former are far greater and far more damaging such inquiry should not be dispensed with so casually. In the case of Atta Muhammad v.
The State PLD 1960 West Pakistan 111 his Lordship of Lahore High Court after drawing a fine comparison in sections 464 and 465, Cr.P.C. Held as under:-- "In cases of trials before the Court of Session or a High Court, if it appears to the Court at the trial that an accused person is of unsound mind and consequently incapable of making his defence, the Court, in the first instance, has to try the fact of such unsoundness and incapacity and the trial of this question shall be deemed to be a part of the trial under subsection (2) of section 465 of the Criminal Procedure Code. The legal position which emerges from the two sections is that under section 464 the Magistrate must have reason to believe that the accused person before him is of unsound mind and incapable of understanding the proceedings, and under section 465 it should appear to the Court at the trial that the accused person suffers from unsoundness of mind and thus, is incapable of making his defence. In either case the action is to follow the subjective reaction of the Magistrate or the Court to the situation that arises before him. If, during the inquiry, nothing comes to the notice of a Magistrate to induce a belief in him that an accused person is of unsound mind and if at the trial before the Sessions Court it does not appear to the latter that the accused is of unsound mind and consequently incapable of making his defence, there is nothing for them to do except to proceed with the inquiry or the trial in the normal manner. The words 'appear to the Court' are used in section 465 while the words 'has reason to believe' are used in section 464, but it is clear that in practical effect they mean almost the same thing. The phrase 'to appear' in my judgment used in the context of section 465 in its meaning is nearest to the phrase 'to be in one's opinion' as given in the Shorter Oxford Dictionary."
8. In the case of Fauqul Bashar (supra), the Honourable Supreme Court after referring to the case of Atta Muhammad v. The State (supra), held as under:-- "It was further observed in the Atta Muhmmad's case and which we are inclined to reiterate that in a trial in the Sessions Court, an accused person may feign insanity, but if it appears to the Court that it is unable to detect the simulation that the accused may be of unsound mind, the question has to be tried as a fact and medical evidence on the point would, of course, be indispensable necessity". No doubt the opinion of the learned Judges of this Court in Atta Muhammad's case further is that where the Court sees that insanity is a feigned one, has simply to ignore it.
Nonetheless, we are in no doubt that where it does not appear to the Court at all from its own observations or any other factor that the accused is because of unsoundness of mind incapable to make his defence, it is under no obligation to investigate the fact of unsoundness of mind."
9. A keen and careful reading of the above quoted paragraph would unmistakably indicate that the Court will dispense with such investigation only when the plea is found to be feigned on the basis of its own observation or otherwise but when there is sufficient material to call therefore, it shall be bound to investigate it. It was also held in the case of Sirajuddin v. The State (supra) that whenever the question of insanity or unsoundness of mind is brought to the notice of the Court, it shall investigate it in the manner provided under the law. The case of Ghulam alias Ghulama v. The State (supra) may also be relevant in this behalf.
10.. When seen in this perspective and in the light of case-law cited above, we are of the view that evaluation of the mental state of the appellant from a Medical Board attended by a Psychiatrist besides others is essential for just decision of the case. Therefore, we allow this appeal, set aside the impugned conviction and sentences recorded by the learned trial Judge and send the case back thereto with the direction to get the appellant examined by a Board as mentioned above and proceed with the case in accordance with law in the light of the opinion of the Board. The murder reference is thus, answered in the negative. The appellant shall be treated as an under-trial prisoner henceforth. Since it is a special case, it be disposed as expeditiously as possible.