1. ' MRS. QAISER IQBAL,1.---By this common order, I propose to disposed of Criminal Appeal No, 380 of 2004, Criminal Jail Appeals No,493 of 2004 and 494 of 2004, filed by Mst. Durdana wife of Auz Khan, Mustafa son of Auz Khan, Bashir Ahmed alias Goonga son of Auz Khan, through Superintendent Central Prison, Karachi. Assailing the judgment passed in Session Case No,74 of 2000, by learned 4th Additional Sessions Judge, Karachi, Central in crime No,60 of 2000,under sections 302 & 34, P.P.C. Registered at Police Station Nazimabad, Karachi Central, whereby the appellants were convicted and awarded life imprisonment under section 302(b) of Pakistan Penal Code and fine of Rs,50,000 each, in default of payment of fine they shall suffer R.I. For on year, fine, if recovered, shall be paid to the legal heirs of the deceased as compensation, with the benefit of section 382(b), Cr. P . C .
2. ' The necessary facts for the disposal of the appeals are that on 1-3-2004 on 1830 hours, complainant Gul Bakht went to the house of her daughter Muneera, her sister Durdana was standing at the door of the house. On inquiry of the complainant about her daughter, it transpired that Muneera was not present in the house and had gone to the house of the complainant or her brother Ghulam Nabi, upon which the complainant went to the house of her step son Ghulam Nabi, it transpired that Muneera had not visited her brother's house, the complainant again returned to the house of her daughter Durdana at 1800 hours, the complainants nephew, accused appellant's Mustafa, Bashir Ahmad and daughter Durdana were present in the house, the complainant found Chappal and Dupatta of her daughter Muneea in the room and the blood was oozing out, upon which the complainant tried to proceed towards the terrace but the complainants' daughter and son stopped her. The complainant succeeded to reach on the terrace and found pieces of the body of her daughter, which were lying in a carton, upon which she raised cries, the owner of the house Muhammad Younas reached at the spot, whereupon the matter was reported by the complainant to police.
3. ' Investigation in the matter was conducted by S.H.O., Sardar Khan, posted at the P.S. Nazimabad, on 1-3-2002, an operator Abdul Rauf had informed him that information was received, through telephone No,661853, that a murder had taken place in house No,3-H, 2/31, Entry No,67, to this effect was made in Roznamcha as Exh.20/A, the Investigating Officer along with staff reached at the place of incident came in contact with the owner of the house P.W. Muhammad Younas. The appellant Mst. Durdana was available in the house. The Police Inspector secured dead body of the woman without head, hands and legs lying in the store room of the said house, some of the pieces of dead body were found in the carton lying in the terrace of the said house in 13 polythene plastic bags. The dead body was inspected in presence of Mashirs, Muhammad Younas, Muhammad Shafi and Ghulam Nabi, joint Mashirnama of the dead body, place of incident was prepared on the spot Exh.12/A. The Investigating Officer has secured a tine containing 5 blood stains, from the place of incident the plastic drum in which blood was found lying, carton with 12 plastic packets and prepared inquest report Exh.12/B. The Investigating Officer has sent the dead body of deceased Muneera through S.I. Muhammad Iqbal to Abbasi Shaheed Hospital for post-mortem. He had recorded the statement of Mst. Gul Bakht under section 154, Cr.P.0 then he went to Abbasi Shaheed Hospital requested the Medical Officer through letter Exh.20/B to conduct the post-mortem examination, after the post-mortem dead body was handed over to P.W. Raza Bux, on Supurdagi Nama vide Exh.18/A. The Investigating Officer returned back to the place of incident and arrested the appellants Mst. Durdana and Bashir Ahmed at 10-30 p.m. On the same night at 11-00 p.m. The appellant Mustafa was arrested from the back side of the place of incident, a dirty street land. The Investigating Officer recorded the statement of the witness under section 161, Cr.P.C, the appellant Durdana, under the custody of S.I. Munawar Sultana voluntarily produced the crime weapon, she led the police party in the store room where a cot was lying on which some old articles were available underneath the clothes, the appellant. Durdana took out one chopper having about one feet length stained with blood, which was secured in the presence of the above mentioned Mushirs on the spot. The appellant Durdana had also volunteered during the investigation produced blood stained clothes of absconding accused Nazir Ahmed and blood stained clothes of the deceased.
4. On 3-3-2000 she led to police party to the place of incident from underneath the staircase, the old clothes were taken out and produced with blood stained, comprising of the bloods stained Shalwar and torn shirt, the appellant Durdana also led to police party in a room and underneath a cot she produced blood stained Shalwar and Banyan of absconding accused Naseer Ahmed, the clothes were sealed separately, the recovered property was sent to the chemical examiner for analysis.
5. The Investigating Officer on 6-3-2000 produced the prosecution witness Muhammad Younas, Ghulam Nabi and Muhammad Shafi in the Court of Judicial Magistrate, for recording of statements under section 164, Cr.P.C. The Investigation Officer had prepared a sketch of Wardat produced and upon completion of the investigation challaned the appellants and absconding co-accused Naseer Ahmed for commission of crime.
6. ' At the trial proceedings under section 512, Cr.P.0 were held, absconding accused Naseer Ahmed was declared absconder. The charge under section 302/34, P.P.C. Was read over to the appellants on 15-3-2002, to which they impleaded not guilty and claimed trial. The prosecution in support of the case examined P.W. Gul Bakht Exh.11, P.W.2 Ghulam Nabi Exh:12, P.W.3 Shafi Muhammad Exh:13, P.W.4 Police Inspector Muhammad Rustam Exh.14, P.W.5 S.I. Muhammad Iqbal Exh.15, P.W.6 Judicial Magistrate Ayaz Exh:16 P.W.7 Muhammad Younas as Exh:17, P.W.8 Raza Bux Exh.18, P.W.9, Dr. Zakia Khursheed Exh.19, P.W.10 Sarfaraz Exh.20, and closed side to leave evidence vide Exh.21.
7. ' The statements of appellants under section 342, Cr.P.0 were recorded they denied the allegation levelled by the prosecution, did not examine themselves on oath as envisaged under section 340(2), Cr.P.0 nor produced the evidence in rebuttal. The trial Court had convicted the appellants as stated above, they had resorted to file the criminal appeals.
8. ' I have heard the learned counsel for the parties and perused the record of the case.
9. ' Mr. Javed Haider Kazmi, learned counsel for the appellants Bashir Ahmed and Mustafa has contended that the complainant and the eye-witnesses account cannot be taken into consideration for awarding capital punishment on the premises that complainant Mst. Gul Bakht and the eye-witnesses of the occurrence are not conversant with the Urdu language, they can only speak Persian, therefore, without appointment of an Interpreter by the Court, with the assistance of the Interpreter under oath the statement of the complainant and prosecution witnesses Ghulam Nabi, Muhammad Shafi, Muhammad Younas ought to have been recorded. It is urged that appellant Mustafa is dumb and deaf, a special interpreter was required to explain charge, evidence produced and to record his testimony, the trial Court has committed an illegality by not awarding benefit of sections 361 and 537, Cr.P.C, which has resulted in the miscarriage of justice.
10. Section 361, Cr.P.C. Reads as follows:--
361. Interpretation of evidence to accused or his pleader.---(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person it shall be interpreted to him in open Court in a language understood by him.
11. ' The above enumerated section provides that the Sessions Judge during the trial of the murder case was required to apply the provision of law in letter and spirit. On account of failure to exercise of the power vested in the trial Court, the impugned judgment cannot be sustained, in support of the above contention reliance has been placed on the following case-law:-- ' Ghulam Sakhi v The State (1979 PCr. U 1016).
12. ' The rule laid down is that when the appellants were Pushto speaking hardly knowing the language in which trial was conducted, the trial Court did not appoint interpreter. The counsel appointed at the State's expenses not knowing Pushto, held that accused/appellant had a right to know nature of case and contents of an evidence produced against him and fact of his counsel knowing the language of Court is not material. The appellant was not in a position to understand proceedings and language making barrier between him and his counsel, therefore accused was unable to instruct his counsel and or provide him with material for cross-examining prosecution witnesses.
13. Failure of justice in the circumstances caused in a blatant manner under section 537, Cr.P.0 calling for reversal of order of conviction.
14. ' Adverting to the case of deaf and dumb appellant, the learned counsel appearing on his behalf has contended that, it was obligatory for the trial Court to record evidence before proceeding with trial that the appellant being a deaf and dumb could not be made to understand proceedings and the sign in gestures of the deaf and dumb appellant would have been interpreted by reliable intermediary. In support of the above contention reliance is placed on the following case law:--
(1) State v. Pervez Iqbal (1984 PCr.LJ 748), the relevant portion is reproduced hereinbelow:-- A plain reading of the provision of this section would show that it is obligatory for the Magistrate to record a finding before proceeding with the trial that the accused being deaf and dumb could not be made to understand the proceedings and to forward the record to this Court after his conviction with a report of the circumstances of the case, but in the present case the learned Magistrate had given no such finding nor had he submitted any report about the circumstances of the case including the conduct of the accused during the trial forming the basis of this inference. It was observed in Allah Dia v. Emperor (AIR 1929 Lah. 840), that a reference under section 341, Cr.P.C.
15. Can be made only if the accused, though not insane cannot be made to understand the proceedings and this requirement of law is not satisfied when the accused is a deaf-mute, but can understand the proceedings. The same view was taken in Emperor v. Ganga (AIR 1930 Lah. 64). A guideline was suggested in this respect by Davis, C.J, in Isso v. Emperor (AIR 1943 Sind 237), in the following terms:-- "Merely because the accused in proved to be deaf and dumb by birth, section 341 does not necessarily apply to his case. For the section to be made applicable the Court must be satisfied that the accused cannot be made to understand the proceedings. The Judge must attempt to find out whether the accused cannot be made to understand the proceedings against him by means of signs. A proper endeavour should be made to enable the accused to understand the proceedings before section 341 is applied and only when such 'an endeavour has failed and the Judge is satisfied that he cannot be made to understand the proceedings by means of signs, does section 341 properly apply. Then a proper finding within the meaning of section 341, Cr. P.C. Must be given and the Judge must then exercise his discretion under that section as to manner in which he should deal with the case."
16. ' The same view was taken by the Courts in India, in Peetha's case (AIR 1959 Kerala 165). Their Lordships had observed that the provision of section 341 can be invoked only when the accused is unable to follow the proceedings and the Court making a reference should record a finding as to whether the accused, though deaf and dumb, had sufficient intelligence to understand the criminal character of tlie act committed by him. It was reiterated by the Mysore High Court in. State v. Mookamma Yellamma and another (AIR 1964 Mys. 182).
17. 4.(sic) Going back to the Courts in our country I find that their Lordships of the Supreme Court had given the same directions in Alam Khan v. The State (PLD 1964 SC 801), that the Sessions Court while forwarding the case to the High Court under 'section 341, Cr. P.C. Should also record a finding as to whether the accused, though deaf and mute, had sufficient intelligence of knowing that he was doing what was wrong and contrary to law.
(ii) The State v. Noor Muhammad 1984 PCr.LJ Lahore 1948, the relevant portion is reproduced hereinbelow:-- The object is that the accused should be in a position to know personally the allegations and incriminating circumstances appearing against him so that he may defend himself effectively.
18. According to section 361, Cr.P.C. Whenever an evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open Court in a language understood by him. This is a mandatory provision. Noor Muhammad admittedly does not understand any language other than the language of. Signs and gestures as observed by the learned trial Court in its order, dated 1st March, 1982. No attempt appears to have been made to communicate the evidence to him through gestures, therefore, it follows that he could not defend himself consciously and properly. In this case the material evidence against the accused ,is that of the injured eyewitnesses who are his close relatives and accustomed to communicate with him due to their long associations. Had they been asked, they would have easily conveyed their evidence to him. A little vigilance on the part of the learned trial Court would have thus saved the proceeding from the stigma of nonobservance of the provisions of section 361, Cr.P.C. The precedent relied upon by the complainant's counsel in my humble view does not apply to the case in hand because in the precedent case two deaf and dumb accused were tried along with their 3 real brothers, who were held to have made them understand the proceedings.
19. 9.(sic) According to section 341, Cr.P.C. a reference could only be made if the trial Court finds that the accused 'cannot be made to understands the proceedings.' Since no effort to make the accused understand the proceedings had been made, therefore, the question of such efforts having failed did not arise and, therefore, a reference under section 341, Cr.P.C. Obviously is out of place.
(iii) The State v. Muhammad Masaddar (PLD 1966 Dacca 432), the relevant portion is reproduced hereinbelow:-- ' It appears that the Public Prosecutor who was prosecuting the disabled accused also acted as the interpreter of his signs and gestures in relation to the charges against him as well as the evidence adduced to substantiate the same. We are unable to appreciate this and in fact feel constrained to record our disapproval seeing particularly that no attempt was made to secure the services of one familiar with the modes of expression used by the poor fellow bereft of speech and hearing both. We do not think it would have at all been difficult to secure such an intermediary from his relations and neighbours. It is important that trials should be fair as it is to make them appear to be so.
20. The learned counsel for the appellant has further contended that the complainant Mst. Gul Bakht had acted as interpreter while the statements of P.Ws. Ghulam Nabi, Muhammad Shafi and Muhammad Younas were recorded under section 164, Cr.P.C. By the Judicial Magistrate, which reflects that a witness who had taken an active part during the police investigation could not act as an interpreter in a serious offence under section 302, P.P.C. In this context reliance is placed on the case of Ah Soi v. King Emperor reported AIR 1926 Cal.
922. The relevant dictum is reproduced in extenso:-- "We regret to have to say that the procedure, which was adopted by the learned Sessions Judge had the effect of placing the accused more or less at the mercy of the interpreter of the Lewis, which was absurd procedure from the very outset and opposed to ultimate ideas of justice that a witness who had taken an active part during the police investigation who had given evidence in the Magistrate's Court on behalf of the prosecution who was ready and willing to give evidence in Sessions Court on behalf of the prosecution against a man, who was charged with a very serious offence under sections 302 and 304, I.P.C. Should have been chosen to act as interpreter in this case is a procedure which is only to be stated to call for our severe condemnation. We trust that things like this will never happen again".
21. ' It is the settled principle of law that accused should not be condemned unheard. In criminal cases an accused is required to be present in person throughout the trial except when his personal attendance is dispensed with by the Court. The learned counsel appearing for the State has fairly conceded that there is glaring violation of section 361, Cr.P.C. As the evidence given in language was not understood by the appellants, it ought to have been interpreted to them in open Court in Persian language understood by them, which is a mandatory provision. Appellant Mst. Durdana and Mustafa admittedly do not understand any language other than Persian and the appellant Bashir Ahmed can only understand signs and gestures being deaf and dumb. The record of the trial Court shows that no effort was made to communicate the evidence to the appellants thus they could not defend themselves consciously and properly. The trial Court ought to have been vigilant by observing the provision of section 361, Cr.P.C. The reference under section 341, Cr.P.C. By the trial Court was not warranted as the appellants being relative of deaf and dumb appellant would have explained the proceeding, held by the trial Court through an interpreter to the deaf and dumb appellant.
22. ' In view of the above circumstances, I set aside the impugned judgment, case is remanded back to trial Court with the direction to appoint interpreter knowing Persian and Urdu language and special intermediary be appointed to explain the deaf and dumb appellant through signs and gestures about the proceedings to be held in the Court enabling him to defend their case, to record the charge evidence of the prosecution and decide the case on merits. In the result, Criminal Appeal No,380 of 2004 and Criminal Jail Appeals No,493 of 2004 and 494 of 2004, stands allowed in the above terms.