1. ' MUZAFFAR ALI, J.--- We propose to dispose of both, the appeals filed by the accused/appellant under section 410, Cr.P.C. And the reference under section 374, Cr.P.C. Made by learned Additional Sessions Judge, Ghizer, through this single judgment as the case is same and one.
2. ' The facts leading to the case are that the convict/appellant was committed for trial by Sessions Judge, Ghizer under section 302, P.P.C. For committing murder of one Sherullah resident of Hakis, Gupis. The occurrence took place on 18-7-2002 and the F.I.R. No,15 of 2002 was lodged promptly on the same date and after completion of investigation, the challan of the case was put in Court by the police on 6-10-2002 and the learned Sessions Judge, Ghizer framed charge against the convict/appellant on 6-3-2003 and trial was ensued against the convict/ appellant. The prosecution examined 13 witnesses in proof of the case against the convict/appellant; he was also examined under section 342, Cr.P.C. And on oath too under section 340(2), Cr.P.C.
3. ' The learned Additional Sessions Judge, Ghizer announced his judgment on 24-2-2005, after concluding the trial and convicted the appellant by awarding him death sentence under section 302, P.P.C. And also imposed fine of Rs,3,00,000 to be paid to the legal heirs of the deceased and in default of the payment of the above amount he was to further undergo 5 years' R.I. Hence this appeal by the convict/appellant and reference by the learned Additional Sessions Judge, Ghizer.
4. ' The learned counsel for the convict/appellant raised a preliminary point/objection against the mode of the trial by the learned Sessions Judge and requested this Court to decide the same first before going into other merits of the case. The objection/point is as under:-- "The convict/appellant was an insane/lunatic person and this state of mind of the convict/appellant was even conceded by the F.I.R. Lodger and P.Ws. In their statements under section 161, Cr.P.C. And also in their statements before the Court, but with some deviation from the statements under 161, Cr.P.C. And in the above situation of the case, it was incumbent upon the learned Additional Sessions Judge to follow the procedure under section 465 of Cr.P.C. First and after determination of insanity or sanity of the accused, the Court was to determine the mode of trial of the case, but the learned trial Court has failed to restore the above special procedure as such the impugned judgment is without jurisdiction and nullity in the eyes of law."
5. ' Since, in our opinion the above preliminary point raised by the learned counsel for the convict/appellant is of utmost importance and it touches the roots of the case, therefore, we allowed the counsel for the convict/appellant to argue the above point first, before going into other merits of the case, but, before allowing the counsel for the convict/ appellant, we asked the learned Advocate-General for State, he also agreed to thresh out the above point first, keeping in view its importance.
6. ' The learned counsel for the convict/appellant invited our judicial notice towards the contents of the F.I.R. And statements of P.Ws. Under section 161, Cr.P.C. To substantiate the preliminary objection raised by him and wherein, we found that almost all of the witnesses including "father" and "mother" of the deceased have stated that, the convict/ appellant was mentally deranged. He further argued that, the convict/appellant had remained under treatment in "Irfan Neuro Psychiatry and General Hospital, Mansehra" and in this regard Dr. Muhammad Irfan of the said Hospital has issued certificate to the convict/appellant, but the learned trial Court did not honour the same. The learned counsel relied on following case-law and by dint of these rulings she urged that, the learned Sessions Judge has failed to follow the special procedure laid down under section 465, Cr.P.C. As such the impugned judgment is without jurisdiction and liable to be set aside:--
(1) 1997 SCMR page 239; (2) PLD 1997 SC 847; (3) 1994 SCMR 1517; (4) PLD 1984 Lah. 434; (5) PLD 1985 Kar. 594 and (6) 1973 PCr.LJ 247.
7. ' On the other hand, the learned Advocate-General for the State denied the contention of the learned counsel for the convict/appellant and urged that, the learned trial Court has followed the procedure laid down under section 465, Cr.P.C. The convict/appellant was examined by a medical board which was constituted as per directions of the Court and the board declared the convict/appellant being of sound mind after examining him,. And the learned Advocate-General referred order-sheets dated 10-11-2003 and 4-12-2003 of the learned trial Court respectively, which are reproduced as under:--
(1) District Attorney on behalf of the State present. Defence counsel Messrs Haji Jamal Khan and Ahmad Mir, Advocates present. Vide order-sheet dated 3-10-2003, the D.H.O. Ghizer was directed to examine the accused who shown his inability due to lack of psychiatry (Specialist) and the matter, requires for check up of mental state of the accused. So the D.H.S. Northern Areas Gilgit be requested to perform the said requisition and submit his report after examination of the accused through subordinate concerned on 1-12-2003. Copy of the letter may also be furnished to D.C.
8. Ghizer for necessary arrangement for production of the accused to the concerned.
(2) District Attorney on behalf of State, and accused in custody present. Medical report pertaining to insanity of the accused is received from Messrs District Health Office Gilgit wherein after examination the accused found as sane with this plea of defence pertaining to his insanity negated therefore, summon the P.Ws. For 10-12-2003. Accused is directed to come along with defence counsel for cross-examination on P.Ws.
9. ' We have considered the arguments advanced by the counsel for the convict/appellant and Advocate-General for the State and also have gone through the case-law cited above and after scanning the record we found, that, initially, the complainant party conceded that, the convict/appellant was of unsound mind and because of this state of mind, he committed murder of deceased Sherullah and established no other motive, but during trial of the case, the complainant party deviated from the initial version of their own and tried to establish an ulterior motive of convict/appellant to commit murder of deceased Sherullah, and the learned trial Court without adhering to the special procedure laid down under section 465, Cr.P.C. Without being satisfied about the soundness or unsoundness of mind of the convict/appellant, started usual trial by framing of charge against the convict/appellant on 6-3-2003 under normal procedure of Cr.P.C.
10. And at the mid of the usual trial, after adducing some of prosecution witnesses,the learned Sessions Judge, endeavoured to rectify the above procedural error and he directed the D.H.S. NAs, vide order-sheet dated 10-11-2003, that the convict/ appellant be examined by a subordinate concerned of D.H.S. And the order-sheet dated 4-12-2003 transpires that, the convict/appellant had been examined by someone deputed and medical report had been received by the office of the Sessions Court from M.S. District Health Office, Gilgit, wherein the convict/appellant had been declared to be of sound mind and as a result, the trial Court turned down the plea of unsoundness of mind of the convict/appellant, but it is pertinent to note here, that we have gone through the record of the case.And found no such medical report in it. So it is not clear from the above order-sheets, whether the convict/appellant was examined by a Neuro Psychiatrist Doctor whether a board was constituted or not, moreover, after receiving the medical report, the learned trial Court was required to call the Doctor or Doctors in the Court to record his or their statement as P.W. And the convict/appellant was to be allowed to be cross-examined by the doctor, but learned Sessions Judge ignored this legal aspect and this error of law vitiates the above proceedings. In this respect we are supported by case-law cited PLD 1985 Kar. 594:-- ' Certificate of Neuro physician, produced in Court in support of plea of application's being of unsound mind---Trial Court, however, declaring applicant fit person without examining such Doctor---Held: Order being contrary to provision of Ss.464, 465 and 466, Cr.P.C. Same to be set aside in exercise of powers under S.561-A, Cr.P.C.---Held further: Doctor should be examined and accused be given chance to cross-examine him before deciding mode of trial.
11. ' The another important aspect of the case transpires from perusal of Exh.D.1, Exh.D.2, and Exh.D.3, the convict remained under treatment in "Irfan Neuro Psychiatry and General Hospital, Mansehra" and in this respect Dr. Irfan endorsed on the application submitted to him by the brother of the convict/appellant and certified, that the convict/ appellant remained under his treatment. He requested the Court further to refer the convict/appellant to Government Mental Hospital Dadar Mansehra, but the learned Sessions Judge neither called Dr. Irfan (Psychiatrist) into Court to record his statement as witness nor he referred the convict/appellant to Mental Hospital for ascertaining his mental fitness or otherwise and all the above facts show that, the learned trial Court has not taken this important issue seriously, while august Supreme Court of Pakistan and various High Courts are in conformity of the view that "provisions of section 465, Cr.P.C. Are of compulsory and mandatory nature and omission to observe the same would vitiate the conclusions made and the result reached", 1997 SCMR 239. "Trial held without first holding enquiry into alleged unsoundness and or incapacity of accused illegal, Trial Court is under obligation first to hold an enquiry quo soundness/capacity of accused's mind for purpose of ascertaining whether accused was incapable of making his defence. Trial Court would not be warranted in proceeding with trial in absence of Court's finding on question of insanity of accused PLD 1984 Lah.
12. 434.
13. "Where the prosecution evidence prima facie showed that the accused at the time of commission of offence was not of sound mind and the Courts were only conscious of the fact that the accused appeared to be of sound mind at the trial, the approach of the Courts was not correct---Courts should have made an inquiry into the fact of unsoundness of the mind of accused at the time of commission of the offence to determine whether the accused could be convicted of the offence he was charged of---Supreme Court remanded the case to the Trial Court to be decided in accordance with law". 1994 SCMR 1517 ' It is also pertinent to note that the counsel Mr. Ahmad Mir, Advocate, who has defended the convict/appellant had no knowledge of section 465, Cr.P.C., which could have been agitated at the initial stages of the case. Resultantly the Court had to go through a long procedure, where by the precious time of the Court the prosecution as well as the witnesses was wasted. The counsel has also failed to assist the Court by not examining/the medical report of fitness provided by the Gilgit Hospital which is not present on file.
14. ' The counsel is advised to be more careful in selection of cases which are beyond his capacity to conduct. Essential material which have direct bearing on a case of death and life imprisonment should not have been dealt with in a matter of fact way and overlooked is deplorable.
15. ' The upshot of the above discussion is that, the trial Court has failed to follow the special procedure under section 465, Cr.P.C. Accordingly, the reference made by the learned Additional Sessions Judge is rejected and appeal of the convict/appellant is accepted by setting aside the impugned judgment and case is remanded to the trial Court with the direction that, the question of unsoundness of the mind of appellant at the time of commission of offence should be first determined in accordance with the procedure laid down by section 465, Cr.P.C., and interpreted by the Supreme Court of Pakistan and various High Courts, through the case-law cited above in this judgment and the appellant be referred to the Mental Hospital under police custody for detail examination of his Mental condition and thereafter the charge under section 302, P.P.C. Be determined afresh in accordance with law.