SHER MUHAMMAD KHAN, J.---Appellant Inayatullah, was charged vide F.I.R. No, 384 dated 5-11- 2002 registered at Police Station Saddar, D.I. Khan for the murder of Muhammad Amin (brother the complainant), Muhammad Islam and Muhammad Ramzan, by complainant Fazal Karim son of Saifal resident of Kotla Habib, D.I. Khan.
2. The story of the occurrence, as narrated by complainant Fazal Karim to Muhammad Ashraf Khan Sub-Inspector Investigation, Police Station Saddar, D.I. Khan on 5-11-2002 at 1055 hours, at Civil Hospital, D.I. Khan is, that at about 9-00 a.m. he along with his brother Muhammad Amin (deceased) were riding on a bicycle from their house to Zafar Abad Colony, when they reached near the shop of Inayatullah appellant situated in the street of Zafar Abad Colony, they saw appellant duly armed with .30 bore pistol who came out from his shop and started throwing his business articles from the handcart into his shop and then fired at an Afghan Refugee aged about 10/11 years, due to which he got injured and fell down. After that the appellant came towards complainant and his brother, the appellant fired at them when they were still riding on the bicycle, brother of the complainant was also hit and fell on the ground. Due to fear and in order to save his life, complainant fled away from the scene of occurrence. The appellant took their cycle and parked, it in his shop. After that the appellant fired at Muhammad Ramzan son of Muhammad Hussain, who was going towards eastern side of the shop of appellant, he also became injured due to firing and fell on the ground. Appellant decamped along with his pistol from the scene of occurrence and complainant with the help of other people attended the injured persons. He found that Muhammad Amin (his brother) and Muhammad Islam, Afghan Refugee, had succumbed to the injuries while Muhammad Ramzan was still alive, who was taken to Civil Hospital, D.I. Khan with the help of other people. The occurrence was stated to be witnessed by Janat Khan son of Sher Muhammad an. Afghan Refugee and other people present at the time of occurrence beside complainant. Per contents of the report, there was no motive for commission of offence. He charged the appellant for committing the murders of the above mentioned three persons
3. The appellant was arrested on the same day by P.W.4 Fazal Rahim SI Traffic and P.W.11 Hassan Raza LHC No,784 at Topanwala Gate, D.I. Khan along with his pistol.
4. After completion of investigation, the challan was submitted against the appellant in the Anti- Terrorism Court, D.I. Khan for trial, which took cognizance on 17-4-2003.
5. Appellant was formally charged by the trial Court on 3-5-2003 at a time when he had not engaged counsel for his defence. It was brought into the knowledge of the learned Presiding Officer on that day that the appellant is resourceless person and is unable to bear the expenses for engaging a counsel to contest the trial and defend himself; therefore, President District Bar Association D.I. Khan was requested for recommending a competent Advocate to conduct trial on behalf of appellant. Several times the case was adjourned but the President of District Bar failed to arrange counsel for appellant. One" lawyer of District Bar, D.I. Khan voluntarily offered its service in the court to defend the appellant. The trial Court convicted the appellant, on 28-4-2004 for committing the murders of above mentioned three persons A and sentenced him to death on three counts under section 302, P.P.C. He was also convicted under section 7(a) of the Anti- Terrorism Act and sentenced to death on three counts. Under section 13 of Arms Ordinance, 1965 he was convicted and sentenced to six months' R.I., vide judgment dated 28-4-2004.
6. Before passing the judgment, learned counsel for the appellant had submitted an application on 29-3-2004, duly accompanied with medical report of the appellant, prepared on the basis of examination by Medical Board on 11-2-2002, i.e,, about nine months prior to the occurrence, vide which the appellant was found suffering from schizophrenia and was not resound to any treatment, therefore, declared unfit for service as Tube-well Operator in Gomal University. It was prayed before the:learned trial Court that the appellant be referred for medical examination to Civil: Surgeon of the District or other Medical. Officer for obtaining their expert opinion because the appellant was removed from service by Gomal University on the strength of the same medical certificate. It was contended that appellant. is incapable to defend himself in the trial. The learned trial Court, vide order dated 5-4-2004; dismissed the application of the appellant and proceeded with the trial and ultimately, convicted him as mentioned above.
7. Aggrieved with the .judgment/ order of his conviction passed by learned Anti-Terrorism Court, D.I. Khan vide judgment dated 28-4-2004, appellant filed Criminal Appeal No,53 of 2004 before this Court which was decided on 4-10-2004 and by accepting it, the conviction and sentence awarded to the appellant was set aside and the case was remanded back to the trial Court with the direction to get the appellant examined by a Medical Board attended by a Psychiatrist and then to proceed with the case in accordance with law in the light of the opinion of the Board.
8. The learned trial Court,. in compliance with the order/judgment of this Court delivered on 4-10- 2004, directed the Jail authorities to get examined the appellant through Standing Medical Board for giving their opinion/report about the mental status of the appellant and to state that whether the appellant is capable of defending himself or otherwise.
9. The Standing Medical -Board, comprising of (1) Chairman Medical Board Police/Services, Hospital Peshawar, (2) Medical Superintendent, Govt. Sarhad Hospital, Peshawar, for Psychiatric diseases, Hospital-cum-Secretary, (3) Associate Professor of Psychiatry Khyber Teaching Hospital, Peshawar, (4) Psychiatrist, Govt. Sarhad" Hospital Peshawar and (5) .Associate Professor of Medicines, Govt. Lady Reading Hospital, Peshawar, after examining the appellant on 20-10-2005, opined that, "the accused was examined by the Standing Medical Board and the Psychiatrist, Sarhad Psychiatric Hospital, for considerable period of time. Even after repeated reminder, none of the relative came to give a detailed account of the accused, previous history and behaviour. The accused was boarded out from service on the grounds that he suffered from schizophrenia which is a major mental illness . But that Board had no Psychiatrist as Member. As far as observation and assessment in the detained Ward Central Jail, Peshawar is concerned, he did not exhibit any characteristic signs and symptoms of schizophrenia, although he is odd and totally denying the charges. Keeping in view the seriousness of the crime and the dangerousness he poses to the public, the Board recommends that he needs to stay in a secured place like prison for long time."
10.The learned trial Court found the above mentioned report not in accordance with the directions given to it because no finding with regard to capability of the appellant to defend himself was given,. therefore, again the Board was asked to give clear report in that regard.
11.The Board again examined the appellant on 1-12-2005 and opined that, "the appellant suffers from schizophrenia which is a major mental illness and at the moment he is thought disordered and does not appreciate and understand the gravity of the crime and its consequences. He is not fit to plead in: a Court of law. Keeping in view the serious nature of his crime and the dangerousness he poses to the community. It will be helpful if the honourable Court may decide to keep him in a secured place like prison and to be treated there in the greater interest of public."
12.In the light of above mentioned report, the learned Judge Anti-Terrorism Court, D.I. Khan postponed further proceedings in the case in accordance with provisions of Chapter XXXIV of Criminal, Procedure Code, 1898. It was also directed that the appellant be kept in Jail for safe custody and treatment; till further orders, Provincial Government was directed to be informed in accordance with provisions of section 466, Cr.P.C. and the case file consigned to Record Room for safe custody, vide order dated 19-L-2006.
13.From the record of the case, it reveals that the appellant was kept in custody in Central Jail D.I.
Khan. The Superintendent Jail, vide letters dated 21-7-2006 and 29-7-2006 addressed to Medical Superintendent, District Headquarters Teaching Hospital, D. I. Khan and Inspector-General of Prisons, requested that Director-General Health may be approached to constitute Medical Board for ascertaining the capability of the appellant regarding making his defence. The request' of the Superintendent Central Jail, D.I. Khan was honoured and the appellant was again examined by Standing Medical ' Board on 10-5-2007, which gave the following fresh report on the basis of examination:-- "The Standing Medical Board held on May 10, 2007 is of the opinion that the accused suffering from schizophrenia which is a major mental illness. His mental state has improved with anti-psychotic medication. The Board is of the opinion that at present he has no acute symptoms of mental illness. He understands the nature of his crime, its consequences; therefore, he is fit to plead in the Court of law.
' Keeping in view the nature of schizophrenic illness which is a chronic and relapsing mental illness/insanity he may relapse with acute symptoms. The Board is of the opinion that the honourable Court may kindly consider his case for further disposal in the light of sections 465, 466 and 475. He needs to continue his medication for foreseeable future."
14.In the light of fresh report of Standing Medical Report the learned Judge Anti-Terrorism Court again took cognizance of the case on 23-6-2007 and summoned the appellant for 28-6-2007, to face trial. On that day, the appellant was produced before the court in custody and complainant also made appearance. Superintendent Central Jail, D.I. Khan was summoned to attend personally the Court along with all record of appellant for 5-7-2007. The order sheets of the trial Court reveal that the said directions for summoning the Superintendent Central D.I. Khan were neither complied with nor the learned trial Court felt any necessity to repeat the directions. This aspect of the case remained in dark for unknown reasons, as to why the learned trial Court thought it better not to stress for appearance of Superintendent Jail and production of record regarding mental condition of the appellant.
15.The learned trial Court again convicted and sentenced the appellant under section 302, P.P.C. read with section 7(a) of Anti-Terrorism Act, 1997 for committing qatl-e-amd of Muhammad Amin, Muhammad Islam and Muhammad Ramzan to death on each count. He was also burdened to pay compensation of Rs,1,00,000 to legal heirs of each deceased under section 544-A, C.P.C. and in default thereof, he was directed to undergo three years' S.I. Under section 13 Arms Ordinance, on conviction, he was sentenced to six months' S.I. All the sentences were directed to run concurrently.
16.The appellant again impugned the judgment/order of his conviction and sentence passed by the learned trial Court before this Court vide Criminal Jail Appeal No,47 of 2008. During course of arguments, it was found that examination-in-chief of Fazal Rahim was recorded on 27-11-2007 and the cross-examination was reserved for next date but afterwards neither the witness was summoned for cross-examination nor he was abandoned by the prosecution, therefore, vide order dated 17-2-2010 this Court again accepted the appeal and remanded the case back to the trial Court with the directions to summon P.W. Faz l Rahim A.S.-I. for affording opportunity to appellant to cross-examine him and thereafter tb record the statement of appellant under section 342, Cr.P.C. and decide the case afresh in the light of cross examination on Fazal Rahim A.S.-I. and supplementary statement of the appellant under section 342, Cr.P.C.
17.The learned trial Court complied with the directions of this Court and vide judgment dated 15- 3-2010 again convicted the appellant and sentenced him to death on three counts under section 302(b), P.P.C. and also on three counts under section 7(a) of Anti-Terrorism Act, 1997 coupled with compensation of Rs,1,00,000 for payment to the legal heirs of each deceased under section 544-A, Cr.P.C. Under section 13 Arms Ordinance, the appellant was convicted and sentenced to one year's R.I and fined him to pay Rs,20,000, in default thereof, he was further directed to undergo simple imprisonment for two months. However, all the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was extended. Hence, the instant appeal.
18.On acceptance of the application of appellant, this Court directed learned Additional Registrar to arrange pauper counsel to argue the instant appeal on behalf of the appellant. Initially, Ahmad Ali Khan Advocate was appointed to represent the appellant at State expense but due to some personal reasons, he did not appear before the Court, therefore, another counsel Ehsanul Haq Malik Advocate volunteered his services for pleading the appeal on behalf of appellant. Legal heirs of all the three deceased were summoned. They were directed to engage counsel of their choice to argue and contest the appeal on their behalf but on 5-10-2010 legal heirs of deceased Muhammad Ramzan appeared in the Court and expressed their inability to engage a private counsel and requested that the learned Deputy Advocate-General should argue the case on their behalf and similar was the request of the legal heirs of Muhammad Amin deceased. The legal heirs of another deceased namely Muhammad Islam, an Afghan Refugee, were stated to have gone back to their native village in Afghanistan and were not traceable.
19.Learned counsel on behalf of the appellant and State counsel argued the case with full zeal, vehemence and preparation on merits as well as on legal aspects.
20.As the legal point, agitated by learned counsel for the appellant, is of vital importance, therefore, we deem it appropriate to confine our judgment to that aspect only, without discussing merits, evidence of prosecution and other defence pleas.
21.The checkered history of the instant case has been fully narrated in the aforementioned paragraphs of this Judgment which needs not to be repeated.
22.It is established fact from medical reports of the appellant on the basis of his examination by three successive Medical Boards, competent to analyze his mental status and capacity, that the appellant is chronic patient of schizophrenia. First report was given on 15-2-2002, on the basis of his examination conducted on 11-2-2002, at a time when he was serving as Tube-well operator in the Gomal University, D.I. Khan. He was diagnosed as patient of schizophrenia, due to which he was removed from service by the University. There is no evidence that the appellant remained under treatment of any specialist doctor from the date of removal from his service till the date of occurrence i.e, 5-11-2002. He was again examined by Standing Medical Board on the directions of this Court, given in the judgment dated 4-10-2004 passed in Criminal Appeal No,53 of 2004 and was found to be patient of the same disease, incapable of pleading his case in the Court of law, for which his trial was postponed by the trial Court till 23-6-2007.
23.Lastly, his physical and mental status was again determined by the Board on 10-5-2007, which further strengthened the earlier reports by opining that the appellant is suffering from schizophrenia which is a mental illness. However, at that time no acute symptoms were found but it was apprehended that keeping in view the nature of his illness, "which is chronic and relapsing mental illness, the Court should consider his case for further disposal in the light of sections 465, 466 and 475. It was also suggested that he needs continuous medication for foreseeable future".
24.The haste on the part of the learned trial Judge in the earlier round of trial was deprecated by this Court in the judgment dated 4-10-2004 with the following observations:- "it is the mandate of the statute itself that if such plea on an inquiry envisaged by the above mentioned; provision is found false, it at worst, would prolong the trial for a month or so but if found true, it at best, would save a person from mounting on gallows unnecessarily."
25.The above mentioned observation was guideline for the trial Court to strictly adhere to the legal provisions contained in substantive as well as procedural laws for securing the ends of justice. Definition of schizophrenia provided in Wikipedia, the free encyclopedia, is that "it is a mental disorder characterized by a disintegration of the process of thinking and of emotional responsiveness. Most commonly manifests as auditory hallucinations (most commonly hearing voices), paranoid (suspicious, fearful, mistrustful, obsessed), or bizarre delusions, or disorganized speech and thinking, and it is accompanied by significant social or occupational dysfunction. The onset of symptoms typically occurs in young adulthood, with a global lifetime prevalence of around 1.5%. Diagnosis is based on the patient's self-reported experiences and observed behaviour."
26.Chapter XXXIV of Criminal Procedure Code, 1898 provides full mechanism for the trial and other related matters of the persons claimed to be of unsound mind. The person of unsound mind is one who from infirmity of mind is incapable of managing himself or his affairs, The term, therefore, includes insane persons. It exists where there is an essential deprivation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion of the ordinary affairs of life.
27.The word "insanity" is defined in Blacks Law Dictionary that it is a condition which renders the affected person unfit to enjoy liberty of action because of the unreliability of his behavior with concomitant danger to himself and others, The term is more or less synonymous with mental illness or psychosis. In law, the term is used to denote that degree of mental illness which negates the individual's legal responsibility or capacity. Insanity has been defined in Webster's New World College Dictionary, "the state of being insane; mental illness or derangement, usually excluding amentia; not a technical term. In law, any form or degree of mental derangement or unsoundness of mind,' permanent or temporary, that makes a person incapable of what is regarded legally as normal, rational conduct on judgment; it usually implies a need for hospitalization."
28.Under section 84 of the Pakistan Penal Code nothing is an offence which is done by a person who, at the time of committing an offence, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that whatever he is doing is wrong or contrary to law.
29 Keeping in view the above mentioned legal provisions and the mental status of the appellant in the light of successive medical reports, it was incumbent upon the trial Court, before commencing the trial, to summon all or any of the members of Standing Medical Board to record their/his statement to apprise the Court in the light of their/his specialized knowledge, with regard to mental status of the appellant to ascertain that whether the appellant, in between the two examinations conducted on 11-2-2002 and 1-12-2005, was of unsound mind, as provided in section 84 of the Pakistan Penal Code and chapter XXXIV of the Code of Criminal Procedure? Secondly, after getting some treatment in the Jail, in the light of last medical report furnished by Standing Medical Board on 10-5-2007, was he capable to defend himself or not? Because in the last report, there are certain conditions/ apprehensions expressed by Medical Board. For example, it has been opined that at present he has no acute symptoms of mental illness but at the same time, it was also their view that keeping in view the nature of schizophrenic illness which is a chronic and relapsing mental illness/ insanity, he may relapse with acute , symptoms and lastly, it has been suggested to the Court that the case of appellant be considered for further disposal in the light of sections 465, 466 and 475, Cr.P.C. because he needs to continue his medication for foreseeable future.
30.In the case of Muhammad Saeed Waseer v. DFC Sialkot (1998 PCr.LJ 1441) the Single Bench of honourable Lahore High Court in a situation where the trial Court on the basis of two conflicting reports, one given by Medical Physician and other, by Psychiatrist of same Hospital, without examining them in court had ordered that trial of case against accused should proceed as he was not of unsound mind. The honourable Lahore High Court held that to ascertain the correct. position, court ought to examine those doctors as witnesses in a preliminary inquiry which was deemed to be a part of the trial. Trial of fart regarding unsoundness of mind of accused and his incapacity to make his defence had to precede further proceedings in the trial by virtue of provisions of section 465, Cr.P.C.
31.We observed that the trial Court after receiving the last medical report and before commencing trial was conscious to the legal complications of the case, therefore, on the first day when accused was produced and complainant appeared; Superintendent Central Jail D.I. Khan was summoned personally along with all record of accused for the next date. But astonishingly the learned trial Court did not follow its own directions afterwards due to which the matter remained in darkness till conclusion of the trial.
32.We are also mindful of the fact that the appellant has been charged for the murders of three young innocent persons and the trial has H taken more than eight years without any substantial progress but the fact remains that whenever the law provides a particular procedure for doing certain things, that procedure should be followed and the I Act may be performed accordingly, otherwise not. In the instant case, two provisions of law, which are prima facie beneficial for securing the ends of justice provided in the statutes, have not been observed. Firstly, to determine the mental capacity and status of the appellant in accordance with Chapter XXXIV of the Code of Criminal Procedure, 1898 and secondly, his mental status at the time of committing the offence to know J that whether the offence committed by the appellant is covered under the exception provided in section 84 of the Pakistan Penal Code or not?
33.The above mentioned formality is requirement of the law, particularly in the instant case when successive medical reports, given by competent Special Medical Boards, constituted for this purpose have established that the appellant is not a person of sound mind. More so when the manner of committing the offence by the person of unsound mind, is also falling squarely within the four corners of criminal responsibility described in Medical Jurisprudence which are (1) personal history of the murderer, the murderer may be eccentric, melancholic, degenerate, or neurasthenic, (2) absence of motive, not only does a mentally ill person commit without any motive but also often kills his nearest and dearest relations, (3) absence of secrecy, the murderer, if he happens to be mentally ill, does not try to conceal the body of his victim, nor does he attempt to evade law by destroying evidence of his crime, or by running away from the scene of the murder,
(4) multiple murders, a sane person usually murders only one person with whom who is at enmity or against whom he has a grievance, and does not shed more blood unnecessarily, (5) want of preparedness of pre-arrangement, a mentally ill person does not make any prearranged plan to kill anybody, but a sane person, as a rule, makes all the necessary preparations prior to committing the crime, and (6) want of accomplices, a mentally ill person has no accomplice in the criminal act.
34.In the light of above discussion we accept the instant appeal, set aside the conviction and sentence awarded to the appellant by learned trial Court vide judgment/order dated 15-3-2010 and remand the case back to the trial Court with the directions to summon the all or some of the members of Medical Board, before commencing the trial to obtain their expert opinion regarding the capability of the appellant to defend himself in the trial, in the light of the last report furnished on 10-5-2007. Expert opinion should also be obtained that what was the expected mental condition of the appellant in between 11-2-2002, when he was medically examined by Medical Board before commission of the offence and 5-11-2002 i.e, the date of commission of the offence.
35.The learned trial Court should thereafter proceed further with the trial in the light of the above mentioned required medical reports.
36.Before parting with this judgment, we would like to place on record our appreciation for the hard work and able assistance, rendered by learned counsel appearing on behalf of the appellant who appeared before us voluntarily as pauper counsel but prepared the case with full zeal and enthusiasm like engaged by paid client.
37.As we have accepted the Criminal Appeal of the appellant and set aside the conviction and sentence awarded to him, therefore, Murder Reference No,1 of 2010 is answered in negative.