MOHAMMAD AZAM KHAN, CJ. --- The above-titled appeals under Section 25 of Islamic Penal Laws (Enforcement) Act, 1974 (hereinafter to be referred as IPL), arise out of a consolidated judgment of the Shariat Court dated 31st December, 2010,, where by while accepting the appeal filed by Nasir Mehmood, the reference sent by the District Criminal Court for confirmation of death sentence, has been answered in negative and the judgment of the District Criminal Court has been set aside while remanding the case to the District Criminal Court, Mirpur with .a direction that the Trial Court shall re-summon the witnesses and provide an opportunity of cross-examination to the accused- appellant. Since both the appeals arise out of the same judgment, therefore, these are being disposed of through a consolidated judgment.
2. A case under Sections 302, 324, 337, APC read with Section 13 of Arms Act, 1965, was registered at Police Station, Mangla on a report made by Muhammad Azhar Ali Khan. He reported to the police that on 16th August, 2004 at 3:30 p.m., his brother-in-law alongwith others was going towards the house of Muhammad Zahoor Khan to attend a Nikah ceremony. When he reached near the-gate, the accused, Nasir Mehmood opened the fire with 30 bore pistol, which hit Muhammad Taimoor.
Second fire hit the complaint's brother, Mukhtar Ahmed Khan, while the third fire caused injury at the head of Zartasha Shafique. All the victims fell down and succumbed to the injuries. The offender also caused fire-arm injuries to the prosecution witness, Muhammad Afzal Khan. The occurrence is witnessed by Muhammad Tahir Khan, Muhammad Zahid Khan, Muhammad Raza Khan, Khawaja Muhammad Muneer and Muhammad Zahid s/o Muhammad Nazeer. The motive was alleged as an old enmity between the parties. After necessary investigation, the prosecution presented a report under Section 173, Cr.P.C., in the District Criminal Court, Mirpur on 4th October, 2004. The Trial Court fixed the case for 13th October, 2004 for framing of charge and also directed the prosecution to produce evidence on 14th October, 2004. On 13th October, 2004, the charge was framed. The accused, Nasir Mahmood had not engaged the counsel. Mr. Bostan Chaudhary, Advocate, was appointed his counsel as an amicus curiae and the case was fixed for recording the evidence. On the next date, Mr. Bostan Chaudhary filed an application stating therein, that he could not consult the accused-respondent, therefore, one week time may be allowed for preparing the case. The Trial Court recorded the order on the application that he is allowed time of one hour. He may consult the accused and prepare the case. The Trial Court thereafter recorded the statement of a witness and asked the accused to cross-examine the witness. The father of the accused filed an application that his son is of unsound mind, therefore firstly an enquiry may be conducted under Section 465, Cr.P.C. in respect of his state of mind. The application was rejected. After recording the whole evidence, the Trial Court convicted the accused appellant, Nasir Mehmood through judgment dated 10th November, 2004 to three times death sentence as "Qisas" under Section 302, APC. The other accused, Muhammad Afzal was sentenced to 10 years' rigorous imprisonment under Section 324, APC and 40,000/- rupees as "Daman" under Section 337-F(2), APC. The appellant, Nasir Mehmood was also sentented to six months' rigorous imprisonment under Section 13 of the Arms Act, 1965. The reference for confirmation of death sentence was sent to the Shariat Court while an appeal was filed by the accused, Nasir Mehmood, appellant, herein, against his conviction. The learned Chief Justice of the Shariat Court through judgment dated 31st January, 2005, confirmed the death sentence awarded to the appellant and dismissed the appeal filed by the convict. An appeal was filed in this Court. This Court through judgment dated 25th October, 2010 set aside the judgment of the Shariat Court on the ground that in Jawad Ayub's case [2011 SCR 263], this Court has declared that in the cases where the order of death sentence is passed by the Trial Court, the reference for confirmation of death sentence and appeal arising out of such judgment shall be heard by the division bench of the Shariat Court. The appeal and reference were heard and disposed of by a single Judge in the Shariat Court, therefore, the judgment was set aside and the case was remanded to the Shariat Court for decision in accordance with law. On remand of the case, the Shariat Court, through the impugned consolidated judgment dated 31st December, 2010, accepted the appeal of Nasir Mehmood, appellant herein, and set aside the judgment of the Trial Court. The case was remanded to the Trial Court for re-summoning the witnesses and cross- examination by the accused-appellant.
3. Here, it may be stated that the father of the appellant, Nasir Mehmood moved an application under Section 465, Cr.P.C. that his son is of unsound mind. He requested the Court to conduct an enquiry under Section 465, Cr.P.C. The application was rejected. He filed a revision petition in the Shariat Court. The Shariat Court dismissed the revision petition. The said judgment was challenged by way of appeal in this Court. Second application for re-summoning of witnesses, moved by the father of the appellant, was also rejected. The said order was challenged by way of revision petition in the Shariat Court. The Shariat Court dismissed the revision petition. This order of the Shariat Court was challenged by way of appeal in this Court. This Court while passing the remand order on 25th October, 2010 also remanded the revision petitions arising out of the applications while setting aside the judgment of the Shariat Court. After remand of the case, the Shariat Court while deciding the appeal and reference, although not decided those revision petitions but the question involved in one revision petition to the extent of providing an opportunity of cross-examination, has been resolved, while setting aside the sentence-awarded to the actused-appellant by remanding the case with a direction to the Trial Court for re-summoning of witnesses and providing an opportunity to the accused-appellant for cross-examining the witnesses but the revision petition arising out of the application filed under Section 465, Cr.P.C. has not been decided whereby a pure legal question has been raised, therefore, we propose to decide this question by ourselves in the appeal.
4. On the last date of hearing, the counsel for the parties was apprised that the accused, Nasir Mehmood has filed the appeal through his mother. Whether a mother has a right to file appeal on behalf of the accused or not, the counsel for the parties sought adjournment for preparation on the point.
5. Raja Niaz Ahmed Khan, Advocate, counsel for the accused-appellant, argued that at the commencement of trial, the father of the accused-appellant filed an application under Section 465, Cr.P.C. that the accused is of unsound mind and is unable to defend his case. The Trial Court may enquire into the mental health of the accused and postpone the case till the recovery of mental health by the accused. The application was rejected. A revision petition was filed through his father and after dismissal of revision petition an appeal was filed in this Court through his mother. The learned counsel submitted that when an accused person is of unsound mind and he is unable to defend his case, then it is incumbent upon the Trial Court to proceed with under the provisions of Section 465, Cr.P.C. to determine the question of unsoundness of mind of the accused and if the Court fails to do the same, a revision petition or appeal can be filed through the next friend and next friend may be the father, mother or any other person. The learned counsel relied upon the cases reported as 'Shakeel-ur-Rehman v. The State [PLD 1982 Sh. C. (AJ&K) 104], Said Rasool v. Muhammad Fazil and another [1990 P.Cr.LJ. 210] and Sirajuddin v. Afzal Khan and another [PLD 1997 SC 847]. The learned counsel forcefully argued that the Shariat Court while accepting the appeal has remanded the case to the District Criminal Court for providing an opportunity to the accused for cross-examining the witnesses after re-summoning them. The Court should have discontinued the trial and postpone the case till the recovery of the mental health by the accused- appellant. He requested for acceptance of appeal filed by the accused-appellant.
In the case reported as Shakeel-ur-Rehman v. The State [PLD 1982 Sh. C. (AJ&K) 104], during the trial an application was filed on behalf of the accused that he is of unsound mind. The Trial Court referred the accused to the doctor for determining the unsoundness of mind of the accused and consequently incapability of making his defence. The Shariat Court observed that when the Trial Court has observed that it appears that the accused is of unsound mind, then it was necessary to conduct an enquiry under Section 465, Cr.P.C. into the unsoundness of the mind of the accused.
In the case reported as Sirajuddin v. Afzal Khan and another [PLD 1997 SC 847], the accused was convicted by the Trial Court. After conclusion of trial during the hearing of appeal an application was filed before the High Court that the accused is of unsound mind and unable to defend himself.
The High Court ordered for constitution of medical board. After examining the accused, the medical board opined that the accused suffers from a major mental illness; most probably schizophrenia in nature. The statement of the doctor was recorded. The High Court accepted the appeal and directed that the accused be referred to the mental hospital in safe custody where he shall be examined. An appeal was filed in the Supreme Court. The Supreme Court refused to grant leave while observing that the order passed by the High Court is perfectly legal.
In the case reported as Said Rasool v. Muhammad Fazil and another [1990 P.Cr.LJ. 210], during the trial under Section 302, APC, the Additional Sessions Judge, Rawalpindi held that the accused is suffering from chronic schizophrenia and consequently incapable of making his defence. The accused was released on furnishing of security and the trial was postponed till the recovery of his mental health. The said order was challenged by the complainant by , way of revision petition in the High Court. The revision petition was accepted and the Trial Court was directed to hold fresh enquiry within the procedure contemplated under Section 465, Cr.P.C. and record the formal findings as to the capacity of the accused for making his defence.
6. While controverting the arguments, Mr. Khalid Rasheed Chaudhary, Advocate, counsel for the legal heirs of the deceased, submitted that the judgment of the Shariat Court is against law and the record. The appeal filed by the appellant, Nasir Mehmood is not competent because he has not filed the appeal himself. The appeal has been filed through his mother. The mother has no right to file appeal on behalf of the accused. Under law, only a convict person can file the appeal. The learned counsel submitted that in the first round, the accused, Nasir Mehmood filed appeal in this Court. The power-of-attorney was signed by the accused himself. The very signing of the power- of-attorney shows that he is mentally well enough and no case for probing into the matter under Section 465, Cr.P.C. is made out. The appeal being incompetently filed merits dismissal. The learned counsel referred to Section 30 of IPL and forcefully argued that the Shariat Court has committed an error while setting aside the conviction and remanding the case to the Trial Court for providing an opportunity to the accused for cross-examining the witnesses, after re-summing the same. The learned counsel submitted that from the record, it is evident that the Trial Court provided a counsel to the accused for defending his case under Section 30 of IPL. The accused declined to cooperate with the counsel whereupon the counsel withdrew the power-of-attorney and the Court provided him an opportunity to cross-examine the witnesses. After failing to cross- examine the witnesses, the accused has no right to demand for cross-examination of witnesses.
He requested for dismissal of appeal filed by the accused-respondent and acceptance of the appeal filed by the legal heirs of the deceased.
7. We have heard the learned counsel for the parties and perused the record. A case against the accused was registered under Sections 302, 324, 337, APC on 16th August, 2004. After necessary investigation the challan was presented on 4th October, 2004 in the District Criminal Court, Mirpur.
The copies of the statements recorded under Section 161, Cr.P.C. were provided to the accused and the Court ordered that the charge shall be framed on 13th October, 2004 and prosecution will produce the evidence from 14th October, 2004. A calendar for production of prosecution witnesses was issued from 14th October, 2004 to 2nd November, 2004. The Trial Court directed the accused to engage a counsel before the next date of hearing. On 13th October, 2004, the Trial Court passed the order that the accused, Nasir Mehmood has not engaged any counsel, therefore, while acting under the provisions contained in Section 30 of IPL, Mr. Bostan Chaudhary, Advocate was appointed as counsel for accused Nasir Mehmood. The case was adjourned to the next day i.e, 14th October, 2014. On the said date, Mr. Bostan Chaudhary, Advocate filed an application in the Court that he was appointed as counsel for the accused, yesterday. He could not make contact with the accused, therefore, he may be provided an opportunity for consulting the accused. The Court rejected the plea. We deem it necessary to reproduce the orders passed on the referred three dates which read as under:-- {{URDU TEXT}} A perusal of the above-referred orders reveals that the Court has acted in a hasty manner. On 13st October, 2004, Mr. Bostan Chaudhary, Advocate, was appointed as counsel for the accused. On the next day i.e, 14th October, 2004, he filed an application for adjournment so that he may make contact with the accused and stated in the open Court that he tried to consult the accused in the open Court but he declined to talk to him, therefore, he is unable to conduct his case. Despite that, the Trial Court recorded the statement of the P.W.1 and asked the accused, appellant, herein, to cross-examine the witness himself. A perusal of the order sheet reveals that from 14th October, 2004 till 27th October, 2004, during the period of 13 days, the Trial Court recorded the statements of 25 witnesses without providing an opportunity to the accused to be defended by a counsel. During this period, on 23rd October, 2004, the father of the accused appellant filed an application that the accused, Nasir Mehmood is of unsound mind, it is necessary to send him to a mental hospital for medical check-up. He is unable. to defend his case. He also filed an affidavit and medical prescriptions alongwith the application. The copies of the same were provided to the counsel for the complainant who sought time for filing objections. The case was adjourned to 25.10.2004 for filing objections and arguments on the date already fixed. On 25th October, 2004, the objections were not filed and order dated 27th October, 2004 reveals that the application was dismissed.
8. The father of the accused-appellant filed the application under Section 465, Cr.P.C. for determination of unsoundness of mind of the accused. For proper appreciation Section 465, Cr.P.C. is reproduced 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.
A bare reading of the above-referred statutory provision shows that the power has been vested in the Court of Sessions and the High Court to determine the fact of unsoundness of mind and incapability of the accused to defend his case. The words "appears to the Court" are of vital significance. If from some record or from the attending circumstances, it appears to the Court that an accused person who is brought before the Court is of unsound mind and consequently incapable of making his defence, then it is incumbent upon the Court to adopt the procedure laid down in law and conduct an enquiry into the unsoundness of mind of the accused. The provisions of Section 465, Cr.P.C, are mandatory in nature and omission to observe the provisions thereof would vitiate the conclusion and the result reached thereon. There may be the cases where the accused may feign to be insane. The Section confers the power upon the Court by using the words "appears to the Court" for determining the fact that the accused is of unsound mind The question of unsoundness of mind of an accused is to be decided by the Court from the attending circumstances attitude, behaviour of the accused and the medical record if any, and if from the attending circumstances, the accused appears to the Court to be of unsound mind and consequently incapable of making his defence, the Court in the first instance shall try such fact of unsoundness of mind and incapability to defend the case and after determination of such fact shall proceed in the matter. In the case reported as Said Rasool v. Muhammad Fazil and another [1990 P.Cr.LJ. 210] it was observed as under:-- II... ..when the accused appears to the Court of unsound mind and incapable to stand trial, it is first for the prosecution to commence and give evidence in support of his sanity and capacity to make defence. Trial of the case can be postponed only the Court after making necessary enquiry in terms of Section 465, Cr.P.C. holds that the accused was of unsound mind and incapable of making his defence. However, whatever be the rule as to the initial burden of proof and right to begin and give evidence whether accused, or prosecution, one thing is clear that an enquiry into the unsoundness of mind of the accused and his consequent incapacity to stand trial was bound to be made in accordance with Section 465, Cr.P.C. as a preliminary step before taking evidence on the main charge and that in this enquiry, both prosecution and defence ought to be associated with full opportunity for leading evidence in support of their respective versions. In cannot be gainsaid that provisions of Section 465 are of compulsory and mandatory nature. Their non-observance must vitiate the conclusions made and the result reached. When the case is examined from this angle, it is evident that the enquiry held into state of mind of the accused and his incapacity to make defence was not in accordance with law. Learned Trial Judge ought to have given an opportunity to prosecution to rebut the evidence of Doctor Sohail Bakhsh. I do not consider it necessary to say what from the further enquiry ought to take place before the Trial Court but it must be observed that the enquiry must be in accordance with the letter and spirit of Section 465, Cr.P.C."
In the case reported as Shivaswa my v. The State of Mysore [AIR 1971 SC 1638], the Supreme Court of India has observed as under:-- there should be an enquiry within the second limb of the Section if it appears to the Sessions Judge that the accused was insane, but if it does not appear to him so it is not necessary that he should conduct a regular enquiry under the second limb of the section. It is true that the word "appears" in S. 465 imports a lesser degree of probability than "proof", but this does not mean that whenever a counsel raises a point before a Sessions Judge he has to straightaway hold an elaborate enquiry into the matter. If on examining the accused it does not appear to him that the accused is insane it is not necessary that he should go further and send for and examine medical witnesses and other relevant evidence. Of course if he has any serious doubt in the matter the Sessions Judge should hold a proper enquiry."
Thus, it is concluded that the Court shall decide the question of unsoundness of mind of the accused and incapability of making his defence, the light of attending circumstances, attitude, behaviour of the accused and the medical record if any.
9. As referred hereinabove, the Trial Court while acting under Section 30 of IFL, appointed Mr. Bostan Chaudhary, Advocate, as counsel for the accused. On the next date i.e, 14th October, 2004, when the case was fixed for recording prosecution evidence, Mr. Bostan Chaudhary,. Advocate, filed an application that he is unable to make contact with the accused, one week's time may be allowed but the Trial Court while rejecting the application has observed that the father of the accused is a rich person, he may engage a counsel but he has not engaged a counsel and the counsel provided to the accused by the Court has declined to defend the accused because the accused has refused to talk to him. This fact itself is sufficient to prove that when the accused refused to talk to his counsel and has not instructed the counsel appointed by the Court, how, it can be said that he is of sound mind and capable to defend his case. His father filed an application on 23rd October, 2004 that his son for the last two years is of unsound mind and remained under treatment of different doctor i.e, He is not in a position to defend his case. It was further stated in the application that, in the light of the opinion of Jail doctor, the Superintendent Jail through letter dated 29th September, 2004 addressed to the Trial Court requested for sending the accused from Jail to District Headquarter Hospital for medical checkup. The doctor opined that he is suffering from major depression, therefore, he may be got examined by some psychiatrist. The Trial Court dismissed the application through the order bearing no date and from the order dated 27th October, 2004, it appears that the application has been dismissed. The perusal of said order reveals that the Court while dismissing the application has not considered the medical record appended with the application showing that accused remained under treatment of psychiatrist.
The most important document is the letter of the Trial Court dated 4th October, 2004 sent to the Superintendent Police. We deem it proper to reproduce the same which reads as under:-- {{URDU TEXT}} A perusal of the said letter reveals that the Court on the request of the Superintendent Jail ordered the Superintendent of Police Mirpur to take the accused to District Headquarter Hospital Mirpur for examination by a Psychiatrist. This shows that it appeared to the Court that the accused is suffering from some mental ailment. There is also a prescription of the doctor dated 20th October, 2004, whereby, the accused was examined in the District Headquarter Hospital, Mirpur for major depression. When the application was supported by the medical prescriptions and he Trial Court itself referred the patient to the Psychiatrist, then the accused appears to be of unsound mind.
(underlining is ours)
10.The important aspect of the case which appears from, the order dated 14th October, 2004, when Mr. Bostan Chaudhary, Advocate, who was appointed as counsel for the accused, stated in the Court that the accused is not ready to talk to him and has not instructed him, thus he cannot defend the accused. Instead of providing time to the counsel, or the accused to be defended by some counsel, the Trial Court recorded the statement of P.W.1 and ordered the accused to cross- examine the witness. A person who is facing trial in the offence of murder wherein he can be sent to gallows, is not ready to engage a counsel and to disclose information or talk to the counsel appointed for him by the Court, how it can be said that he can understand the other things, thus, it is for the Court to determine, whether the accused appears to be of unsound mind and is incapable to defend himself. The Court shall form the opinion not subjectively but keeping in view all the attending circumstances including the medical reports, if any. The Trial Court dismissed the application without considering the medical record forming part of the: application and the order passed by the Court itself for sending the accused for examination by psychiatrist. After examining the accused, the psychiatrist reported in positive that he suffers from major depression. The Trial Court should have passed the order for proceeding under Section 465, Cr.P.C. The order passed by the Trial 'Court whereby, the application for proceeding under Section 465, Cr.P.C. was rejected, is not maintainable.
11.We have carefully considered the argument of the counsel for the appellant, Muhammad Zahir and others that the appeal filed by the accused through his mother is not competent. It is correct that in the case reported as Muhammad Malik v. Karam Ellahi and another [2011 SCR 431], this Court observed that appeal on behalf of a convict can only be filed by the convict himself. The law laid down in the said report is correct that the convict himself has to file appeal against conviction. The appeal on behalf of Nasir Mehmood has been filed through his mother. Since we have drawn the conclusion that the question of unsoundness of mind of the accused is yet to be decided by the Trial Court. on the basis of medical record appended with the application and order of the Trial Court, whereby, the Court itself sent the accused for examination by a psychiatrist and it appears that the accused is of unsound mind and unable to defend himself, in such circumstances, the appeal on behalf of the accused through the next friend is maintainable.
12.The result of the above discussion is that the appeal filed by the legal heirs of the deceased is dismissed while the appeal titled Nasir Mehmood v. The State is partly accepted. The Trial Court in the first instance shall decide the application filed by the father of the accused for determination of the unsoundness of the mind and incapability of the accused to defend his case and if the Trial Court comes to the conclusion that the accused is of sound mind and capable to defend himself, then it shall summon the witnesses and provide an opportunity to the accused for cross- examining the witnesses and if after trying the fact of unsoundness of mind and incapability to defend the case the court draws the conclusion that the accused is of unsound mind and incapable to defend his case, then all the proceedings in trial conducted by the Trial Court shall be deemed to be quashed and the Court shall postpone the trial till the accused is declared as of sound mind and capable to defend his case.
The appeals are disposed of in the terms indicated hereinabove.