ANW AARUL HAQ PANNUN, J.---Through the titled appeal under section 410, Cr.P.C., appellant Arfan has challenged the vires of judgment dated 17.01.2017 passed, on the conclusion of trial, in case FIR No.116/2015, dated 23.02.2015 for an offence under section 376, P.P.C., registered at Police Station Yousafwala, District Sahiwal by the learned Additional Sessions Judge, Sahiwal, whereby he has been convicted and sentenced as under:- Under section 376, P .P.C.
Imprisonment for life, fine of Rs.1,00,000/- and compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. and in case of non-payment of fine, to further undergo six months' SI each.
The appellant was held entitled to the benefit of section 382-B, Cr .P.C.
2. At the very outset, learned Deputy Prosecutor General has pointed out that when the interpreter summoned by the learned trial court to translate the evidence of victim, being deaf and dumb, had submitted a report that victim is not only deaf and dumb but she is also mentally retarded and suffering from brain ailment as well as multiple disabilities and is unable to make the statement before the court, under the law, his statement should have been recorded as court witness and learned counsel for the parties should provide opportunity to cross-examine him, if so desired but the same has not been done which is a legal infirmity making the impugned judgment liable to be set aside.
3. Although, learned counsel for the appellants, initially resisted the objection on the ground that the appellant has already endured the agony of protracted trial, therefore, remanding the case to the trial court, for rewriting of judgment, would serve no other purpose but to add the predicament of the appella nt who is behind the bars since long, however , there was consensus that the impugned judgment failed to meet the mandatory requirements of law as mentioned above owing to omission on the part of the learned trial Court.
4. Arguments heard. Record perused.
5. Perusal of order sheet of the learned trial court reveals that on 13.10.2015, an application for summoning the deaf and dumb expert has been filed on behalf of the complainant, which was allow ed vide order dated 23.02.2016 and consequently , letter bearing No.69, dated A 23.02.2016 was issued to the Principal, Deaf and Dumb School, Sahiwal to do the needful. Furthermore, on 04.11.2015, another application was filed on behalf of the appellant for constitution of medical board for the medical examination of alleged victim, which has been dismissed vide order dated 25.01.2016 with the following observations:- "File is showing that this fact is mentioned in the FIR that the victim is deaf and dumb. The case was registered on 23.02.2015 and status of the lady was never challenged by the defence. Now after recording the examination in chief of the PW instant application is move d and after hearing both the parties I have reached to the conclusion that the purpose of this application is nothing but only to linger on the matter . Thus, the application of the defence for medical examination of the victim is dismissed."
6. Perusal of record further reveals that on 15.03.2016, the alleged victim was brought in the witness box and Mirza Pervaiz Akhtar , Senior Special Education Teacher appeared in the court to translate her statement. As interpreter , he tried to understand the court's question to the alleged victim but she did not reply , whereupon, he submitted report to the following ef fect:- {{URDU TEXT}}
7. Dismissal of application filed on behalf of the accused-appellant is not sustainable since the victim has been stated to be deaf and dumb and the defence side moved a formal application for her medical examination. It was proper for the learned trial court to pass an order to get medically examined the victim from some medical expert having qualification in the relevant medical field and examine him in the court and provide an opportunity to the defence to cross-examine the said witnes s and thereafter , decide the matter but the same has not been done by the learned trial court. The learned trial court, by allowing the said application, referred the alleged victim to the medical board consisting of neurologist, psychiatrist and other medical officers having qualification in the relevant medical field in order to obtain its opinion in respect of her mental condition.
8. For what has been discussed above, the appeal in hand is partially allowed , conviction and sentence awarded to the appellant is set aside and the matter is remanded to the learned trial court with the direction to firstly , refer the alleged victim to a Medical Board headed by a Professor of Neurology and other medical officers having qualification in the relevant field. The said Board will examine the alleged victim and submit comprehensive report regarding her mental condition/capacity . The learned trial court shall also summon Chairman of the said Board as court witness, record his/her statement, provide opportunity to the learned counsel for the parties of cross- examination and thereafter , decide the matter afresh. It is, however , made clear that till re-writing the judgment, the trial of the case in hand shall be deemed pending before the learned trial court and during this period, the appellant will be treated as under trial prisoner . Office is directed to sent record of the case along with a copy of this judgment, forthwith, to the learned Sessio ns Judge, Sahiwal for the needful within a period of two months from the receipt of certified copy of this judgment.
9. Case remanded.