Ch. Mushtaq Ahmad, J. Muhammad Ayub, appellant has called in question vires of his conviction and sentence through the above cited criminal appeals. He was tried in case FIR No 829 dated 25.11.2008 registered under Sections 295-C, PPC. at Police Station Madina Town, District Faisalabad. Learned Additional Sessions Judge, Faisalabad vide judgment dated 18.4.2016 convicted the appellant under Section 295-C, PPC and sentenced him to, Death with fine of Rs. 1,00,000/- and in the event of default thereof to undergo further simple imprisonment for six months. State also preferred Murder Reference No 267 of 2016 for confirmation of death sentence awarded to the appellant. W e propose to dispose of all these matters through this single judgment.
3. During arguments it has been pointed out that after submission of challan on the charge of blasphemy punishable under Section 295-C, PPC charge was framed against the appellant. However , a plea of insanity was raised by the appellant/accused during trial, on which proceedings under Sections 464 & 465, Cr.P.C. were initiated. After obtaining medical report from Medical Board constituted for the purpose appellant/accused was declared incapable of understanding nature of proceedings and then by final order dated 14.2.201 1 Superintendent, District Jail, Faisalabad was directed to get the accused admitted in Mental Hospital at Lahore and produce him before the Court when hospital authorities declared him mentally fit and stable. File was accordingly consigned to record room. Record reveals that thereafter Superintendent, District Jail, Faisalabad moved application before the then learned Sessions Judge, Faisalabad for restoration of proceedings which matter was entrusted to a learned Additional Sessions Judge who considered the matter on 17.10.2015 and observed that in the light of report submitted by Superintendent, District Jail, Faisalabad instant case is restored and accused be summoned from jail for further proceedings. It appears that learned trial Judge without recording opinion about insanity or otherwise of appellant/accused and his capability of understanding nature of proceedings against him proceeded to record evidence and then on conclusion of trial awarded death penalty to the appellant/accused.
Needless to mention that proceedings were to be initiated again only after observing procedure as envisaged under Sections 467 & 468, Cr.P.C. which procedure was not followed and the same in our view caused serious prejudice to the defence resulting in miscarriage of justice. Once the Court after obtaining expert opinion came to the conclusion that accused was incapable of understanding the nature of proceedings, his trial was to be kept pending and was to be commenced if court subsequently came to definite opinion that 'he was mentally fit and could understand the nature of proceedings.
4. In the above backdrop, we are of the view that trial in this case has not been conducted in accordance with procedure laid down in the Code of Crimin al Procedure, 1898 and this irregularity is not curable under Section 537, Cr.P.C. Resultantly , while allowing this appeal case is remanded to the trial Court with a direction to record definite opinion after obtaining expert report. If the trial Court comes to the conclusion that appellant/accused is not mentally fit and is incapable of understanding the proceedings against him, procedure laid down in Chapter-XXXIV of, Cr.P.C. may be followed and if he is declared capable of understanding the nature of proceedings against him, de-novo trial be conducted and case decided. Conviction and sentence awarded to the appellant vide impugned judgment is set aside. Murder Reference No. 267 of 2016 for confirmation of death sentence awarded to the convict/appellant is answered in Negative. It is further directed that as the case in hand is old one, learned trial Court shall proceed in the matter expeditiously and decide it as early as possible preferably within a period of four months from the receipt of certified copy of this judgment. During de novo trial appellant shall be treated as under trial prisoner .