' Khan Beg appellant was convicted by learned Additional Sessions Judge, Mianwali by order, dated 5-6-1982 under sections 302 and 404, P. P. C. He was convicted under section 302, P. P. C. And sentenced to imprisonment for life and a fine of Rs, 500, or in default one years' R. I. He was awarded two years' R. I. Under section 404, P. P. C. Both the sentences were ordered to run concurrently.
2. The precise charge against the appellant was that on the night between 9/10-12-1979, in the area of Mohallah Buland Khel, Village Mochh, he intentionally caused the death of his 70 years old maternal grand-mother Mst. Ghulam Fatima by throttling her. He was also charged for dishonestly misappropriating four gold ear-rings belonging to Mst. Ghulam Fatima deceased by removing the same from her dead body after the murder. It was an unwitnessed occurrence. Khan Beg appellant was not named in the F. I. R. He was found guilty during investigation and challenged. The trial Court framed charges under sections 302 and 404, P. P. C. To which Khan Beg appellant pleaded guilty and was consequently convicted and sentenced without recording any oral evidence.
3. I have gone through the entire record of this case with the assistance of learned counsel for the appellant at State expense. Khan Beg has filed this appeal through jail It appears that this case was dealt with by two Presiding Officers. I will take up the proceedings of both the Presiding Officers separately in order to properly appreciate the factual and legal position in this case. The accused Khan Beg after commitment was produced before the learned Sessions Judge, Mianwali for the first time on 9-2-.981. A perusal of the interim order of the said date makes it clear that the accused was not represented by any counsel on that date; that the accused "appeared to Court to be not mentally fit". It was, therefore, recorded in this interim order that the accused "does not speak out in the Court and so he be got medically examined from the Medical Superintendent, D. H. Q. Hospital, Mianwali to ascertain whether he is mentally in a fit state or not". The case was adjourned to 28-2- 1981. On that date, the report of Medical Superin tendent had been received which indicated that Khan Beg accused "was not speaking to start with but after some medication he started speaking".
So far as his mental condition was concerned, it was opined that "the same may please be obtained from Medical Superintendent, Mental Hospital, Lahore." The learned Sessions Judge after noting this report in the interim order observed that even on that day i. e., on 28-2-1981, the accused "replied to oral questions that his father was dead and his brother was living at Peshawar, but then he went silent and did not make any reply to further questions." Thus, the S. H.
0. Of Police Station, Mochh was directed 'to attend the Court, alongwith this particulars of the relatives of the accused on 9-3-1981. The order dated 9-3-1981 indicates that the accused was not present in Court and the police requested more time for collecting particulars of the relatives of the accused and his mental condition. The case was adjourned to 18-3-1981 but the file was still before the learned Sessions Judge when one Nasir, a brother of the accused appeared. He stated on being questioned by the Court that "the accused has never been a lunatic nor got treated for mental illness, but even previous to the occurrence he was turbulent type of man who used to quarrel and fight with the family members very often." On 18-3-1981, the accused was again not present and he was ordered to be produced in Court for examination on 31-3-1981. The accused was produced before the Court on 31-3-1981. The interim orders of this date indicate that the accused was examined by Court by questioning at length and, therefore, it was recorded that he was "today absolutely a normal and mentally alert man." On this date also he was not represented by any counsel. On further question by the Court, the accused made a request that a counsel be engaged for him at State expense. At that very time, Mr. Muhammad Ramzan 'Khan, Advocate was engaged at State expense to defend the accused. He was handed over the statements under section 161, Cr. P. C. And other essential documents. After this the Court adjourned the trial of the accused without any date with an order that "it will be taken up at its due turn."
4. The accused was produced before the learned Additional Sessions Judge, Mianwali for trial under offences 302 and 404, P. P. C. For the first time on 31-5.1982. On that date, Mr. Asmat Ullah Khan, Advocate also appeared with the accused as his counsel. The accused was charged under these two offences to which he p eaded guilty and refused to lead any evidence in defence. After framing of the charge and after recording the plea of the accused, the trial was adjourned to 3-6- 1982 for recording the evidence of Dr. Inam-ul-Haq, Medical Officer who had conducted post- mortem on the dead body of the deceased and the Investigating Officer. On 2-6-19 )2, Khan Beg accused sent an application, now marked as Exh. P 1 by me, through jail to the learned Additional Sessions Judge, Mianwali saying therein that he did not understand the charges framed against him and as such, his plea of guilt was not correct. He pleaded that he was then not mentally lit to understand the proceedings. This application was put up before the learned Additional Sessions.
Judge on that very day and he passed a short order without hearing the appellant, or his counsel or the special Public Prosecutor. The order is as follows:- "The accused is perfectly same as he has pleaded to the charge full knowing the consequences of his plea. He appears to have now been asked by some one to submit this application in order to escape the consequences. This application shall be placed on the file."
' The case came up for hearing before the learned Additional Sessions Judge On 3-6-1982 as already ordered. The witnesses who were to be examined on behalf of the prosecution did not turn up. On that very date, the learned Special Public Prosecutor made the following statement:- "In view of the plea of guilty by the accused I give up all the P. W. And close the prosecution case. I tender in evidence report of Chemical Examiner Exh. P. A. And that of the Serologist Exh. P. B."
' After the close of the prosecution evidence, the case was adjourned to 6-5-1982, on which date Khan Beg appellant was convicted and sentenced as stated above. With this order the second part of the trial came to an end.
5. After going through the proceedings briefly detailed above, I cannot help remarking that the entire trial of Khan Beg accused was held in most perfunctory manner without having any regard to the procedure laid down for the Sessions trial.
6. I may, at the very outset, state that the proceedings under section 465, P. P. C. In a Sessions trial pertaining to the fact of unsoundness of mind and incapacity of the accused are part of his trial before the Court. This was a trial under sections 302 and 404, P. P. C. Which could result in punishment of death to Khan Beg appellant. It is clear from the interim orders recorded by the learned Sessions Judge in the first part of the proceedings that the accused was not represented' by any counsel. On two occasions, i. e. On 9-3-1981 and on 18-3-1981, even the accused was not personally present in Court. This procedure adopted by the learned Sessions Judge was illegal and clearly against the Rules provided in Part C of Chapter XXIV of High Court Rules and Orders, Volume III. Para. 1 of Part C provides that "it is considered that every person charged with committing an offence punishable with death should have legal assistance at his trial either in a Court of Sessions or in the High, Court" Para. 2 of this Part provides that "if the accused is unrepresented and cannot afford to' engage counsel, the Sessions Judge shall make arrangements to employ counsel, at Government expense, and he may also appoint counsel, if he thinks fit, even when the Committing Magistrate has considered that the accused has means enough to engage counsel himself."
Clearly in not engaging a counsel on behalf of unrepresented accused, learned Sessions Judge acted illegally and against the Rules. Secondly, it will be noted that when the accused was brought him for the first time on 9-2-1981, he "appeared to Court" to be not of sound mind. It was for this reason that he decided to hold inquiry into the mental state of affairs of the accused. He was directed to be examined by the Medical Superintendent, D. H. Q. Hospital, Mianwali. He was examined by him but opined that to determine the mental condition of the accused it would be proper to get him medically examined from Medical Superintendent, Mental Hospital, Lahore. There is no order on the file of this case to get the accused examined from Medical Superintendent, Mental Hospital, Lahore. However, the learned trial Judge after recording that the accused answered only two questions about his father and brother went silent and did not make any reply to further questions, directed the police to collect particulars of the accused and his relatives. I find that the police never, at any stage, provided the particulars of the accused or the particulars about his mental condition. However, on 9-3-1981, a brother of the accused appeared in Court in the absence of the accused and stated that he was .a man of turbulent temperaments. The Court again did not pass any further order and directed on 18-3-1981 that the accused should be produced before the Court on 31-3-1981. On that date, the learned Sessions Judge appeared to have put certain questions to the accused and observed that "today he is absolutely a normal and mentally alert man." The nature of questions and the answers given by the accused was not recorded. There is no statement of the accused on the file of this case from which it could be gathered whether the accused was really normal and gave coherent answers to the questions put to him. It is, therefore, not possible to conclude that the accused was of sound mind and capable of making his defence. On the other hand, there was evidence to indicate that the accused was not of sound mind and was not capable of making his defence.
7. It will be convenient, to properly appreciate the legal position, to reproduce section 465, Cr. P. C.
Which is as under:- "465. Procedure in case of person sent 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.
(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."
A perusal of this section indicates that in a trial by Sessions if it "appears to the Court" at the trial that the accused was of unsound mind and consequently, incapable of making his defence, the Court was duty bound under mendatory provisions of section 465, Cr. P. C. In the first instance to try the fact of such unsoundness and incapacity. This trial of the fact of unsoundness of mind and incapacity was deemed to be part of his trial before the Court. On 9-2-1981, when the accused was produced before the learned Sessions Judge, it "appeared to the Court", that the accused was not of sound mind. After this conclusion it was mandatory for the learned trial Judge to hold trial in the fact of the unsoundness and incapacity of the accused. If this is not done, then the entire subsequent proceedings are illegal and of no legal effect which will vitiate the conviction and sentence. This view is supported by the law laid down by a Division Bench of this Court in Dara v.
The State (1). The trial Court was under legal obligation to first hold an inquiry as to soundness of the accused's mind for purpose of ascertaining whether the accused was incapable of making his defence. The trial Court could not have proceeded with the trial is absence of Court's finding on the issue of insanity, as was held in Shakeel-ur Rehnum v. The State (2). This matter was considered by learned Judges of the Supreme Court of Pakistan in a recent case Muhammad Nasim v. The State (3). In this case, the plea of insanity had been raised with some material before the Court. The learned Sessions Judge in that case proceeded to examine the matter but dropped the same on asking of the counsel for the petitioner i. e. The accused. It was held by the learned Judges of tie Supreme Court o Pakistan that the matter relating to the plea of insanity having not been finally concluded, the petitioner i, e. The accused could shall apply under section 466, Cr. P. C. To the Court concerned. In the present case, I find that the learned Sessions Judge initiated proceedings to determine the unsoundness of mind and incapacity of the accused but did not conclude the said inquiry and on 31-3-81, only by putting few verbal questions to the accused concluded that on that day he appeared normal and mentally alert. This was not a proper trial of the questions. In my opinion, the learned Sessions Judge did not comply with the provisions of section 455, Cr. P..C. And did not hold the trial to determine the {{FOOT NOTE}}
(1) 1913 P Cr. L J 247 (2) PLD 1982 SC (A J K 104
(3) 1982 SCMR 754 {{FOOT NOTE}} ' fact of unsoundness of mind and incapacity of the accused by following thelegal procedure. All the proceedings were held illegally in the absence of the learned counsel for the appellant.
8. Coming to the second part of the trial before the learned Additional Sessions Judge, Mianwali, I find that the trial was not held in a legal manner. When the accused was brought before the Court on 31-5-1962, it was necessary for the learned Additional Sessions Judge to record his observation about the unsoundness of mind and incapacity of the accused. This was necessary in view of the proceedings of the trial held by the learned Sessions Judge. No such observation appears from the record of this case. After the accused pleaded guilty to the charge, the case was adjourned for recording of the evidence of the prosecution. This evidence was closed on 3-6-1982. It will be proper to examine the relevant provisions of law at this stage. Section 265-E, Cr. P. C. Pertains to the plea of the accused. It is reproduced as follows:- "265-E. Plea.-(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty the Court shall record the plea and may in its discretion convict him thereon."
' It was open for the Court to convict the appellant after he had pleaded guilty to the charge. But the Court "in its discretion" did not proceed to convict him after the plea of guilt by the accused.
The Court proceeded to record evidence under section 265-F, Cr. P. C., subsection (1) of which is reproduced below:- "265-F. Evidence of prosecution.-(1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: ' Provided that the Court shall not be bound to hear any person as 'complainant in any case in which the complaint has been made by a Court."
After having decided not to convict the appellant on his plea of guilt, it was necessary to record some evidence in this case. I am of the view that even if the accused had pleaded guilty, then also it was necessary, in a case involving punishment of death, to record evidence. Even if the accused had pleaded guilty, then also it was open to him to plead any exception of section 300, P. P. C. I need not go further in this question which can be considered in another more appropriate case. In the instant case, to say the least, the accused could have pleaded for lesser punishment on his conviction under section 302, P. P. C. It was, therefore, necessary to provide him with an opportunity to bring on record circumstances in support of his plea for lesser punishment because after pleading guilty to the charge it was not known as to which of the two punishments provided in section 302, P. P. C. Would be awarded to him. The trial was adjourned for recording of the evidence of two witnesses after the plea of guilty by the accused, but strangely enough on 6-3-1982, learned Special Public Prosecutor closed the evidence for prosecution on the ground that the accused had pleaded guilty to the charges. This situation also existed on 31-5-1982 when the Special Public Prosecutor. Expressed his desire to produce. The Medical Officer and the Investigating Officer in the case. To me it appears that the trial was held in great haste in view of the application by the accused through jail on 2-6-.982. In these circumstances, the closing of evidence by the learned Special Public Prosecutor was not correct and legal. He should have insisted on examining some witnesses] for the prosecution. This has resulted in grave miscarriage of justice and has prejudiced the defence of the accused-appellant. I may here state one more fact that the learned Special Public Prosecutor tendered in evidence the report of Chemical Examiner Exh. P. A. And that of Serologist Exh. P. B. This was an evidence for the prosecution and used against the accused during the trial. The accused was not examined under section 342, Cr. P. C. And was not given any chance to explain this evidence and to lead any defence evidence against these documents. I have gone through the impugned judgment of the learned Additional Sessions Judge and find that he has referred to, the contents of the F. I. R., the recovery memos. Pertaining to the recovery from the spot and also to recoveries from the accused, the alleged extra-judicial confession said to have been made by the accused before Abdur Rauf and Ghulam Sarwar P. Ws.. The post-mortem report and also to the report of police under section 173, Cr. P. C. All these documents were not duly proved on the record of this case and as such, should not have been referred to and relied upon by the learned Additional Sessions Judge. In this view of the matter I am of the view that the entire trial in the second stage held by the learned Additional Sessions Judge was also totally illegal.
9. I may now advert to the application marked as Exh. P. 1, dated 2-6-1982. This application was disposed of, as stated above, by a short order without hearing the counsel for the parties and in the absence of the accused. This application indicated the plea of the accused that he was not capable of making his defence or understanding the proceedings of the trial. In this view of the matter, the application could not have been disposed of in a slip-shod manner and its disposal was also not in accordance with law.
10. In view of the above discussion I find that the trial of the accused was not held in a legal manner. The result is that the conviction and sentence of the appellant Khan Beg is set aside and the case is remitted to the learned Sessions Judge, Mianwali, for fresh trial according to law.