1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court is directed against the judgment dated 20th November, 1982 of the Labor High Court ; whereby a criminal revision Alai by a complainant (appellant herein) challenging the appellate order dated 12-7-1982 for re-trial of the respondent accused convicts on account of non-compliance, with. The provisions of sections 241-A, Cr. P. C. ("supply of statements and documents to the accused") and 341, Cr. P. C..
2. ("procedure where accused does not understand proceedings"), was dismissed. The facts and circumstances giving rise to this appeal briefly stated are that the respondents were tried, convicted and sentenced accordingly by a learned Magistrate section 30 for offences under section 307/429/148/149, P. P. C. Two of them namely Mahmood Shah and Mukhtar Shah were admittedly deaf and dumb. During the arguments before the trial Court it was contended on their behalf That section 341, Cr. P. C. Was attracted to their case therefore the Court was bound to act in accordance with the provisions thereof ; which required the foswarding of the case to the High Court after conviction but without pronouncing sentence. The learned Magistrate repelled the argument with the following findings and observetions:- "No doubt accused Mahrnood Shah and Mukhtar Shah are deaf and dumb, but I am of the view that this section does not apply in their case, because the pre-requisite of section 341, Cr. P. C. Is that the accused though not insane cannot be made to understand the proceedings and in this case, the accused were able to understand the proceedings of the case because firstly, accused Hussain Shah, Abdul Ghafoor Shah and Noor Shah were the real brother of the accused and they were able to make understand the proceedings of the case to them. Secondly, the record of the case shows that the accused were fully able to understand the proceedings of the case because when the charge was framed against them, they decied the charge. Moreover, when the statements of the accused ender section 342, Cr. P. C. Were recorded, then Abdul Ghafoor Shah,, who was the brother of accused Mahmood Shah and Mukhtar Shah was appointed interpreter and the questions were put to the accused in the Court and their replies were also recorded and they have not given a single incriminating reply and gave the answers through gestures, which were interpreted by Ghafoor Shah, which tally with their defence version and also with the defence evidence of D. W. 1 Muhammad Sadiq, who gave this defence evidence about Mukhtar Shah accused. It will not be out of point to mention here that it was never agitated during the proceedings of the case that these two accused are unable to understand the proceedings.
3. Moreover, as mentioned above as three of the accused Hussain Shah, Ghafoor Shah and Noor Shah were the real brothers of the accused and both accused could normally understand their gestures, so I hold that in this case, the accused; though deaf and dumb were able to understand the proceedings."
4. ' The learned Magistrate also relied on State v. Parvez lqbal alias Ballo and made reference to Crown v. Unknown Deaf and Dumb and The State v. Muhammad Ismail Khan .
5. ' The convicts filed an appeal which was allowed by a learned Additional Sessions Judge on two grounds, one, that the copy of the inspection note not having been supplied to the accused in accordance with the provisions of section 241-A, Cr. P. C. The trial thus stood vitiate ; and, also that the provisions of sections 341 were not followed regarding the case- against' Mahmood Shah and Mukhtar Shah respondents. Accordingly the entire case against all the accused was remanded kr fresh trial. The learned appellate Court while dealing with the second point regarding compliance with section 341, Cr. P. C. Observed that by virtue of the said provision "if the accused does not understand the proceedings, the Court was duty bound to appoint an interpreter and in case the trial resulted in a conviction, the proceedings shall be forwarded, to the, Lahore High Court with the report of the circumstances of the case. As the learned trial Court had appointed the interpreter, as mentioned above, at the time of statement under section 342 so in my view, the learned trial Court was clear in mind that these two accused persons do not understand the nature of the proceedings. So according to my view the learned trial Court was duty bound to appoint an interpreter at the time of framing the charge and to understood it in clear cut language. It is the right of the accused and if the accused person does not understand, the learned trial Court was duty bound to appoint an interpreter. Taking into consideration, the above discussion, I am of the considered opinion that these two accused persons have not understand the proceedings and no charge was framed against them in the eye of law." Learned appellate Court also took note of the Lahore case in this behalf namely, The State v. Muhammad Ismail Khan. No notice however was taken of the other cases relied upon and referred to by the learned trial Magistrate. Proceeding on aforementioned assumptions regarding contravention of two provisions of Criminal Procedure Code the learned Appellate Court remanded the case for retrial.
6. ' On complainant's revision petition a learned Single Judge in the High Court set aside the appellate judgment in so far as it related to the non-supply of the copy of the inspection note so-called non- compliance with the provisions of section 241-A, Cr. P. C. ; but upheld the remand order on the finding that the provisions contained in section 341, Cr. P. C. We're not complied with. It has been observed in the impugned judgment that "it appears that the trial Magistrate did not initially first conduct any inquiry as regards whether Mahmood Shah and Mukhtar Shah, accused/respondents Nos, 3 and 4, who were deaf and dumb, would understand the proceedings, before he commenced the trial. This is a requirement of section 341, Cr. P. C. As held by this Court in State v. Pervaiz Iqbal.
7. The necessity of making such an inquiry before proceeding with the trial is obvious, for, if such an inquiry reveals that an accused can and will be able to understand the proceedings, the Magistrate is placed on guard as to the manner in which he should deal with the case and to1 2 3 exercise his discretion whether to call some relative or friend of the accused to assist him to understand the proceedings, when the inquiry or trial commences. In such a case, if the accused is convicted, the appellate Court is in a better position to judge how the trial Magistrate arrived at the said finding and the steps he took to ensure that the accused had a fair trial. Conversely, if such an inquiry reveals that an accused cannot and will not be able to understand the proceedings, the Magistrate will be justified to and can proceed with the inquiry or trial, and if such trial results in a conviction and, the proceedings are forwarded to the High Court, as required by section 341, Cr. P.
8. C., the High Court will be in a better position to assess what order should be passed in the matter.
9. Since the inquiry called for by section 341, Cr. P. C. Was not made preceding the trial, the appellate order of the Additional Sessions Judge is neither illegal nor perverse. In this view of the matter, no interference is called for in the revisional jurisdiction".
10. On the dismissal of the appellant's revision petition in the High Court be sought leave to appeal which was //wed by this Court 011 21-3-1983 to consider the following argument then raised by the learned counsel for the appellant :- "that section 341, Cr. P. C. Was not attracted inasmuch as the trial Court, though at a late stage, did record a finding that the said accused Mahmood Shah and Mukhtar Shah were able to understand the proceeding because three of .The co-accused were their real brothers who. Were able to make them understand the proceeding of the case and because their having denied the charge showed that they were able to undertand the proceeding. He further urged that the remand of the case as against the six co-accused was not justified because they suffered from no such disability."
11. ' We have heard the learned counsel for the appellant in support of this appeal. Learned counsel for the respondents (convicts) initially took the position that the provisions of section 341, Cr. P. C. Had been contravened but after some discussion contended that in the circumstances of this case the provisions contained in 464, Cr. P. C. Had not been complied with; but ultimately, he argued that although none of these provisions were attracted the learned trial Magistrate contravened the provisions contained in section 361, Cr. P. C. Which required the furnishing of an interpreter to dumb and deaf accused from the stage of the charge and evidence, while the learned Magistrate performed his duty under this section only at the stage when the accused were to be examined under section 342, Cr. P. C. After the recording of the prosecution evidence. The learned Assistant Advocate-General supported the learned counsel for the accused respondents and argued that the direction for re-trial was fully justified and accordingly supported the High Court judgment.
12. Notwithstanding tile position taken by the learned counsel for the convicts that the provisions contained in 361, Cr. P. C. Were not complied with and for which re-trial was justified, he also argued that it was the duty of the learned trial Magistrate to hold an inquiry before the commencement of the trial regarding ascertainment of facts which were necessary for the application of section 341, Cr. P. C. When confronted with the position that in the facts and circumstances of this case even on the basis of the statements and conduct of the two concerned deaf and dumb accused an inquiry would not now be necessary. Learned counsel argued that even if that might be so in this case, the legal requirement under section 341 needed to be attended to.
13. ' Sections 341, 361 and 464, Cr. P. C. Read as follows :- "341. Procedure where accused does not understand proceedings.-If the accused, though not insane, cannot be made to understand the proceedings, the Court' may proceed with the trial and, in the case of a Court other than a High Court, if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit."
14. "361. Interpretation of evidence to accused or his pleader.-(1) Whenever any evidence is given in a language not understood by the accused, and be is present in person it shall be interpreted to him in open Court in a language understood by him.
(2) if he appears by pleader and the evidence is given in a language other than the language of the Court and hot understood by the pleader, it shall be interpreted to such pleader in that language.
(3) When documents are, put in for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary."
15. "464. Procedure in case of accused being lunatic.-(1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall enquire into the fact of such unsoundness, and shall cause such person to be >examined by the Civil Surgeon of the district or such other medical officer as the (Provincial Government) directs, and thereupon shall examine such surgeon or other officer as a witness, and Ian reduce the examination to writing.
16. ((1-A) Pending such. Examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466.)
(2) If such Magistrate is of opinion that the accused is of unsound mind: and consequently incapable of making his defence, he (shall record a finding to that effect and) shall postpone further proceedings in the case."
17. Six possibilities can be visualised while considering the provisions of section 341, Cr. P. C. When a deaf and dumb person is arrayed as an accused before the Court :
(1) If he is insane, section 341, Cr. P. C. Will not apply ;
(2) If the accused can be made to understand the proceedings then also section 341, Cr. P. C.
18. Would not be attracted ;
(3) The accused can understand the proceedings only if a helper likan interpreter makes him to understand the proceedings and thus through the helper/interproter consciously participates in those proceedings, even then section 341, Cr. P. C. Would not be attracted;
(4) The accused though not insane, cannot be made to understand the proceedings by adopting all necessary measures in this behalf, in that case also the trial would proceed by providing the best possible safe guards otherwise, to the accused keeping in view the fact that he do not understand the proceedings. For example, amongst others, the Court becomes and remains more vigilant and puts questions to the witnesses more often than usual under section 165, Evidence Act and or makes more liberal use of section 540, Cr. P. C. Regarding summonin of Court witnesses ;
(5) If as a result of the trial so conducted without the accused understand ding the proceedings results in acquittal the trial Court would order accordingly and nothing more would be required to be done by that Court, and
(6) If however as a result of the trial that proceedings of which could not be understood by the accused and the case is covered by section 341, Cr. P. C. And such trial results in a conviction, then without awarding the sentence and proceeding any further in the case, the proceedings shall have to be forwarded to the High Court with a report of the circumstances of the case and the High Court shall pass thereof such order as it, thinks fit.
19. In this case we hiving perused the record of the case, are satisfied that in view of the findings and observations' of the learned Magistrate that the accused did understand the proceedings, he was not required to act under section 341. Cr. P, C. Obviously the attention of the First Appellate Court as also of the learned Single Judge in the High Court was not drawn to the facts available on record which established that both Mahmood Shah and Mukhtar Shah did understand the proceedings though with the help of their brothers, (who were co-accused with them) before the stage of their examination under section 342, Cr. P. C,, and, at that stage one of their co-accused brother (and who according to the prosecution- had also the more direct motive in the case) was formally appointed as their interpreter. Not only this but also their examination under 342, Cr. P. C. And (as noted in the judgment of the learned Magistrate) the conduct of one of them in examining his defence evidence, are enough to satisfy a Court that they fully understood the proceedings conducted against them by the Court, right from the beginning up to the end. Section 341, Cr. P. C.
20. Accordingly is not attracted in this case.
21. The provisions contained in section 464, Cr. P. C. Relied upon at one stage by learned counsel for the convict respondents also are not attracted because they apply to a situation when a Magistrate holding an inquiry or trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence. In this case admittedly neither Mahrnood Shah nor Mukhtar Shah was such a person of unsound mind.
22. We agree with the learned counsel for the respondents that in this case the provisions contained in section 361, Cr. P. C. Read with section 573, Cr. P. C. Would he attracted. Section 361, Cr. P. C. Has already been reproduced above. Section 543, Cr. P. C. Requires that when the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or .E statement. There is no complaint that the brother of Mahmood Shah and Mukhtar Shah convicts who was formally appointed as their interpreter at the stage of their examination under section 342, Cr.P.C. Or their interpreter(s) at any earlier stage through whom they fully participated in the proceedings, did not act in accord with the mandate of section 543, Cr. P. C. There is no complaint in this behalf.
23. The provisions of section 361, Cr. P. C. Can be divided into three parts: One, when evidence is given in a language not understood by the accused and he is present in person it will have to be interpreted to him in open Court in a language which is understood by him. Two, when the accused is represented by a pleader and afore visualised situation arises and the pleader does not understand a language, the evidence shall have to be interpreted in a language which is understood by the pleader. Three, similarly when an documents are put in for the purpose of formal proof it will be for the Court to interpret as much thereof as is necessary, of course for the benefit of the accused.
24. It needs to be mentioned that although the learned counsel did not refer to any other complementary provision, the discussion would not be complete without taking note thereof. It is the second part of section 364, Cr. P. C. Which provides that when examining an accused person (which includes also examination under section 342, Cr. P. C.) who does not understand the language in which the record is written, it shall be interpreted to him in a language which he understands. Ordinarily deaf and dumb person who is incapable of understanding the proceedings would understand the same in language of signs. It is not always necessary that only an expert or a close relation is capable of understanding those signs but keeping in vie individual deficiencies, it has to be observed that those who are close relations of deaf and dumb and/or those who have seen them growing up in that state can communicate with them in their own language of signs and not through ordinary speech. It is also well-known that the trial Courts ordinarily do take adequate measures when such situation arises. And no general presumption can be raised that unless found otherwise the provisions contained in section 361, Cr. P. C. Read with 364, Cr. P. C.
25. Regarding interpretation would be presumed to have been contravened.
26. In this case, although the point has now been considered in this Court with reference to these provisions for the first time, yet the record is no lacking in so far as the relevant material is concerned ; and, the same has also been treated as relevant regarding the provisions of section 341, Cr. P. C Be that as it may no complaint has been made that Mahmood Shah and/o Mukhtar Shah accused were not made to understand the evidence through the interpreters or the questions put to them under section 342, Cr. P. C. Or that in the latter case their answers did not represent what they desk to go on record.. On the contrary as already noted, they not only underst the entire proceedings, of course through the instrumentality of interpretation by their own brothers, but also fully and actively participated in the preceding and one of them also adduced defence evidence. Accordingly the learned trial Magistrate did not commit any illegality in this behalf either. The remand of the case for fresh trial thus was not justified on any ground.
27. ' In the light of the foregoing discussion and conclusions earlier reached, this appeal is allowed. The impugned judgment of the High Court is set acid and the order of remand passed by the learned First Appellate Court recalled with the consequence that the appeal filed by the respondent convicts shall be deemed to be pending before the learned Sessions Court for disposal on merits, in accordance with law. It is however clarified that the bail order passed by it' in favour of the respondents which is a part of the main remand order, is not recalled ; and, the accused shall during the hearing of the appeal before the learned Sessions Court, remain on bail on surety bonds already furnished by them. PLJ 1973 Lah. 220 PLD 1952 Lah. 362 PLD 1963 (W. P.) Lah. 139