' Petitioner was convicted and sentenced to one year's R. I. And a fine of Rs, 2,000 by Magistrate 1st Class, Abbottabad, vide his judgment and order, dated 18-7-1983, where against the petitioner filed an appeal while the complainant filed a revision for the enhancement of the sentence. The learned Additional Sessions Judge, Abbottabad dismissed his appeal and while accepting the revision petition of the complainant he enhanced the sentence to four years' R. I. And a fine of Rs, 5000 by a judgment and order, dated 23-1-1984 where against the petitioner filed the instant revision petition.
2. Since the sentence was enhanced at the behest of the complainant he was, therefore, to be impleaded as respondent in the revision petition. Anyhow the complainant has engaged a counsel Mirza. Abdullah Jan, Advocate and he thus stands duly represented in the proceedings. The petitioner was represented by Ghulam Mujtaba Khan, Advocate while Sardar Muhammad Akram Khan, Advocate was engaged to represent the State.
3. After going through the files of the trial Court and the appellate Court it was found that on 3-9- 1980 only three days after the occurrence the petitioner filed an application that he was not in a proper frame of mind and necessitated his medical examination and treatment. The Court endorsed his application to the Superintend ant Jail, Abbottabad for necessary action. Later on the accused was admitted in the Government Mental Hospital, Dhudial on 11-9-1980 where he was kept under observation but was discharged and returned to the custody of the police on 22-9-1980 under report that he was suffering from mental illness and that since he will need prolonged medical treatment he should be, therefore, referred to the Mental Hospital, Peshawar where criminal patients are admitted and treated. The Court of Sub-Divisional Magistrate, Abbottabad had ordered the admission of the convict-petitioner into the Government Mental Hospital, Peshawar for treatment and report if the convict-petitioner was able to understand the trial proceedings or not. It, however, does not comeforth from the record whether the convict-petitioner has been afterwards sent to the Government Mental Hospital, Peshawar and if there has been received any report from the said quarter about his capability to understand the trial proceedings or not. Anyhow the convict-petitioner has been meanwhile released on bail.
4. Afterwards the learned Magistrate 1st Class proceeded with his trial and forgot about his examination and treatment in the Mental Hospital, Peshawar. Thus, without ascertaining the fact in the convict-petitioner was capable to defend himself at the trial and whether or not he was of sound mind and capable of knowing the nature of act at the time of the commission of the offence and as such his act was not amounting to no offence within the meaning of section 84 P. P. C. The Court proceeded with the trial and recorded the petitioner's conviction.
5. Dr. Muhammad Irfan, Medical Superintendent Mental Hospital, Dhudial has been examined as D.
W. 1 who had placed on file copy of his opinion and advice as Exh. D. W. 1/1 which reports about the petitioner's suffering from mental illness. Further, the petitioner had stated in his statement under section 342, Cr. P. C. That he was of unsound mind at the time of the commission of the offence and continued as such during his trial. He had thus impliedly though not expressly on one hand claimed to have commited no offence within the meaning of section 84, P. P. C. And on the other hand simultaneously he tried to make out a case for the postponement of proceedings.
6. The trial Court did not expressly adhere to the above aspect of the case in his judgment. His judgment contains the only observation that the statement of the Medical Superintendent was confusing and doubtful and that since no evidence has been produced in the Court regarding the suffering of the accused from mental illness after or before the present occurrence hence the version of the defence on the point seemed doubtful and unbelievable. The observation, however, stands prima facie belied to the extent of mental illness after the occurrence by the evidence of D.
W. 1, the Medical Superintendent, Mental Hospital, Dhudial. The point was also subsequently agitated before the learned appellate Court who, however, observed that the plea of unsound mind has been taken at a very late stage and the same was, therefore, not available to the convict-petitioner in view of the authority reported in PLD 1982 Kar. 360, para. 12 which has only been found to copy down sections 464 and 465, Cr. P. C. In verbatim and nothing more than that. It is, however, a matter of record that the plea of insanity was raised by the petitioner only some three days after the occurrence.
7. It was contended by the learned counsel for the convict-petitioner that once he had raised a plea of insanity and when the same has also been supported by the certificate of the Medical Superintendent, Mental Hospital, Dhudial followed by the order of the trial Court to refer the convict-petitioner for observation and treatment to Mental Hospital, Peshawar then the learned trial Court was not authorised to drop the matter and to proceed with the trial. He was required to enquire into the fact of the unsoundness of mind of the convict-petitioner as a part of his trial and to record a finding on the point after the examination of the Medical Officer as a witness and only after coming to the conclusion that the convict petitioner was of sound mind with capacity to defend himself, that he was to proceed with the trial otherwise further proceedings in the case were to be postponed as required under section 464, Cr. P. C. In support of the view he placed reliance on 1982 SC MR 754 and PLD 1980 Pesh. 103 wherein the former case the Supreme Court observed that once a plea of insanity is raised with some material in its support it will be in the public interest to examine and record finding on the plea of insanity, while, in the latter case the High Court observed that the Court has to take necessary evidence with a view to ascertain whether the accused exhibited the factum of insanity and if provisions of section 465, Cr. P. C. Are found not complied with by the Court then the trial shall stand vitiated.
8. The case involves two aspects : one if the convict-petitioner was' of sound mind with capacity to defend himself during the course of trial and the other if by reason of unsoundness of mind he was incapable of knowing the nature of the act culminating into the offence. The trial A Court and the learned appellate Court both have ignored the said legal aspect of the case and that being the position there has occasioned miscarriage of justice through the abuse of the process of Court in the conduct of proceedings on their part.
9. There can be envisaged no limit to exercise the inherent powers of the High Court in making orders necessary for the purpose of securing the ends of justice and preventing the abuse of the process of the Courts as to upset the orders of the conviction of the petitioner passed by the Courts below and to remand the case to the trial Court with direction first to ascertain about the soundness of the petitioner with his capacity to defend himself at the trial and only in case of positive finding on the point he should proceed with his trial otherwise he should postpone the proceedings as envisaged by section 464, Cr. P. C. In case of trial the Court has also to give his finding on the plea of insanity raised by the accused-petitioner in the facts of the case as he claims to have committed the offence when he was incapable of knowing the nature of the act.
10. In the circumstances I need no discuss the competency of the revision petition in the proceedings in view of the exercise of the inherent powers under section 561-A, Cr. P. C. In order to procure the ends of justice and to prevent the abuse of the process of Court in the conduct of the proceedings. .