ZAKIUDDIN PAL, J.-Dara son of Gul Muhammad, Caste Angra, aged 28 years, cultivator, resident of Luku, P. S. Mitha Tiwana, District Sargodha, has been found guilty under section 302, P. P. C. By the Additional Sessions Judge, Sargodha, vide his judgment dated 2nd of October 1970, and has been sentenced to death for the murder of Muhammad Zaman son of Khan Mohammad, Caste Chawas, resident of the same place, aged about 70 years. The convict has filed Appeal No. 695 of 1970 while the Additional Sessions Judge has made reference under section 374, Cr. P. C. For the confirmation of death sentence. The present judgment will dispose of both, the appeal and the reference.
2. On 31-3-1967, at about peshiwela when Mst. Gulai widow of Muhammad Zaman (deceased) was sifting grains and the deceased was saying his prayer inside the kotha, the appellant, D4ra, came ins picked up a rahola from the courtyard and inflicted two injuries with that weapon on tae head and neck of the deceased and finished him then and there. Mst. Gulai (P. W. 6) got up to save her husband, but the appellant leaving the vahbla there ran away. According to the prosecution, Mst Gulai raised alarm and Jahan Khan, Azim and Ghulam Muhammad (P. W. 7) were attracted to the spot. Muhammad Mirza (P. W. 8), son of the deceased and other members of his family were in the fields at a distance of about a mile from the place of occurrence. Ghulam Muhammad (P. W.) went to inform Muhammad Nazir (P. W.) about the murder of his father. Muhammad Nazir (P. W.) reached the spot at late degarwela. Jahan Khan (P. W.) went to the village abadi to inform the Gambardar and Chowkidar. He came back to the spot in the company of Gulla Chowkidar at late degarwela. Muhammad Nazir (P. W.) left the spot for Police Station at about "sotewela" and lodged the F. I. R., Exh. P. A. At 7-15 a.m. On the following day ice., 1-4-1961, which was recorded by Muhammad Sabah (P. W. 9) then S. H. O., Police Station. The Police Station is situated at a distance of twenty miles from village; Luku. Accord--ing to the S. H. O: the distance between the village and the police station is about 45 miles by pucca road and he covered the same by bus and partly on foot. He further admitted that the distance of the place of occurrence is about 1-- miles from the pucca road, which was covered by him on foot. He also stated that the complainant reached tae police station on a camel's back.
3. After having recorded the F. I. R., P. W. 9, reached the place of occurrence and prepared the injuries statement Ekh, P. J. And Inquest Report, Exh: P. K. Of Muhammad Zaman (deceased). He seat the dead body to the mortuary under the escort of F. C. Hazel Hussain (P. W. 2). He then investigated the spot and co11ecled the blood-stained earth and made it into a sealed parcel vide memo. Exh. P. B. He also took into possession blood-stained pair of Jooti (P. 1/1-2) and made it into a sealed parcel vide memo, Exh. P.B. He also took into possession blood-stained Musalla (P. 2) and Tasbi (P. 3) belonging to the; deceased and made them into a sealed parcel vide memo. Exh. P. D.
He also took into possession vabola (P. 4), stained with blood, and made it into a scaled parcel vide memo. Exh. P. E.
4. The dead body was examined and post-mortem examination on it was conducted by Dr. Shahid Hussain Bokhari (P. W.1), who found the following injuries on his person: -
(l) A lacerated wound 2' x 1--'on the right side-of forehead 1--' above the right eye-brow, the bone underneath 'was fractured into pieces.
(2) An abrasion -- x 1/8' on the right side of the right eye-brow -- below injury No. 1.
(3) An incised wound 3' x 1/8' skin deep on the left side of back of the neck. The injury was placed obliquely just below occipital protuberance.
In the opinion of the doctor, the death was caused due to compression of the brain and spinal- cord as a result of injury No. 1which was sufficient to cause death in the ordinary course of time and nature. The injury was dangerous to life while injuries Nos. 2 and to were simple in nature. Injuries Nos. 1 and were caused by blunt weapon, while injury No. 3 by sharp----edged weapon. According to the doctor, the time between injuries and death was immediate while between the death and post-mortem examination was 24 to 36 hours.
5. The appellant was produced before the Additional Sessions Judge on 12th of January 1970, when the learned defence counsel stated before the Court that the appellant being insane was incapable of understanding his defence. The counsel further requested the Court for trying the fact of unsoundness of mind or incapacity of the appellant under section 465, Cr.. P. C. To understand his defence. The learned Additional Sessions Judge observed that the appellant appeared to be quite blank and m view of that, it was desirable to get him examined by the Medical Superintendent, District Headquarters Hospital, Sargodha. The Medical Superintendent was directed to submit his report by 28th of January 1970, and also to appear before the Court on that day for his statement. The case was then taken up for hearing on 28th of January 1970, when the report submitted by the Medical Superintendent was examined. According to that report, the appellant was not able to understand his defence on account of unsoundness of his mind. The Medical Superintendent had re--commended that 'the appellant may be further examined- by the Medical Superintendent, Mental Hospital, Lahore. The learned Additional Sessions Judge asked the District Magistrate, Sargodha, to make arrangement, for the admission of the appellant to the Mental Hospital, Lahore. The Medical Superintendent, Mental Hospital Lahore, was directed to report as to when the appellant would be fit to stand his trial. The case was then adjourned sine die.
6. The case was then taken up by the learned Additional Sessions Judge on 15th of June 1970, on which day the following order was passed: - "Since the Administrative Officer, Government Mental Hospital, Lahore, has reported vide his letter No. A-2/70-255/A/Cr. T/2283, dated 23rd of April 1970, that the accused is fit to understand his defence and is sane, the case is fixed for trial for 10th and 11th July 1970. Necessary orders be issued.
The letter referred to in the above order of the Additional Sessions Judge reads as follows: - "Criminal mental patient Mr. Dara son of Gul Muhammad was admitted to this Hospital on 11-3-1970 vide your letter No. 1626-M/A. H. C. Dated 7-3-1970. The said patient has been declared fit to stand his trial by the half-yearly Visitors Committee presided over by the Commissioner, Lahore Divi-- sion, Lahore, held on 18-4-1970.
It is requested that -the necessary arrangements may kindly be made to remove the said patient from this hospital."
7. Syed Ehsan Qadir, learned counsel for the appellant has raised a technical objection, tamely, the failure on the part of the trial Judge to comply with the mandatory provisions of section 468 read with section 473, Cr. P. C. The learned counsel had raised this plea before the learned trial Judge also who repelled the same on the ground; that the appellant was found sane according to report of the Administrative Officer, Government Mental Hospital, Lahore, as mentioned above, and was fit to stand trial. The learned trial Judge in this respect has referred to the impressions gathered by some of the P. Ws. According to him, the appellant was sane at the time when he committed the offence of murder. He has also referred to the statement of Dr. M. S. Faridi, Medical Superintendent, District Headquarters Hospital, Sargodha (D. W. 1) and Dr. Muhammad. -Sadiq (D. W. 2), the then Medical Officer, Rural Health Centre. Shorkot Road. D. W. 1 examined the appellant in November 1969 and found him insane. D. W. 2 examined the appellant on 27th of September 1969, in jail and found him insane. According to the learned [trial Judge, this state of mind of the appellant was after the commission of the offence of murder and may be due to depression: He has, however, relied upon the behaviour of the appellant at, the time when he committed the murder by picking up vahala (P.
4) from the courtyard of the deceased and using the same for inflicting injuries on Muhammad Zaman and then his running away from the place of occurrence towards his dera. He has observed, that this kind of behaviour cannot be of an insane person-
8. As mentioned above, the appellant was sent to the Mental Hospital, Lahore, by the trial Judge by his order dated 28th of January 1970, after an order was passed by him on 12-1-1970, under section 465, Cr. P. C. The order dated 28th of January 1970, was passed in view of the fact, that the appellant was nut able to understand his defence on account of unsoundness of mind, All these steps were taken by the learned trial Judge in accordance with the provisions of law as contained in section 465, Cr. P. C. According to law, after a trial is postponed under section 465, Cr. P. C. The Court can resume the same at and require the accused person to appear before it and if the Court considers him capable of making his defence, then the trial shall proceed according to section 468, Cr: P'. C. According to the same provision of law if the Court considers that the accused is still' incapable of making his defence, it shall again act according to the provisions of sections 464 and 465, Cr. P: C. As the case may be. It is further provided under section 473, Cr. P. C. That in th4 case of a person, who is detained in a lunatic asylum, the-visitor of such asylum or any two of them shall certify that in them opinion, such person is capable of making his defence, then shall be taken before the Court at such time as the Court appoint and the Court then shall deal with such person under the provisions of section 468, Cr. P. C. And the certificate of such visitor; as aforesaid, shall be received in evidence.
10. From the above discussion, it is clear that after an accused person has been certified by the visitors of lunatic asylum to he sane and fit to stand trial, he shall be brought before the Court who will deal with the accused according to the provisions of section 468, Cr. P. C. And the certificate of such visitors shall be received in evidence. In. The present case, after the learned Sessions Judge, received the report from the Administra--tive Officer, Government Mental Hospital, Lahore, dated 23-4-1970, to the effect, that the accused was fit to understand his defence and was sane, he without requiring the accused to appear before him and without considering as to whether he was capable of making his defence and understanding the trial, fixed the case for evidence for 10th and 11th of July 1970. Apparently, this is against the mandatory provisions of section 468 read with section 473, Cr. P. C.,
11. Mr. Asghar Ali Bhatti, the learned Assistant Advocate-----General, has, however, contended that section 473, Cr. P. C. Compels the Court to proceed in accordance with the provisions of section 468, Cr. P. C. But it does not at the same time preclude it from proceeding under section 468, at any time when accused is brought before it. According to him, the trial by the learned Sessions Judge, as such, was not contrary to law in the absence of any finding to the effect, that he had found the accused, after he was brought before him capable of making his defence. He has, in this regard, relied upon Ibrahim v. Emperor (AIR 1934 Lab. 121). The revelant para. From the judgment of Justice Cold stream in this Case may be reproduced hereunder with advantage:--- "On the convict's behalf Mr. Shah Nawaz has argued the appeal before us. He has, to begin with, strenuously contended that the trial must be held to have been vitiated because the Sessions Judge started a second trial without any preliminary inquiry to his client's sanity in the absence of th6 certificate referred to in section 473, Criminal P: C. But section 473, while it compels a Court to proceed' in accordance with tire provisions of section 468, does not preclude the Court from proceeding under section 40, at any time when an accused is brought before it. In the present case confusion has arisen from a reference in the Sessions Judges judgment to sub--section (2), of section 467, which was not relevant to his pro--ceedings and, to his description of the letter of the Medical Superintendent as a certificate. The trial by the Sessions Judge was not contrary to law though we think that the Sessions Judge would hare acted wisely if before considering It he had placed it on the record that he considered the accused to be capable of making his defence and stated the grounds on which ht came to this conclusion (Underlining is by us)
Pal the case cited` above; the learned fudges vote two separate judgments while arriving at the same conclusion. Mr. Justice Monroe dealt with this point in his judgment in the following manner: "It is clear that the learned Judge founded his conclusion on the Superintendent's letter and I feel sure, that, if it had not been for that letter, the learned Judge's observations might well have led him to a different conclusion; but however this may be, the learned Judge's conclusions are vitiated by the fact that he was influenced by the contents of a letter which was not admissible in evidence.
The only reason for disbelieving the evidence, given by the learned Judge disappears: the criticism of the evidence made before us by the learned Public Prosecutor did not afford to me any ground for brushing it aside as false; and I may add that I believe that the evidence for the defence is true.
It is unfortunate that no expert was called by the Crown at the trial and a question which now arises is whether we ought to adjourn the case in order to have the evidence of an expert taken. I cannot conceive that on the admissible evidence recorded at the trial anyone could doubt that the accused is suffering from disease of the brain---..
The relevant portions of the judgments have been reproduced above in extenso in order to show that the same do not help the prosecution. The letter of the Administrative Officer, Govern--ment Mental Hospital, -Lahore, was not brought on record in accordance with law. Its contents were never-proved by the said Officer, in the Court. It is possible that if the appellant had been present before the Court their learned Judge's observations, after seeing him, might have led him to a different conclusion than the one arrived at by the Administrative Officer. The learned trial Judge had clearly admitted in his order dated 12-1-1970, whereby he directed the appellant to be examined by the Medical Superin--tendent, D. H. Q. Hospital, Sargodha, about his unsoundness of mind, that the appellant appeared to him quite blank. It was, therefore, necessary for the learned trial Judge, after the appellant had been certified to be capable of making his defence, to require his presence before him wader section 473, Cr. P. C. And to proceed in accordance with the provision of section 468, Cr. P. C. And also to receive the certificate with regard to his soundness of the mind in evidence. It was at this stage, that the appellant could appear before the learned trial Judge who could consider; as to whether he was capable of making his defence or not. If he considered that he was fit and capable of understanding the trial, then he could proceed with the same after fixing some date, otherwise under subsection (2) of section 468, Cr. P. C. He was to act according rue the provision of section 465, Cr. P. C. This view gains strength, from Hayat v. The State (P L D1959 Lah. 474). According to the circumstances of that cases, accused in that case was referred to a doctor by the, committing Magistrate for examination; as tip whether he was- capable of understanding the proceedings against him. The committing Court, however, without examining the doctor relied upon his report to the effect; that he was capable of understanding the proceedings. When the case came up for trial before Mr. M. M. Aslam Khan, Additional Sessions Judge, Lahore, he referred the same to the High Court with the recom--mendation, that the commitment proceedings be quashed. The matter came up before Mr. Justice A. M. Jan of the Lahore High Court, who by his-order dated 20th of April 1953, accepted the recommendation of the learned Additional Sessions Judge and directed that fresh commitment proceedings be taken against the accused. Before the fresh commitment proceedings could start, the accused was admitted to the Mental Hospital at Lahore and was discharged as fit to understand his trial on 14th of February 1956. Thereafter, he was committed to the Court of Session. The learned Additional Sessions Judge at that time, Mr. M. H. Munir (now Mr. Justice Mushtaq Hussain Munir) before starting the trial of the accused, examined Dr. A. A. Aziz, then Medical Superintendent, Mental Hospital, Lahore, with regard to the mental condition of the appellant. The doctor said that he had examined the accused and had found him capable of understanding the Court's, proceeding and the case against him. The learned trial Judge, after having examined the doctor, put certain questions to the accused 'in order to satisfy himself, that he was capable of understanding the proceedings against him. The accused replied that he knew that he was before Mr. Mushtaq Hussain Munir, Additional Sessions Judge, Lahore, in connection with his trial for murder. He further replied satisfactorily two questions put to him by the learned Judge. The learned trial Judge then questioned the assessors with regard to the mental condition of the appellant and agreeing with their -unanimous opinion; that he was sane and capable of understanding the nature of the proceedings against him, recorded an order to that effect. The procedure as followed by the learned Additional Sessions Judge for satisfying himself with regard to the soundness or otherwise of the mind of the accuser was approved by their Lordships of the Division Beach in the case cited above.
12. The words "appear to the Court" as mentioned in section 465, Cr. P. C. Mean that if the Court finds that the accused present before it is not capable of understanding the trial against him, then it can take necessary action in this regard after record--ing a finding to that effect. This action is to follow the subjective reaction of the Court to the situation that arises before it.
According to this provision of law, the Court cannot proceed with the trial unless it comes to a decision and is satisfied that the accused is not of unsound mind and consequently incapable of making his defence. The absence of any finding as to the accused's capacity to make his defence vitiates the conviction and sentence. Reliance in this respect can be placed upon Ata Muhammad v. The State (PLD 1960 Lah. 111), Raja Aurangzeb v. The .Slate (1968 P Cr. L J 1930) Radhanath Mandal v. Emperor (AIR 1927 Cal. 289), Ramanath v. Emperor (AIR 1930 All. 450) and Emperor v. Bahadur (106K 796).
13. When according to law, Court has to give a finding to the effect; that the accused before it is of unsound mind and it cannot proceed against him on account of that, then there is no reason why it should not adopt, the same procedure under section 46&, Cr. P. C. When the accused is again brought before it after having been certified to be of sound mind. The provision of law as contained in section 468, Cr. P. C, implies that the Court has to satisfy itself again that the accused against whom the trial was postponed on account of unsoundness of his mind, was no fit and capable of understanding the proceedings against him and unless the Court gives a finding to this effect, proceedings cannot take place.
In the present case, the learned Additional Session Judge merely relied upon the letter of the Administrative Officer, Government Mental Hospital. Lahore, and fixed the case for evidence. It is admitted that the appellant never appeared before him nor he was brought before him and the trial Judge himself never considered, in accordance with the provisions of section 46R. Cr. P. C., whether the appellant was fit and capable of under--standing the proceedings against him. He has not given any finding to this effect. His mere reliance upon the letter of the Administrative Officer, as mentioned above, which has not been brought on record lawfully, is not sufficient to show that the appellant was fit to be proceeded against. We, therefore, bold that the proceedings of the trial against the appellant before the trial Judge vitiate for the reasons discussed above.
14. As a result of the above discussion, the appeal is accepted to this extent only and the conviction and sentence awarded to the appellant by the Additional Sessions Judge, Sargodha, by his judgment dated 2nd of October 1970, is set aside. The case is remitted to the learned Sessions.
Judge, Sargodha, for fresh trial in accordance with law and in the light of the observations made above. The reference is answered accordingly.