RIAZ AHMAD, J.- Appellant Bukhtiar Hussain was tried alongwith his mother Meraj Bibi by the learned Addl. Sessions Judge at Faisalabad on the charge under section 302/34 PPC for having caused the murder of Mst. Hamida Bibi. Vi(}e judgment dated. 12th of October 1986, the learned trial Judge found only appellant guilty on the said charge, and accordingly sentenced him to undergo life imprisonment, and to pay fine of Rs. Tcn thousand, or in default thereof, to suffer regorous imprisonment for six months. It was further directed that the fine, if recovered shall be paid as compensation to the heirs of the deceased. The co-accused Mst.Meraj Bibi was acquitted of the said charge.
2. Aggrieved by his conviction, the appellant has preferred this appeal, while the complainant has also filed a revision petition assailing the acquittal of Meraj Bibi. This judgment shall dispose of the appeal as well as the revision.
Before proceeding Further to decide this, appeal on merits, it would be necessary to advert to the plea of insanity raised by the appellant before the trial Judge in this case. The necessary facts to consider this plea are as under:
3. The record of this case reveals, that the appellant was produced before the learned trial Judge on 11,4.1985, and he was delivered the copies of the statements of the witnesses recorded under section 161 Cr.P.C. The appellant was directed to sign in. Token of having received the aforesaid papers, but the appellant at that very moment challenged the jurisdiction of the trial court, and behaved in the manner as if he was insane. The learned trial Judge took exception to the conduct of the appellant, and by observing, that no indulgence could be shown, cancelled the bail of the appellant, and thus, the appellant was taken into custody. Subsequent thereto, on behalf of the defence, an application was moved, that the appellant was insane as he had been admitted in the District Headquarters Hospital to ascertain his disease. Before this application was moved, the learned trial Judge summoned pr. Shaukat Ali Zaidi, Assistant Professor DHQ Hospital, Faisalabad, who had been treating the appellant. Vide order dated 17.12.85 the learned trial Judge agreed with the opinion of the doctor to the effect that the appellant was a person of an unsound mind. In course of arguments, both the prosecution and the defence agreed to refer the appellant to the Mental Hospital, Lahore, and the Medical Superintendent was directed to constitute a Board, and thereafter to submit the report, as to the sanity or insanity of the appellant. The Board after examining the appellant, sent its report to the Court through the Superintendent Jail Faisalabad on 1.3.86. The Board was consisting of four eminent specialists, they observed that the appellant was admitted in the mental hospital, and during his stay in the hospital, no evidence of his mental illness was noticed, and that the appellant was fit to face his trial. Thus, in the light of the aforesaid certification, the learned trial Judge proceeded with the trial of the appellant, which concluded in his conviction.
4. The learned counsel for the appellant contended that the entire proceedings of the trial stood vitiated because of the initial illegality committed by the trial court by not examining the members or member of the Board on the question of the sanity or insanity of the appellant.
5. The learned counsel for the appellant further contended that the omission on the part of the trial court was not curable murder section 537 Cr.P.C., because of the emendatory provision contained in sections 464/465 Cr.P.C. Section 464 Cr.P.C, reads ad under: "When a Magistrate holding an enquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause 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 shall reduce the examination to writing."
6. The trial Court ought to have examined the doctor as a witness to afford an opportunity to the defence to prove that the appellant was of unsound mind.
7. In support of his contention, the learned counsel for the appellant placed reliance upon the judgment erred while proceeding to hold the trial without examining the doctor. The salutary principle underlying the provision of section 464 Cr.P.C., is the examination of the doctor by giving opportunity both the prosecution and the defence to prove its case about the sanity or insanity as a preliminary issue. Consequently, this appeal is allowed; the conviction and sentences of the appellant are set aside the case is remanded for fresh trial with the direction, that the learned trial Judge shall proceed with the trial by examining the Members of the Board about the sanity or insanity of the appellant. Since, the trial has been held to be vitiated therefore, the acquittal of the co-accused Msl.Meraj Bibi is also set a side. Since it is an old matter, therefore, the learned Sessions Judge, Faisalabad shall try this case on out of turn basis, so that the same stands concluded within a period of three months. The Revision Petition has become infructuous; and is disposed of as such.