' FATAL ILAHI KHAN, J.--Sirajuddin complainant seeks leave to appeal against the judgment of the learned Peshawar High Court, Peshawar dated 7-12-1996 passed in Criminal Appeal No,42 of 1993; whereby, the trial of the respondent No,1, conviction and sentence of death imposed upon him under section 302, P.P.C. Was held vitiated and it was directed that the respondent/accused be remanded to the Mental Hospital in safe custody where he shall be examined periodically and upon his recovery he shall be tried for the offence charged (with in accordance with law. The murder reference and the criminal appeal both were disposed of accordingly.
2. The. Facts of the case briefly stated are that on 4-12-1980 Sirajuddin complainant lodged the report in Police Post Kahee, which was recorded in the .Daily diary at 17-45 hours, to the effect that at Degarwela' approximately at 4-00 p.m. He was present with his grandson Umar Javari deceased in his shop when in the meantime Afzal Khan son of Misal Khan accused/respondent No,1 armed with Topak appeared and fired 2 shots at them. Javaid was hit, fell down and expired at the spot.
Subedar Sajadin and Alam Shah, P.Ws. Were stated to have witnessed the occurrence. Motive for the offence was an altercation which had taken place just some time before the occurrence. The accused/respondent was, declared absconder in accordance with law and proceeded against under section 512. Cr.P.C. Were completed. The accused was subsequently arrested on 19-8-1990 when his pre-arrest bail was not confirmed by the learned Sessions Judge. On completion of the investigation the accused was put on trial. Ocular, circumstantial and medical evidence was led in support of the prosecution case where after the accused was examined under section 342, Cr.P.C.
The accused denied the charge and in reply to a question about his absence for more than 3 years he stated that he had left for Karachi for earning his livelihood before the occurrence and on his return to the village when he came to know of the charge an application for pre-arrest bail was made. He did not record his statement under section 340(2), Cr.P.C. On oath in rebuttal of the prosecution case and led no evidence in his defence. The learned trial Judge, therefore, finding the prosecution case proved against the accused beyond any reasonable doubt and in absence of any mitigating circumstance convicted the accused/respondent under section 302, P.P.C. And sentenced him to death and a fine of Rs,50,000 in default of payment of fine to undergo further one year R.I. He was also convicted under section 307, P.P.C. And sentenced to 5 years' R.I. And a fine of Rs,2,000 in default of payment of fine to suffer one year's R.I. The convict filed an appeal while reference was made for confirmation of the death sentence under section 374, Cr.P.C.
3. During pendency of the appeal on 15-6-1994 Criminal Miscellaneous Application No,68 of 1994 was moved in the High Court that the condemned prisoner has the history of insanity as he was suffering from schizophrenia a minor mental disease as reported in October, 1990. Latter a medical board was also constituted in May, 1991. It was therefore requested that a medical board be constituted to find out his mental condition and that on receipt of such report his appeal shall be disposed of. The learned High Court summoned the record pertaining to the respondents' bail application in which such plea was earlier taken. Medical report was obtained. Accordingly, the learned High Court ordered constitution of medical board, The accused/respondent was examined and medical report was submitted. However, the xenon was deficient in some respects and definite opinion could not be given in absence of association of Psychiatrist as Member of the Board. After the needful complete report was submitted 'according to " which the, accused/respondent was found not in, a position to understand the trial.
4. On 24-10-1995 the learned Division Bench hearing the appeal was of the view that it was a unique plea of its kind because immediately after the occurrence the accused has absconded and remained absconder for about 3-1/2 years during which period- his insanity/unsoundness of mind never struck to anybody including him. Even at the trial the then learned defence counsel never took the plea of his unsoundness of mind not was it brought to the notice of the Court by any of his relatives during trial or at any subsequent stage. Even in the grounds of appeal before the learned High Court Kio such plea was raised., As such Dr.M.Tariq who headed the Board was summoned to find out whether the accused respondent's ailment has developed subsequent to his trial and as to whether he is capable or understanding the proceedings in appeal. Accordingly, the statement of Dr.M. Tariq Psychiatrist was recorded on 20-11-1995. After hearing arguments of the learned counsel for the parties the appeal was disposed of by judgment dated 7-2-1996 against which leave to appeal is prayed for.
5. The learned counsel for the petitioner challenged the judgment/order on the same lines as observed by the learned Division Bench in its order dated 24-10-1995 whereby was deemed necessary to summon Dr.M.Tariq for further verification. According to the learned counsel after commission of offence the accused/respondent remained absconder for 3-1/2 years and after his arrest he was put on trial. He was represented by an eminent Advocate during the trial but it never struck to him that the accused/respondent was suffering from any ailment or mental disease. On conclusion of the prosecution evidence the accused/respondent was examined under section 342, Cr.P.C. In which he gave sensible answers to questions put to him like ordinary, normal and prudent man. The trial Court did not notice that his behaviour was abnormal or that he was not capable of understanding the trial. Accordingly, the trial was proper and the consequential order of conviction validly passed which was not liable to have been set aside. The order of the learned High Court setting aside his conviction and remanding the case is illegal and liable to set aside and the case be sent back to learned High Court for decision on merits.
6. After hearing the learned counsel for both the parties and perusal of the record it is necessary to reproduce section 465 of the Cr.P.C. Which reads as follows:-- "465. Procedure in case of person sent for Trial 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."
7. From perusal of the above it is clear that whenever question of insanity is brought to the notice of the Court the Court shall satisfy itself in the manner provided under the law; whether the person is capable of understanding the trial and defending himself. For such satisfaction medical evidence is of utmost importance.
8. In the instant case, therefore, it is to be seen; whether, the fact of inanity of the accused/respondent was ever brought to the notice of the Court at the trial stage and as to whether the trial Court complied with the above provision of law, before entering into the trial.
Admittedly, accused/respondent remained in abscondence for about 3-1/2 years after commission of the offence and such period has got no relevancy in the context of the present proceedings. It is not denied that when an application for bail of the accused/respondent on medical ground was made before the learned Sessions Judge on 17-9-1990 and prayer was made for his examination with reference to his mental ailment. It was a sufficient notice for the trial Judge. More so when he was examined by Dr. Muhammad Shafique Psychiatrist and his opinion was placed on file in this respect which revealed that he was mentally unbalanced. It is also evident that on the application of the accused/respondent a medical board was constituted. The accused was produced before such board. Initially he was reluctant to appear for examination but subsequently he was admitted in the hospital on 25-9-1990 for investigation/observation. The opinion of the Board after such observation/investigation is as under:-- "Accused Afzal Khan son of Misri Khan, resident of Balyamin, Teshil Hangu, District Kohat admitted for observation in L.M.S., Kohat. He has got Psychiatric illness which is controlled with treatment of Psychiatrist Professor Shafique. Expert opinion would be given by the abovementioned Psychiatrist who is at Peshawar and who has advised as under:- ' accused to continue treatment for 4 months with effect from 28-7-1990. Psychiatrists are not available either in the L.M.H. Kohat or Jail Hospital, Kohat'."
' Later on special medical board was constituted which gave the following opinion:-- "After examination and keeping in view the report of the visiting Psychiatrist, the board is of the opinion that Mr. Afzal Khan son of Misri Khan suffers from a major mental illness most probably schizophrenic in nature. It is recommended to the Court that he needs active treatment with anti- psycnotic drugs within the jail with a view that his mental state may improve. Subsequent to this another medical board may be constituted."
9. After such a hectic efforts the learned Sessions Judge dismissed the application for bail on the ground that there was no direct evidence or verdict that the illness is dangerous to life or cannot be treated in the jail by order dated 3-6-1991.
10. The learned counsel for the petitioner failed to point out any material on the record wherefrom it can be gathered that subsequently any medical board was constituted or any material was placed before the trial Court to show that the accused/respondent re-gained his health and was capable of defending himself at the trial. Rather from the medical reports of the medical board constituted by the order of the learned High Court it is evident that the ailment pointed out as back as in the year 1991 continues. More so Dr. Muhammad Tariq, M.C. (Psychiatrist) examined the learned High Court on 20-11-1995 deposed that the accused/respondent was suffering from chronic schizophrenia which is major mental disorder of poor prognosis. That he is unfit to plead, unable to understand the proceedings of the Court and cannot defend himself. However, possibility of malingering by a condemned prisoner was excluded. Schizophrenia was stated to be disease which could come suddenly and can also go gradually and such patient can have lucid intervals during which he would understand the proceedings of the Court and would be capable of defending himself but verified that since August, 1995 till 20-11-1995 when the accused/respondent was under his treatment he had no lucid interval.
11. From what has been stated above it is clear that the provision of section 374, Cr.P.C. Has not been complied with by the learned trial Judge when the ailment was specifically brought his notice and supported by reports of the medical board constituted under the orders of the trial Court. As such failure of the defence counsel to raised such plea at the trial would not disentitle the accused/respondent to be treated in accordance with law.
For the reasons we find no infirmity in the judgment of learned High Court and refuse to grant leave to appeal. Petition is, accordingly, dismissed.