' This revision petition has been filed to challenge order, dated 8-5-1994 passed by the learned Special Judge, Anti-Corruption, Gujranwala Division, Gujranwala whereby the Court ordered that the trial of the case against the petitioner should proceed as he was not of unsound mind.
2. No one has appeared on behalf of the petitioner. I have heard the learned A.A.-G. For the respondents and perused the material on the record with his help. The record shows that there were two medical reports, one submitted by Dr. Kalim-ud-Din Malik Physician, Allama Iqbal Memorial Hospital, Sialkot and the other by Dr. Shamshad Ahmad Gill, Psychiatrist of the same hospital. The report submitted by the former is as follows:--- "Mr. Muhammad Saeed is a known patient of C.V.A. He has complete aphasia (i,e,, he could not speak at all) but now at times he can utter a word or two with difficulty, however, he can understand the things. He was asked to write but it is illegible. He still is under treatment."
' The report submitted by the Psychiatrist reads as under:- "No psychiatric problem could be detected as the patient is not answering any question."
' The learned A.A.-G. Has candidly stated that the question as to whether the petitioner was of sound mind or not should not have been summarily decided by the Court and that it could have been properly determined after examining the two doctors in the Court. He further submits that examination of the doctors in Court was all the more necessary in view of the apparent conflict between their reports. In, this connection, he has referred to the following judgments:---
(1) Noor Jehan v. The State PLD 1980 Peshawar 103.
(2) Khan Baig v. The State PLD 1984 Lah.
434.
(3) Salimuddin v. The State PLD 1985 Kar.
594.
(4) Said Rasool v. Muhammad Fazil and another 1990 PCr.LJ 210.
3. There is considerable weight in the arguments raised by the learned A.A.-G. The reports submitted by the two doctors, per se, do not clearly show that the petitioner is of sound mind, can understand the proceedings against him and make his defence. To ascertain the correct position, the Court ought to examine the doctors as witnesses in a preliminary inquiry which is deemed to be a part of the trial. The trial of the fact regarding unsoundness of mind of an accused and his incapacity to make his defence has to precede further proceedings in the trial by virtue of the provisions of section 465 of the Cr.P.C. The said section provides as under:-- "(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) 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."
The provisions of section 465, Cr.P.C. Are mandatory in nature and their noncompliance vitiates the trial. This view finds support from the judgments referred to by the learned A.A.-G. In the case of Noor Jehan, it was held as under:--- "Where a Court entertains doubts to the sanity of the accused, the Court should not merely put questions to the accused, but should try the fact of such unsoundness of mind by examining the Civil Surgeon or some other Medical Officer, and taking such evidence as might have been procurable, with a view to ascertaining whether the accused had at any time previous to the commission of the crime exhibited symptoms of insanity, and whereby the Trial Court does not comply with the provisions of section 465, Cr.P.C. But convicts the accused the trial is vitiated."
' In the case of Khan Baig, it was held as follows:--- "The trial Court was under legal obligation to first hold an inquiry as to soundness of the accused's mind for purpose of ascertaining whether the accused was incapable of making his defence."
' Due to non-compliance of the provisions of section 465, Cr.P.C. It was held that the Court could not have proceeded with the trial in the absence of a finding on the issue of insanity. In the case of Salimuddin, the Trial Court had held the accused to be a fit person to face the trial without examining the doctor in the Court. The order was set aside and the case sent back to the Trial Court to examine the doctor for a proper decision of the question regarding unsoundness of mind of the accused. In the case of Said Rasool, it was held that an inquiry into unsoundness of mind of the accused and his incapacity to stand trial is bound to be made by the trial Court under section 465, Cr.P.C. As a preliminary step before recording evidence of the main charge and that the prosecution and defence have to be given full opportunity to lead evidence in support of their respective versions.
4. In the present case, the Court does not appear to have tried the question regarding unsoundness of mind of the petitioner and his incapacity to make his defence as required under section 465 of the Cr.P.C.
5. Therefore, the revision petition is accepted, the impugned order, dated 8-5-1994 is set aside and the trial Court is directed to hold a preliminary inquiry regarding unsoundness of mind of the petitioner and his incapacity to make his defence. For this purpose, the trial Court shall examine the two doctors who had submitted their reports and allow the prosecution as well as the defence to produce further evidence in support of their respective claims.
Revision .