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Criminal Appeal No. 91 of 1981 decided on 5th June, 1985.

‑‑ S. 302/307‑Criminal Procedure Code (V of 1898), S. 465‑Trial Judge, without trying fact as to unsoundness of mind and incapacity of accused, taking proceedings in case against him and awarding con viction ‑Perusal of order of conviction that trial judge on receipt of a report from jail commencing hearing of case and ordering summoning of witnesses‑Procedure adopted by trial Judge held, against manda tory provisions of S. 46i, Criminal Procedure Code, and all subse quent proceedings in trial against accused illegal‑Conviction set aside and case remitted back to trial Judge for holding inquiry into question of unsoundness of mind and incapacity of accused in accor dance with Chapter XXXIV of Criminal Procedure Code and then proceed with trial of case in accordance with law.

Hayat v. The State P L D 1959 (W. P.) Lah. 474 and Dara v. The State 1973 P Cr. L J 247 rel.

Syed Zawar Hussain Shah for Appellant.

Riaz Bahar for the State.

Date of hearing : 4th June, 1985.

This is an appeal by Ghulam Rasool aged 40 years against his convic tion under section 302, P. P. C. by learned Additional Session Judge, Vehari who vide .judgment dated 18‑3‑1981, sentenced him to imprisonment for life under section 302, P. P. C. for the murder of Mst. Aaisha (70), his mother‑in‑law and to one year's R. I. under section 307, P. P. C. for causing injuries to his own wife Mst. Sakina (40).

2. The charge against Ghulam Rasool appellant is that on account of some family dispute, he murdered his mother‑in‑law Mst. Aaisha and caused injuries to his wife Mst. Sakina with knife at 10‑30 p. m. on 25‑12‑1976. At the time of the commencement of the trial on 18‑12‑1979, an objection was taken by the learned counsel appearing on behalf of Ghulam Rasool accused that the accused was a lunatic even before the occurrence ;that he is still a lunatic and, therefore. incapable of making his defence and to understood the proceedings of the trial. The learned Additional Session Judge asked some questions to Ghulam Rasool accused which he could not reply. It was observed by the Court that from external appearance the accused appeared to be suffering from some mental ailment. He was. therefore. referred to Medical Superintendent, Multan, for examination who, as is indicated by the order of the trial Court, dated 19th January, 1980, reported that Ghulam Rasool was a mentally deranged person. It appears that the accused was then referred to be lodged in the mental Hospital, Lahore, where he was admitted on 1‑3‑1980. A Board of doctors examined him and on 29th May, 1980, reported that "he is fit to stand trial". No further denial was given in the report. After receipt of this report, the learned Additional Session Judge, Vehari on 11‑7‑1980, ordered commencement of trial and fixed 20‑9‑1980 to 22‑9‑1980 for recording evidence of prosecution witnesses. The accused was charged on 20‑9‑1980 and the recording of evidence also started on that very day. The trial was completed on 23.2‑1981 and the accused was convicted, vide impugned judgment as stated above.

3. On a perusal of the record I find that the learned trial Judge did not comply with the provisions contained in Chapter XXXIV of Criminal Procedure Code. According to section 465, Cr. P. C., it was necessary for the trial Court, in the first instance, to try the fact of unsoundness ail JA incapacity of the accused and only then further proceedings in the cafe could have been taken. Subsection (2) of section 465, Cr. P. C. lays down that 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. The record of instant case shows that the learned trial Judge after receipt of the report of Medical Bard in the Mental Hospital, dated 29‑5‑1980 did not record the statement of at least the Chairman of the Board nor did he record any other evidence to assess whether the accused Ghulam Rasool was incapa ble of making his defence and whether he was able to understand the proceedings against him or not. In fact, he did not give any finding on e these points which were mandatory before commencement of the trial of the case. A perusal of the order, dated 21‑7‑1980 indicates that the learned trial Judge only recorded that a. report from jail has been received that the hearing of the case ag6ainst the accused be commenced. Thereafter, he ordered summoning of the witnesses for 20‑9‑1980. This procedure adop ted by the learned trial Judge was illegal and clearly against the mandatory provisions of section 465, Cr. P. C. Reliance is placed on Hayat v. The State (P L D 1959 (W. P) Lah. 474) and Dara v. The State (1973 P Cr. LJ 247).

4. As a result of the above discussion, all the subsequent procee dings in the trial against Ghulam Rasool are illegal. I, therefore. accept this appeal and set aside the conviction of Ghulam Rasool appellant. The case against him under section 302/307, P. P. C. is remitted back to learned Sessions Judge, Vehari, who will himself hold inquiry into the question of unsoundness of mind and incapacity of the accused in accordance with Chapter XXXIV of the Code of Criminal Procedure and then proceed with the trial of the case in accordance with law. The accused Ghulam Rasool is in jail. He will be produced before the Sessions Judge, Vehari, on 16‑6‑1985.

The office will remit the entire record of the case to the Court of Sessions Judge, Vehari immediately.

M.Y.H. Appeal accepted.

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