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Criminal Appeal No. 8 of 1962, decided on 19th December 1962.

S. 465‑Trial of lunatic-- Procedure‑Provisions mandatory‑Omission to decide preliminary issue vitiates whole trial‑Medical Officer examined as witness by Court‑ Cross‑examination to be allowed ‑ Sessions Judge failing to record finding on question of unsoundness of mind and incapacity to make defence‑Re‑trial ordered.

Abdul Ghafoor for Appellant.

M. A. Hafeez, Government Advocate for the State.

.‑Abdur Rehman was convicted by the Sessions Judge, Mirpur of an offence under section 302, A. P. C. by his order dated 1‑9‑62 and sentenced to life imprisonment. He has appealed against his conviction and sentence.

The learned counsel for the appellant has argued the appeal on merits and we have also heard the learned Government Advocate in reply. One of the grounds taken up by the learned counsel for the appellant has been agitating our mind throughout and we feel that it is necessary to decide this point first before we revert to the evidence and decide the question of the guilt o; otherwise of the appellant.

The learned counsel for the appellant put in an application before the learned. Sessions Judge on 13‑6‑62, alleging that the accused was of unsound mind and incapable of understanding the nature of the accusation against him and making his defence.

It was prayed in the application that he should be got medically examined before commencing with the trial.

The learned Sessions Judge passed an order on this appli cation directing the District Medical Officer Mirpur to keep the accused under observation for some days and to report back whether he was of unsound mind or not. In the meanwhile, the trial was adjourned to 18‑6‑1962 for the report of the D. M. O. and for recording his evidence. The order dated 18‑6‑62 records that the D. M. O. had asked for more time for the observation of the accused. The D. M. O. was given one more week for observation and report and the Doctor was directed to appear in the Court on 26‑6‑62 for recording of his statement. The prosecution witnesses were present and they were directed appear on the adjourned date. The order of the Court dated 26‑6‑62 records that the D. M. O. had showed his incapability to come to a correct decision about the unsoundness of the min;; of the accused and had asked for some more weeks. The learned Sessions Judge gave the D.M.O. one more week for keeping the accused under observation. It was also recorded that the D. M. O. should comply with the order of the Court with this extended week otherwise recourse shall be had to legal proceedings against him. The case was adjourned to 5‑7‑62 for recording the evidence of the Doctor. Then the D. M. Mirpur seems to have intervened in the matter and he wrote a letter to the D. M. O. on 26‑6‑62 hoping that the D. M. O. would appreciate that the case was of a serious nature and that there was a likelihood of the case being spoiled since in such serious offences the accused party always tries to win over the witnesses and spoil the prosecution cases. The D. M. suggested that the D. M. O. may please formulate his opinion at the earliest possible moment and send up his report to the District and Sessions Judge within a week. The D. M. O. who had earlier written to the Sessions Judge, on 26‑6‑62 that he still requires a few weeks to come to any correct conclusion whether the accused was of an unsound mind of not, on receipt of the D. M.'s letter dated 26‑6‑62 constituted a Board consisting of himself, Doctor Khalida Ghousia Civil Medical Officer, Mirpur and Dr. Jamil‑ur Rehman Khan C. M. O. Mirpur and on 27‑6‑62 forwarded a report to the District and Sessions Judge Mirpur signed by the three Doctors certifying that Abdur Rehman accused had correctly replied to all the questions put to him by the Medical officers and his mental acuteness was not below normal as also that he possesses a sound mind in his healthy body and at that moment was not suffering from any insanity or any mental disorder. It was also reported that the accused appeared to be introspective ; and that it was but natural in all such cases. On 5‑7‑62, the learned Sessions Judge, recorded an order that the report of the D. M. O. had been received but he had not attended the Court. He was accordingly again summoned for recording his evidence on 12‑7‑62. On 12‑7‑62 the Doctor attended the Court and his statement was recorded. The Doctor deposed that he found the accused mentally sound and that in witness's opinion he was fully capable of understanding the nature of his action and the consequences. The Doctor approved the report Exh. P. A.

It has been argued by the learned counsel that fact of un -soundness of mind of the accused and his consequent incapability of defending himself, was not tried by the learned Sessions Judge in accordance with the provisions of section 465, Cr. P. C. The learned counsel has made a statement at the Bar that he was not allowed to ask any question from the D. M. O. while he was under examination by the Court. This appears to be correct. The statement, was recorded, shows that no opportunity was afforded to the counsel for putting any question to the witness. The learned counsel also states that he wanted to ask questions but the learned Sessions Judge disallowed remarking that the Doctor had been called for the satisfaction of the Court and the accused's counsel had no right to ask any question to the witnesses. Section 465, Cr. P. C. is reproduced below :‑

"lf any person committed for trial before a Court of Sessions, 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 unsound ness and incapacity, and if the Court is satisfied of the fact the Judge shall record a finding to that effect and shall postpone further proceedings in the case.

Subsection (2). The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be par of his trial before the Court."

The words used in the section are "the Court shall try the face of such unsoundness and incapacity." The trial would imply the examination of evidence of both sides and the right of cross examination also and then the giving of a finding by the learned Sessions Judge. Section 464 which relates to proceedings in such cases before a Magistrate provides that the Magistrate she cause such person to be examined by the Civil Surgeon of the District or such other Medical Officer as the Government directs and thereupon shall examine such surgeon or other officer as a witness and shall reduce the examination to write ; If the Medical Officer is to be examined as witness, he would be a funny witness if he is, not allowed to he cross‑examined was regard to his statement. We have gone through the record with; the help of the learned Government Advocate and we find that'' the learned Sessions Judge did not record any finding on the question of the unsoundness and incapacity. Perhaps the learned Sessions Judge agreed with the opinion of the Doctor that the accused was mentally sound but then he did not record his finding on the file. We cannot presume from the tact of the learned Sessions Judge proceeding with the recording of the prosecution evidence, that he was convinced that the accused was of sound mind and capable of making his defence. From the fact of proceedings with the recording of the evidence, it can also be said that the learned Sessions Judge did not pay any heed to the statement of the Medical Expert recorded by him. He should have placed on the record whatever was in his mind in the form of a finding.

The provisions of section 465, Cr. P. C. are mandatory and hence the omission to decide the preliminary issue will vitiate the whole trial. It is most unfortunate that so much labour shall be lost but the mandatory provisions of law have to be complied with.

We uphold the objection of the learned counsel for the appellant and holding that the question of unsoundness of mina and consequent in capacity of the accused of making his defence c has not been tried, set aside the conviction and sentence passed upon him. The case is remanded for retrial according to law. The learned Sessions Judge shall, in the first instance try the issue of the unsoundness of mind of the accused and his consequent disability of defending himself.

K. B. A./A. H. Retrial ordered.

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