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Criminal Appeal No. 6 of 1963, decided on 15th June 1963.
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----S. 465‑Unsoundness of mind‑Accused to be given opportunity to prove‑Accused un-represented‑Finding recorded by Court on examination of medical witness and his report without such witness having been cross‑examined by defence‑Provisions of S. 465, held, not complied with.
M. A. Farooq for Appellant.
Government Advocate for Respondent.
‑The accused appellant Manga stands condemned to death under section 302 by order of the Sessions Judge Poonch, Rawalakote, dated 18‑3‑1963 for the murder of his wife Noor Jehan on 23‑10‑1962. It is said that insistance on the part of the wife to pour all the maize in the gunny bag which the accused was holding, which he had to carry for grinding to the water mill lead to the unfortunate murder. The deceased out of fear lest the remaining maize be eaten up by the rats wanted to pour the whole of it into the bag whereas the accused did not want it to be put anymore in the gunny bag. The result was that the accused started beating his wife with stick and when she ran to save herself he chased her and struck her mercilessly on the head with the blunt side of the axe and killed her. The occurrence was witnessed by Gulab Noor wife of Wali Muhammad brother of the accused who was living in the same house with the accused. She raised an alarm which attracted her husband Wali Muhammad, Talib Hussain and Allah Ditta who snatched the axe from the accused.
When the accused was first produced in the Court on 9‑11‑62 he behaved queerly and the Sessions Judge suspected him to be of unsound mind. He ordered the accused to be kept under medical observation. This was done and the accused was again produced before the Court on 5‑12‑62 alongwith the medical report. The Doctor who made the report after keeping the accused under his observation was examined as a witness. Since the Doctor was of the opinion that the accused was of sound mind the Court recorded a finding to this effect on 5‑12‑62.
It has been pointed out that the Court did not follow the procedure correctly, that the accused was un-represented and the Doctor was never cross‑examined and nor was an oppor tunity given to the defence to prove that the accused was of unsound mind and consequently incapable of making his defence. In reply it was stated by the learned counsel on behalf of the Government that the Court had examined the Doctor as a witness which was enough compliance with the provisions of section 465, Cr. P. C. In order to appreciate the arguments of the learned counsel for the appellant it is proper to reproduce section 465, Cr. P. C. which runs thus :‑
"If any person committed for trial 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 jury, or the Court with the aid of assessors, shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied with the fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged.
(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".
The words shall in the first instance, try the fact of such unsoundness and incapacity and the words appearing in clause (2) of section 465 leave no manner of doubt that the question of unsoundness of mind and hence incapacity of the accused of making his defence shall be tried first and such trial shall be deemed to be part of the accused's trial before the Court. The onus of proof in such a trial that the accused is of sound mind is on the prosecution, and therefore prosecution has to begin first and after the prosecution closes its evidence the accused is to be given chance to prove that he is of unsound mind and there fore incapable of making his defence. In the present case the accused was not given an opportunity to prove his unsoundness of mind. Moreover he was not represented by a counsel which in our opinion has seriously and adversely affected his interest. In a murder case accused is always represented by a counsel, and if he cannot engage a counsel for himself the Government engages a counsel for him. In this case the counsel was engaged on Government expense after the question of soundness of mind was determined by the Sessions Judge. Since no opportunity was granted to the accused to prove his unsoundness of mind at the time of trial, the provisions of section 465, Cr. P. C do not appear us to have been complied with. In the circum stances we cannot uphold the conviction of the accused under section 302, A. P. C which we hereby set aside and sent the case back to the Sessions Judge for a fresh trial. The Sessions Judge shall first try the question of unsoundness of mind of the accuses under section 465, Cr. P. C. and after recording a finding of this point shall proceed further in the case according to law.
K. B. A. Case remanded.
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