1997 P Cr (PLP)

JAWAID NAWAZ KHAN GANDAPUR, J.

The appellant-accused was charged for having committed an offence punishable under section 302, P.P.C. vide F.I.R. No. 537 lodged in Police Station Badaber, Peshawar on 22-9-1994. After the usual police investigation complete challan was submitted against him in the Court of Mr. Muhammad Siddique Khattak, - Additional Sessions Judge, Peshawar who framed the charge, on 17-7-1995, which was read over and explained to the appellant-accused. He pleaded guilty to the charge."1 The Additional Sessions Judge then recorded his detailed statement, which is as under:-- I- "Statement of accused Jamshid Khan son of Ashraf stated that on the day of occurrence I woke up in the morning I went to the mosque for offering my Fajar prayer. The deceased and I offered Fajar prayer in the mosque under the guidance of Imam Masjid. After coming out from the mosque, the deceased was going ahead of me. I was armed with a pistol. I chased the accused when the deceased reached near his house I with intention to kill the deceased; fired at him with which he was hit and subsequently died. I then went to the house of my aunt. The motive of the offence is that I had suspicion that the deceased had illicit relation with my mother Mst. Neelam. I had seen the deceased in my house some 10/15 years prior to the occurrence when I was a boy. I had forgotten these facts. A few days prior to the occurrence I recollected this story and hence I murdered deceased Qayyum Khan son of Abdul Latif. Before this incident I had also attempted at the life of my mother, she was hit, got injured, but is still alive."

2. Holding that the accused had made a free and voluntary confession for having committed the murder of Qayyum Khan son of Abdul Latif, the trial Judge sentenced him to death by his order, dated 19-7-1995. Hence this appeal.

3. At the very outset the learned counsel for the appellant submitted that the trial Judge has committed grave illegality in convicting the accused inasmuch he had not taken into consideration that the appellant was an insane person and, therefore, not legally competent to confess his guilt. He further stated that he had submitted an application before the trial Court wherein he had specifically alleged that the accused was a mental patient and had remained under the treatment of Private Medical Practitioners and that, therefore, in the interest of justice, he should be medically examined in respect of his mental health; that the trial Court accordingly referred the appellant to the Medical Board consisting of (1) Dr. Ghulam Farid Khan, President, Standing Medical Board/Medical Superintendent (2) Professor Dr. Ziaul Islam, Eye Specialist/Member and (3) Dr. Farooq Ahmad Khattak, Visiting Physican/Police and Service Hospital, Peshawar which, after examining the appellant, gave their opinion in the following terms:-- "After detailed examination and investigation the Standing Medical Board is of the opinion that he is physically and mentally fit. Moreover, the accused himself does not complain of any problem to his person. "

4. The learned counsel for the appellant vehemently argued that the Medical Board was not properly constituted and thus not qualified to express any opinion in respect of the mental health of the appellant as none of the members of the Medical Board, including its President, was qualified to ascertain the mental condition of the appellant which of course could be ascertained by a Psychiatrist only; that unfortunately the trial Judge did not apply his judicial mind and acting on the report submitted by the Standing Medical Board, which was not even proved in accordance with the provisions of Qanun-e-Shahadat, convicted the appellant and sentenced him to death. He, therefore, contended that the verdict given by the trial Court is not only arbitrary but is also illegal and liable to be set aside. Confronted with this situation the learned counsel for the State had no explanation to offer.

5. We have also gone through the charge as framed by the trial Court, the admission of guilt by the appellant, the report of the Standing Medical Board, the statement of the appellant recorded by the trial Judge and certified under section 164/364, Cr.P.C. and are of the view that the trial Court had acted in haste in passing the sentence of death in the circumstances of this case. The appellant-accused should have been referred to a Psychiatrist who only was competent to give a verdict in respect of his mental condition. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant-accused and remanded the case to the Sessions Judge, Peshawar with the directions that he shall, in the first instance, refer the appellant-accused to a Medical Board which must consists of a Psychiatrist (preferably Professor Dr. Khalid Mufti) and after the receipt of the report of the Medical Board, determine whether the appellant accused is a sane person and is fit to face the murder trial and thereafter, decide the case in accordance with law. The appellant shall not be released from jail. The murder reference is answered in the negative. N.H.Q./2125/P Case remanded.