1996 P Cr (PLP)

MRS. KHALIDA RACHID, J.

Afzal Khan son of Misri Khan aged 25/26 years resident of village Vilyamina, Tehsil Hangu District Kohat, appellant herein, has been found guilty of the murder of one Umar Javed son of Noor Zadin aged 20/22 years by the learned Additional Sessions Judge, Kohat Camp Hangu, and has been sentenced to death under section 302, P.P.C. He has also been convicted under section 307, P.P.C. for ineffectively firing at the complainant and sentenced to five years' R.I. and a fine of Rs.50,000, in default thereof to undergo R.I. for one year. On realisation of the fine, Rs.20,000 was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C., in default of which he shall further suffer one year's R.I.

2. The prosecution case, briefly stated, is that on 4-12-1986 at about 16-00 hours Umar Javed, deceased, alongwith his grandfather Sirajuddin, was present in his shop, appellant Afzal Khan duly armed with Topak arrived there and fired two shots at them hitting Umar Javed fatally thus leaving him dead on the spot while complainant escaped unhurt. Motive for the offence is stated to be a verbal altercation between the deceased and the appellant.

3. Murder Reference No.3 of 1993 and Criminal Appeal No.42 of 1993 against the judgment of the trial Court, dated 7-3-1993 by the State and the appellant through his counsel, Malik Fakhre Azam, have been filed, respectively. On 15-6-1994, before the arguments could be heard on merits, Barrister M. Zahurul Haq, Advocate, whose services were engaged on behalf of the appellant, subsequently filed Criminal Miscellaneous No.68 of 1994 under section 428, Cr.P.C. read with Chapter 34, Cr.P.C. raising the plea of insanity of the appellant. He, claiming the appellant to be an old patient of Schizophrenia, requested the Court to get the appellant examined by a Medical Board so as to ascertain the previous and present condition of the appellant. The constitution of the Medical Board was, therefore, ordered by this Court on 2-10-1994 which had accordingly examined the appellant on 23-11-1994. The Board held that the appellant was suffering from major "psychiatric illness" and needed regular treatment. Report of the Board did not disclose whether the appellant could understand the proceedings pending against him and that he was mentally fit to instruct his Advocate to pursue his case, therefore, the reconstitution of the Medical Board was ordered by this Court. The appellant was accordingly examined by the fresh Board as well as by the Psychiatrist, Dr. Muhammad Tariq, a Medical Officer (Psychiatrist) Government Mental Hospital, Peshawar, who was also examined in this Court on 20-11-1995 He stated that he had examined the appellant on August 2nd, 8th and 16th of 1995 and observed that the appellant is suffering from paranoid and bizarre delusions and is patient of chronic Schizophrenia. He has also observed from the old record of the appellant that he has been under psychiatric treatment in the Mental Hospital, Peshawar since 1991 and that during the course of the present trial he was brought to Hospital for mental treatment and used to be sent back to Kohat for the hearing of the case.

4. It is surprising to note that appellant was under medical treatment for mental disorder since 1991 and it was never brought to the notice of the Court during the course of trial till this very late stage of the case. Dr. Muhammad Tariq has categorically diagnosed that the appellant had blackening phenomena. He appeared withdrawn, scared, pre-occupied and gesturing He opined that the appellant is suffering from chronic mental disorder and is unfit to plead, unable to understand the proceedings of the Court and cannot defend himself. Even otherwise from the circumstances of the case we observe that the motive presented by the prosecution does not seem to be strong ground for committing murder by a person of sane mind. We are satisfied that the appellant has been suffering from mental disorder and he is still of unsound mind, therefore, at the time of trial he was incapable of giving instructions to his lawyer and was also unable to defend himself. This fact could not have been considered by the trial Court since it was not brought to the notice of the Court and thus he was not tried as a lunatic person under Chapter 34 of the Criminal Procedure Code.

5. In view of above circumstances we, by setting aside the conviction, vitiate the trial and direct that the appellant shall be remanded to Mental Hospital in safe custody where he shall be examined periodically. Upon his recovery he shall be tried for the offences charged with according to law Hence Murder Reference and Criminal Appeal disposed of accordingly. N.H.Q./1919/P??????????????????????????????????????????????????????????????????????????????????? Order accordingly.