1987 PLP 1016 (MLD)

Shaheen Masood, Asstt. A.-G. for the State. Sardar Mahmood Khan with Haji Riaz-ud-Din Khan for Respondent. A.R. Tayyib for the Complainant, Date of hearing: 27th March, 1984. Learned Additional Sessions Judge I, Bahawalpur, having convicted Noor Muhammad, accused, a deaf and dumb person under section 302/307, P.P.C., forwarded the proceedings to this Court under section 341, Cr. P. C , for appropriate orders.

2. On being asked by this Court to justify the reference learned Additional Sessions Judge submitted that he made the reference relying on a piece of commentary given under section 341, Cr. P. C., occurring at page 1922 of the Wood off on the Code of Criminal Procedure, Pakistan by Sheikh Abdul Halim, which suggested that if a deaf or dumb person has been committed for trial or convicted, a reference has to be made under section -341, Cr. P. C., as a measure of extra-precaution so that the High/Court may satisfy itself that under the circumstances, it was a fair trial and that the proceedings were taken in accordance with law. Notice were issued to the parties and their counsel who addressed arguments both to the propriety of making reference under section 341, Cr.P..C., and also whether the trial of the convict was held in accordance with law? 4, Noor Muhammad, convict, is admittedly a deaf and mute by birth who was living with his wife Mst. Nasim Aziz and his 3 children in the house of his in-laws. On the night of occurrence the inmates )f the house woke up hearing the shrieks and saw the convict giving Chhuri blows to Abdul Hakim, his wife's brother. He gave injuries to Mst. Nasim Aziz (P.W, 10) (his wife), Mst. Tasnim Aziz (P.W. 9) (his sister-in-law) and Mst. Aisha (P.W. 8) (his mother-in-law) when they tried to rescue Abdul Rahim. However, he was caught red-handed and the matter was reported to police who after due investigation challaned him.

5. It appears that before recording the prosecution evidence learned trial Judge in his order, dated 1-3-1982 observed that Noor Muhammad, convict, "understands the signs and gestures and is also intelligent enough to understand the proceedings". The prosecution evidence concluded on 21-3-1982 and at the instance of Additional Public Prosecutor one Wazir Ahmad, Head Master, Government Deaf and Dumb School, was appointed as interpreter for recording the statement of the accused under section 342, Cr.P.C., whereafter the learned trial Court having delivered the verdict of guilty forwarded the proceedings to this Court under section 341, Cr.P.C.

6. A perusal of the record shows that the convict was represented by a counsel who cross-examined the witnesses at length and at no stage complained that the convict was not under standing the proceedings. It, is not disputed that the convict is a deaf and dumb by birth and even, according to the observation of the learned trial Court, he could understand only the language of signs and gestures, yet no attempt had been made by the trial Court during the recording of the prosecution evidence to translate it to the convict.

7. Learned counsel appearing on behalf of the complainant relying on Khushi Muhammad v. Jamat Ali P L D 1984 S C 54 submitted that the Supreme Court of Pakistan did not find fault with the trial where an interpreter was appointed at the time df examination of the accused (deaf and dumb) under section 342, Cr.P.C., therefore, the trial in the present case having similar facts cannot be termed illegal. He further argued that there being no finding as to the incapability of the convict to understand proceedings, reference under section 342, Cr.P.C., could not be made, therefore, case should be returned to the trial Court for recording the sentence. On the other hand learned counsel appearing for the convict submitted that the convict being incapable of hearing anything did not understand evidence led against him and no attempt to interpret the same was made as enjoined by section 361, Cr.P.C., therefore, on account of the violation of this provision, the entire proceedings have vitiated so retrial should be ordered.

8. In a criminal case an accused is required to be present in person throughout the trial except where his personal attendance is dispensed with by the Court and he is allowed to appear through a pleader. The object is that the accused should be in to position to know personally the allegations and incriminating circumstances appearing against him so that he may defend himself effectively. According to section 361, Cr.P.C., whenever an evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open Court in a language understood by him. This is a mandatory provision. Noor Muhammad admittedly does not understand any language other than the language of signs and gestures as observed by the learned trial Court in its order, dated 1-3-1982. No attempt appears to have been made to communicate the evidence to him through gestures, therefore, it follows that he could not defend himself consciously and properly. In this case material evidence against the accused is that of the injured eye-witnesses who are his close relatives and accustomed to communicate with him due to their long associations. Had they been asked, they would have easily conveyed their evidence to him. A little vigilance or the part of the learned trial Court would have thus saved the proceedings from the stigma of non-observance of the provisions of section 361, Cr.P.C. The precedent relied upon by the appellants' counsel in my humble view does not apply to the case in hand because in the precedent case two deaf and dumb accused were tried alongwith their 3 real brothers, who are held to have made them understand the proceedings.

9. According to section 341, Cr.P.C., a reference could only be made if the trial Court finds that the accused "cannot be made to understand the proceedings". Since no effort to make the accused understand the proceedings had been made, therefore, the question of such efforts having failed did not arise and, therefore, a reference under section 341, Cr. P.C. obviously is out of place.

10. Having held that the reference could not be made in this case am not returning this case to trial Court for recording sentence as I have noticed that mandatory provisions of section 361, Cr.P.C., have not been complied with which has caused serious prejudice to the convict and, therefore, in exercise of revisional jurisdiction of this Court I set aside his conviction with a direction that the case shall be sent- to Sessions Judge, Bahawalpur, who shall recall the witnesses, namely, Mst. Aisha (P.W. 8), Mst. Tasnim Aziz (P.W. 9) and Mst. Nasim Aziz (P.W. 10) and the recovery witnesses, namely, Hidayat Ullah (P.W. 11) and A.S.I. Muhammad Akram (P.W. 13) and them to translate to the accused their evidence already recorded try making signs and gestures in the presence of the interpreter (Wazir Ahmad) and then allow the defence counsel to put them further questions in cross-examination if he so desires, of-course without repeating the earlier cross-examination. Thereafter, statement of the accused under section 342, Cr.P.C. shall be recorded and also the 'defence evidence, if any, and then the case shall be decided afresh within a period of two months. The parties shall appear before the learned Sessions Judge, on 14-4-1984.

11. Learned counsel for both the parties were told about the above direction before dictating this order and they expressed their agreement and if such a direction is made they would feel satisfied.

12. This reference is, therefore, disposed of in the terms indicated above. M. Y. H. Order accordingly.