P L D 1963 (W (PLP)

Ismail Khan was accused of having committed two murders. He being deaf and dumb, the committing Magistrate referred the case to this Court for orders under section 341, Criminal Pro cedure Code. My learned brother Mr. Justice Shabir Ahmad passed an order on the 24th of January 1962, which is as follows :‑ "I am of the view that the accused should be tried for the two murders which he is alleged to have committed. During the proceedings before him, the trial Judge will be in a position to form an opinion whether the father of the accused was at any stage unable to convey a material thing to the accused. The case will have to come to this Court if the trial Judge finds the accused guilty and if that contingency arises, the whole matter can be gone into thoroughly."

2. The Additional Sessions Judge, Rawalpindi, acquitted the accused of the charge for the murder of Muhammad Aslam, but ha has found him guilty of murder of Ali Bahadur. The learned Additional Sessions Judge has submitted the case to the High Court for orders under section 341, Criminal Procedure Code.

3. When the accused was produced before the Additional Sessions Judge for trial, Khushal Khan, the father of the accused expressed his willingness to act as an interpreter. His statement was recorded wherein he stated that he was capable of making the accused understand the prosecution evidence and that he would honestly convey the replies of the accused to the Court. Thereupon, the learned Additional Sessions Judge passed an order that he had tried to talk to the accused through his father Khushal Khan and that he was satisfied that Khushal Khan would faithfully interpret the proceedings of the Court to the accused and vice versa. Thereupon the proceedings in the case were started. In paragraph 6 of the judgment, the learned Additional Sessions Judge has expressed his satisfaction as regards the performance of his duty by Khushal Khan, the interpreter. He has remarked : "At the trial the accused pleaded not guilty through Khushal Khan, his father, the interpreter, who had performed his duties as such to my entire satisfaction till the termination of the proceedings."

4. The question that requires consideration is whether in a case like this section 341 of the. Code of Criminal Procedure would apply. Section 341 runs as follows :‑ "If the accused, though no insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial ; and, in the case of a Court other than a High Court, if such inquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such orders as it thinks fit." A plain reading of the section indicates that it would apply only in case the accused cannot be made to understand the proceedings. In the present case, the accused was made to understand the proceedings through his father Khushal Khan who acted as an interpreter. In the circumstances, the learned Additional Sessions Judge should have passed a sentence instead of making a reference of the case to the High Court. Emperor v. Gunga (A I R 1927 Lah. 799), Allah Dia v. Emperor (A I R 1929 Lah. 840), and Isso s/o Gaman and another v. Emperor (A I R 1943 Sind 237) are authorities laying down the above view. I would, therefore, order that the case be sent back to the learned Additional Sessions Judge, for proceeding according to law. K. B. A. Order accordingly.