P L D 2025 Lahore 657 (PLP)

AALIA NEELUM, C.J.

The instant reference under section 341 of Cr.P.C. was referred by the learned Additional Sessions Judge, Lahore by alleging therein that the trial in case FIR No.325/2013 registered under sections 302, 376, 201, P.P.C., at Police Station Kahna, Lahore was pending and same was almost concluded; the court reached the conclusion that accused Saqib Hussain though not insane is unable to understand the proceedings due to his mental health as well as physical health. So, the report of the circumstances of the case was sent through the reference mentioned above.

2. Precisely, the facts of the case are that Ameer Ali S.I (PW-1)-the complainant along with Azmat and Sarfraz constables was present at D-Block Valencia Town on patrolling duty, where he received information about a dead body lying near Kothi No.3, whereupon they proceeded there, inspected the dead body of an unknown female, who appeared to be aged about 21 years and received firearm injury on right side of her head; on 12.04.2013 at 07:00 a.m., Mst. Lubna Nazar went to her office from home but did not return; her father searched her thoroughly but she could not be traced out; on 16.04.2013, her father came to know through newspaper that a dead body has been found in the Valencia Town within the jurisdiction of P.S. Kahna, Lahore, whereupon he proceeded to P.S. Kahna, Lahore, where he was told about FIR No.325/2013; then he went to dead house of Jinnah Hospital, Lahore for identification of his daughter; after inquiring about the murder of his daughter, Muhammad Shabir, Abdul Sattar and Muhammad Sajid told him that they had seen Saqib Hussain and Yasir Hussain in Valencia Town, while throwing the dead body of his daughter. Ameer Ali A.S.I drafted a complaint (Ex. PC) for registration of FIR and sent it to the police station through Azmat Ullah, constable, and on the same day, Sher Khan S.I. chalked out a formal FIR (Ex. PC/1).

3. After registration of the case, the matter was investigated by Arshad Ali S.I. (PW-13), who, after thorough investigation, prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. On 08.12.2015, the trial court formally charge-sheeted the accused and recorded statements of thirteen (13) prosecution witnesses, and the case was fixed for recording of statements of accused persons under section 342, Cr.P.C., when the court realized that Saqib Hussain, the principal culprit of the case, was not able to speak or listen. The court thought that the accused, though not insane, could not be made to understand the proceedings. Hence, the instant reference was sent.

4. Learned Deputy Prosecutor General assisted by learned counsel for the complainant has submitted that earlier an application under sections 465 and 466 Cr.P.C. was moved by accused for the declaration that Saqib Hussain-accused was in sane, whereupon report from Punjab Institute of Mental Health, Lahore was obtained; that as per report submitted by the medical board dated 30.10.2015, it was observed that "No active psychiatric morbidity at present." After that, the learned Additional Sessions Judge, Lahore, dismissed the application under sections 465 and 466, Cr.P.C. on 24.11.2015. It was further argued that the accused is fit to face trial, so that he may proceed as per law.

5. Learned counsel for the accused submitted that the accused is insane, who cannot understand the proceedings due to his mental as well as his physical health; so, the trial cannot proceed against him in terms of sections 465 and 466, Cr.P.C.

6. Heard. Record perused.

7. Before referring to the reference, the trial court did not go through the record, as an enquiry was conducted on the application of Saqib Hussain, the accused, for declaring him a lunatic under sections 465 and 466 of the Code of Criminal Procedure. The medical board unanimously opined that there is no active psychiatric morbidity at present, and the trial court dismissed the application for declaring the accused, Saqib Hussain, a lunatic, on 24.11.2015, after that charge was framed against him. The learned Trial Court observed that the accused, Saqib Hussain, cannot speak or listen. However, the Additional Sessions Judge did not note whether the accused could understand the gestures made to him. It is further to be noticed that a joint trial was conducted against the accused, Saqib Hussain, and his brother Yasir (co-accused). They were all represented and defended adequately by the advocate of their choice. Proper cross-examination of the witnesses was also carried out on behalf of the learned counsel of the defence. In such a situation, we consider that the trial was conducted fairly, and a sufficient opportunity to present the case was also afforded to the accused persons, including the accused, Saqib Hussain. The Additional Sessions Judge is obligated to ascertain whether the accused can be made to understand the proceedings with the help of his relatives or friends or through technical assistance.

8. If the Judge doubts the accused's physical and mental capacities, the procedure prescribed under Section 341 should be followed. If the trial proceeds in the ordinary way, the Court can pass a sentence if the accused is found guilty and convicted. However, if it is found that the accused cannot understand the proceedings, and trial results in conviction, the trial Judge is required to forward the proceedings to the High Court, if the evidence warrants so, but it cannot pass a sentence against him. The trial Court must forward the proceedings to the High Court to pass such orders as the High Court thinks fit. Section 341 Cr.P.C. is reproduced as under:--

341. Procedure where accused does not understand proceedings: If the accused though not insane, cannot be made to understand the proceedings, the Court may proceed with the trial; and-in the case of a Court other than a High Court or if such trial results in a conviction, the proceedings shell be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit. Unless the accused is insane, the trial court can proceed with the trial even though the accused cannot understand the proceedings. Further, if such a trial results in a conviction, the trial judge is required to forward the proceedings to the High Court, which shall pass such order as it thinks fit.

9. Given the circumstances, the Additional Sessions Judge submitted a reference without complying with the spirit provided under Section 341 of the Cr.P.C. Therefore, it would be appropriate to remand the case back to the learned trial court to proceed as per the law.

10. Given the above, the case is hereby remanded back to the trial court with a direction to proceed and decide the same as per the law. With these observations, instant reference is answered in the negative. JK/S-26/L Case remanded.