Hussain Ali etc vs Ellum etc

2013 Y L R 2192

[Peshawar]

Before Assadullah Khan Chamkani, J

HUSSAIN ALI and 6 others---Petitioners

Versus

ELLUM and another---Respondents

Criminal Revision No.5 of 2012, decided on 18th March, 2013.

Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---De novo trial of accused---Accused was tried and was sentenced to death---On filing appeal by accused against his conviction and sentence, Appellate Court set aside impugned conviction and sentence, and sent the case back with the direction to get accused examined by Medical Board and proceed with the case in accordance with law in the light of the opinion of the Board---Accused was got examined accordingly, and according to Medical Board accused was suffering from "paranoid schizophrenia", which was a major mental illness and was to be treated in a secure unit of prison---Trial Court adjourned the case sine die till the recovery of accused from said illness---Subsequently Standing Medical Board submitted the report regarding fitness of accused, according to which accused was in a position to understand the nature of his crime---Trial Court vide impugned order started de novo trial of accused--- Petitioner, had impugned said order of de novo trial contending that evidence of prosecution having already been recorded at the time when accused was not mentally deranged, impugned order was against the law, and was liable to be set aside---Validity---During previous trial, accused was not examined through Standing Medical Board, as to whether he could understand the proceedings of the court, and its consequences or not---After remand of the case, accused was declared to be suffering from "Paranoid schizophrenia" by Standing Medical Board, which was major mental illness; and Board was of the opinion that he could not understand the proceedings of the court and could not defend himself---Order of de novo trial passed by the Trial Court, in circumstances, was in accordance with law, which needed no interference by High Court, in revision.

Masood-ur-Rehman for Petitioners.

Shah Rawan for Respondent No.1

Muhammad Javed Khan D.A.-G. of the State.

Date of hearing: 18th March, 2013.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---This Criminal Revision has been filed against the judgment/order of learned Additional Sessions Judge/Izafi Zila Qazi, Matta dated 12-12-2011, whereby den novo trial of the accused in case F.I.R. No. 25 dated 14-1-2003 under section 302, P.P.C. registered at Police Station Matta, was ordered.

2.Facts of the case are that Ailam Khan was involved in the above referred case on the charges that he on 14-1-2003 committed the murder of Dilbar by firing at him. He was tried by learned Additional Sessions Judge/Izafi Zila Qazi, Matta and was sentenced to death, vide judgment dated 2-12-2004. He preferred Criminal Appeal No. 936 of 2004 and murder reference was also sent and this Court, vide judgment dated 12-5-2005 passed the following order:-- When seen in this perspective, we are of the view that evaluation of the mental state of the appellant with reference to his history, if any, by a Medical Board attended by a Psychiatrist besides others is essential for just decision of the case. Therefore, we allow this appeal, set aside the impugned conviction and sentences recorded by the learned trial Judge and send the case back thereto with the direction to get the appellant examined by a Board as mentioned above and proceed with the case in accordance with law in the light of the opinion of the Board. The murder reference is thus, answered in the negative.

3.On the receipt of the case by the trial Court, the accused was then examined through Standing Medical Board and according to the Standing Medical Board report, the accused was suffering from paranoid schizophrenia, which is a major mental illness and the Board was of the opinion that the accused was to be treated in a secure unit of prison because he was not understanding the proceedings of the Court and could not defend himself, therefore, the learned trial Court adjourned the case sine die till the recovery of accused from his mental illness. On 29- 9-2011, the Standing Medical Board submitted the report regarding fitness of the accused, according to which, the accused is in a position to understand the nature of his crime, its consequence, understand proceedings of the Court and declared him fit to plead in the court of law, therefore, the learned trial Court vide the impugned order started de novo trial of the accused in the case.

4.Learned counsel for petitioner submitted that evidence of prosecution has already been recorded in the case at the time when the accused was not mentally deranged, therefore, the impugned order is against the law and liable to be set aside.

5.On the other hand, learned counsel appearing on behalf of the respondent argued that since from the beginning the plea of insanity was raised but mental status of the accused was not determined through Standing Medical Board, therefore, the trial Court has rightly passed the

impugned order.

6.Arguments of learned counsel for the parties heard and record perused.

7.Admittedly, during previous trial the accused was not examined through Standing Medical Board as to whether he could understand the proceedings of the Court and its consequence or not. After remand of the case, on examination of the accused, he was declared to be suffering from paranoid schizophrenia by Standing Medical Board which is a major mental illness and the Board was of the opinion that he could not understand the proceedings of the Court and could not defend himself, therefore, the order of denovo trial passed by the trial Court is in accordance with law, which needs no interference by this court.

In the light of above discussion, this Criminal Revision is dismissed.

HBT/195/P Revision petition dismissed.