KHUSHI MUHAMMAD vs JAMAT ALI Etc.S
This matter arises from a petition for leave to appeal filed by the complainant against the dismissal of a revision petition by the High Court, which had upheld the Additional Sessions Judge's order remanding a criminal case for a de novo trial. The core legal question concerns the legality of remanding a trial involving deaf and dumb accused persons where the trial court failed to conduct a preliminary inquiry under Section 341 of the Code of Criminal Procedure 1898 regarding their ability to understand the proceedings. The Supreme Court granted leave to appeal to consider whether the initial omission justified a de novo trial for all co-accused, including those without disabilities, and stayed the remand proceedings pending the hearing. The key principle laid down is that an inquiry into the capability of a deaf and dumb accused to understand court proceedings should ideally be conducted at the initial stage of the trial to ensure a fair trial and proper compliance with procedural safeguards.
- Whether failure to conduct an initial inquiry regarding a deaf and dumb accused's ability to understand proceedings under Section 341 of the Code of Criminal Procedure 1898 vitiates the trial?
- Is a de novo trial justified for co-accused who suffer from no physical disability when the remand is necessitated by the disability of other co-accused?
- When must an inquiry into the understanding capacity of a deaf and dumb accused be conducted during a criminal trial?
- Section 307, Pakistan Penal Code 1860
- Section 429, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 341, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
ORDER
M. S. H. QURAISHI, J. On appeal preferred by the- eight respondents against their conviction under sections 307 and 429 read with section 149, and section 148, P. P. C. The Additional Sessions Judge, Jhang, remanded the case to the trial Court for a de novo trial for the reasons, inter alia of non--- compliance of the provision of section 341, Cr. P. C. As two of the respondents, namely, Mahmood Shah and Mukhtar Shah, were deaf and dumb and the trial Court did not initially conduct any inquiry whether they could under--stand the proceeding but appointed an interpreter for them only towards the end of the trial when their statements were to be recorded under section 342, Cr.
P. C. The petitioner, who is complainant in the case, challenged the order in revision before the High Court but having failed, now seeks leave to appeal.
2. The High Court expressed the view that the making of such inquiry at the initial stage of the trial was necessary in order to ascertain whether the accused were able to understand the proceeding or not and that such inquiry, if the case was not covered by section 341, Cr. P. C. Could enable the appel--late Court to satisfy itself that the accused concerned bad a fair trial, or if covered by section 341, the High Court on reference could be in a better position to assert what order should be passed against them.
3. Learned counsel for the petitioner urged that section 341, Cr. P. C. Was not attracted inasmuch as the trial Court, though at a late stage, did record a finding that the said accused Mahmood Shah and Mukhtar Shah ,J were able to understand the proceeding because three of the co-accused were their real brothers who were able to make them understand the proceeding of the case and because their having denied the charge showed that they were, to understand the proceeding. He further urged that the remand of the case as against the six co-accused was not justified because they suffered from no such disability.
4. After hearing learned counsel and also Mr. Tanvir Ahmad Khan who appeared on behalf of the Advocate-General, Punjab, in response to notice by this Court, we grant leave to appeal to consider the questions raised. Notice shall be sent to the accused respondents and the case fixed for hearing on 23-4-1983. The proceeding in remand shall be stayed.