ALI KHAN Versus State

INAAM AMEEN MINHAS, J.--- This appeal is directed against the judgment dated 29.05.2025 ( Impugned Judgment ) , passed by the learned Additional Sessions Judge-IV (East), Islamabad ( Trial Court ) , whereby the appellant was convicted and sentenced under section 302(b), P.P.C. to life imprisonment (R.I) in case FIR No.46/24, dated 20.02.2024, registered under section 302, P.P.C., at Police Station Phulgran, Islamabad. The appellant was also directed to pay an amount of Rs.100,000/- to the legal heirs of the deceased as compensation in terms of section 544-A Cr.P.C and fine of Rs.50,000/- and in default thereof, the appellant shall further undergo one year Simple Imprisonment.

2. Brief facts giving rise to the filing of the instant appeal are that the FIR was registered against the appellant with the allegations that on 20.02.2024, the appellant beaten Saba Gul PW-2 with a club for no reason. She told her husband, Ibrahim Khan, over the phone. Ibrahim Khan returned from his workplace and when he reached outside the house at about 11:30 a.m, the appellant was also present there. Ibrahim Khan asked the appellant why he had beaten his wife, Saba Gul PW-2, upon which, he made two straight fire shots aiming at Ibrahim. One bullet hit Ibrahim on his chest and another on his lower abdomen. Consequently, he was injured and fell down. He was escorted to the hospital but he succumbed to the injuries on the way to the hospital.

3. After registration of the FIR, the investigation was completed, and challan/report under section 173, Cr.P.C was submitted before the learned Trial Court. The charge was framed, to which the appellant did not plead guilty and claimed trial, therefore, the prosecution evidence was summoned. The prosecution in order to prove its case produced the following ten witnesses:-

PW-1: Fayaz Akbar S.I, who chalked out a formal FIR as Exh.PA.

PW-2: Saba Gul is an eye-witness of the occurrence.

PW-3: Azhar Mehmood Abbasi ASI, who after receiving information, reached PIMS Hospital, prepared an inquest report, drafted the applications for conducting postmortem of the deceased and keeping the dead body in the mortuary and oral statement of the complainant was reduced into writing in the form of a complaint Exh.PE.

PW-4: Sikandar Hayat 5804/C remained associated with the I.O. during the course of the investigation, collected CDRs and also obtained photographs from the phone of the I.O.

PW-5: Muhammad Altaf 2100/HC is Moharrar Maalkhana, who kept the case properties in safe custody and transmitted onward to NFSA.

PW-6: Nadeem Abbasi 1463/HC remained associated with Azhar Abbasi ASI PW-3 during the initial investigation.

PW-7: Dr. Hayat Khan, CMO conducted postmortem of the deceased and prepared the postmortem report Exh.PJ.

PW-8: Malik Aamir Shahzad draftsman prepared a scaled site plan Exh.PL of the place of occurrence.

PW-9: Bilal a private eye-witness was declared hostile, and he was cross-examined by the prosecution side.

PW-10: Muhammad Ghous S.I, Investigation Officer, who arrested the appellant, investigated him, prepared identification memos, recovery memos and also drafted an un-scaled site plan. After the completion of the investigation, he handed over the case file to the SHO concerned for the completion of the challan under section 173, Cr.P.C.

4. After recording of prosecution evidence to enable the appellant to explain the circumstances appearing in the evidence against him, his statement as mandated under section 342, Cr.P.C was reduced into writing, wherein the appellant denied the prosecution evidence and pleaded innocence. The appellant did not record his statement on oath as envisaged under section 340(2) of Cr.P.C, however, in his defense, he produced his medical record from 2006 to 2018 as Exh.DA (49 pages) and also produced his brother Shanazar Khan as DW-1. The learned Trial Court after hearing the arguments convicted and sentenced the appellant vide the Impugned Judgment in terms as mentioned in paragraph-1 of the instant judgment.

5. The learned counsel for the appellant contended that the Impugned Judgment is illegal, arbitrary, and based on misreading and non-reading of the evidence; that the prosecution has failed to discharge its burden of proving the case beyond a reasonable doubt, as no credible recovery was effected from the appellant, and the alleged recovery was falsely planted by the police; that there are major contradictions and discrepancies in the statements of the prosecution witnesses yet the learned Trial Court convicted and sentenced the appellant; that the Impugned Judgment violates settled principles of criminal jurisprudence, including the rule that the benefit of doubt must go to the accused, and also infringes the fundamental right of free movement guaranteed under Article 15 of the Constitution of the Islamic Republic of Pakistan, 1973 and that since no direct or cogent evidence has been produced to connect the appellant with the alleged offence, the conviction is not sustainable in law and liable to be set aside.

6. The State did not challenge the Impugned Judgment independently, however, the learned SPP made limited and half-hearted arguments.

7. We have heard arguments of the both sides and perused the record.

8. The appellant in his statement under section 342, Cr.P.C answered question No.23 as under:-

Q.No.23 Do you want to produce defence evidence?

Ans. Yes, I produced medical record of accused Ali Khan from the year 2006 to 2018 as Ex.DA (49 pages) and further want to produce Shahnazar Khan (brother of accused) and Ismail Khan as defence witnesses.

9. The appellant in his defense produced his medical record Exh.DA, which relates to him of unsound mind. The appellant in his defense also produced his brother Shanazar Khan DW-1, who stated that the appellant is his younger brother. He is person of unsound mind and remained under treatment from 2005 to 2018. He used to take medicine regularly, if he ever skips his dose, he used to run away from the house. The plea of unsound mind was taken by the appellant for the first in his defense evidence. The record is silent that the appellant raised such plea at the earliest stage before the Magistrate at the time of physical remand or before the learned Trial Court before initiation of trial or during recording of prosecution evidence. In such circumstances, once a plea of lunacy is brought on record, the law casts a mandatory duty upon the Trial Court to follow the procedure prescribed under sections 464 and 465, Cr.P.C, which deals with the determination of the mental capacity of an accused person to stand trial and to make his defense. Section 465, Cr.P.C., in particular, requires the Court to conduct a proper inquiry and to satisfy itself, through legally recognized means, including medical examination, that the accused is of unsound mind and incapable of defending himself. However, in the present case, the learned Trial Court failed to adopt the said statutory procedure and, instead of determining the appellant s mental condition in accordance with law, merely treated the plea of unsound mind as a mitigating circumstance and reduced the sentence while passing the Impugned Judgment. Such an approach is not only contrary to the express provisions of the law but also in clear violation of the principles laid down by the Honourable Supreme Court of Pakistan in the case Mst. Safia Bano and another v. Home Department Government of Punjab through Secretary and others, (PLD 2021 SC 488) , wherein the question of mental illness affecting criminal responsibility is entirely different from the question of mental incapacity relating to an accused person s competence to stand trial. Where the latter issue arises, the Trial Court is under a mandatory legal obligation to proceed strictly in accordance with sections 464 and 465, Cr.P.C, by conducting a proper and formal inquiry supported by reliable medical evidence, rather than relying upon personal impressions, assumptions, or casual observations. The law requires that, although an initial doubt regarding the mental condition of the accused may arise subjectively in the mind of the Court, the final satisfaction must be based on objective material obtained through a lawful inquiry, because the matter directly concerns the accused s ability to understand the proceedings and to defend himself effectively. In the present context, it is clear that the learned Trial Court bypassed this statutory requirement, proceeded with the trial, recorded conviction, and thereafter relied upon an unverified and untested plea of lunacy merely to reduce or soften the sentence. Such an approach is legally flawed, as it not only violates the fundamental right to a fair trial but also contravenes the mandatory provisions of section 465, Cr.P.C, thereby rendering exercise of discretion by the learned Trial Court unsustainable under the law.

10. It is evident from the record that the learned Trial Court fell into a clear and patent error by adopting a course of action, which is not recognized by law. The Court neither rejected the plea of lunacy on lawful grounds after conducting the required inquiry, nor did it determine the said plea in accordance with the mandatory procedure prescribed under section 465, Cr.P.C; yet, despite this failure, it proceeded to extend the benefit of such an unverified plea at the stage of awarding sentence.

11. This approach is wholly inconsistent with the settled principles of criminal jurisprudence, which demand a clear and definitive adjudication regarding the mental competence of an accused person, rather than any form of compromise based on doubt, sympathy, or assumption. The law does not permit the Court to leave the question of mental capacity undecided and still rely on it to mitigate punishment. In a case of capital punishment, where the accused s mental condition directly affects his ability to understand the proceedings and to defend himself, strict compliance with the statutory procedure is essential. The omission of the learned Trial Court, therefore, cannot be treated as a mere irregularity; rather, it amounts to a serious and material illegality, which has caused grave prejudice to the administration of justice, thereby rendering its approach unsustainable in the eyes of the law.

12. In view of the above discussion, the instant appeal is allowed . The Impugned Judgment is set aside and the matter is remanded to the learned Trial Court for decision afresh after conducting the proceedings in accordance with sections 465 to 468 Cr.P.C and in the light of the principles laid down in Safia Bano s case Supra .

JK/47/Isl. Appeal allowed.