SAIFULLAH KHAN alias TURAB Versus State

DOST MUHAMMAD KHAN, J.--- Petitioner Saifullah Khan alias Turab has been booked for offences under sections 295-B and 298, P.P.C. in case F.I.R. No.223 dated 31-3-2005 registered by Police Station Doaba.

2. According to the F.I.R., lodged by Muhammad Asghar complainant on 31-3-2005, he along with Najibur Rehman, Muhammad Saadat, Faisal Hayat and Saifullah were present in their respective shops situated in Qazi Market "Doaba" when at about 1045 hours, the petitioner came out from his shop with a calendar in his hand which he torn, put into a Waste Drum and started abusing "Almighty Allah". It is further alleged that the accused re-entered his shop and brought out the Holy Book "Quran-e-Pak" defiled it and put in a Waste Drum. After witnessing the incident, the complainant and the witnesses raised alarm on which, the accused fled away. He produced the defiled/damaged copy of the "Holy Qur'an" in the P.S. The occurrence was also witnessed by Najibullah, Muhammad Saadat and Faisal Hayat.

3. ? On his arrest, the petitioner applied to the Allaqa Magistrate who refused him bail despite the plea that, the petitioner was a victim of psychosis and severe mental delusions which he had allegedly developed while in custody of American Troops in Afghanistan.

4. Bail was again refused to him by the learned Additional Sessions Judge, Hangu after receiving positive report of the Standing Medical Board which too was misconstrued. The shocking aspect of the matter is that the learned trial Judge allowed religious sentiments to prevail on her judicial mind instead of deciding the bail petition on the basis of settled principles. The learned Judge, in her order has expressed apprehensions that if the accused is released on bail that would not only cause disturbance to the public peace but would also endanger the life of the accused due to the mental attachment of the society with almighty Allah.

5. The medical prescriptions and diagnostic probes made by the Psychiatrists right from January, 2000 up to the date of occurrence, would show that the petitioner was suffering from mental disorder of formidable nature.

6. On request of the defence, the petitioner was referred to the Standing Medical Board where, he was kept under observation and it was on 15-12-2005 that the Board consisting of 4 members, majority of whom were Psychiatrists and a Chairman, after examining him, gave the following opinion:

"The Standing Medical Board assembled in the office of Medical Superintendent, Police and Services Hospital, Peshawar on December 15, 2005 to examine accused Saifullah son of Ajab Khan. The Board is of the opinion that accused Saifullah is suffering from bipolar disorder with psychotic features. He needs treatment with medication. At present he cannot understand the proceedings of the Court and cannot defend himself in the Court of law. Therefore he is unfit to plead."

7. This unanimous opinion of the Standing Medical Board, consisting of medical experts of high repute was not disputed by the learned State counsel rather he conceded on the nature of ailment/mental disorder of the accused.

8. ? The learned Additional Sessions Judge, it is shocking to note, has been carried sway by emotional/religious sentiments and has gone with the winds which she apprehended to be blown by the religious circles in case justice was done in the matter. This amounts to denial of justice under the fear of invisible threat. Such an approach is against the universal principle of justice. It is the rock bed principle of justice that " let the heaven fall but justice shall prevail" . In such like matters allowing the public policy to make way by entering into the portals of justice then the majesty of law shall run out through the back door. It is the hallmark, distinctive as well as exclusive quality of a Judge to be firm and stern in the matter of doing justice and at no occasion shall permit exterior elements of whatever influence, menace and mischief to deter it from doing justice hence, the denial of relief to the petitioner by the learned Courts below on the above consideration is in disregard of the well-settled principles of law and justice.

9. The detaining a person who is entitled to liberty on the proposition that some hostile elements would cause harm to him or the decision of the Court would be taken ill or would invite the criticism from a segment of the society is against law and command of the Constitution.

According to Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is indefeasible right of every individual within the State to enjoy the protection of law and to be treated in accordance with law. No action with regard to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Again under Article 9 of the Constitution, it is the foremost responsibility of the State to protect the life and liberty of every person residing within its territory. This obligatory duty pertains to the realm of law enforcing agencies and the Courts have a very little concern with that area allotted to these agencies.

10. If a Court of law succumbs to pressure tactics or fear of threat at the hands of certain elements or a segment of the society and on that account denies justice to any person who is entitled to it as of right would not be conducive for the System of Justice, the Judges would fall prey and become hostages in the hands of those who have no knowledge about the principle of justice. Such an approach and attitude would definitely prove destructive for the fair administration of justice in which the people of the country still have unshaken faith and confidence. True that Judges must know about. the prevailing circumstances in the society but for the purpose of evolution and development of justice system. In my humble view the learned trial Judge was not right in refusing the grant of bail to the petitioner on the above stated consideration as it has occasioned the failure of justice.

11. From the report of the Standing Medical Board nothing is left to be debated upon that the petitioner is an insane person unable to defend himself before the Court of law and the learned counsel for the State was right and fair enough to concede on this point thus, the case of the petitioner is squarely covered by the provisions of section 466 read with section 497, Cr.P.C.

Accordingly, the petitioner is granted bail in the sum of Rs.2,00,000 (two lacs) with 4 reliable sureties each in the like amount to the satisfaction of Allaqa Magistrate. Two of the sureties shall be (1) his brother Nasim Khan son of Ajab Khan and (2) his maternal uncle Haji Masoom son of Haji Sahib Khan. However, in view of the mental disorder of the petitioner, this order is subject to the following terms and conditions:

(i) That the accused shall be properly taken care of;

(ii) That he shall be managed and controlled in a manner so that he is prevented from doing/causing injury to himself or any other person.

(iii) He shall be preferably admitted in the hospital for management and treatment under the control and supervision of Psychiatric for his rehabilitation; and

(iv) That whenever he is required for the Court for the purpose of inquiry or trial, the sureties shall be bound to produce him when they are so directed".

Bail petition allowed.

H.B.T./91/P ???????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.