ASGHAR ALI Versus STATE
For a proper appreciation of the points involved in the proceedings which are to be disposed of by this judgment it is necessary to refer to the relevant facts in some detail.
2. Applicant Asghar Ali resided with his wife Mst. Khalida Perweens and children in a house situated near the house of one Ghulam Mohiuddin in Gulistan Colony, Karachi. On 7‑7‑1990 at about 4‑30 a.m. cries were raised from the house of applicant which attracted the neighbours including complainant Ghulam Mohiuddin. They found the applicant standing there armed with a Chhurri. They also noticed his wife Mst. Khalida Perween lying dead in a pool of blood. On inquiry the appellant informed the complainant that he had suspected the chastity of his wife and consequently killed her by giving her Chhurri blows. On the same day at 5‑1.5 a.m. the report of this incident was lodged at Chakiwara P.S. (Crime No.225 of 1990), under section 302, P.P.C. After usual investigation the applicant was sent up to stand trial for the said offence. The trial commenced before Sessions Judge (South), Karachi, who framed charge against the applicant and examined two witnesses, namely, Mohammad Zaman A.S.I. (P.W.1), and Mohammad Yaseen H.C. (P.W. 2), on 30‑10‑1990 and 15‑11‑1990, respectively. On 12‑8‑1991 an application under section 465, Cr.P.C. was made on behalf of the applicant in the following words:‑‑
"It is respectfully submitted on behalf of the accused person above named that this Honourable Court may be pleased to refer the accused to Police Surgeon or to Medical Board for assessing his mental position, as the accused is of unsound mind and is incapable of making his defence and hence this application in order to meet the ends of justice."
The learned Sessions Judge before whom the case was pending called the report from Chief Medical Officer, Central Prison, Karachi. However, on 21‑11‑1991, he transferred the case to 1st Additional Sessions Judge, (South) Karachi, before whom an application for bail was made which was disposed of on 24‑11‑199.1, with the following order:‑‑
"Heard D.C. and A.P.P. and perused the Medical report to furnish by C.M.O. Jail.
Let Medical Board be constituted, which must give his finding within a week time, regarding unsoundness of his mind."
The case also proceeded before 1st Additional Sessions Judge (South) Karachi, and he recorded the statements of two more witnesses, namely, Ghulam Mohiuddin (P.W.3), and Waris Ali (P.W.4). It is in these circumstances that the applicant has approached this Court by filing the present revision application.
3. I have heard Mr. Jawaid Haider Kazmi, learned counsel for applicant and Mr. Shoukat H. Zubedi, learned AA: G. for State.
4. Admittedly the case was pending before Sessions Judge (South) Karachi, when on 21‑11‑1991 he transferred it to 1st Additional Sessions (South) Karachi, without realising that he was not competent to do so. Subsection (1‑A) of section 528, Cr.P.C. makes this position clear in the' following words:
"At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which has been made over to any Additional Sessions Judge."
Except under subsection (1‑A), section 528, Cr.P.C. does not place any limitation as to the stage of the proceeding at which a case can be transferred. However, once a trial has commenced in a case before a Sessions Judge or Additional Sessions Judge, the same cannot be withdrawn or transferred to an other Court. The learned AA: G. finding himself in a difficult situation, conceded and I think rightly, that in view of the above legal position he was not in a position to support the order of Sessions Judge (South) Karachi, dated 21‑11‑1991, by which he had transferred the case which was partly heard by him to the Court of 1st Additional Sessions Judge (South) Karachi.
5. The perusal of the record shows that the trial Court has failed to follow the procedure as laid down in Chapter XXXIV of the Code of Criminal Procedure, 1898, in respect of the applicant who has claimed himself to be lunatic. Where in the course of trial it appears to the Court that the accused is of unsound mind it has to make inquiry about his insanity and then order accordingly. This question was examined by this Court in Cr.Misc. No.421 o 1991 (Abdul Hameed v. The State and another) decided on 2‑12‑1991 (1992 MLD 914) and following guidelines were formulated:‑‑
"Admittedly the application made on behalf of respondent No.2 under section 465(1), Cr.P.C. is still pending. Chapter XXXIV of the Code of Criminal Procedure, 1898, deals with the trial of cases in which lunatics are involved. Section 464, Cr.P.C. provides such procedure in the following words:‑‑
(1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause person to be examined by the Civil Surgeon of the district or such other medical officer as the (Provincial Government) directs, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.
(1‑A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466.
(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence, he (shall record a finding to that effect and) shall postpone further proceedings in the case."
From a bare perusal of section 464, Cr.P.C., it appears that when there is some evidence to believe that a person facing inquiry or trial before a Magistrate was insane and consequently incapable of making his defence, it is obligatory upon the Magistrate to stop proceedings and hold an inquiry after causing such person to be examined by the Civil Surgeon of the District (re designated as Medical Superintendent in some districts) or such other medical officer as the Provincial Government directs, and after examining such surgeon or other officer as a witness record a finding. Section 465, Cr.P:C. lays down the procedure to be adopted by the Court of Session or the High Court, as the case may be, where the accused sent for trial appears to be a lunatic in tire following words:‑‑
"(1) If any person before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.,
(2) Trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."
Both sections 404 and 465, Cr.P.C. arc attracted when the accused is found to be of unsound mind at the time of trial and not at the time of commission of offence. Section 84, P.P.C. deals with case falling within the mischief of latter category. A close examination of sections 464 and 465, Cr.P.C. will make it clear that the latter section, viz. section 465, Cr.P.C. is not to be construed to extend the powers of the Court of Session or the High Court in matters relating to an inquiry about the mental capability.of an accused.for making his `defence and it is to be read alongwith section 404, Cr.P.C. A tentative satisfaction of the Court about the mental ‑incapacity of the accused i. the condition precedent to adhere to the procedure laid down in sections 464 and 465, Cr.P.C. followed by the examination of accused by the Civil Surgeon of the district or such other medical officer as the Provincial Government directs. The only course open to VIIth Additional Sessions Judge (East) Karachi, was to refer the respondent No.2,.to Civil Surgeon concerned for examination and then to record his statement to find out if the respondent No.2 was incapable of making his defence. Such examination could have also been made by such other medical officer so empowered by the Provincial Government.
Where the Court finds that the accused is of unsound mind and consequently incapable of making his defence, it must proceed under section 466, Cr.P.C., which provides as under:‑‑
"(1) Whenever an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate of Court, as the case may be, (whether the case is one in which bail may be taken or not), may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the Magistrate or Court or :such officer as the Magistrate or Court appoints in ibis behalf.
(2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case m.‑ty be, shall brde,r the accused "to be detained in safe custody in such place and manner as he or it may think fit, and shall report the action taken to the (Provincial Government) provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the (Provincial Government) may have made under the Lunacy Act, 1912."
Rule 1, Part F, Chapter V of the Federal Capital and Sindh Courts Criminal Circular further lays down as follows:‑‑
"Before releasing a criminal lunatic under section 460(1), Criminal Procedure Code, a Court or Magistrate should if the accused has exhibited a tendency to violence or if the crime charged is of serious nature, question the Civil Surgeon or other officer examined under section 464(1), Criminal Procedure Code, about the safety of the proposed procedure. Such medical opinion should also be taken before a Court or Magistrate orders an accused person, acquitted on the ground of insanity, to be detained in any place other than a mental hospital:"
6. I would, therefore, accept the revision application and set aside the order dated 21‑11‑1991 by which the case was transferred to the Court of 1st Additional Sessions Judge (South) Karachi. The case shall go back to Sessions Judge (South) Karachi, for trial from the stage the abovementioned illegality was committed by him. He shall also decide the application made under section 465, Cr.P.C. in accordance with law. The bail application made on behalf of applicant shall also be disposed of on merits. In view of this order M.A. No.1876 of 1991 has become in fructuous and is disposed of as such.
N.H.Q./A‑1198/K Case remanded.