ABDUL HAMEED Versus STATE

It is desirable to state in detail certain facts giving rise to this application fled under sub section (5) of section 497, Cr.P.C.

2. Deceased Muhammad Yaqub, the father of applicant Abdul Hameed was sitting in Aitekaf in Gole Memon Masjid, P.E.C.H. Society, Karachi when on 4-5-1989 at about 5-45 a.m. he was fired at by Farooque Tayyab Imrani, the respondent No.2 by means of pistol who died on the spot. On the same day at 7-35 a.m. applicant/complainant lodged F.I.R. at Ferozabad Police Station (Crime No.274 of 1989) under section 302, P.P.C. During the course of investigation the respondent No.2 was arrested and after usual investigation he was sent up to stand trial. On 12-7-1989 charge under section 302, P.P.C. was framed against respondent No.2, who claimed a trial. No progress in the case could, however, be made for want of case property. On 5-10-1989 an application under section 465(1), Cr.P.C. was made on behalf of respondent No.2 in the following words:--

"It is respectfully submitted that the above named accused who is facing trial in the above case and confined in Central Prison, Karachi is reported to be of unsound mind and as such incapable of making his defence.

It is prayed that this honourable Court may e p eased to make an enquiry about the unsoundness and incapacity of the accused by calling report from the Medical Officer of Central Prison, Karachi and by getting the accused examined by the Civil Surgeon and/or other Doctor.

The prayer is made in the interest of justice."

On this application the learned VIIth Additional Sessions Judge (East), Karachi, before whom the case was pending passed the following order: ‑‑

"Heard A.P.P. for State. He stated that Medical Officer from jail be called and enquiry be held into the matter. Issue letter to C.M.O. Central Prison, Karachi for his statement."

3. No progress was, however, made from 4‑1‑1990 to 2‑7‑1990, when on this date the learned Additional Sessions Judge constituted a Medical Board. In the meanwhile the Court of VIth Additional Sessions Judge (East), Karachi fell vacant. On 23‑12‑1990 the case was transferred to the Court of Sessions Judge (East). Karachi. The application dated 5‑10‑1989 made under section 465(1), Cr.P.C., however, remained undecided. During the pendency of this application the respondent No.2 applied for bail and on 21‑4‑1991 he was allowed interim bail with the following direction:‑‑

"Let Dr. Samina Matin, Assistant Professor, Department of Psychological Medicine, Dow Medical College and Civil Hospital, Karachi be summoned alongwith the case history of the applicant/ accused to depose facts about the nature of illness of the applicant/ accused and the treatment required for that ailment and thereafter the final order on the bail application would be passed.

Put off to 4‑5‑1991 for confirmation."

4.On 22‑5‑1991 the Sessions Judge (East), Karachi examined Dr. Samina Matin (C.W‑1). On 28‑7‑1991 Dr. Nizamuddin Memon (C.W.2) was examined and on 19‑8‑1991 the statement of Dr. Muhammad Ayaz (C.W.3) was recorded. On 19‑9‑1991 the interim bail granted to respondent No.2 was confirmed. The orders, dated 21‑4‑1991 and 19‑9‑1991 passed by learned Sessions Judge are the subject‑matter of the present application filed under subsection (5) of section 497, Cr.P.C. seeking cancellation of bail granted to respondent No.2.

5. I have heard Mr. MA. Kazi, learned counsel for applicant/ complainant, Mr. Abdul Ghafoor Khan, learned counsel for respondent No.2, and Mr. S.ZA. Qureshi, learned counsel for State. Mr. Qureshi has supported the impugned orders. .

6. 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 such 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 (redesignated 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 the 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."

7. Both sections 464 and 465, Cr.P.C. are attracted when the, accused is found to be of unsound mind at the time of trial and not at the time of I commission of offence. Section 84, P.P.C. deals with cases 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, P.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 464, CI.P.C. A tentative satisfaction of the Court about the mental incapacity of the accused is 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.

8. 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 or 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 this 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 may be, shall order 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.

9. Rule 1, Part F, ChapterV of the Federal Capital and Sindh Courts Criminal Circulars further lays down as follows:‑‑

"Before releasing a criminal lunatic under section 466(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"

10. The provisions of sections 464, 465 and 466, Cr.P.C. were, however, not followed by both V11th Additional Sessions Judge (East), Karachi, and Sessions Judge (East), Karachi, and the case against respondent No.2 is still at the same stage where it was at the time of challan.

11. Coming now to the question whether the respondent No.2 is a `sick' person within the meaning of first proviso to subsection (1) of section 497, Cr.P.C. it may be observed that a mental illness is also a sickness entitling an accused to the grant of bail. Dr. Samina Matin (C.W.1) who was examined in the trial Court has opined that respondent No.2 is suffering from Schizophrenia and requires treatment for a long time followed by regular check‑up by a psychiatric. Dr. Nizamuddin C.M.O. (C.W.2) who had examined him in Lunatic Ward, Central Prison, Karachi, had treated him as a mental case. Dr. Muhammad Ayaz (C.W.3) who had the occasion to examine the respondent No.2 in Mental Ward, Central Prison, Karachi, found him a patient of hypomania. The illness of schizophrenia as defined by Dr. Modi is as follows: ‑‑

"Kraepelin, in 1896, named this disease dementia proecox. In 1911 Bugen Bleuler introduced the term `Schizophrenia' which literally means `splitting of the personality'. The term dementia proecox was changed because it implied that the disease always ended in dementia which it did not. The term proecox meant that the disease developer at the time of puberty or adolescence, but marry cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prognosis which created a spirit c defeatism in the minds of people.

The cause of this illness is still not known but there is genera agreement about the multiplicity of factors in its causation. Heredity plays a part as shown by Kallmann's work. He found the expected incidence of schizophrenia in the relatives of schizophrenic patients to be as follows:

Monozygotic twins, 86%; dizygotic twins, 15%; children, 16%; full sibs, 14%; parents, . 9%; half sibs, 7%; grandchildren 4%; nephews and nieces, 4%; Marriage partners, 2%; gene population, 0.85%."

12, According to Dr. Modi the symptoms of `hypomania' are as follows:‑‑

"In this phase the three outstanding sympotms of mania, viz. elation, excessive psychomotor activity and flight of ideas, are not fully developed. The person feels very cheerful, optimistic and self confident and his inhibitions are diminished. Though the general demeanour and conduct of the patient are greatly altered, there is not much change in the personality. He is quick‑witted and entertaining in conversation but there is flight of ideas so that he switches on from one topic to another without having any connection with the various topics. He is full of schemes which seldom materialize. He oozes self confidence and if he happens to be a businessman he takes too many risks ' and is uncritical about his over‑optimism. He is overactive, always in a hurry, and moves in buses or taxis from one end of the city to the other throughout the day. He squanders money on things which normally he would not dream of buying. He goes on a shopping spree and if he happens to be sophisticated, westernised person, he indulges in heavy tipping to cabbies and waiters.

Later, the patient becomes restless, irritable and interfering. He resents being corrected and becomes argumentative, quarrelsome and so violently excited as to tear or destroy his clothes, furniture and other articles in the house. He may become abusive and beat other people. Delusions and hallucinations are absent at this stage. Physically the maniac patient generally does not look or feel ill and physical examination shows no organic disease."

Thus, from whatever point of view the matter may be looked at it is clear that the respondent No.2 is a sick person within the meaning of first proviso to subsection (1) section 497, Cr.P.C. and in such a situation he is entitled to the grant of bail. The case of Salimuddin v. The State reported in P L D 1985 Kar. 594 lends support to this view.

13. Having regard to the above legal position, I see no substance in the application made under subsection (5) of section 497, Cr.P.C. on behalf of applicant. The application is accordingly dismissed.

14. It is needless to observe that if the Sessions Judge after necessary inquiry finds respondent No.2 incapable of making defence and from his conduct he appears to be violent it will be open to him to cancel his bail directing his detention in some mental hospital under subsection (2) of section 466, Cr.P.C.

N.H.Q./A‑1136/K Application dismissed.