MUHAMMAD RAMZAN Versus State

ORDER

ANWAARUL HAQ PANNUN, J.--- By means of instant petition under section 435, Cr.P.C. read with section 439, Cr.P.C. the Order dated 18.03.2023 passed by the learned trial Court/Additional Sessions Judge, Gujranwala has been challenged whereby pending trial in case FIR No.557/22 dated 29.04.2022, offence under sections 302, 34, P.P.C., registered with P.S. Sabzi Mandi, Gujranwala, the application of accused Muhammad Younas under sections 464 to 466, Cr.P.C., for declaring him lunatic and releasing him on security or bail as per manner prescribed under sections 463 to 466, Cr.P.C. after his medical examination from mental health Institution, has been dismissed.

2. Arguments heard. Record perused.

3. In order to appreciate the contention of learned counsel for the petitioner that without seeking opinion of the Medical Board consisting of medical experts in the relevant field, the learned trial Judge passed the impugned order, thus has failed in exercising its jurisdiction, in the light of case law reported as "Shahbaz Ahamd v. The State and others" (PCr.LJ 2021 Lahore 1100) cited by him, it will be appropriate to have a glance over sections 464 to 466, Cr.P.C. which arc reproduced in their verbatim for convenience:-

464. Procedure in case of accused being lunatic. (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.

(1A) 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.

465. Procedure in case of person [sent for trial] before Court of Sessions or High Court being lunatic. (1) If any person before a Court of Sessions 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) The 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.]

466. Release of lunatic pending investigation or trial. (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) Custody of lunatic. 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.

(The Lunacy Act, 1912 has been repealed through the Mental Health Ordinance, 2001 ((No.VIII of 2001).

4. It may be reiterated that as a result of promulgation of Mental Health Ordinance, 2001, w.e.f. 20.02.2001, the Lunacy Act, 1912, stood repealed and after 18th Constitutional Amendment, in the Constitution of Islamic Republic of Pakistan, 1973, health now being the Provincial subject, further amendments have been made in the Ordinance ibid by way of Punjab Mental Health (Amendment) Act, 2014. Consequently, now the rules for carrying out the purpose of the Ordinance are to be made by the Provincial Government instead of Federal Government The provision of amended Section 59 is as follows: "(1) The Government may, by notification in the official Gazette, make rules for carrying out the purposes of the Ordinance."

5. Section 464, Cr.P.C. envisages that, during an inquiry or a trial, if the court, "has a reason to believe" that the accused is of unsound mind and consequently incapable of making his defence", the fact of unsoundness of mind of accused shall be inquired into. The trial of the fact of unsoundness of mind and incapacity of accused shall be deemed to be part of his trial before the Court. In Sofia Bano and another v. Home Department, Government of Punjab through its Secretary and others (PLD 2021 SC 488), a Larger Bench of the august Supreme Court of Pakistan restated the law as "Terms 'reason to believe' and "appears to the court" used in sections 464 and 465, Cr.P.C. are synonymous and refer to a tentative opinion which has to be formed for the purpose of deciding whether or not to enquire into the issue of capability of the accused to face trial as a question of fact". Furthermore, in the above cited case of "Shahbaz Ahmad v. The State and others" (2021 PCr.LJ Lahore 1100) it has also been ruled by the Lahore High Court, Lahore that the terms "reason to believe" and appears to the court" in the context of sections 464 and 465, Cr.P.C. are to be interpreted as a prima facie tentative opinion of the court, which is not a subjective view based on impressions but one which is based on an objective assessment of the material and information placed before the court or already available on record in the police file and case file. While forming a prima facie tentative opinion, the court may give due consideration to its own observations in relation to the conduct and demeanor of an accused person. The failure of party to raise such plea during trial does not debar the court from forming an opinion "on its own" regarding the capability of accused person to face the proceedings of trial. In the same judgment, it has further been observed that "the court may rely on its own observations regarding the demeanor and conduct of accused either before or at the time of taking a plea against the charge or at any later stage. The court may note whether he/she is being represented by counsel or not and consider the material, if any, available on record which may persuade it to inquire into the capability of accused to face trial. The court may assess the mental health condition of an accused by asking him/her questions.

It is, therefore, observed that it does not necessarily become obligatory upon the court to embark upon conducting an inquiry regarding his mental illness and incapacity to face trial unless the court forms a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence. Contrary to what has been observed hereinabove, once the court has formed a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it becomes obligatory upon the court to embark upon conducting an inquiry by seeking opinion from a medical board consisting of experts in the relevant field as required under the Mental Health Ordinance ibid as aforesaid to decide the issue of incapacity of the accused to face trial due to mental illness.

For the purpose of inquiring into such unsoundness of mind, the accused shall be caused to be examined by a Medical Board to be notified by the Provincial Government consisting of qualified medical experts in the field of mental health, as noted above, to examine the accused person and opine whether the accused is capable or otherwise to understand the proceedings of trial and made his/her defence. It must be a detailed and structured report with specific reference to psychopathology (if any) in the mental functions of consciousness, intellect, thinking, mood, emotions, perceptions, cognition, judgment and in sight. The opinion of the Medical Board must not be a mere diagnosis of a mental illness or absence thereof.

As a consequence of the inquiry, as noted above, the Magistrate or the Court shall have to record his findings to the effect that accused being of unsound mind, since is incapable of making his defence, hence, as a corollary, the proceedings of trial be postponed. During the pendency of such inquiry or trial, the court has to deal the accused in terms of section 466, Cr.P.C. Whenever, an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or the court under subsection (1) of section 466, Cr.P.C. as the case may be irrespective whether the case is one in which the bail may be taken or not, may release him on sufficient security being given "that the accused shall be properly taken care of and shall be prevented from doing any injury to himself or any other person ad for his appearance, as and when required as the Magistrate or the court may appoint in this behalf. However, under subsection (2) of section 466, Cr.P.C. where the court or the Magistrate is of the opinion that the bail of the accused should not be taken, if sufficient security is not given to the Magistrate or the court as the case may be, shall order that the accused be detained in safe custody in such place and manner, as it may think fit under the law. A report, however, shall have to be made in this regard to Provincial Government by Court or Magistrate accordingly. Such order, under this provision, in case the court considers it appropriate that the accused be detained in a lunatic asylum, shall be made in accordance with such rules, made under relevant law.

6. It may be observed that since the insanity defence which may be claimed by an accused facing a charge in a trial, has duly been recognized through section 84 of P.P.C. by the Legislature, stating that nothing is an offence done by a person, who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law, drawing a strength from the spirit of maxim "actus non facit ream nisi mens siti rea" an act is not criminal unless there is criminal intent, embodied by the legislature. It may be relevant to mention here that a trial of a case either under Chapter XX or XXI [Summary Trial] by a Magistrate or before High Court or Court of Sessions consisting of various procedural and substantive exercise including mainly the steps i.e. delivery of copies of statements of witnesses, option of pleading guilty of the charge by the accused or denial thereto while claiming trial, cross-examination over the witnesses either personally or through exercise of his right to be represented through a lawyer of his own choice, his examination under section 342, Cr.P.C, examination of the accused himself as his own witness under section 340(2) of Cr.P.C. and recording of evidence in his defence, requires his active participation, before deciding about the guilt or otherwise of the accused facing the charge, which definitely cannot be undertaken by a person of unsoundness of mind. Needless to observe that a trial of an accused facing charge of an offence, entails either into his acquittal or conviction, give rise to forereaching consequences on his life including his progenies, if any and his other relations. In case of certain individuals, the role they are destined to play depending upon the situation and their importance, in view of globalization of the world, the consequences may affect the society or the world at large. Moreover, a right of fair trial guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which in unequivocal words ordains that for determination of his civil right of obligation or any criminal charge against him, a person shall be entitled to a fair trial and due process, therefore, every trial Magistrate or the Judge as the case may be, has been enjoined to perform a more sensitive duty as an adjudicator. This Court is quite certain that the legislature to achieve its above highlighted objects legislated the special provisions contained in Chapter XXXIV followed by the Mental Health Ordinance, 2001 amended up to date, to regulate the procedure to protect the interest of the lunatics and has vested the powers of rule making in the Provincial Government for carrying out the purposes of the Ordinance ibid. Any omission resulting into a mistaken prima facie tentative opinion by a Court, about unsoundness of mind or otherwise of an accused facing trial may cause a serious prejudice to the accused may vitiate his trial ultimately, bringing the entire exercise of trial to a nugatory therefore would amount to defeating the celebrated wisdom of the legislation.

7. In the light of above discussion and on perusal of the record, it has been found that the learned trial Judge while taking into consideration, the law on the point as discussed above and the case law relied upon by the learned counsel for the petitioner in its true perspective, ably has asked numerous questions to accused Muhammad Younas alias Asad, replied by him rationally and satisfactorily to form his prima facie tentative opinion as to whether the accused is incapable of understanding the proceedings of trial or making his defence, therefore the learned trial court being legally not necessarily obliged to hold any inquiry regarding his medical examination about his mental illness, unsoundness of mind and incapacity to stand trial, correctly refused his request and has rightly passed the impugned order, which calls for no interference by this Court in exercise of its revisional jurisdiction. Learned counsel for the petitioner has failed to point out any impropriety or illegality in the impugned order. Hence, instant petition stands dismissed.

JK/M-82/L Petition dismissed.