2023 M L D 327
[Balochistan]
Before Rozi Khan Barrech, J
MEHTAB alias METHOO ---Petitioner
Versus
The STATE--- Respondent
Criminal (Jail) Revision No. 66 of 2021, decided on 8th October, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 457 & 380----Criminal Procedure Code (V of 1898), S. 464--- Lurking house trespass
or house breaking by night in order to commit offence punishable with imprisonment, theft in
dwelling house ---Appreciation of evidence ---Mentally ill under trial prisoner was charged for
committing theft in the dwelling house of complainant ---Record showed that the Trial Court
found that the accused seemed to be a patient of mental illness, a letter was sent to the Superintendent Jail for medical examination of the accused and the case was adjourned ---On
the said date, no report was received from the Superintendent Central Jail, and the case was fixed for another date, on which date the charge was framed against the accused/petitioner to which he pleaded guilty and confessed his guilt and on the same date he was convicted and
sentenced ---Neither the petitioner was sent to the Medical Board, nor any report was
received from the Superintendent Central Jail ---Trial Court did not keep in mind the fact of
unsoundness of mind and incapability of the petitioner to defend his case ---Course adopted
by the Trial Court was not only contrary to law but had also prejudiced the petitioner ---
Petition was allowed by setting aside the impugned judgment and case was remanded to the Trial Court with the direction to decide the question of unsoundness of mind of the petitioner and incapacity to defend his case first and proceed with the matter thereafter.
Safia Bano and another v. Home Department, Government of Punjab, through its
Secretary and others PLD 2021 SC 488 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 457 & 380---- Criminal Procedure Code (V of 1898), S. 265- C---Lurking house
trespass or house breaking by night in order to commit offence punishable with imprisonment, theft in dwelling house ---Appreciation of evidence---Non -supply of statement
and documents to accused ---Effect ---Accused was charged for committing theft in the
dwelling house of complainant ---Record showed that no counsel was appointed by the
accused, nor the trial court asked the petitioner as to whether he required the service of a
counsel or not ---Trial Court did not mention in its judgment that whether copies of the
documents in terms of S. 265, Cr.P.C., were provided to the accused or otherwise ---Trial
Court, after framing the charge but without following the requirements of S. 265, Cr.P.C.,
recorded conviction and sentence against the petitioner on the basis of his confessional statement---High Court observed that prima facie, the Trial Court acted in a bit haste in proceeding to frame the charge and recording confessional statement of the petitioner without following the requirement of S. 265, Cr.P.C.--- Such omission on the part of the Trial
Court to comply with the provision of S. 265, Cr.P.C., could not be construed as a mere
irregularity but was serious illegality going against the fundamental principle of safe
administration of justice ---Petition was allowed by setting aside the impugned judgment and
the case was remanded to the Trial Court with the direction to decide the question of unsoundness of mind of the petitioner and incapacity to defend his case first and proceed with the matter thereafter.
(c) Penal Code (XLV of 1860)---
----Ss. 457 & 380----Criminal Procedure Code (V of 1898), S. 221--- Lurking house trespass
or house breaking by night in order to commit offence punishable with imprisonment, theft in dwelling house ---Appreciation of evidence ---Plea of guilty ---Charge to state offence---
Scope ---Accused was charged for committing theft in the dwelling house of complainant ---
Charge showed that the same had not been framed in accordance with S. 221, Cr.P.C., and the basic ingredients of S. 457, P.P.C. were missing---While framing the charge the trial court did not ask the accused in order to commit an offence punishable with imprisonment in the language of S. 457, i.e. "he omitted lurking house trespass by night or house breaking by night" ---Perusal of the record revealed that the accused/petitioner was neither nominated in
the FIR nor identification parade of the accused was held ---Only the alleged stolen mobile
phones were recovered from him, but there was no eyewitness of the occurrence ---Further
question arising was as to whether the accused dishonestly received or retained stolen property knowing or having reason to believe the same to be stolen property or allegedly the accused/petitioner committed theft after lurking house- trespass by night ---Charge so framed
by the Trial Court, though included S. 457, P.P.C., but not a single particular in that respect was mentioned therein which included lurking house trespass by night ---Petition was allowed
by setting aside the impugned judgment and the case was remanded to the Trial Court with the direction to decide the question of unsoundness of mind of the petitioner and incapacity to defend his case first and to proceed with the matter thereafter.
M. Younus Habib v. State PLD 2006 SC 153 rel.
(d) Criminal Procedure Code (V of 1898) ---
----S. 412---No appeal in certain cases when accused pleads guilty ---Scope ---Accused who
pleaded guilty to the charge has no right of appeal against his conviction, but he can maintain
an appeal only to the extent of the legality of the sentence passed against him by the Trial Court ---Section 412, Cr.P.C., does not restrict the powers of the High Court to consider the
legality of conviction in the exercise of its inherent jurisdiction.
Hakeemullah for Petitioner.
Abdul Karim Malghani, State Counsel.
Date of hearing: 30th September, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---This petition arises from the judgment of the learned
Judicial Magistrate -I Hub ("trial court") dated 08.03.2021 ("impugned judgment") whereby
the petitioner was convicted under section 380, P.P.C. and sentenced to suffer R.I for three
years with tine of Rs.5000/ - in default to further S.I for four months. The petitioner was
further convicted under section 457, P.P.C. and sentenced to suffer R.I for two years and a fine of Rs.5000/ - and in default to further suffer S.I for four months with the benefit of
section 382- B, Cr.P.C. The appeal filed by the, petitioner was also dismissed by the learned
Additional Sessions Judge Lasbela at Hub ("appellate court") vide judgment dated 28th May
2021 ("impugned judgment") whereby the sentence awarded to the petitioner by the trial
court was maintained.
2. The prosecution story in brief as per contents of the FIR is that on 18.01.2021, the
complainant Liaquat, son of Ghulam Qasim, lodged FIR No. 38 of 2021 at PS City Hub with the allegation that on 18.01.2021, he was sleeping in his house situated near Siddiq Sons Factory. At about 4:45 a.m. he heard footsteps and woke up and saw one person running out
of his house. He chased the accused, who managed to escape. When he checked the room of
the house, he found two mobile phones i.e. Realme Model 1- 5 and Huawei Model X5 were
missing. Hence the crime report.
3. On completion of the usual investigation, the challan of the case was submitted before
the trial court. On 8th March 2021 charge was framed against the petitioner/accused, to which he pleaded guilty and confessed his guilt. A show cause notice was given to the petitioner as to why he should not be convicted on the basis of pleading guilty, who submitted his reply. On the same date, i.e. 8th March 2021, the trial court convicted and sentenced the petitioner/accused on the basis of pleading guilty as mentioned in the opening para.
Being aggrieved from the impugned judgment of the trial court, the petitioner filed an
appeal under section 408, Cr.P.C. before the appellate court, and the same was dismissed vide judgment dated 28th May 2021, where -after the instant petition was filed.
4. I have heard the learned counsel for the petitioner, the learned counsel appearing on
behalf of the state and also gone through the record with their able assistance.
5. The learned counsel raised preliminary points/objections against the mode of trial by
the trial court and requested this court to decide the same first before going into other merits of the case. The objections/points are as under:
"That the accused was produced before the trial court on first hearing of the case, the trial court observed that the accused seems to be patient of mental illness and the trial court did not constitute a medical board to examine the mental illness of the
petitioner/accused."
6. Learned counsel for the petitioner pointed out that the trial court neither considered
his opinion in respect of the mental illness of the petitioner nor considered the relevant
provisions of law, i.e. section 464, Cr.P.C.
Since, in my opinion, the above preliminary points raised by learned counsel for the
petitioner is of utmost importance and touch the roots of the case, therefore, I allowed the learned counsel to argue the above points first before going into the other merits of the case but before following the learned counsel for the petitioner I also asked the learned counsel appearing for the state, who also agreed to thrash out the above points first keeping in view its importance.
7. Learned counsel for the petitioner invited my judicial notice to the order sheet dated
18.02.2021; therefore, I deem it necessary to incorporate the said order sheet in this judgment, which reads as under:
"Called. Accused in custody present. PSI present. Accused seems to be a patient of mental illness. Therefore letter be sent to Superintendent Jail for medical examination. Adjourned to come up on 25.02.2021."
8. The trial court observed that the accused seems to be a patient of mental illness;
therefore, a letter was sent to the Superintendent Jail for medical examination of the accused,
and the case was adjourned for 25.02.2021, but on the said date, no report was received from the Superintendent Central Jail Gaddani, and the case was fixed for 08.03.2021 on which date the charge was framed against the accused/petitioner to which he pleaded guilty and
confessed his guilt and on the same date he was convicted and sentenced as mentioned in the opening para. Neither the petitioner was sent to the medical board, nor any report was received from the Superintendent Central Jail Gaddani. The trial court did not keep in mind the fact of unsoundness of mind and incapability of the petitioner to defend his case.
9. The Mental Health Ordinance, 2001 (VIII of 2001) (Ordinance) was promulgated in
the year 2001, which defined the terms "mental disorder", "mental impairment", "severe personality disorder", "severe impairment" and "mentally disordered prisoner". After the passage of the 18th Amendment, 'Health' became a Provincial subject and were adopted by the respective provinces. These laws also define the terms "mental disorder" and "mentally disordered prisoners.
10. The insanity defence is recognized by section 84 of the Pakistan Penal Code, which
was enacted as far back as 1860. Chapter XXXIV (sections 464 to 475) of the Criminal Procedure Code, 1898 provides protection to the accused suffering from a mental disorder at the time of trial. Section 464, Cr.P.C. deals with trials before a Magistrate, while section 465, Cr.P.C. relates to the Court of Sessions and the High Court. Before proceeding ahead and for proper appreciation of the issue in hand, it would be advantageous to have a glance at the provision of section 464, Cr.P.C, which is reproduced hereunder:
"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 a Session or High Court being lunatic.---(1) If any person before a Court of Session or 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."
11. A bare reading of the above referred statutory provision shows that the power has
been vested in the Court of Magistrate to determine the unsoundness of mind and incapability of the accused to defend his case. The words "appears to the Court" are of vital
significance. Suppose from some record or from the attending circumstances, it appears to the court that an accused person who is brought before the court is of unsound mind and consequently incapable of making his defence, in that case it is incumbent upon the court to adopt the procedure laid down in law and conduct an enquiry into the unsoundness of mind of the accused. The provision of section 464 is mandatory in nature, and omission to observe the provision thereof would vitiate the conclusion, and the result reached thereon. There may be cases where the accused may feign to be insane. The section confers the power upon the court by using the words "appears to the court" to determine that the accused is of unsound mind. The question of unsoundness of mind of an accused is to be decided by the court from the attending circumstances, attitude, behavior of the accused, and the medical record, if any, and if from the attending circumstances, the accused appears to the court to be of unsound mind and consequently incapable of making his defense, the court in the first instance shall try such fact of unsoundness of mind and incapability to defend the case and after determination of such fact shall proceed in the matter.
12. Sections 464 and 465, Cr.P.C. have been considered by the courts in various cases.
However, in Saila 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 under:
i) The 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.
ii) Whenever the trial court is put to notice, either by express claim made on behalf of the accused or through court's own observations, regarding the issue of incapability of
accused to understand the proceedings of trial and to make his/her defence, the same
shall be taken seriously while keeping in mind the importance of procedural fairness
and due process guaranteed under the Constitution and the law.
iii) 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.
iv) Failure of the parties to raise such a claim during trial does not debar the court from forming an opinion on its own regarding the capability of an accused person to face the proceedings of trial. In such a situation, the court may rely on its own observations regarding the demeanor and conduct of the accused either before or at the time of taking a plea against the charge or at any later stage. The court may take 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 enquire into the capability of the accused to face trial. The court may assess the mental health condition of an accused
by asking him/her questions.
v) 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 to decide the issue of incapacity of the accused to face trial due to mental illness. Medical opinion is sine qua non in such an inquiry. For this purpose, the court must get the accused examined by a Medical Board, to be notified by the Provincial Government, consisting of qualified medical experts in the field of mental health, to examine the accused person and opine whether accused is capable or otherwise to understand the proceedings of trial and make his/her defence. The report/opinion of the Medical Board must not be a mere diagnosis of a mental illness or absence thereof. 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 insight.
vi) The head of the Medical Board should be examined as Court Witness and such examination should be reduced in writing. Both the prosecution and defence should be given an opportunity to cross -examine him in support of their respective stance.
Thereafter, if the accused wishes to adduce any evidence in support of his/her claim, then he/she should be allowed to produce such evidence, including expert opinion, with the prosecution given an opportunity to cross -examine. Similarly, the
prosecution may also be allowed to produce evidence which it deems relevant to this
preliminary issue with opportunity given to the defence to cross examine. It is upon the consideration of this evidence procured and adduced before the court that a finding on this question of fact i.e. the capability of the accused to face trial within the contemplation of sections 464 and 465, Cr.P.C. shall be recorded by the court.
13. The course adopted by the trial court is not only contrary to law but has also
prejudiced the petitioner. Accordingly, in the exercise of the powers conferred under section 439, Cr.P.C. read with section 561- A thereof, this Court must quash the proceedings qua him
and direct his de novo trial. The impugned judgment dated 08.03.2021 must also be set aside,
and the fact whether the petitioner is of sound mind should be determined in accordance with
the law.
14. Now, I turn to the question as to whether the trial court adopted the procedure while
convicting the accused/petitioner on the basis of his pleading guilty. It may be observed that
no counsel was appointed by the accused, nor the trial court asked the petitioner as to whether he required the service of a counsel or not. The trial court did not mention in its judgment that whether copies of the documents in terms of section 265, Cr.P.C. were provided to the accused or otherwise. The trial court, after framing the charge but without following the requirements of section 265, Cr.P.C. recorded conviction and sentence against the petitioner on the basis of his confessional statement. Prima facie, we feel that the trial court acted in a bit haste in proceeding to frame the charge and recording confessional statement of the petitioner without following the requirement of section 265, Cr.P.C. and this omission on the part of the trial court to comply with the provision of section 265, Cr.P.C. cannot be construed as a mere irregularity but is serious illegality going against the fundamental principle of safe administration of justice, inasmuch as the trial court did not
ask the petitioner whether he required the services of a counsel or not, although the trial court adopted a safer method of framing the charge before recording confessional statements of the petitioner. A criminal trial commences with the distribution of copies of FIR, police report, statement of witnesses recorded under sections 161 and 164, Cr.P.C, as well as the inspection notes prepared by the Investigating Officer, and the copies of these documents have to be delivered to the accused seven days before the commencement of trial but in the instant case, the trial court without following the procedure provided in section 265, Cr.P.C. jumped to frame the charge in terms of section 265- D, Cr.P.C. and recorded the confessional
statement of the petitioner, which is violative of the above provisions of Criminal Procedure Code; therefore, we are satisfied that the omission to comply with the provision of section 265, Cr.P.C. When the charge was framed against the petitioner, he was not represented by any counsel.
15. The petitioner was convicted for offences under sections 380 and 457, P.P.C., which
read as under:
"457. Lurking house -trespass or house -breaking by night in order to commit offence
punishable with imprisonment.---Whoever commits lurking house -trespass by night,
or house -breaking by night, in order to the committing of any offence punishable with
imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; if the offence intended
to be committed is theft, the term of the imprisonment may be extended to fourteen
years.
380. Theft in dwelling- house, etc: ---Whoever commits theft in any building, tent or
vessel, which building, tent or vessel is used as a human dwelling, or use for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
It will be beneficial to reproduce the contents of the charge to which the petitioner
pleaded guilty, which runs as under:
"It is alleged that on 18th January, 2021 at 04:45 a.m. you accused had committed trespass and entered into the house of complainant Liaquat son of Ghulam Qasim situated to near Siddiq Sons factory, Hub and you accused stolen two mobile phones i.e. (1) Realme model 1 -5 and (2) HUAWEI model X -5 and escaped. Thus, by doing
such act, you have committed offences under section 380/457, P.P.C., which are within the cognizance of this Court."
16. A bare perusal of the charge shows that the same has not been framed in -accordance
with section 221, Cr.P.C, and the basic ingredients of section 457 are missing; while framing the charge the trial court did not ask the accused in order to commit an offence punishable with imprisonment in the language of section 457, i.e. "he committed lurking house trespass by night or house breaking by night". A perusal of the record reveals that the accused/petitioner is neither nominated in the FIR nor identification parade of the accused was held. The allegation leveled against the petitioner is that only the alleged stolen mobile phones were recovered from him, but there is no eyewitness of the occurrence. A further question arises here; whether the accused dishonestly received or retained stolen property
knowing or having reason to believe the same to be stolen property or allegedly the accused/petitioner committed theft after lurking house- trespass by night.
17. Legally, the charge is a notice to the accused, thereby making it clear to him that
'what the case of the prosecution against him is' and that 'what offence or offences are prima facie made out against him'. The former is meant to let the accused make his defence, while the latter is to detail what punishment the accused may receive. It is the foundation of a trial; hence the importance thereof needs not much debate. A whole Chapter (Chapter -XIX) is
included in the Code (Cr.P.C.). It may be added that punishment likely to fall is one of the circumstances that may convince the accused to plead guilty. This seems to be the reason that the first provision of this Chapter, i.e. section 221, Cr.P.C. which reads as under:
"221. Charge to state offence. (1) Every charge under this Code shall state the offence with which the accused is charged;
The importance thereof is further evident from subsection (4) of section 221, which
reads as: -
"(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge;"
Section 222, Cr.P.C. provides that charge shall contain such particulars as to time and
place of alleged offence and person (if any) against whom, or the thing (if any) in respect of
which it was committed, as are sufficient to give the accused notice of the matter with which he is charged. We are quite conscious that usually an otherwise legally conducted trial is not be regarded as illegal merely for error in stating the offence or other particulars, but when
such error or omission is claimed to have misled or prejudiced the accused, so as is evident
from section 225 which reads as:
"225. Effect of errors. No error in stating either the offences or the particulars
required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
However, when such error or omission is claimed to have misled or prejudiced the
accused, then such error or omission, being in deviation lo the guaranteed fundamental right of a fair trial (Article 10 A of Constitution), would be sufficient for amending/altering charge
during the course of a trial or if a trial is concluded for remand thereof. Every claim of failure of justice because of the act of Court, if it apears to be carrying weight, it would
always be advisable to ensure a fair trial. Reference in that respect if need be may well be
placed upon the case of M. Younus Habib v. State, which is reported at PLD 2006 SC 153, wherein it has been held as under: -
"4. The Criminal Procedure Code lays down an elaborate procedure for framing of the charge and the rationale is that the accused should know the exact nature of the accusation made against him so that he may give a proper reply and is not misled by
any vagueness in the accusations leveled.
"6. .. they could warrant annulling of the finding of conviction justifying retrial only if the accused (a) had been misled by it and (b) if it had occasioned miscarriage of justice."
17(sic.) The charge, so framed by the trial court, though includes section 457, P.P.C., but
not a single particular in that respect was mentioned therein which includes lurking house trespass by night. It is settled law that the charge must contain all material particulars as to time, place as well as the specific name of the alleged offence, the manner in which the offence was committed and the particulars of the accused so as to afford the accused an opportunity to explain the matter with which he is charged. The purpose behind giving such particulars is that the accused should prepare his case accordingly and may not be misled in preparing his defence. A perusal of the charge shows that the same has not been framed in accordance with the provision of section 222, Cr.P.C, and the basic ingredients of section 457, P.P.C. are missing.
18. Normally, any omission or defect in the charge is not sufficient to vitiate the trial, but
in my humble view, when a person is convicted on a plea of guilt, the contents of the charge are to be construed strictly. If there is any defect in the same, conviction order is liable to be set aside because prejudice is a natural result of such defect or omission. Keeping in view the
above principle, it is painfully noted that the trial court, while framing the charge, has not
kept in his mind the basic ingredient of section 457, P.P.C.
19. In my considered view, a person cannot be convicted under section 243, Cr.P.C, on
the admission of facts from which a fact essential to constitute the offence is missing, nor the prosecution can urge that such omission is curable under sections 225 and 537(b), Cr.P.C, because accused, pleads not to a section of law but to facts which purport to disclose an offence under such section. As already observed, the basic ingredients of the offence punishable under section 457, P.P.C. were missing in the charge, to which the petitioner pleaded guilty; therefore, the conviction was illegal and liable to be set aside.
20. It is an admitted fact that by virtue of the provisions of section 412, Cr.P.C. an
accused, who pleaded guilty to the charge has no right of appeal against his conviction, but he can maintain an appeal only to the extent of the legality of the sentence passed against him by the learned trial Court. This section does not restrict the powers of the High Court to consider the legality of conviction in the exercise of its inherent jurisdiction. Even otherwise, since the trial court committed illegality and irregularity, therefore, section 412, Cr.P.C. would not stand in the way of the petitioner.
Thus, it is concluded that it was incumbent upon the trial court to decide the question
of unsoundness of mind of the petitioner and incapacity to defend his case first and to proceed with the matter only thereafter.
Consequent to the above, this petition is partly allowed. The impugned judgment
dated 8.3.2021 passed by the trial court in case No. 36 of 2021 and the judgment dated 8th
May 2021 passed by the appellate court in Criminal Appeal No. 04 of 2021 are set aside, and the case is remanded to the trial court, i.e. Judicial Magistrate -I Hub with direction to decide
the unsoundness of the mind of the petitioner under section 464, Cr.P.C. in the first instance so as to determine the issue of unsoundness and incapacity of the petitioner to defend himself in the light of attending circumstances, attitude, behavior and the medical board's report thereafter if the course comes to the conclusion that that the petitioner is of sound mind and capable to defend his case, frame charge against him in accordance with the law.
JK/177/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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