P L D 2017 Balochistan 37
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
NASEEBULLAH ---Appellant
Versus
SPECIAL JUDGE, ANTI -TERRORISM COURT -II, QUETTA and another ---
Respondents
Criminal Appeals Nos. 157 of 158 of 2014, decided on 28th November, 2016.
(a) Anti -Terrorism Act (XXVII of 1997) --
----Ss. 6(2)(a) ---Penal Code (XLV of 1860), Ss.302(b), 364- A, 367- A, 376 & 377---Criminal
Procedure Code (V of 1898), Chap. XXXIV [Ss.464- 475]---Terrorism, qatl- i-amd, kidnapping,
rape and sodomy ---Appreciati on of evidence --- Lunatic, trial of ---Procedure ---Accused was
convicted by Trial Court and was variously sentenced maximum up to imprisonment for life ---
Plea raised by accused was that he was suffering from Schizophrenia and needed proper medical
treatment ---Validity ---Provisions of Ss.464, 465 & 466, Cr.P.C. related to unsoundness of mind
at the time of inquiry or trial and not at the time of commission of offence ---Once Court reached
to conclusion that accused facing trial was of unsound mind and conseque ntly incapable of
making his defence, the trial was to be postponed---Such person could be released under S.466,
Cr.P.C., on sufficient surety given that he would be properly taken care of and would be
prevented from doing injury to himself or to any other person or for his appearance when
required by Court ---Court was also empowered to direct accused to be detained in safe custody
in such a place and manner as it could think fit, if the Court was of the view that bail should not
be taken or sufficient secu rity was not given--- Mere making of an application on behalf of a
person committed for trial, that he was of unsound mind, was not sufficient to necessitate
holding of an inquiry ---When it appeared to the Court or the Court had reason to believe that
accus ed could be of unsound mind, inquiry was necessary and the question, whether accused
person was of unsound mind or not and incapable of making his defence, had to be decided prior
to framing of charge and recording of evidence ---If Court was unable to dete ct simulation that
accused could be of unsound mind, such question had to be tried as a fact and medical evidence
on the point was an indispensible necessity ---High Court set aside conviction and sentence
awarded to accused and case was remanded to Trial C ourt to decide the matter in terms of
statutory provisions as contained in Chap. XXXIV, Cr.P.C.--- Appeal was allowed in
circumstances.
(b) Penal Code (XLV of 1860) ---
----S. 84--- Unsound mind---Maxim "actus non facit reum, nisi mens sit rea" ---Applicabil ity---
Any act is not criminal unless there is criminal intent--- Law mandates that nothing is an offence,
which is done by a person, who at the time of committing an offence by reason of unsoundness
of mind, if incapable of knowing nature of the act or tha t whatever he is doing is wrong or
contrary to law.
(c) Maxim:
----"Actus non facit reum, nisi mens sit rea" ---Applicability.
Jameel Ramzan for Appellant.
Abdul Latif Kakar, Additional Prosecutor General for the State.
Date of hearing: 10th November, 2016.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Criminal Appeals Nos.157 and 158 of
2014 have been filed on behalf of appellant Naseebullah, a sick person, suffering from
schizophrenia, convicted and sentenced by learned Special Judge, Anti -Terrorism Court -II,
Quetta ("the trial Court") vide judgments dated 29th May 2014 ("the impugned judgments"),
respectively passed in cases FIRs Nos.25 of 2011 and 37 of 2011 in the following manner:
"FIR No.25 of 2011:
i) under Section 364- A of the Pakistan Penal Code 1860 (P.P.C.) read with Section
6(2)(a) of the Anti -Terrorism Act 1997 ("the Act of 1997") to suffer rigorous
imprisonment (RI) for life and to pay a fine of Rs.50,000/ - (Rupees fifty thousand only),
or in default whereof to further undergo four (04) months' simple imprisonment (SI);
ii) under Section 302(b) of the P.P.C. read with Section 6(2)(a) of the Act of 1997 to
suffer RI for life with a fine of Rs.1,00,000/ - (Rupees one hundred thousand only), in
default whereof to further suffer eight (08) months' SI, and
iii) under Section 376 of the P.P.C. to suffer ten (10) years and to pay a fine of
Rs.20,000/ - (Rupees twenty thousand only), or in default whereof to further undergo two
(02) months' SI.
The movable and immovable properties of the appellant were o rdered to be confiscated in
favour of the State and the aforesaid sentences were ordered to run concurrently, with the
benefit of Section 382- B of the Criminal Procedure Code 1898 (Cr.P.C.)"
"FIR No.37 of 2011:
i) under Section 367- A of the P.P.C. to suff er ten (10) years' RI and to pay a fine of
Rs.20,000/ - (Rupees twenty thousand only), or in default whereof to further undergo four
(04) months' simple imprisonment (SI);
ii) under Section 364 of the P.P.C. read with Section 6(2)(a) of the Act of 1997 to suffer
RI for life with a fine of Rs.1,00,000/ - (Rupees one hundred thousand only), in default
whereof to further suffer eight (08) months' SI, and
iii) under Section 377 of the P.P .C. to suffer ten (10) years' and to pay a fine of
Rs.20,000/ - (Rupees twenty thousand only), or in default whereof to further undergo two
(02) months' SI.
The movable and immovable properties of the appellant were ordered to be confiscated in
favour of the State and the aforesaid sentences were ordered to run concurrently, with the
benefit of Section 382- B of the Cr.P.C."
Since common question of law is involved in both the appeals, as such, we propose to decide the
same through this common judgment.
3. It is case of the prosecution that the convict/appellant, after committing unnatural offence
with Mehmood Ahmed, aged about 2/3 years and Zina with Bakht Bibi, aged about 1- 1/2 years,
committed their murders. After completion of formal investigation conducte d by police
authorities of Pashtoon Abad Police Station, Quetta, he was sent up to face trial before the trial
Court. The trial Court, after conclusion of the trial in both the cases, convicted and sentenced the
appellant, as mentioned above. The prayer in both the appeals is to set aside the impugned
judgments and to proceed with the cases in accordance with the provisions governing the
procedure of trial in those cases, where the accused person suffers from disease of unsoundness
of mind.
4. After submiss ion of police reports under Section 173 of the Cr.P.C. and, prior to framing
of charge in both the cases, applications were filed to proceed against the convict/appellant under
Section 464 of the Cr.P.C., as the convict/appellant was minor and of unsound m ind. On 16th
September 2011, the trial Court directed that the petitioner be committed to custody at Psychiatry
Department, Sandeman Provincial Hospital, Quetta for treatment and detailed examination by
the Balochistan Provincial Standing Medical Board ("t he Medical Board"). The Medical Board
was specifically directed to opine, if the accused was capable of standing trial or not. After
treatment and a detailed examination, the Medical Board issued the Medical Opinion on 12th
October 2011, which reads as under:
"On the basis of recommendations of Head of Psychiatry Department Prof Dr. Ghulam
Rasool that "accused Naseeb -ullah son of Habibullah was admitted in Jail Ward,
Sandeman (P) Hospital, Quetta for observation and repeated mental status examination.
In our opinion he is suffering from Schizophrenia. He is not of sound mind."
5. After receiving the aforementioned medical opinion of the Medical Board and
examination by Professor Dr. Ghulam Rasool, Head of Psychiatry Department, the
convict/appellant was ord ered to be released on bail vide order dated 8th January 2013, subject to
the following conditions:
"The net shell (sic.) of the above detailed discussion and the opinion of Medical board
twicly (sic.) i.e. 12/11/2011 and 14/11/2012 and time to Medical report of head of the
department of Psychiatry Mr. Dr. Professor Ghulam Rasool about the mental status to
applicant (sic.) prove that the applicant/accused is un- sound mind and suffering of
Schizophrenia (sic.). The applicant/accused needed proper treatment c are to which the
relative are desirous to do so. In such circumstances and the dictum laid down by apex
Courts (sic.), 1 am inclined to accept the bail application and released the
applicant/accused on bail subject to furnishing bail bond in the sum of Rs.3,00,000/ -
(Rupees three lass) or PR like amount to the satisfaction of this Court (sic.). The surety is
directed to give an undertaking that he should take care of applicant so that he may not be
able to cause injuries to himself or to any other person and keep him (accused) under
strict observation. The relatives (sic.) father/brothers are strictly directed to submit
treatment report in Court on monthly basis. The application is thereby disposed of."
6. The record reveals that due to non -availability of the requisite surety, the accused could
not be released and learned trial Court directed the accused to face trial despite the fact that he
was found to be suffering from Schizophrenia and a man of unsound mind. After completion of
the trial, while convicting the appellant, the trial Court made the following observations:
"16. I also agree with the statement of CW -1 and CW -2 to some extent, however, it is
also an admitted feature of the case that the accused has committed the offence with his
will, knowingly , deliberately and with the intention to satisfy and relax himself through
sex with the minor, which fact is evident from his statement recorded under section 164
Cr.P.C. produced in the court as Ex.P/3- B in other case, wherein he given all the detail of
the occurrence as well as detail of another occurrence and offence, which he has
committed, on the basis whereof the accused facing trail [sic.] was involved in case FIR
No.37/2011 of PS Pashtoon Abad under section 364- A, 377 P.P.C, thus the accused has
repeated his immoral act again, it means that at the time of commission of both the
offences, the accused was well in sense and sound person, therefore, he to save his skin
from the consequences, have adopted the ways which at the relevant time were correct
and taken away the minor boy and girl to the unpopulated area and then committed
offence with them and if at the time of commission of offence, the accused was not sound
mind person, then how can the accused adopted all the ways, through which he was
assure d that in these ways he can commit the offence and can satisfy him sexually by
saving his skin from the consequences. As the accused at the time of commission of
offence was well sound mind person and tried his best to save himself from the legal
consequences of the offences so committed by him, but on hue and cry of the minor
Mahmood Ahmed, victim of other case, he was apprehended by PW -6/eye -witness of
other case at the spot and then on his arrest, an other untoward incident came on record
i.e present occurrence, whereby the accused had committed zina with a minor girl and
then killed him [sic.] which fact even was not within the notice and knowledge of the
police, but the accused himself has admitted and brought on record some facts of that
case, as who [ sic.] how and why could know about the incident of murder of minor girl at
the hands of accused, which incident was disclosed by the accused himself in other case.
Thus it can safely be concluded that the accused facing trial at the time of commission of
offence and at the time of recording his statement before the PW -3 (Judl: Magistrate)
under section 164 Cr.P.C. in other case was well within his sense and now the situation,
therefore if according to statements of CW -1 and CW -2 he has lost his senses, and on the
basis of statements of CW -1 and CW -2, the accused be released, then there is every
apprehension of any other untoward incident and causing danger to the life of any one, as
accused has repeated the offence. Further more, [sic.] since sufficient incr iminating
material available on case file and it transpired that the accused has also committed
another offence of un -natural offence with a minor boy, due to which a case vide FIR
No.37/2011 was registered at P.S. Pashtoon Abad Quetta, wherein the accused has also
been nominated, thus it seems that the accused has repeated the crime of same nature and
if, the accused even otherwise by considering the contention of defence counsel as well
as statements of CW regarding unsound mind, is released/acquitted, th en there is every
apprehension, as stated above, that he may commit other heinous offence or cause any
damage to any one and at the hands of accused the life of minors will be at stake. It is
admitted fact that no one can look after the accused being unsound mind throughout day
and night anywhere or for 24- hours, therefore, in such view of the matter, it would be just
and proper to not give further opportunities for committing such offences by acquitting
him of the charge on the basis of statements of CW -1 and CW -2, rather it will be just and
proper to award him conviction by issuing directions to the MS Bolan Medical Complex
for keeping the accused under medical treatment and look after as deemed fit. In this
regard I am supported by the authority reported in 2005 PCr.LJ 1864 whereby it was
observed that the appellant had merely set up a case of feign insanity and we would
accordingly repel this plea."
7. After listening to learned counsel for the parties and having gone through the entire
record of the case, we are of the considered view that the trial Court resorted to a procedure,
which is not permissible under the law and injustice has been done with a sick person, suffering
from mental disease. It is an admitted feature of the case that, as per medical o pinion of the
Medical Board, the appellant was/is found to be suffering from Schizophrenia and a man of
unsound mind. In such circumstances, the trial Court was required to follow the procedure, as
envisaged in Chapter XXXIV of the Cr.P.C.
8. Chapter XXXIV of the Cr.P.C. begins with Section 464 of the Cr.P.C, which provides
procedure for inquiry by a Magistrate with regard to the fact of unsoundness of mind. A
Magistrate, holding an inquiry, if has reason to believe that the person before him/her is of
unsound mind and, consequently, incapable of making his defence, then he is enjoined upon to
inquire into such unsoundness of mind and shall cause such person to be examined by a Civil
Surgeon of the District or such other Medical Officer as the Provincial Government may direct.
Such Civil Surgeon or Medical Officer is, thereafter, to be examined as a witness. Similarly,
Section 465 of the Cr.P.C, on the other hand, provides for procedure in case of person of
unsound mind tried before the Court of Session or Hi gh Court. Both the Sections are similar with
a slight difference that the former relates to an inquiry before a Magistrate, while the latter
relates to trial before a Court of Session. It may be added that both the Sections make it clear that
in a trial be fore Magistrate or Court of Session, if the accused appears to be of unsound mind
and, consequently, incapable of making his defence, then the Court shall, in the first instance, try
the fact of such unsoundness of mind and incapacity and if satisfied in t his regard, shall record
the findings to that effect and shall postpone further proceedings. These Sections relate to
unsoundness of mind at the time of inquiry or trial and not at the time of commission of the
offence. Once the Court reaches to the conclu sion that the accused facing trial is of unsound
mind and, consequently, incapable of making his defence, the trial is to be postponed. As
provided in Section 466 of the Cr.P.C, such a person may be released on sufficient surety being
given that he shall be properly taken care of and shall be prevented from doing injury to himself
or to any other person or for his appearance when required by the Court. Needless to observe that
the Court is also empowered to direct the accused to be detained in safe custody in such a place
and manner as it may think fit, if the Court is of the view that the bail should not be taken or
sufficient security is not given.
9. There is also another provision of law i.e. Section 84 of the P.P.C., which dealt with the
question of inc apacity at the time of doing the act charged. It is a substantive provision of law,
which excuses the offence. The said Section reads as under:
"84. Act of person of unsound mind .--Nothing is an offence which is done by a person
who, at the time of doing i t, 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."
10. A bare perusal of the above provision of law clearly postulates that the principles
embodied in Section 84 of the P.P.C. is based upon the Maxim, "actus non facit reum nisi mens
sit rea" i.e. an act is not criminal unless there is criminal intent. It is the mandate of law that
nothing is an offence, which is done by a person, who, at the time of committing an offence, by
reason of unsoundness of mind, if incapable of knowing the nature of the act or that whatever he
is doing is wrong or contrary to law. Once a person is found to be suffering from mental disorder
or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and
self-control, at all relevant times by way of appropriate documentary and oral evidence, the
person concerned would be entitled to get the benefit of aforementioned provision of law.
11. As stated earlier, pri or to framing of charges, on the applications, the matter of
determining the mental status of convict/ appellant was referred to the Medical Board and the
report thereof clearly speaks that the appellant is suffering from Schizophrenia and he is not of
sound mind. In the said context, Professor Dr. Ghulam Rasool was also examined as a Court -
witness and, thereafter, the appellant was ordered to be released on bail. The application for grant
of bail was also followed by another application under Section 265- K of the Cr.P.C. for his
acquittal, which was dismissed by the trial Court by means of order dated 18th June 2013, on the
following grounds:
"The accused/applicant has repeated the crime of same nature and if at this stage, the
accused/applicant is even oth erwise by considering the contention of defence Council as
well as statements of CW regarding unsound mind, is released/ acquitted, then there is
every apprehension that the [sic.] he commits other heinous offence or cause any damage
to anyone and at the h ands of accused/applicant the life of minors will be at stake and it is
admitted fact that no one can look after the accused/applicant being unsound mind
throughout day and night or for 24- hours."
12. The record reveals that, after passing the said order, the trial Court, after framing of
charges and recording of evidence, convicted the appellant, instead of resorting to the provision
of Section 466 of the Cr.P.C., which reads as under:
"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 the one in which bail may be
taken or not, may release him on sufficient security being given that he shall properly
take 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 lun atic.- 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 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."
13. We are afraid that if the case of the convict/appellant was one in which, in the opinion of
the trial Court, bail should not be taken, or sufficient security was not given by the relatives of
the convi ct/appellant, instead of proceeding with the case, an order within the purview of
aforesaid provision of law should have been passed for detention of convict/appellant in safe
custody in such place and manner as it thinks fit in the attending circumstances of the case and
report the action taken to the Provincial Government.
14. Similarly, it would also be appropriate to reproduce herein below Sections 464 and 465
of the Cr.P.C., which provide procedures in case of an accused of unsoundness mind, which read
as under:
"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 Civil Surgeon of the
district or such other Medical Officer as the Provincial Government directs and t hereupon
shall examine such Surgeon or other officer as a witness, and shall reduce the
examination to writing.
(1-A) Pending such examination an inquiry, the Magistrate may deal with the accused in
accordance with the provisions of section 466.
(2) If suc h Magistrate is of opinion that the accused is of unsound mind and consequently
incapable of making his defense 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 b efore Court of Session or High
Court being lunatic . (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) 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."
15. The aforementioned provisions of law clearly manifest that in case of raising the plea of
insanity, an inquiry into unsoundness of mind of the accused and his consequent incapacit y to
stand trial has to be made in accordance with Section 465 of the Cr.P.C. as a preliminary step
before taking any evidence on any charge and in that inquiry, both the prosecution and the
defence ought to be associated with full opportunity for leading evidence in support of their
versions. It may be added that the words "appear to the Court" and "has reason to believe" used
by the legislature in the aforementioned provisions of law make it compulsory and mandatory
and that omission to observe the procedures prescribed therein would vitiate the whole
proceedings. It may be observed that mere making of an application on behalf of a person
committed for trial, that he was of unsound mind, is not sufficient to necessitate the holding of an
inquiry, but when it appears to the Court or the Court has reason to believe that the accused may
be of unsound mind, an inquiry is necessary and the question, whether the accused person is of
unsound mind or not and incapable of making his defence, has to be decided, prior to framing of
charge and recording of evidence. If the Court is unable to detect the simulation that the accused
may be of unsound mind, question has to be tried as a fact and medical evidence on the point
would, of course, be an indispensable necessity.
16. While considering the instant appeals on the touchstone of aforementioned principles of
law, we are of the considered view that the impugned judgments are not sustainable, being
passed in violation of substantive provisions of law, as such, the same ar e set aside. The trial
Court would now take up cases of the appellant and to decide the same in terms of the above
statutory provisions as contained in Chapter XXXIV of the Cr.P.C. The parties through their
counsel are directed to appear before the trial court on 5th December 2016.
The appeals are, accordingly, disposed of on above terms.
MH/3/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,
let us know.