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| Unsound person granted bail by Supreme Court granted bail |
Supreme Court of Pakistan regarding a case involving an accused suffering from schizophrenia. The court reviewed the trial court's decision to detain the accused in a mental health hospital instead of releasing him on bail. The Supreme Court found that the trial court's decision was unreasonable and ordered the release of the petitioner on bail, subject to conditions ensuring his proper care, prevention of harm to himself or others, and regular medical examinations.
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SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Bench - III:
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
Mr. Justice Irfan Saadat Khan
Crl.P.172-L/2023
(Against the order of Lahore High Court, Lahore,
dated 30.01.2023, passed in Cr. Revision No.6092 of 2023)
Zagham Hassan Khan
... Petitioner
Versus
The State, etc.
… Respondents
For the petitioner:
Mr. Abdul Hameed Khan Rana, ASC.
For the State:
Mirza Abid Majeed, DPG, Punjab.
a/w Ghulam Rasool, I.O.
For the complainant:
Ghulam Mustafa Ch. ASC.
(Through V.L. from Lahore Registry)
Date of hearing:
7 November 2023
JUDGMENT
Syed Mansoor Ali Shah, J.- The present case of an accused person
suffering from ‘schizophrenia’ and aged about 60 years prompts us to
examine, whether the trial court has reasonably exercised the discretion
vested in it under Section 466 of the Code of Criminal Procedure 1898
(“CrPC”) in declining to release him on sufficient security after
postponing the further proceedings in the case under Section 465, CrPC,
and also to enunciate the principles that should guide the reasonable
exercise of this discretion.
2.
Briefly, the facts necessary to state for the decision of the present
petition are that a case1 was registered against the petitioner on the
allegation of his having spoken derogatory remarks against the Holy
Prophet (peace be upon him), punishable under Section 295-C of the
Pakistan Penal Code 1860 (“PPC”). The petitioner was arrested, and after
investigation, was sent for trial. Before the framing of the charge against
the petitioner, his counsel made an application to the trial court averring
that the petitioner was a person with mental disability, and was thus
unfit to stand trial. The trial court conducted an inquiry into the matter,
got the petitioner examined by a medical board, recorded the statements
1
FIR No.227/21, Police Station, Shafiq Abad, Lahore.
Crl.P. 172-L of 2023
2
of two doctors on that board, and concluded that the petitioner was
suffering from ‘schizophrenia’ and was thus not fit to stand trial and
make his defence. Upon this finding, the trial court postponed the
proceedings of the case, under Section 465, CrPC, till recovery of the
petitioner from that mental disease. On the question of whether after
postponing the proceedings of the case the petitioner was to be released
on bail or to be detained in some Mental Health Hospital under Section
466, CrPC, the trial court chose the second option. By its order dated
21.12.2022, the trial court directed to shift the petitioner from the prison
to the Punjab Institute of Mental Health, Lahore. This order was
challenged in revision before the High Court, but by the impugned order
dated 30.01.2023 the High Court declined to interfere therewith; hence,
the present petition for leave to appeal.
3.
We have heard the arguments of the learned counsel for the
parties, read the cases cited by them and examined the record of the
case.
4.
As the matter under consideration requires the interpretation of
the provisions of Section 466, CrPC, we find it appropriate to reproduce
them here for ease of reference:
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.
A bare reading of Section 466, CrPC, shows that in cases where the
accused person is found to be of unsound mind and incapable of making
his defence, the court has been conferred with special power to release
him on sufficient security, notwithstanding whether the case is one in
which bail may be taken or not. The sufficient security required is that of
a person who binds himself (i) to properly take care of the accused,
which includes his proper medical treatment, (ii) to prevent the accused
from doing injury to himself or any other person, and (iii) to produce the
accused when required before the court or before such officer as ordered
Crl.P. 172-L of 2023
3
by the court. If in the opinion of the court, bail should not be taken, i.e.,
the accused should not be released, or if the required sufficient security
is not given, the court can order the accused to be detained in safe
custody in such place and manner as it thinks fit.
5.
From the reading of Section 466, CrPC, it transpires that the
primary course prescribed is to release the accused, who is of unsound
mind and incapable of making his defence, on sufficient security while
detaining him in safe custody secondary to the primary course. It,
therefore, follows that the course of releasing such an accused on
sufficient security must be adopted as a rule while the order for
detaining him in safe custody is to be made only as an exception. With
the deduction of this principle, the matter however does not end. Next
comes the question: what may be the circumstances that can justify
adopting the exceptional course of detaining the accused in safe custody?
The answer to this question also lies within the provisions of Section
466. The noticeable point is that while conferring the discretion on the
court, by using the word ‘may’, Section 466 provides an inbuilt guidance
for the exercise of that discretion by making it conditional on giving
sufficient security to properly take care of the accused and to prevent
him from doing injury to himself or any other person. These two
conditions are the touchstone on the basis of which the court is to
exercise its discretion in either way. If keeping in view the facts and
circumstances the court forms an opinion that in releasing the accused
on bail, there is an apprehension that he would not be properly taken
care of or prevented from doing injury to himself or any other person, it
can then decline to release him on bail and direct for keeping him in safe
custody in such place and manner as it may think fit. The facts and
circumstances that are relevant in forming such an opinion by the court
may be that no one from the kith and kin of the accused comes forward
to give sufficient security for the fulfillment of the said conditions, or that
his kith and kin have previously remained unsuccessful in preventing
him from doing injury to other persons.
6.
In applying the above principles to the facts and circumstances of
the present case, we find that the family members of the petitioner are
pursuing the legal remedies for the accused and are ready to give the
requisite sufficient security for the fulfillment of the conditions that they
would properly take care of the petitioner and prevent him from doing
any injury to the body or property of other persons, and there is no past
record of the petitioner to have done any such injury to other persons
which may show that his family members have previously remained
Crl.P. 172-L of 2023
4
unsuccessful in preventing him from doing injury to other persons. The
incident involved in the present case is also not of a violent nature
involving any injury to the body or property of other persons. There are
thus no such exceptional facts and circumstances that may justify
departure from the rule of releasing the petitioner on sufficient security
under Section 466, CrPC, and adopting the exceptional course of
detaining him in some Mental Health Hospital instead of handing him
over to his family for his proper care and treatment. In its order, the trial
court has not given any justifiable reason for the exercise of its discretion
in detaining the petitioner in the Mental Health Institute. The discretion
is found to have been exercised unreasonably and capriciously. It was a
fit case for interference by the High Court in its revisional jurisdiction, to
correct the error committed by the trial court; but the High Court failed
to do so.
7.
For the above reasons, we convert the present petition into an
appeal and allow the same. By setting aside the order of the High Court,
dated 30.01.2023, the revision petition of the petitioner is accepted. The
order of the trial court, dated 21.12.2022, is set aside and the petitioner
is ordered to be released on bail subject to furnishing of a bond by any
family member of the petitioner who binds himself (i) to properly take
care of the petitioner, (ii) to prevent the petitioner from doing injury to
himself or any other person, (iii) to produce the petitioner before the
court when required, and (iv) to produce the petitioner before the Medical
Board of the Punjab Institute of Mental Health, Lahore, after every three
months for his medical examination as to his recovery from the mental
disease and fitness to stand trial, and to submit the report of the Board
to the trial court for information and appropriate order. The bond shall
be supplemented by two sureties in the sum of Rs.100,000/- to the
satisfaction of the trial court.
Islamabad,
7 November 2023.
Approved for reporting
Iqbal
Judge
Judge
Judge
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