' HAMID FAROOQ DURRANI, J.--- On 27-2-2005 at 1230 hours the injured complainant Nisar Ahmed son of Yasin, resident of Kokal, District Abbottabad reported the crime to the local police of Police Station Havelian. The allegations contained in the report were that at about 10-45 a.m. He was coming to Havelian in a Suzuki Van. Near the place called Thari, accused Malik Saleem Akhtar son of name unknown resident of Bandi Barsin-cum-Kokal armed with a pistol was standing on the roadside, who started firing at them due to which the complainant was hit on the left leg near the knee and also on the left calf. The driver of the van namely Bashir son of Yousaf resident of Bandi Qazian was hit on the chest while no motive for the occurrence was reported. It was also stated that the complainant, the said Bashir and some other passengers of the van witnessed the crime.
The injured Bashir later succumbed to the injuries.
2. The petitioner filed an application before the learned Additional Sessions Judge, Abbottabad for the release of accused on bail, which was dismissed on 7-2-2006. Thereafter, before this Court the petition for grant of bail was filed on 18-2-2006 by the petitioner, who happens to be the son of the accused. The application in hand having been filed under sections 464, 465 read with section 497, Cr.P.C. Was restricted to the grounds that the accused was an infirm and sick person. It was mentioned in the, petition that due to mental incapacitation the accused was unable to understand the Court proceedings as transpired by the reports of Standing Medical Board constituted on different occasions. That there was no facility in the jail for treatment of accused which could suit him. The petitioner prayed that the Court was duty bound not only to release the accused on bail but also to stop the proceedings in trial. The accused was, therefore, entitled to the relief by way of release on bail.
3. The learned counsel for the petitioner argued that the petitioner after the occurrence remained in hospital from 29-4-2005 to 12-5-2005. In this regard he referred to the prescriptions and also reports of clinical investigation placed on file. He further stated that the accused had record of ailment even for the period prior to the occurrence. The learned counsel for the petitioner invited the attention of this Court to the various expert reports regarding ailment of the accused. The first of the said reports was conveyed to the Medical Superintendent, D.H.Q. Hospital by Dr. Muhammad Younis Khawaja, Assistant Professor Psychiatry, who viewed that the accused was suffering from "psychotic depression" and was not fit for trial at the relevant time. The report, however, did not bear the date of issuance. The accused was again referred to the Standing Medical Board, who examined the accused on 28-7-2005 and opined, inter alia, that the behaviour of the accused was relatively normal when he was not directly observed. That he partially understood the nature of consequences of the crime and proceedings of the Court.
' On 8-11-2005, the learned trial Court yet again required the medical board to give conclusive opinion regarding the fitness of the accused for trial or otherwise, in a specific manner. In pursuance thereof the Standing Medical Board so constituted examined the accused on 26-1-2006 and gave its opinion in the following terms:- "The Standing Medical Board is of the opinion that the accused Saleem Akhtar suffered from psychotic depression. He is comparatively better but still he is unable to plead, he cannot defend himself in the Court of law. Keeping in view the seriousness of his dangerousness, he may be kept in a secure place like prison for indefinite period. He should be reviewed on yearly basis to assess his dangerousness and threat to the publicat-large." (Underlining is mine)
4. The learned counsel for the accused agitated that the accused is presently confined in Haripur Jail where facility for treatment of his sickness is not available. He stressed that in the prevailing circumstances the learned trial Court had no choice but to release the accused by invoking the provisions of section 466(1), Cr.P.C. For that purpose the petitioner was ready to furnish any security as required by the Court. In this regard he relied on 1992 M LD 414; 2000 M LD 1574; PLD 1985 Kar. 594 and 1981 SCM R 686.
5. On the other hand the learned counsel appearing for the respondents vehemently opposed the submissions made by the learned counsel for the petitioner. He provided a copy of F.I.R. No,144 dated 27-2-2005 of Police Station Havelian, District Abbottabad which reveals that the accused, only after 15 minutes of the crime reported in F.I.R. No,145, was alleged to have opened fire at one Shah Nawaz son of Gulab, resident of Bandi Qazian. The said victim received injuries on left arm, right elbow and in the belly. Learned counsel further stated that the accused was trigger-happy person and was hardened criminal. He also urged that the treatment for the ailment of the accused could be conveniently provided in jail, which was being extended to him while he was in custody at Peshawar. His shifting from Peshawar to Haripur was without any reason and was only to prepare a ground for moving an application under sections 464/465, Cr.P.C. The learned counsel emphasized that none of the medical reports suggested that the accused was not treatable at jail.
He referred to 2005 SCJ 277 and 1997 SCM R 1275 in support of his contention that every ailment would not necessarily attract the concession of grant of bail to the accused.
6. Learned counsel appearing on behalf of the State added to the arguments of the learned counsel for the respondents and stated that the insanity/mental sickness of the accused has not come to lime light throughout the investigation. Further, that the medical reports were contradictory inter se. While opposing the petition in hand he relied on 1997 SCM R 239.
7. As the petitioner has restricted the case of accused for release under sections 464, 465, 466, Cr.P.C. It would be useful to reproduce the contents of section 466, Cr.P.C. Which are as under:-- "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 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."
8. A plain reading of the above provisions of law clearly suggest that the trial Court has the power to release the accused on providing sufficient security in order to prevent him from doing injury to himself or to any other person. Along side, the second part of the section also authorizes the Court to decline bail if considered appropriate in the circumstances of the case and to order the detention of accused in safe custody. It would, therefore, not be in the fitness of things to hold that the learned trial Court had no choice but to release the accused after receiving the medical report regarding his illness.
9. The record of the case reveals that the accused was directly charged for the murder of one person and injuring the other. He was arrested on 27-2-2005 i,e, the day of occurrence along with the crime weapon, which he was wearing on his person along with eight live bullets. The accused had also affirmed the place of occurrence as given in the site plan. The facts narrated in the F.I.R.
And also the perusal of various medical reports would not, therefore, prompt the entitlement of accused for release on furnishing of security or bonds as the case may be.
' Pertinently, the last of the aforementioned medical reports clearly suggests that the accused was comparatively better at the time of examination while he was still not able to defend himself in the Court of law. The report also recommended that the accused was to be kept in a secure place like prison.
10. In the light of what has been discussed above, the petition filed on behalf of the accused for release on bail fails and is accordingly dismissed. Before parting with the matter in hand, it is observed that the accused/petitioner, if so advised, shall be at liberty to move the learned trial Court for transfer of his detention to a place where better treatment for his ailment is available.