' SYED HUSSAIN MAZHAR KALEEM, J. The above titled . Revision petition is directed against the order of District Court of Criminal Jurisdiction, Sudhnoti, dated 6-9-2007, whereby the petitioner was refused bail.
2. Brief facts forming background of the revision petition are that a case under section 302, A.P.C.
Was registered at Police Station, Pallandri against the petitioner on the complaint of Syed Nisar Hussain Shah. It was reported that Muhammad Farooq a driver by profession committed murder of Syed Naveed Hussain Shah by causing dagger injuries. The occurrence was witnessed by Wajid Hussain, Khalid Hussain and Dilshad Hussain. Motive behind the occurrence was a dispute over transport fare.
3. After registration of the case, the accused petitioner applied for bail on the ground that he was of unsound mind and incapable of making his defence and his case was covered by provisos maintained under subsection (1) of section 497, Cr.P.C. The application was refused through the impugned order. Hence this revision petition.
4. Learned counsel for the accused petitioner submitted that on the ground of ailment the accused petitioner was entitled to the concession of bail. Sufficient material to prove that he was of unsound mind and was incapable of making his defence was brought on record. The trial Court failed to appreciate that being a lunatic his case was covered by section 466 and provisos under subsection (1) of section 497, Cr.P.C. He submitted that the impugned order being incorrect and against law may be set aside and the petitioner be released on bail.
5. On the other hand, it was argued that no evidence to prove that the accused petitioner was of unsound mind and incapable of making his defence was brought on record. The trial Court in light of provision of section 464, Cr.P.C. Passed an order for constitution of Medical Board to examine the accused petitioner and submit a report but on the date fixed for examination, two members namely Dr. Khaliq Shaheen and Dr. Sharif-ul-Zaman could not arrive, consequently no opinion was given. He submitted that without obtaining report from the Board there was no lawful justification to allow the application. The impugned order being correct and in accordance with law needs no interference, therefore, the revision petition may be dismissed.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. It may be mentioned here that a Court, if there appears that an accused person is of unsound mind and consequently is incapable of making his defence, shall release him on bail but while considering the question, examination by merely putting questions to the accused is not sufficient and an expert opinion of a doctor or a board of doctors is also required for the purpose.
8. In the present case, the accused petitioner was examined by Dr. Shahid Iqbal Qureshi on 19-4- 2006 who opined that he was suffering from "SCHIZOPHRENIA." Feeling dissatisfied with the report the trial Court- ordered for a medical board to examine the accused petitioner, thereafter a Board comprising of Dr. Ghulam Mustafa Awan, Dr. Khaliq Shaheen and Dr. Sharif-uz-Zainan was constituted and 21-8-2007 was fixed for examination of the accused but two members of Board could not arrive thus, the petitioner was not examined on the date.
9. The trial Court while refusing bail observed that there was nothing on record in support of the claimed ailment and bail cannot be allowed without obtaining report from the medical board. Thus it implies that the expert opinion was necessary for disposal of the application and it was not appropriate for the trial Court to decide the same without obtaining report from the board.
10. In light of the facts listed above, the impugned order is set aside and the case is remanded with the direction that the accused petitioner shall be examined by the Board and trial Court shall decide the matter afresh after considering the opinion of the Board already constituted for the purpose.
' The revision petition is accepted in the terms indicated above.