' MIAN FASIH-UL-MULK, J.--- The petition in hand has been brought with a prayer to review the order passed by this Court on 18-1-2010 in Criminal Miscellaneous No,439 of 2009.
2. Briefly stated the facts of the prosecution case are that Muhammad Tariq respondent has been charged vide F.I.R. No,682 dated 13-6-2004 under section 302/324, P.P.C. Registered in Police Station City Haripur and was behind the bars for more than five years. Bail petition (Criminal Miscellaneous No,439 of 2009) filed by brother of accused/respondent was allowed and respondent was directed to be released on bail mainly on the ground of ailment in the light of opinion of Medical Board consisting of two Psychiatrics, and other senior professors.
3. Learned counsel for the petitioner mainly contended that the opinion of Medical Board appears to be unrealistic and could be motivated in order to get the respondent released from the rigors of Jail. He also argued that section 466, Cr.P.C. Envisages grant of bail to accused suffering from mental disability but only after determination under section 465, Cr.P.C. By the trial Court. It was further contended that as the application of the respondent for bail was not decided after observance of proper proceedings under section 465, Cr.P.C. Therefore, the same was liable to be reviewed and the impugned order is to be set aside.
4. Learned counsel appearing for the respondent at the outset objected to the maintainability of the petition in hand and referred to section 369, Cr.P.C. In his view, there was no clerical error apparent on the face of the impugned order, therefore, the same was not reviewable. He also vehemently opposed the contention of the learned counsel for the petitioner in terms that the petition in hand could be treated and entertained under section 561-A, Cr.P.C. He maintained that the remedy under section 561-A, Cr.P.C. Was not available to the petitioner as he could have conveniently filed a revision petition under section 439, Cr.P.C. Against the order of trial Court passed under section 465, Cr.P.C. Or approach the august Supreme Court for cancellation of bail granted by this Court. It was further contended that the words used in section 465, Cr.P.C. "try the fact of such unsoundness and incapacity " would not mean as trial for recording of evidence but would be determination of unsoundness. The opinion of Medical Board shall be considered sufficient proof and compliance of requirement of section 465, Cr.P.C.
5. It will be convenient to properly appreciate the legal position involved in the case and for this purpose section 465, Cr.P.C. Is reproduced hereunder:-- Procedure in case of person sent for trial before 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.
' In the case of Khan Baig v. State PLD 1984 Lahore 434 it was observed in the following words:-- "Perusal of this section indicates that in a trial by Sessions, if it appears to the Court at the trial that the accused was of unsound mind and consequently, incapable of making his defence, the Court was duty bound under mandatory provisions of section 465, Cr.P.C., in the first instance to try the fact of such unsoundness and incapacity. This trial of the fact of unsoundness of mind and incapacity was deemed to be part of his trial before the Court.
6. Same view was reiterated in the case of Said Rasool v. Muhammad Fazal and another 1999 PCr.LJ
210. It was held that an enquiry into unsoundness of mind of the accused and his consequent incapacity to stand trial was bound to be made in accordance with section 465, Cr.P.C., as a preliminary step before taking evidence on the main charge and that in this enquiry, both prosecution and defence ought to be associated with full opportunity for leading evidence in support of their respective versions. It cannot be gain said that provisions of section 465, Cr.P.C. Are of compulsory and mandatory nature. Their non-observance must vitiate the conclusions made and the result reached.
' The learned Judge in the concluding para held " though I have set aside the impugned order in regard to the capacity of the accused to make his defence, yet the consequential order releasing the accused on security was not interfered with. (underlining is for emphasis.)
' The same view was approved in the case of Fauqual Bashir v. The State 1997 SCMR 239. It was observed in the following words:-- "We are further inclined to approve the principles of law laid down by the Lahore High Court in Said Rasool v. Muhammad Fazil and another 1990 PCr.LJ 210 that trial of the case can be postponed only if the Court after making necessary enquiry in terms of section 465, Cr.P.C., holds that the accused was of unsound mind and incapable of making his defence and that whatever be the rule as to the initial burden of proof and right to begin and lead evidence either by the accused or prosecution, it is clear that inquiry into unsoundness of mind of the accused and his consequent incapacity to stand trial has to be made in accordance with section 465, Cr.P.C., as a preliminary step before taking any evidence on any charge and that in this inquiry both the prosecution and defence ought to be associated with full opportunity for leading evidence in support of their versions."
7. Taking guidance from the cited judgments, if the petitioner, however, feels and so advised that the accused is not suffering from the aforesaid disease and is able to understand the Court proceedings, he can still make an application under the said provisions. It will be competent for the Court concerned keeping in view the gravity of the matter (alleged insanity) to associate both prosecution and defence with full opportunity for leading evidence in support of their respective versions.
8. Now considering the impugned order on the touchstone of section 369, Cr.P.C. And the case-law on the subject, it would be proper to first reproduce section 369, Cr.P.C. And thereafter discuss case-law. Section 369, Cr.P.C. Reads as under:- "Court not to alter judgment.--- Save as otherwise provided by this Court or by any other law for the time being in force, or in the case of a High Court, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error".
9. Their Lordships of the Supreme Court in the case of Gulzar Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 observed as under:--- Section 369, Cr.P.C. Does not control section 498, Cr.P.C. And in suitable cases section 561-A, Cr.P.C.
Can be invoked in the first place and order passed under section 498, Cr.P.C. Is not a judgment within the meaning of section 369, Cr.P.C. Moreover, section 369, Cr.P.C. Is in the chapter relating to ordinary trial and unless it is specifically applied to other proceedings under the criminal procedure code, it cannot be said to have any application to other proceedings. (underlining is for emphasis).
10. In another case reported as PLD 1977 SC 602, it was held:--- ' Order allowing or cancelling bail not a judgment within the meaning of section 369, Cr.P.C. It was further held that order already passed not to be interfered with lightly having due regard to probe of finality usually attracting the order passed by High Court in criminal cases.
11. The same view was once again reiterated in the case Qamar Mukhtiar Khan v. The State 2007 PCr.LJ 149 in the following words:--- "Certainly the trial Court possess the power of recalling and reexamining the witnesses and recording additional evidence if it appears to the Court essential for the just decision of the case.
But such power is meant to be exercised for deciding a case, and could not be exercised at bail stage for the simple reason that a bail application could not be equated with a criminal case, and an order passed on bail application would not be a decision or judgment as contemplated under section 369, Cr.P.C. As held by the apex Court."
12. It is evident from record that the petitioner did not raise any objection with regard to non- compliance of section 465, Cr.P.C. At trial stage nor agitated that the accused is not suffering from such disease. The learned trial Court passed the order of sine die adjournment on the ground of accused being unable to defend himself, nevertheless declined to release the accused on bail. The brother of the accused moved this Court for bail and once again, the complainant did not make any of the aforementioned objections. It is for the first time that such objections were raised in review petition filed under section 369, Cr.P.C. Read with section 561-A, Cr.P.C. The only contest found was that according to opinion of medical board his treatment can be made in the psychiatry department and therefore, the accused was not entitled to the concession of bail.
13. A plain reading of the impugned order suggests that the bail petition filed by the respondent was decided on the basis of available report of Medical Board and other connecting material regarding ailment of respondent besides his prolong detention waiting revival of his sine die trial case. This release order was tentative in nature and subject to furnishing of heavy surety bonds as well as fulfilment of conditions imposed through it.
14. It is further noticed that the provisions of section 369, Cr.P.C. Would not accommodate the petition in hand which in fact carries the prayer to review the bail granting order of this Court. It would also be not open to denial that the petitioner, at the relevant time, had a remedy available to him in terms of filing a petition before the august Supreme Court in case he was aggrieved of the impugned order.
15. For what has been discussed above, the petition in hand does not merit a favourable consideration, therefore, is accordingly dismissed.