QALANDAR ALI KHAN, J:- Abdul Qudus, petitioner, moved this petition under section 497 (5) read with section 561-A Cr.P.C for cancellation of bail granted to accused/respondent No.2 and quashment of order dated 12.08.2013 passed by learned Additional Sessions Judge, Balakot, Camp Mansehra.
2. It was averred in the petition that on 15.03.2013, Mst. Razia Bibi (sister of the petitioner) lodged a report about murder of her mother, Mst. Zewar Jan by Awais, accused/respondent No.2, leading to registration of case under Section 302 PPC vide FIR No.117 dated 15.03.2013 at Police Station Balakot.
After investigation, complete challan was submitted for trial in the Court of learned Additional Sessions Judge, Balakot, Camp Mansehra, who, on 12.08.2013, on personal observation, sent the accused/respondent No.2 for psychiatric examination through medical board to be constituted by the Medical Superintendent, Government Mental Hospital, Peshawar; and after receiving report of the Standing Medical Board, accused/respondent No.2 was released on bail subject to furnishing security for his safe custody with direction to his brother (s) to furnish security bonds, as may be prescribed, to the satisfaction of the Court for safe custody of accused/respondent No.2 and for his production in the Court after one year on 10.07.2014.
3. The petitioner, being real son of the deceased, assailed the impugned order, inter alia, on the grounds that accused/respondent No.2 was directly charged for the commission of murder of Zewar Jan widow of Kala Khan; that neither the accused/respondent No.2 or his relatives claimed that the accused/respondent No.2 was lunatic, nor any previous record was brought before the Court; that the learned trial Court was under no obligation to investigate the unsoundness of mind of the accused/respondent No.2 because it was not pleaded by the defence; that report of Standing Medical Board was vague in nature, without mentioning condition of accused/respondent No.2 and whether he could be released on bail or his detention in jail was more proper; that in any case, if the accused was unable to defend himself, it was better to treat him in the jail premises than leaving him free to cause damage to the lives of others; and that no opportunity of hearing was given to the legal heirs of the deceased.
4. Arguments of learned counsel for the petitioner, AAG and learned counsel for accused/respondent No.2 heard, and record perused.
5. The impugned order dated 12.08.2013 has ostensibly been made under the provisions of sections 465 and 466 (1) Cr.P.C, which read as follows; "S.465. 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." (Emphasis provided)
"S.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."
6. It would, thus, be seen from perusal of the above provisions that trial of the fact of unsoundness and incapacity of the accused, in the first instance, is mandatory, and cannot be dispensed with under any circumstances. In this case, no such trial was conducted and simply on the receipt of report/opinion of the Standing Medical Board, nowhere containing opinion to the effect that whether the accused is to be released on bail or his detention in jail was more proper, trial was postponed under section 465 and accused/respondent No.2 was released under the provision of section 466 (1) Cr.P.C. The learned trial Court neither examined the civil surgeon or medical officer as a witness, after receipt of the report/opinion of Standing Medical Board, before forming opinion about the mental state of the accused/respondent No.2, nor associated prosecution and complainant/legal heirs of the deceased with the requisite inquiry under Section 465(1) Cr.P.C.
Needless to say that only presence of APP for the State on the relevant date would not suffice, unless he was provided opportunity of hearing in respect of the report/opinion of the Standing Medical Board and about the factum of lunacy/unsound mind of the accused/respondent No.2. As such, to say the least, the impugned order suffers from illegality and material irregularity in view of judgments reported as PLD 1980 Peshawar 103, 1990 P.Cr.L.J 210, PLD 1993 Peshawar 151 and 1997 SCM R 239.
7. The learned counsel for the petitioner pointed out that even the impugned order dated 12.08.2013 has not been complied with and accused/respondent No.2 has not been produced before the Court in custody on 10.07.2014 by his brother (s), who stood sureties for the purpose and to whom safe custody of accused/respondent No.2 was handed over for his production in the Court after one year on the said date. It was claimed on behalf of the accused/respondent No.2 that because of his precarious condition, he has been admitted in the hospital and could not be produced before the Court as directed by the learned Court. On this, the learned counsel for the petitioner contended that the accused/respondent No.2 is not only charged for the gruesome murder of a sixty five years old lady as a result of a trivial dispute, but his confessional statement would amply reflect on his unruly and aggressive nature, which would render the order of his release on bail unjustified and uncalled for.
8. Consequently, on the acceptance of the petition, the bail granted to accused/respondent No.2 is cancelled and order of the learned Additional Sessions Judge, Balakot, Camp Mansehra dated 12.08.2013 is quashed, with the result, accused/respondent No.2 be taken into custody and produced before the trial Court for his re-examination by the same Standing Medical Board towards further proceedings according to the relevant provisions of law, of-course, while associating prosecution and complainant/legal heirs of the deceased with such proceedings.