' MUHAMMAD HASHIM KHAN KAKAR, J.---Criminal Appeals Nos.157 and 158 of 2014 have been filed on behalf of appellant Naseebullah, a sick person, suffering from schizophrenia, convicted and sentenced by learned Special Judge, Anti-Terrorism Court-II, Quetta ("the trial Court") vide judgments dated 29th May 2014 ("the impugned judgments"), respectively passed in cases FIRs Nos.25 of 2011 and 37 of 2011 in the following manner: "FIR No.25 of 2011: i) under Section 364-A of the Pakistan Penal Code 1860 (P.P.C.) read with Section 6(2)(a) of the Anti-Terrorism Act 1997 ("the Act of 1997") to suffer rigorous imprisonment (RI) for life and to pay a fine of Rs.50,000/- (Rupees fifty thousand only), or in default whereof to further undergo four (04) months' simple imprisonment (SI); ii) under Section 302(b) of the P.P.C. Read with Section 6(2)(a) of the Act of 1997 to suffer RI for life with a fine of Rs.1,00,000/- (Rupees one hundred thousand only), in default whereof to further suffer eight (08) months' SI, and iii) under Section 376 of the P.P.C. To suffer ten (10) years and to pay a fine to Rs.20,000/- (Rupees twenty thousand only), or in default whereof to further undergo two (02) months' SI.
' The movable and immovable properties of the appellant were ordered to be confiscated in favour of the State and the aforesaid sentences were ordered to run concurrently, with the benefit of Section 382-B of the Criminal Procedure Code 1898 (Cr.P.C.)"
"FIR No.37 of 2011: i) under Section 367-A of the P.P.C. To suffer ten (10) years' RI and to pay a fine of Rs.20,000/- (Rupees twenty thousand only), or in default whereof to further undergo four (04) months' simple imprisonment (SI); ii) under Section 364 of the P.P.C. Read with Section 6(2)(a) of the Act of 1997 to suffer RI for life with a fine of Rs.1,00,000/- (Rupees one hundred thousand only), in default whereof to further suffer eight (08) months' SI, and iii) under Section 377 of the P.P.C. To suffer ten (10) years' and to pay a fine of Rs.20,000/- (Rupees twenty thousand only), or in default whereof to further undergo two (02) months' SI.
' The movable and immovable properties of the appellant were ordered to be confiscated in favour of the State and the aforesaid sentences were ordered to run concurrently, with the benefit of Section 382-B of the Cr.P.C."
' Since common question of law is involved in both the appeals, as such, we propose to decide the same through this common judgment.
3. It is case of the prosecution that the convict/appellant, after committing unnatural offence with Mehmood Ahmed, aged about 2/3 years and Zina with Bakht Bibi, aged about 1-1/2 years, committed their murders. After completion of formal investigation conducted by police authorities of Pashtoon Abad Police Station, Quetta, he was sent up to face trial before the trial Court. The trial Court, after conclusion of the trial in both the cases, convicted and sentenced the appellant, as mentioned above. The prayer in both the appeals is to set aside the impugned judgments and to proceed with the cases in accordance with the provisions governing the procedure of trial in those cases, where the accused person suffers from disease of unsoundness of mind.
4. After submission of police reports under Section 173 of the Cr.P.C. And, prior to framing of charge in both the cases, applications were filed to proceed against the convict/appellant under Section 464 of the Cr.P.C., as the convict/appellant was minor and of unsound mind. On 16th September 2011, the trial Court directed that the petitioner be committed to custody at Psychiatry Department, Sandeman Provincial Hospital, Quetta for treatment and detailed examination by the Balochistan Provincial Standing Medical Board ("the Medical Board"). The Medical Board was specifically directed to opine, if the accused was capable of standing trial or not. After treatment and a detailed examination, the Medical Board issued the Medical Opinion on 12th October 2011, which reads as under: "On the basis of recommendations of Head of Psychiatry Department Prof Dr. Ghulam Rasool that "accused Naseeb-ullah son of Habibullah was admitted in Jail Ward, Sandeman (P) Hospital, Quetta for observation and repeated mental status examination.
' In our opinion he is suffering from Schizophrenia. He is not of sound mind."
5. After receiving the aforementioned medical opinion of the Medical Board and examination by Professor Dr. Ghulam Rasool, Head of Psychiatry Department, the convict/appellant was ordered to be released on bail vide order dated 8th January 2013, subject to the following conditions: "The net shell (sic.) of the above detailed discussion and the opinion of Medical board twicly (sic.) i.e. 12/11/2011 and 14/11/2012 and time to Medical report of head of the department of Psychiatry Mr. Dr. Professor Ghulam Rasool about the mental status to applicant (sic.) prove that the applicant/accused is un-sound mind and suffering of Schizophrenia (sic.). The applicant/accused needed proper treatment care to which the relative are desirous to do so. In such circumstances and the dictum laid down by apex Courts (sic.), 1 am inclined to accept the bail application and released the applicant/accused on bail subject to furnishing bail bond in the sum of Rs. 3,00,000/- (Rupees three lass) or PR like amount to the satisfaction of this Court (sic.). The surety is directed to give an undertaking that he should take care of applicant so that he may not be able to cause injuries to himself or to any other person and keep him (accused) under strict observation. The relatives (sic.) father/brothers are strictly directed to submit treatment report in Court on monthly basis. The application is thereby disposed of."
6. The record reveals that due to non-availability of the requisite surety, the accused could not be released and learned trial Court directed the accused to face trial despite the fact that he was found to be suffering from Schizophrenia and a man of unsound mind. After completion of the trial, while convicting the appellant, the trial Court made the following observations: "16. I also agree with the statement of CW-1 and CW-2 to some extent, however, it is also an admitted feature of the case that the accused has committed the offence with his will, knowingly, deliberately and with the intention to satisfy and relax himself through sex with the minor, which fact is evident from his statement recorded under section 164. Cr.P.C. Produced in the court as Ex.P/3-B in other case, wherein he given all the detail of the occurrence as well as detail of another occurrence and offence, which he has committed, on the basis whereof the accused facing trail [sic.] was involved in case FIR No.37/2011 of PS Pashtoon Abad under section 364-A, 377 P.P.C, thus the accused has repeated his immoral act again, it means that at the time of commission of both the offences, the accused was well in sense and sound person, therefore, he to save his skin from the consequences, have adopted the ways which at the relevant time were correct and taken away the minor boy and girl to the unpopulated area and then committed offence with them and if at the time of commission of offence, the accused was not sound mind person, then how can the accused adopted all the ways, through which he was assured that in these ways he can commit the offence and can satisfy him sexually by saving his skin from the consequences. As the accused at the time of commission of offence was well sound mind person and tried his best to save himself from the legal consequences of the offences so committed by him, but on hue and cry of the minor Mahmood Ahmed, victim of other case, he was apprehended by PW-6/eye- witness of other case at the spot and then on his arrest, an other untoward incident came on record i.e present occurrence, whereby the accused had committed zina with a minor girl and then killed him [sic.] which fact even was not within the notice and knowledge of the police, but the accused himself has admitted and brought on record some facts of that case, as who [sic.] how and why could know about the incident of murder of minor girl at the hands of accused, which incident was disclosed by the accused himself in other case. Thus it can safely be concluded that the accused facing trial at the time of commission of offence and at the time of recording his statement before the PW-3 (Judi: Magistrate) under section 164 Cr.P.C. In other case was well within his sense and now the situation, therefore if according to statements of CW-1 and CW-2 he has lost his senses, and on the basis of statements of CW-1 and CW-2, the accused be released, then there is every apprehension of any other untoward incident and causing danger to the life of any one, as accused has repeated the offence. Further more, [sic.] since sufficient incriminating material available on case file and it transpired that the accused has also committed another offence of un-natural offence with a minor boy, due to which a case vide FIR No.37/2011 was registered at P.S. Pashtoon Abad Quetta, wherein the accused has also been nominated, thus it seems that the accused has repeated the crime of same nature and if, the accused even otherwise by considering the contention of defence counsel as well as statements of CW regarding unsound mind, is released/acquitted, then there is every apprehension, as stated above, that he may commit other heinous offence or cause any damage to any one and at the hands of accused the life of minors will be at stake. It is admitted fact that no one can look after the accused being unsound mind throughout day and night anywhere or for 24-hours, therefore, in such view of the matter, it would be just and proper to not give further opportunities for committing such offences by acquitting him of the charge on the basis of statements of CW-1 and CW-2, rather it will be just and proper to award him conviction by issuing directions to the MS Bolan Medical Complex for keeping the accused under medical treatment and look after as deemed fit: In this regard I am supported by the authority reported in 2005 PCr.LJ 1864 whereby it was observed that the appellant had merely set up a case of feign insanity and we would accordingly repel this plea."
7. After listening to learned counsel for the parties and having gone through the entire record Of the case, we are of the considered view that the trial Court resorted to a procedure, which is not permissible under the law and injustice has been done with a sick person, suffering from mental disease. It is an admitted feature of the case that, as per medical opinion of the Medical Board, the appellant was/is found to be suffering from Schizophrenia and a man of unsound mind. In such circumstances, the trial Court was required to follow the procedure, as envisaged in Chapter XXXIV of the Cr.P.C.
8. Chapter XXXIV of the Cr.P.C. Begins with Section 464 of the Cr.P.C, which provides procedure for inquiry by a Magistrate with regard to the fact of unsoundness of mind. A Magistrate, holding an inquiry, if has reason to believe that the person before him/her is of unsound mind and, consequently, incapable of making his defence, then he is enjoined upon to inquire into such unsoundness of mind and shall cause such person to be examined by a Civil Surgeon of the District or such other Medical Officer as the Provincial Government may direct. Such Civil Surgeon or Medical Officer is, thereafter, to be examined as a witness. Similarly, Section 465 of the Cr.P.C, on the other hand, provides for procedure in case of person of unsound mind tried before the Court of Session or High Court. Both the Sections are similar with a slight difference that the former relates to an inquiry before a Magistrate, while the latter relates to trial before a Court of Session. It may be added that both the Sections make it clear that in a trial before Magistrate or Court of Session, if the accused appears to be of unsound mind and, consequently, incapable of making his defence, then the Court shall, in the first instance, try the fact of such unsoundness of mind and incapacity and if satisfied in this regard, shall record the findings to that effect and shall postpone further proceedings. These Sections relate to unsoundness of mind at the time of inquiry or trial and not at the time of commission of the offence. Once the Court reaches to the conclusion that the accused facing trial is of unsound mind and, consequently, incapable of making his defence, the trial is to be postponed. As provided in Section 466 of the Cr.P.C, such a person may be released on sufficient surety being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person or for his appearance when required by the Court.
Needless to observe that the Court is also empowered to direct the accused to be detained in safe custody in such a place and manner as it may think fit, if the Court is of the view that the bail should not be taken or sufficient security is not given.
9. There is also another provision of law i.e. Section 84 of the P.P.C., which dealt with the question of incapacity at the time of doing the act charged. It is a substantive provision of law, which excuses the offence. The said Section reads as under: "84. Act of person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
10. A bare perusal of the above provision of law clearly postulates that the principles embodied in Section 84 of the P.P.C. Is based upon the Maxim, "actus non facit reum nisi mens sit rea" i.e. An act is not criminal unless there is criminal intent. It is the mandate of law that nothing is an offence, which is done by a person, who, at the time of committing an offence, by reason of unsoundness of mind, if incapable of knowing the nature of the act or that whatever he is doing is wrong or contrary to law. Once a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to get the benefit of aforementioned provision of law.
11. As stated earlier, prior to framing of charges, on the applications, the matter of determining the mental status of convict appellant was referred to the Medical Board and the report thereof clearly speaks that the appellant is suffering from Schizophrenia and he is not of sound mind. In the said context, Professor Dr. Ghulam Rasool was also examined as a Court-witness and, thereafter, the appellant was ordered to be released on bail. The application for grant of bail was also followed by another application under Section 265-K of the Cr.P.C. For his acquittal, which. Was dismissed by the trial Court by means of order dated 18th June 2013, on the following grounds: "The accused/applicant has repeated the crime of same nature and if at this stage, the accused/applicant is even otherwise by considering the contention of defence Council as well as statements of CW regarding unsound mind, is released/ acquitted, then there is every apprehension that the [sic.] he commits other heinous offence or cause any damage to anyone and at the hands of accused/applicant the life of minors will be at stake and it is admitted fact that no one can look after the accused/applicant being unsound mind throughout day and night or for 24- hours."
12. The record reveals that, after passing the said order, the trial Court, after framing of charges and recording of evidence, convicted the appellant, instead of resorting to the provision of Section 466 of the Cr.P.C., which reads as under: "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 the one in which bail may be taken or not, may release him on sufficient security being given that he shall properly take 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 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."