After having been unsuccessful in obtaining the relief of post arrest bail from the learned subordinate court, by means of instant petition, the petitioner prays for the same relief, in a criminal case registered vide FIR No.345, dated 09.10.2017, offence under Sections 295-B PPC, with Police Station Sadar Jalalpur Pir Wala, District Multan, at the instance of respondent No.2/complainant.
2. Allegation against the petitioner , in brief, as per contents of the crime report is that on 09.10.2017 he desecrated/defiled the copies/text of Holy Qur 'an as well as extract therefrom by setting the same on fire.
3. Learned counsel for the petitioner while relying upon case titled Asghar Ali v. the State (1992 PCr.LJ 2083), case titled Yasir v. the State and another (YLR 2018 Peshawar 379), case titled Saifullah Khan alias Turab v. the State (PLD 2006 Peshawar 140) and case titled Ghulam Mustafa Waseem through Bashir Ahmad v. the State and another (PLD 2013 Lahore 643) contends that petitioner being a lunatic is not in a position to stand trial on account of his physical and mental health, hence, he may be released on bail.
4. On the other hand, learned Law Of ficer has opposed the above contentions.
5. In order to appreciate the contention of learned counsel for the petitioner in the light of case law cited by him, it will be appropriate to reproduce sections 464 and 466 Cr .P.C. as under:-
464. Procedure in case of accused being lunatic .(1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsound ness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the Provincial Government directs, and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing.
(1A) Pending such examination and inquiry , the Magistrate may deal with the accused in accordance with the provisions of section 466.
(2) If such Magistrate is of opinion that the accused is of unsound mind and conse quently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case.
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 securi ty 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 the 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. {The Lunacy Act, 1912 has been repealed through the Mental Health Ordinance, 2001 ((No.VIII of 2001); section 61 of the Ordinance ibid is reproduced infra:- "61. Repeal and saving .---(1) the Lunacy Act, 1912 (IV of 1912), is hereby repealed".
As a result of repeal of Lunacy Act through promulgating of Mental Health Ordinance, 2001, w.e.f. 20.02.2001, now the rules are to be made under section 59 of the Ordinance ibid which is reproduced as under:- "59. Power to make rules .---(1) The Federal Government may, in consultation with the Provincial governmen ts, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance". } Section 466 Cr.P.C. envisages that, during an inquiry or a trial, if the court, has a reason to believe that the accused is of unsound mind and consequently in capable of making his defence, the fact of unsoundness of mind of accused shall be inquired into and for this purpose the accused shall be caused to be examined by a civil surgeon of the district or any other Medical Officer, as the Provincial Govt. may direct. After medical examination of such person, the Medical Officer shall reduce the examination into writing. During the pendency of such inquiry or trial, the court may deal the accused in terms of Section 466 Cr.P.C. The consequential effect of the opinion of the Magistrate that the accused is of unsound mind and incapable of making his defence, a finding shall have to be recorded to this ef fect and the proceedings of trial postponed.
According to Section 466(1) Cr.P.C. whenever an accused person is found to be of unsound mind and incapable of making his defence, the magistrate or the court as the case may be whether (i) the case is one in which the bail may be taken or not, may release him on sufficient security being given that the accused shall be properly taken care of and shall be prevented from doing any injury to himself or any other person and for his appearance, when required before the Magistrate or court or such officer as the Magistrate or the court may appoint in this behalf.
Section 466(2) Cr.P.C. deals with a situation, where the court or the Magistrate is of the opinion that neither the bail of the accused should be taken, nor the sufficient security is given to the court or the Magistrate as the case may be, shall order that the accused be detained in safe custody in such place and manner, as he or it may think fit. A report, however, shall have to be made in this regard to Provincial Government by Court or Magistrate, stating the action taken. However, under this provision, in case the court consider it appropriate that the accused be detained in a lunatic asylum, it shall be made in accordance with such rules, made under Lunacy Act, 1912.
6. Initially , in pursuance of order of the learned Addl. Sessions Judge, Jalal Pur Pirwala, Multan conveyed vide letter No.14 dated 24.1.2018, the Medical Superintendent, Nishtar Hospital, Multan constituted Medical Board comprising of Dr. Naeem Ullah Leghari, Dr. Owais Kareem and Dr. Abrar Ahmad Khan as members and Dr. Abdul Rehman Qureshi, Medical Superintendent, Nishtar Hospital, Multan as Chairman on 06.2.2018 to examine petitioner and relevant portion of the report of the Medical Board No.PTS/Board/13281 dated 14.3.2018 (available on file as annexure-D) is reproduced as under:- "Based on the available facts it is inferred that Mr. Muhammad Waseem (petitioner) is suffering from mild to moderate learning disability (Mental retardation) with deficiency in adaptive function ing with Psychotic disorder and not sane at present ".
During the pendency of instant petition, in pursuance of order dated 17.1.2019 passed by this Court, report from the learned trial court, about adoption of procedure prescribed by section 465 Cr.P.C. has been resorted to or not was requisitioned and vide report No.17 dated 26.01.2019 was received from the learned trial court. A relevant portion out of the report is reproduced as under:- "Keeping in view the said report of Medical Board submitted to the court, Muhammad Waseem accused was insane and case was consigned to record room till his recovery of disease. Superintendent New Central jail, Multan was directed to shit the accused lunatic asylum or in any other hospital for his treatment with the direction that after recovery from the disease informed the court and request for restoration of his case".
7. After taking into consideration the report of the Medical Board submitted vide No.13281 dated 14.3.2018 and that of report of the learned trial Court submitted vide No.17 dated 26.01.2019, the law on the point as discussed above and the case laws relied upon by the learned counsel for the petitioner , this Court is of the view that the petitioner 's case is fully covered by Section 466 of Cr.P.C. From the above facts and circumstances prima facie it is observed that the petitioner at present is not mentally fit and is of unsound mind and so it is not possible for him to understand the proceedings of the trial. Under these circumstances, instant petition is allowed and petitioner is admitted to post arrest bail subject to his furnishing two solvent sureties in the sum of Rs.1,00,000/- (one lac each) each to the satisfaction of the learned trial court as surety bond obtained in terms of sub-section (1) of section 466 Cr.P.C. is altogether different from simple surety for appearance of the accused before a court. The persons who would offer themselves as sureties for the petitioner shall also be required to give an undertaking to the effect that they will keep the petitioner in safe custody, and that due care shall be taken of the petitioner even to the extent that they will prevent the petitioner from doing injury to even himself or to any other person. The sureties are further required to bind themselves that they will produce the petitioner before the court as and when directed and or called for, as provided under section 466, Cr.P.C.