SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant revision petition filed under sections 435 and 439, Cr.P.C. the petitioner has called into question the vires of order 14.03.2019, whereby learned Additional Sessions Judge, Wazirabad dismissed the application under section 466, Cr.P.C. filed by the petitioner/ accused for his release from custody during pendency of trial.
2. At the very outset, learned counsel for the petitioner submits that the petitione r is an accused in case FIR No 293/2017 dated 12.08.2017 under section 295-B, P.P.C. Police Station Alipur Chatha, District Gujranwala which is pending before - learned Additional Sess ions Judge, Wazirabad District Gujranwala. Further contends that on the application of petitioner , the learned Magistrate. Section 30, Wazirabad, conducted an inquiry to determine the mental health of the petitioner upon which a Medical Board was constituted comprising eight medical experts of Punjab Institute of Mental Health, Lahore who reported that the petitioner is suffering from Mental Disorder . Further contends that the petitioner filed application under section 466, Cr.P.C. for redressal of his grievance which was dismissed vide impugned order dated 14.03.2019 which is not sustainable in the eyes of law .
3. On the other hand, learned Law Officer opposes this petition. It is submitted that the Medical Board has not opined that the petitioner is unfit or incapable of defending and by no means mild mental retardation may be equated with lunacy rendering the petitioner incapable of making defence before the learned trial court.
4. Arguments advanced pro and contra have been heard and record available on file perused.
5. There is no denial to this fact that on the application of petitioner , the learned Magistrate Section 30, Wazirabad, ordered for constitution of Medical Board and as per report dated 19.07.2018 issued by Medical Board, Punjab Institute of Mental Health, Lahore, the petitioner is suffering from "Mild Mental Retardation" This Court vide order dated 26.06.2019 directed Executive Director , Punjab Institute of Mental Health. Lahore to re-examine petitioner through Medical Board and vide report dated 12.11.2019 issued by eight senior Doctors, the petitioner is found to be suffering from "Mild Mental Retardation". The report further reveals that the petitioner was examined/ assessed first time in O.P.D. on 07.10.2017 and still under observation of Consultant Psychiatrist Dr. Muhammad Waseem, Unit-E. It is noticed that the petitioner need proper treatment and the learned trial Court was required to postpone his trial under section 165, Cr .P.C. It would be advantageous to go through the same, which reads as follows:- "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 or 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."
So far as section 466, Cr .P.C. is concerned, which reads as follows:- "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.
(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"; In the case of "Arta Muhammad v. The State" (PLD 1960 West Pakistan 111), it was held, after drawing a fine comparison in sections 464 and 465, Cr .P.C. as under: The legal position which emerges from the two sections is that under section 464 of Cr. P. C. the Magistrate must have reason to believe that the accused person before him is of unsound mind and incapable of understanding the proceedings, and under section 465 it should appear to the Court at the trial that the accused person suffers from unsoundness of mind and thus, is incapable of making his defence. In either case the action is to follow the subjective reaction of the Magistrate or the Court to the situation that arises before him. If during the inquiry , nothing comes to the notice of a Magistr ate to induce a belief in him that an accused person is of unsound mind and if at the trial before the Sessions Court it does not appear to the latter that the accused is of unsound mind and consequently incapable of making his defence, there is nothing for them to do except to proceed with the inquiry or the trial in the normal manner . The words 'appear to the Court' are used in section 465 while the words 'has reason to believe' are used in section 464, but it is clear that in practical effect they mean almost the same thing.
It is noticed that after initiating proceedings under sections 464/465/466, Cr.P.C., if it is found that the accused- petitioner is incapable of making his defence then for what purpose, he should be kept in jail for indefinite period although section 466, Cr.P.C. is clear on the subject, thus, the denial of such a relief to the accused-petitioner is against the principle of natural justice.
6. According to Article 4 of the Constituti on of Islamic Republic of Pakistan, 1973, it is indefeasible right of every individual within the State to enjoy the protection of law and to be treated in accordance with law. No action with regard to the life, liberty body , reputation or property of any person shall be taken except in accordance with law.
Again under Article 9 of the Constitution, it is the foremost responsibility of the State to protect the life and liberty of every person residing its territory . Since the accused-petitioner is suffering from "mild mental retardation" and incapable of making his defence, therefore, his case is squarely covered under section 466, Cr .P.C.
7. For the foregoing facts and circumstances, the impugned order dated 14.03.2019 passed by the learned Additional Sessions judge, Wazirabad, District Gujranwala, is set aside and the petitioner be released subject to furnishing of security amounting to Rs.10,00,000/ to the satisfaction of learned trial court 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 learned trial court or such officer as the Magistrate or learned trial court appoints in this behalf. If the case sufficient security is not given, learned trial court, shall order the accused petitioner to be detained in safe custody in hospital for management and treatment under the control and supervision of Psychiatric for his rehabilitation.
7. Petition allowed.