SARDAR MUHAMMAD SARFRAZ DOG AR, J. Since common question of law is involved in both the above- captioned revision petitions, therefore, this single order shall dispose of above titled revision petitions filed by the petitioners, namely , Muhammad Waqas and Rana Sardar Ahmad, respectively in terms of section 435/439, Cr.P.C. calling in question the vires of order dated 14.11.2017 passed by the learned Additional Sessions Judge, Khanewal, whereby the application filed by Muhammad Waqas petitioner for release of accused under section 466(1) Cr.P.C. read with section 475, Cr.P.C. and the application filed by Rana Sardar Ahmad petitioner for re- summoning of case file and start of proceedings, have been dismissed.
2. Before proceeding further to examine the crux of controversy involved, it will be appropriate to summarize the facts of these cases as under:-
(i) That initially Muhammad Waqas petitio ner in Crl. Revision No. 468 of 2017 along with his co-accused namely , Muhammad Ahsan alias Aashi, was indicted in case FIR No. F.I.R No. 169/2012 dated 30.6.2012 under sections 324/302/34 PPC at Police Station Makhdoompur District Khanewal with the accusation of committing the murder of Muhammad Shahbaz (deceased) young er brother of complainant Rana Sardar Ahmad and causing injuries to Azrar at about 8.00 p.m. on 30.06.2012, in the area of Chak AH/10 within the territorial jurisdiction of Police Station Makhdoompur District Khanewal, in the wake of previous friction.
(ii) That during the course of investigation, co-accused of the petitioner namely , Muhammad Ahsan alias Aashi was not arrested and was declared to be innocent, so to the etent of Muhammad Waqas petitioner report under section 173, Cr.P.C. was submitted and trial of the case was initiated against him. Whereas, complainant of case F.I.R being aggrieved and not satisfied upon the investigation of the police filed private complaint on 3.10.2012 before the Court of competent jurisdiction who summoned both the accused in private complaint. However , proceedings in the State as well as in the private complaint were being conducted simultaneously .
(iii) That during the trial, Muhammad Waqas (petitioner in Crl. Revision No. 468 of 2017) filed an application before the learned trial court with the assertion that he had lost his mental order and understanding, therefore, he be released under section 466 Cr.P.C. or he might be acquitted on the ground of lunancy within the meaning of section 470, Cr.P.C. The learned trial court after completion of all the codal formalities, vide judgment dated 30.09.2015 postponed the proceedings of the case within the meaning of sub-section 2 of section 464 Cr.P.C. and the petitioner (Muhammad Waqas) was directed to be shifted to mental Hospital/L unatic Asylum Lahore, for his treatment and safe custody , however , declined to release the petitioner on the ground of insanity .
(vi) That Muhammad Waqas petitioner being aggrieved by the above-said judgment of the learned trial Court dated 30.09.2015, preferred Criminal Revision No. 25 of 2016 before this Court, but the same was dismissed by this Court vide order dated 23.02.2017. Thus the petitioner (Muhammad Waqas) was constrained to file Criminal Petition No. 535 of 2017 before the August Supreme Court of Pakistan and the same was also dismissed through the order dated 5.6.2017, which is reproduced here-in-below:- "Instead of pressing this petition the learned counsel for the petitioner wishe s to withdraw the same so as to advise the petitioner to apply before the trial court under section 466 (1), Cr.P.C. seeking an order from the trial court regarding release of the petitioner on bail or sufficient security so that he could be taken care of by his father at his home till he recovers from his mental sickness and to appear before the trial court as and when the petitioner is required to do so. This petition is disposed of in these terms."
(v) That consequently , Muhammad Waqas petitioner filed an application under section 466 (1) Cr.P.C. read with section 475 Cr.P.C. for release of the petitioner and handing over his custody to his father Muhammad Aslam till he recovers from his unsoundness of mind, whereas, on the other hand, complainant Rana Sardar Ahmad also preferred an application for re-summoning of the case file and start of the proceedings, but both the said applications have been dismissed through the impugned order dated 14.11.2017, hence, both these revision petitions.
3. Heard. Record perused.
4. It emanates from the perusal of record that Muhammad Waqas Petitioner , who alongwith his co-accused namely , Muhammad Ahsan alias Aashi, was involved in case F.I.R No. 169/2012 dated 30.6.2012 under sections 324/302/34 PPC at Police Station Makhdoompur District Khanewal for committing the murder of Muhammad Shahbaz (deceased) and causing injuries to one Azrar , was found to be of unsound mind and incapable of making his defence by learned Additional Sessions Judge, Khanewal, who vide judgment dated 30.09.2015 postponed the proceedings and the Petitioner was directed to be shifted to Mental Hospital Lunatic Asylum Lahore in the following manner:- "11. For the reasons stated herein above, the proceedings of this case are hereby postponed within the meaning of sub-section 2 of section 464 Cr.P.C. and he is directed to be shifted to mental Hospital/Lunatic Asylum Lahore, for his treatment and safe custody . A separate letter is being issued to the District Polic e Officer , Khanewal for his safe shifting. Muhammad Waqas, accused shall be kept there till he recovers from his unsoundness of mind and in case of his recovery , the authority concerned shall inform this court through official corresponding including a certificate that he has recovered from unsoundness of mind and is capable of making his defence so that his trial may be resumed after summoning and shifting him to Central Jail Multan."
5. 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 Court was required to follow the procedure as envisaged in Chapter XXXIV of the Cr.P.C. which begins with Section 464 of the Cr.P.C. and provides procedure for inquiry by a Magistrate with regard to the fact of unsoundness of mind. On the other hand, Section 465, Cr.P.C. 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. Whereas, the instant case falls within the provision of section 466, Cr.P.C. which provide release of lunatic pending investig ation or trial, which for the sake of ready reference is reproduced herein- below:- "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 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 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 governments, by notification in the of ficial Gazette, make rules for carrying out the purposes of this Ordinance"}
6. A glimpse to section 466 (1), Cr.P.C. alluded above, provides that 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.
7. Likewise, 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, howeve r, 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 detai ned in a lunatic asylum, it shall be made in accordance with such rules, made under Lunacy Act, 1912.
8. So far as the contention raised by learned counsel for Rana Sardar Ahmad Complainant in his petition that Muhammad Waqas Petitioner is of sound mind and capable of understanding the proceedings against him is concerned, suffice it to observe that the learned trial court after following the procedure under the prescribed law has already declared the Petitioner Muha mmad Waqas as lunatic through judgmen t dated 30.09.2015 and the said judgment remained upheld up to the level of Hon'ble Supreme Court of Pakistan, thus, this contention being misconceived and based on surmises and conjectures cannot be taken into consideration. Even otherwise, it is trite that a conjecture has no place in criminal law whereas an inference plays an important role because the same is based upon a logical deduction from circumstances available on the record. From the facts and circumstances of the case, 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. It is settled by now that when the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all. Thus, this Court is of the considered view that the Petitioner 's case is fully covered by sub-section (1) of Section 466, Cr .P.C.
9. For what has been discussed above, Criminal Revision No. 468 of 2017 filed by Muhammad Waqas Petitioner is accepted and the order dated 14.11.201 7 passed by the learned Additional Sessions Judge, Khanewal to the extent of dismissal of application of the Petitioner for his release is set aside and as a sequel thereof, Petitioner is directed to be released in terms of sectio n 466 (1) Cr.P.C., where-under the release of the Petitioner on security has been provided in the following manner:- "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 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."
10. It is, thus, apparent that a simple surety bond for the appearance of the accused before the Court is altogether different from a bond obtained in terms of an order under subsection (1) of section 466, Cr.P.,C., where-under the surety binds himself---
(i) to take care of the lunatic properly;
(ii) to take care of the lunatic to prevent him from doing injury to himself;
(iii) to take care of the lunatic from doing injury to any other person, and
(iv) to produce him before the Magistrate or Court or such of ficer as the Magistrate or Court appoints in this behalf.
11. Having regard to the above, conditions laid down in subsection (1) of section 466, Cr.P.C., and keeping in view the gravity of the offence with which the Petitioner is charged, I am satisfied that the demand of the security in the sum of Rs. 1,00,000/- (Rs. One lac) is justifiable and proper .
12. Since, in the connected revision petition, Muhammad Waqas Petitioner has been released on provision of security , thus, no question arises for re-summoning of the case file and start of the proceedings of the case. As a corollary thereof, this revision petition bereft of merits is hereby dismissed.