TARIQ SALEEM SHEIKH, J.---This revision petition is directed against order dated 02.02.2021 passed by the Additional Sessions Judge, Phalia.
Facts
2. On 05.3.2018 Respondent No.2 lodged FIR No.59/2018 under sections 302/34, P.P.C. at Police Station Pharianwali, District Mandi Bahauddin, against the Petitioner and Waqas Mehmood accusing them of the murder of his son Wakeel Ahmad. Both the accused absconded and were declared proclaimed offenders. The police submitted challan for proceeding under section 512, Cr.P.C. The Additional Sessions Judge recorded evidence in terms of that provision and consigned the file to record vide order dated 11.07.2018. Subsequently , the Petitioner was arrested and indicted on 2.10.201 8. Albeit the court summoned prosecut ion evidence immediately after framing the charge, there was no progress in the trial until 27.6.2019 when the statement of Javed Iqbal/ASI (PW- 1) was recorded. Later the prosecution produced six more witnesses out of whom cross-examination of two is pending. Meanwhile, Waqas Mehmood joined the investigation. The police found him innocent and on 19.3.2020 submitted supplementary challan qua him placing his name in Column No.2. The court nevertheless summoned him but he did not appear despite issuance of coercive process.
3. Record shows that on 31.10.2019 the Petitioner made a complaint to the Additional Sessions Judge against the police for torturing him. The court ordered his examination by the District Standing Medical Board which reported two minor injuries that do not appear to be a result of any high-handedness. In December 2019, on the advice of the Jail Medical Of ficer and the District Psychiatrist, the {{FOOTNOTE}} McNabb v . United States, 318 U.S 332, 347 (1943) {{FOOTNOTE}} Superintendent of the District Jail, Mandi Bahauddin, moved the I.G. Prisons to shift the Petitioner to the Punjab Institute of Mental Health, Lahore (PIMH), for treatment. On 1.1.2020 he also sought the court's permission for this purpose which was accorded. It is not clear from the record whether the Petitioner was shifted to PIMH but it is observed that on 19.03.2020 he filed an application stating that he had become a "mental patient" due to ill- treatment by the jail authorities and prayed for an action against them. The court again constituted a Medical Board which examined him and observed various injuries on his body . On 15.12.2020, the Petitioner moved an application under section 466, Cr.P.C.2 for his release which was dismissed vide order dated 2.2.2021. Hence, this petition.
4. In a later development, this Court has been informed, the Additional Sessions Judge, vide order dated 27.2.2021, postponed the Petitioner's trial till his recovery while invoking section 465, Cr.P.C. As regards Waqas Mehmood, he observed that further proceedings against him were not required because evidence in terms of section 512, Cr .P.C. was already recorded.
Arguments
5. The learned counsel for the Petitioner contended that the trial court had misconstrued the provisions of section 466, Cr.P.C. Having held that the Petitioner was of unsound mind and incapable of making his defence, it ought to have released him on furnishing of the prescribed security . He argued that the impugned order was perverse and not sustainable.
6. The learned Law Officers assisted by the learned counsel for Respondent No.2 contended that an order to admit a mentally disordered person to bail was discretionary . In the instant case, the Additional Sessions Judge had lawfully exercised his discretion while directing that he should be sent to PIMH instead of releasing him on bail.
They argued that the impugned order was unexceptionable and this petition was misconceived.
Opinion of the Court
7. The International Bill of Human Rights, which contains the United Nations Charter , the Universal Declaration of Human Rights and the two International Covenants of Human Rights,' forms the foundation {{FOOTNOTE}} 2 The said application was filed under section 497, Cr.P.C. but the learned counsel for the Petitioner submits that it was actually under section 466, Cr .P.C. and should be dealt with accordingly .
3 International Covenant on Civil and Political Rights (ICCPR), and International Covenant on Economic, Social and Cultural Rights (ICESCR). {{FOOTNOTE}} of international human rights law. On 30 August 1955, the UN Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva, also adopted the "UN Standard Minimum Rules for the Treatment of Prisoners". These Rules were approved by the Economic and Social Council on 31 July 1957. After a revision process the last edition, which is known as the Nelson Mandela Rules in the honour of the late President of South Africa, was adopted by the UN General Assembly on 17 December 2015.4
8. The international human rights law recognizes that the persons with disabilities must be protected. Lately , there is a particular emphasis on the people with mental disorders. The United Nations has adopted various declarations, thematic resolutions and guiding documents. The regional human rights systems in America, Europe and South Africa have applied additional protections to such people in their respective geographical zones.5 Declaration on the Rights of Mentally Retarded Persons (MR Declaration)
9. In 1971, the UN General Assembly adopted the "Declaration on the Rights of Mentally Retarded Persons" which proclaimed that an intellectually or developmentally disabled person has, to the maximum degree of feasibility , the same rights as other human beings and they cannot be restricted without due process that "must contain proper legal safeguards against every form of abuse." Article 6 of the MR Declaration stipulates that if a mentally retarded person is prosecuted for an offence, he shall have right to due process of law with full recognition being given to his degree of mental responsibility . Article 7 provides that every person with an intellectual disability has a right to an evaluation of his social capability by qualified experts. Further , any determination of incompetence must be subject to periodic review and to the right of appeal to higher authorities.
Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (MI Principles)
10. The United Nations designated the years 1983 to 1992 as the "Decade for Disabled Persons." In 1991, the General Assembly adopted the MI Principles which entitle the persons with mental illness to a number of civil and political rights. They inter alia guarantee the right to {{FOOTNOTE}} 4 http://en.m.wikipedia.org 5 Lawrence Gostin and Lance Gable, The Human Rights of Persons with Mental Disabilities: A Global Perspective on Application of Human Rights Princip les to Mental Health, 63 Md. L. Rev. 20- 121 (2004). Available at : http://scholarship.law .georgetown, edu/facpub/98/ {{FOOTNOTE}} "best available mental health care and protection from discrimination on the ground of mental illness." Principle 4 lays down the canons for determination of mental illness. It reads: Principle 4 Determination of mental illness:
1. A determination that a person has a mental illness shall be made in accordan ce with internationally accepted medical standards.
2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.
3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community , shall never be a determining factor in diagnosing mental illness.
4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.
5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.
Principle 20 deals with the rights of criminal of fenders, including convicts and suspects. It is reproduced hereunder: Principle 20 Criminal offenders:
1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.
2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fulles t extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.
3. Domestic law may authorize a court or other competent authority , acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility .
4. Treatment of persons determined to have a mental illness shall in all circumstan ces be consistent with Principle 11.
The MI Principles have been recognized as "the most complete standards for the protection of the rights of persons with mental disability at the international level"' and "are a useful interpretive guide to United Nations and regional human rights conventions."'
Standard Rules on the Equalization of Opportunities of Person with Disabilities (the Standard Rules) and the Declaration on the Rights of Disabled Persons (the Disability Declaration)
11. In addition to the MI Principles, the United Nations has adopted various non-binding disability-specific instruments, including the Standard Rules and the Disability Declaration. Although they do not specifically target at mental disabilities, they apply to any person with any type of disability . According to Lawrence Gostin and Lance Gable,' they have significant practical importance. The Standard Rules particularly address certain areas which are not considered by the MI Principles. They write: "The developments of disability rights under the Standard Rules and throug h the activities of the Special Rapporteur are highly relevant to the rights of persons with mental disabilities. Bengt Lindqvist, the Special Rapporteur on Disability from 1994-2002, has stated that the Standard Rules do not systematically address the needs and rights of persons with developmental and psychiatric disabilities. Yet, the Standard Rules give guidance on active participation in society not addressed in the MI Principles. Lindqvist has commented that the Standard Rules and MI Principles are complementary and that both should apply to persons with mental disabilities."' {{FOOTNOTE}}
6. Victor Rosario Congo v. Ecuador , Case 11.427 (Inter-American Commission on Human Rights Report 29/99) 12 March 1997.
7 See note 5, ibid.
8. See note 5, ibid. 8 interm! citations omitted. {{FOOTNOTE}} They further argue: ... [The Standard Rules and the MI Principles] establish international human rights norms by creating a baseline of fair and decent treatment of persons with mental disabilities. The MI Principles in particular have been described as creating `minimum United Nations standards for the protection of fundamental freedoms and human and legal rights of persons with mental illness.' The Principles formalize the rule that international standards trump inconsistent local practices that do not meet human rights standards.. The guidance provided by international principles similarly provides States with a standard to evaluate their own level of compliance with international human rights norms on mental disability .'
Convention on the Rights of Persons with Disabilities (CRPD)
12. The CRPD and its Optional Protocol (A/RES/61/106) was adopted by the United Nations General Assembly on 13 December 2006 and was opened for signature on 30 March 2007. "It takes to new height the movement from viewing persons with disabilities as 'objec ts' of charity , medical treatment and social protection to viewing persons with disabilities as 'subjects' with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of the society . The Convention is intended as a human rights instrument with an explicit social dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to person with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.""
13. Article 13 of CRPD obligates the State Parties to ensure effective access to persons with disabilities and Article 14 guarantees them the right to liberty and security . The UN Committee on the Rights of Persons with Disabilities, the monitoring body of the CRPD, has held that the persons who are deemed unfit for trial due to an intellectual or psychosocial disability cannot be detained indefinitely in prisons or psychiatric facilities without being convicted of a crime and for periods to internal citations omitted. {{FOOTNOTE}} https://www .un.org/development/desaidisaltilities/convention-on-the-rights-of-Persons-with-disabilities.html {{FOOTNOTE}} that can significantly exceed the maximum period of custodial sentence for the of fence.'
14. Pakistan has ratified core internation al human rights treaties/conventions that cover diverse areas, including civil and political rights, the rights of children, women and persons with disabilities:3 On 5 July 2011 she ratified CRPD. The general rule is that the provisions of a treaty are not automatically incorporated into municipal law and a country's legislature must enact law to implement them. In Pakistan, even where such legislation has not been passed, the courts are required to interpret and apply every statute, as far as its language admits, in accordance with the principle of comity of nations and established rules of international law. Reliance is placed on The Hanover Fire Insurance Company v. Messrs Muralidhar Banechand (PLD 1958 SC 138), Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate, and 9 others v. Federation of Pakistan through Secretary , M inist of Kashmir Affairs, Islamabad and 3 others ( 1999 SCMR 1379 ) and Human Rights Case No.29388-K of 2013 ( PLD 2014 SC 305 ).
15. The insanity defence, also known as the mental disorder defence, is an affirmative defence in a criminal case whereby the accused claims exemption from criminal liability for his act on episodic or persistent psychiatric disease." Legal definitions of insanity or mental disorder are varied, and include the M'Naghten Rule, the Durban Rule, the 1953 British Royal Commission on Capital Punishment Report, the American Legal Institute Model Penal Code Rule, and the International Classification of Disease of the World Health Organization. The legislatures of various countries have also defined these terms while making laws. In Pakistan, the Mental Health Ordinance, 2001, defines the terms "mental disorder", "mental impairment", "severe personality disorder", "severe mental impairment" and "mentally disordered prisoner". After the passage of the 18th Amendment, when "Health" became a provincial subject, the said Ordinance was adopted by the provinces.
16. The insanity defence is recognized by section 84 of the Pakistan Penal Code which was enacted as far back as 1860. Chapter XXXIV (sections 464 to 475) of the Criminal Procedure Code, 1898, provides protection to the accused suffering from mental disorder at the time of trial. Section 464, Cr.P.C. deals with trials before a Magistrate while {{FOOTNOTE}} 12 UN Committee on CRPD, Concluding observations on initial report of Australia, 10th Session, 2-13 September 2013, CPRD/AUS/CO/l, available at https://www .refworld.org/docid/52805bcb4.html 13 Manual on Mental Health and Mens Rea, Justice Project Pakistan, p. 37 14 http://e;Lni.wikipedia.org {{FOOTNOTE}} section 465, Cr.P.C. relates to the Court of Sessions and the High Court. They are reproduced below for ready reference:
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 unsoundness, 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 of ficer 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 ef fect and shall postpone further proceedings in the case.
465. Procedure in case of person sent for trial before Court of a Session or High Court being lunatic. ---(1) If any person before a Court of Session or 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.
17. The philosophy behind the above provisions can be explained by the following extract from an article by Sam Parker:15 "It has long been a fundamental principle of the common law that a person confined on a criminal charge cannot be tried, sentenced or punished for such crime while he 'Is in such state of idiocy , imbecility or insanity as to be incapable of understanding the proceeding or making his defence. The reasons for this rule at common law were that it was contrary to natural justice to try a man who could not make a defence due to present insanity , {{FOOTNOTE}} 15 Sam Parker , Determination of Insanity in Criminal Cases, 26 Cornell L. Rev. 375 (1940). Available at: hup://scholarship.law .cornell.edu/cIr/vol26/iss3/6 {{FOOTNOTE}} although he might have one, or to sente nce a man when he might have someth ing to say in his own behalf of arrest judgment were he not mentally disordered."
18. Sections 464 and 465, Cr.P.C. have been considered by the courts in various cases. However , in Safia Bano and another v. Home Department, Government of Punjab through its Secretary and others (PLD 2021 SC 488) a Larger Bench of the august Supreme Court of Pakistan restated the law as under: i) The terms "reason to believe" and "appears to the court" used in sections 464 and 465 Cr.P.0 are synonymous and refer to a tentative opinion which has to be formed for the purpose of decidin g whether or not to enquire into the issue of capability of the accused to face trial as a question of fact. ii) Whenever the trial court is put to notice, either by express claim made on behalf of the accused or through court's own observations, regarding the issue of incapability of accused to understand the proceedings of trial and to make his/her defence, the same shall be taken seriously while keeping in mind the importance of procedural fairness and due process guaranteed under the Constitution and the law . iii) The terms "reason to believe" and "appears to the court" in. the context of sections 464 and 465, Cr.P.C. are to be interpreted as a prima facie tentative opinion of the court, which is not a subjective view based on impressions but one which is based on an objective assessment of the material and information placed before the court or already available on record in the police file and case file. While forming a prima facie tentative opinion, the court may give due consideration to its own observations in relation to the conduct and demeanor of an accused person. iv) Failure of the parties to raise such a claim during trial does not debar the court from forming an opinion on its own regarding the capability of an accused person to face the proceedings of trial. In such a situation, the court may rely on its own observations regarding the demeanor and conduct of the accused either before or at the time of taking a plea against the charge or at any later stage. The court may take note whether he/she is being represented by counsel or not and consider the material (if any) available on record which may persuade it to enquire into the capability of the accused to face trial. The court may assess the mental health condition of an accused by asking him/her questions. v) Once the court has formed a prima fade tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it becomes obligatory upon the court to embark upon conducting an inquiry to decide the issue of incapacit y of the accused to face trial due to mental illness. Medical opinion is sine qua non in such an inquiry . For this purpose, the court must get the accused examined by a Medical Board, to be notified by the Provincial Government, consisting of qualified medical experts in the field of mental health, to examine the accused person and opine whether accused is capable or otherwise to understand the proceedings of trial and make his/her defence. The report/opinion of the Medical Board must not be a mere diagnosis of a mental illness or absence thereof. It must be a detailed and structured report with specific reference to psychopathology (if any) in the mental functions of consciousness, intellect, thinking, mood, emotions, perceptions, cognition, judgment and insight. vi) The head of the Medical Board should be examined as Court Witness and such examination should be reduced in writing. Both the prosecution and defence should be given an opportunity to cross-examine him in support of their respective stance. Thereafter , if the accused wishes to adduce any evidence in support of his/her claim, then he/she should be allowed, to produce such evidence, including expert opinion, with the prosecution given an opportunity to cross-examine. Similarly , the prosecution may also be allowed to produce evidence which it deems relevant to this preliminary issue with opportunity given to the defence to cross examine. It is upon the consideration of this evidence procured and adduced before the court that a finding on this question of fact i.e. the capability of the accused to face trial within the contemplation of sections 464 and 465, Cr.P.C. shall be recorded by the court.
19. In the instant case, it is observed that the Additional Sessions Judge has not followed the procedure prescribed by section 465, Cr.P.C. A copy of the Medical Officer's Report Book available on record reveals that the jail authorities noticed aberration in the Petitioner's behaviour in January-February 2019. On 4.2.2019 and 15.2.2019, Dr. Ali Ghayas Tarar examined him in the District Jail, Mandi Bahauddin, and advised that he should be referred to PIMH for psychiatric evaluation. Meanwhile, he put him on medicines and started his counseling. On 26.12.2019 the Petitioner was examined by Dr. Waheed Razzaq, Consultant Psychiatrist, DHQ Hospital, Mandi Bahauddin, as there were complaints of his having low mood, loss of appetite, auditory hallucinations and suicidal thoughts. He also advised that he should be referred to PIMH. Between 4.2.2019 and 17.9.2020 (the day when the Petitioner was eventually examined by a Medical Board at PIMH) he was produced before the trial court on different dates and the statements of seven prosecution witnesses were recorded. However , neither the public prosecutor nor the jail staff drew its attention to the fact that he was having mental disorder . Strangely , even the court did not notice it and proceeded with the trial.
20. The Additional Sessions Judge referred the Petitioner to the District Standing Medical Board twice (on 4.11.2019 and 2.4.2020) when he comp lained of maltreatment by the jail staff. It is observed that both these referrals were for the limited purpose of examination of injuries and not for the one contemplated by section 465, Cr.P.C.
21. On 17.9.2020 the Petitioner was produced before a Medical Board of eight members at the PIMH for evaluation. The board found him suffering from paranoid disorder and opined that he was unfit to stand trial. It advised him medication and a review after three months. According to the learned Additional Advocate General, he is still under treatment.
22. After the receipt of the Medical Board's report dated 17.9.2020 the Additional Sessions Judge was required to examine its head as Court Witness, reduce his examination to writing and afford an opportunity to both the prosecution and the defence to cross-examine him and adduce evidence to rebut him. Under subsection (2) of section 465, Cr.P.C. the trial of the fact of the unsoundness of mind and incapacity of the accused prisoner is part of his trial before the court. Further proceedings in the case must be postponed if the court comes to the conclusion after following the said procedure that he is mentally unfit. The provisions of section 465, Cr. P.C. are mandatory .
Reliance is placed on Muhammad Naseem v. The State (1982 SCMR 754), Khan Baig v. The State (PLD 1984 Lahore 434), Abdul Wahid alias Wandi v. The State (1994 SCMR 1517 ), Sirajuddin v. Afzal Khan and another (PLD 1997 SC 847), Fauqual Bashar v. The State (1997 SCMR 239) and Safia Bano and another v. Home Department, Government of Punjab, through its Secretary and others (PLD 2021 SC 488 ).
23. The course adopted by the Additional Sessions Judge is not only contrary to law but has also prejudiced the Petitioner . Accordingly , in exercise of the powers conferred under section 439, Cr.P.C. read with section 561-A thereof, this Court must quash the proceedings qua him and direct his de novo trial. Order dated 27.2.2021 must also be set aside and the fact whether the Petitioner is of sound mind should be re-determined in accordance with law.
24. Now, I turn to the question of the Petitioner's release pending trial. Section 466, Cr.P.C. is relevant to the issue which says:
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 of ficer 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.
25. Section 466, Cr.P.C. has two sub-sections which deal with two distinct situations and end up with different consequences. As already discussed, sections 464 and 465, Cr.P.C. mandate that whether the proceedings are before the Magistrate or a trial before the Court of Sessions or the High Court, if a question about the legal capacity of the accused arises it must be determined in the prescribed manner forthwith. Section 464(1A), Cr.P.C. empowers the Magistrate to proceed under section 466, Cr.P.C. even when such determination is pending but this provision does not apply to the accused facing trial before the Court of Sessions. It must make that determination first. In the instant case, since the Petitio ner is being tried by the Sessions Court and I have held that the finding regarding his mental disorder has not been recorded in accordance with law, section 466, Cr.P.C. cannot be invoked at this point of time.
26. Every order under section 466, Cr.P.C. thereunder must be passed in the light of the jurisprudence discussed above and should be supported by reasons. In the instant case, the impugned order dated 2.2.2021 refusing to release the Petitioner , which the Additiona l Sessions Judge has purportedly made under section 466(1), Cr.P.C., is perfunctory and bereft of reasoning. It is thus liable to be set aside on this score as well.
27. In view of the foregoing, the case is remanded to the Additional Sessions Judge with the following directions: i) Orders dated 2.2.2021 and 27.2.2021 are set aside; ii) The proceedings qua the Petitioner are quashed and he shall be tried de novo. iii) The question as to whether the Petition er is of unsound mind and consequently incapable of making his defence shall be re-determined in accordance with the provisions of section 465, Cr.P.C. and. the judgment of the Hon'ble Supreme Court in Safia Bano's case, supra. The decision whether further proceedings in the case should be postponed or not would be taken after it. iv) The Petitioner's application under section 466, Cr.P.C.16 shall be deemed to be pending and the Additional Sessions Judge shall decide it afresh after determining the question of his legal capacity .
28. The petition stands disposed of.