MUHAMMAD AMJAD RAFIQ, J.---Through this petition, Qudrat Ullah (Petitioner) has sought post arrest bail in case FIR No. 07 dated 12.02.2021 registered under sections 9(c)/15 of the Narcotic Substances Act, 1997 at Police Station ANF, Multan.
2. Claim of release on bail in case of recovery of contrabands weighing 144 kilograms Charas, 32.400 Kilogram Opium was tabled before this court on medical ground; report of concerned superintendent of jail was received with observation by medical expert and final say was in following words; "Mr. Qudrat Ullah is suffering from Paranoid Schizophrenta (Major Psychiatric illness)"
3. Learned Counsel for the petitioner states that petitioner has been languishing in jail since 12.02.2021 and the trial has not been concluded. His claim faced a counter argument put forth by learned Prosecutor ANF that disease allegedly suffered by the accused/petitioner is to be addressed by the learned trial court because it is not like other illness which could be gauged on the basis of physical catch carrying accurate diagnosis on the basis of pathological reports. As per report he is suffering from mental illness, dealing whereof is the domain of trial court to hold inquiry that if he is unfit to stand trial. It was vehemently objected to by the learned counsel for the petitioner while placing reliance on following cases reported as "Malik Muhammad Yousafullah Khan v. The State and another" (PLD 1995 Supreme Court 58), "Imtiaz Jawed v. The State" (PLD 2008 Kar. 522), "Muhammad Riaz v. The State" (2006 PCr.LJ 1459), "Imtiaz Ahmed v. The State through Speck Prosecutor, ANF" (2017 SCMR 1194), "Ghulam Raza v. Khud Bux and another" (2005 SCMR 1904), "Mian Manzoor Ahmad Watto v. The State" (2000 SCMR 107), "Sardar Amjad Ali Khan v. The State" (2009 SCMR 425), "Asif Ali Zardari v. The State" (1993 PCr.LJ 781) and "Yasir v.
The State and another" (2018 YLR 379).
4. Carefully examined all the case law, except one case all other relate to medical grounds on the basis of physical illness and there is no cavil to the proposition that bail can be urged on medical grounds. One case referred was reported as "Yasir v. The State and another" (2018 YLR 379) wherein some throw is found which would be discussed in later part of this order.
5. It was the thrust of learned counsel for the petitioner that this Court is authorized to release the petitioner on bail in view of Section 466 of Cr.P.C. because the petitioner is unable to stand trial and, in this respect, medical report is also available.
6. Before proceeding further it is appropriate that Section 465, Cr.P.C. should have been read before jumping into Section 466 of Cr.P.C. which is reproduced for reference as under: - "465 Procedure in case of person (sent for trial] before Court of Sessions 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 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 the 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."
This Section authorizes that Court of Session or High Court shall take the matter of unsoundness of accused only if case is being tried by these Courts and it is very much clear from the reading of said section that during trial such Courts shall also try the fact of such unsoundness and incapacity of an accused. Coming to the question of learned counsel for the petitioner that. section 466, Cr.P.C. authorizes the High Court to release the accused on bail is of prime consideration at this moment of time. For reference section 466, Cr.P.C. is reproduced 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 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."
The words "whenever an accused is found to be unsound mind and incapable of making his defence" are of worth value because an accused can be found as such only if the Court has tried the fact of his unsoundness and incapacity during the trial as mentioned in Section 465, Cr.P.C.
Therefore, Court of Session or the High Court shall only be authorized to release the accused on bail under Section 466, Cr.P.C. if they are the trial Courts and in no other case High Court can exercise powers under this section. Reliance of learned counsel for the petitioner on the case law cited above is not helpful in the sense that in the cases Hon'ble Supreme Court has granted bail on medical ground wherein accused was afflicted for physical disease whereas case reported as Yasir v. The. State and another" (2018 YLR 379) has also been examined which shows that the learned trial Court while exercising his powers under Section 466(2), Cr.P.C. has refused to release the accused on bail during the trial and that matter was agitated before the High Court and High Court in fact presumably in Revisional jurisdiction has observed that order of learned trial Court is not perfectly in accordance with law. Here in this case this is not the situation though the petitioner has approached the learned trial Court but not on this ground of his unsoundness or incapacity to stand trial due to disease of Schizophrenia which recourse is still open for the petitioner.
7. In the circumstances bail of the petitioner cannot be entertained under such sections of Cr.P.C. or on the ground of medical evidence when a special procedure has been prescribed in the Cr.P.C., for such like cases and even provision of bail is also available in said Chapter. The Hon'ble Supreme Court of Pakistan has also taken note of this serious issue in a case reported as Mst. Safia Bano and another v. Home. Department Government of Punjab through Secretary and others (PLD 2021 Supreme Court 488) and has directed that unsoundness or incapacity of accused or his mental illness should only be determined by a Board of Medical Expert. Therefore, learned trial Court has ample opportunity to obtain medical reports of the petitioner from the concerned Medical Board, try the fact of his unsoundness or incapacity and if it is satisfied that accused should be declared as un fit to stand trial then learned trial Court would be authorized to decide question of bail under Section 466 of Cr.P.C. Here in this case only an expert report conveyed through Medical Officer Jail is available which is deficient and cannot be used to exercise jurisdiction under Section 466 of Cr.P.C.
8. For what has been discussed above, this petition is dismissed. However, petitioner is at liberty to approach learned trial court for seeking initiation of process under Chapter XXXIV of Cr.P.C.