1. ' This is an application in revision in respect of an order dated 4-5-1989 of learned Additional Sessions Judge, Rawalpindi holding Muhammad Fazal accused to be a chronic patient of schizophrenia and consequently incapable of making his defence, ordering his release on security and postponing his trial to a stage after his recovery to make defence. On 25-4-1988, accused armed with hatchet caused murder of one Ghulam Rasool. Occurrence was seen by eyewitnesses.
2. Murder was reported to the local police and a case under section 302, P.P.C. Was registered against the accused at Police Station Gujar Khan on the same day vide F.I.R.
158. He was arrested on 25-4-1988. While in police custody, accused led to recovery of the hatchet.
3. Police investigated the offence and submitted complete challan in Court for trial of the accused.
4. Challan appears to have been submitted in January, 1989. Copies of statements under section 265-C, Criminal Procedure Code were delivered to the accused on 9-2-1989.
5. ' On 4-1-1989, a petition was presented to the trial Court stating that the accused was a lunatic and for purposes of an enquiry into it, the case may be fixed for trial. Yet another application under section 466, Criminal Procedure Code for release on bail of the accused pending his treatment and recovery to stand trial was filed on 23-2-1989. On 26-3-1989, the trial Judge addressed a memo. To Medical Superintendent, Rawalpindi General Hospital, Rawalpindi for medical examination of the accused. It reads:-- "Memo.
6. ' The above-mentioned petitioner has made an application under section 466, Cr.P.C. For being released on bail on the ground that he is of unsound mind and incapable of making his defence as suffering from chronic schizophrenia since last many years.
7. ' He is presently being medically treated in this hospital since last few months. In order to commence his trial it is essential that first of all it should be ascertained as to whether he is having a sound mind and capable of making his defence and while keeping this purpose in mind it is desired that the petitioner Muhammad Fazil be got medically examined thoroughly by taking all the relevant tests by the concerned specialists like C.T., Scan of brain and if need be a Board be constituted to resolve and finally opine over the matter and thereafter a final report be sent to this Court on or before 16-4-1989."
8. ' Upon the above requisition, accused was examined by a panel of experts comprising of Dr. Tariq Saraf Psychiatrist, Dr. Iftikhar Registrar, Miss Iram Clinical Psychologist and Mr. Parvez Social Worker.
9. Professor M.H. Mubashar was also consulted who agreed with the assessment of the above panel of experts who gave opinion that the accused was suffering from chronic schizophrenia and was unfit to appear before the Court. This report is marked Exh.C.1. It reads:- "With reference to your endorsement on letter No, 280, dated 26-3-1989 from Mr. Abdul Hamid Khan Khattak, Additional Sessions Judge, Rawalpindi. Mr. Muhammad Fazil son of Abdul Chalk is admitted with us since 19-1-1989. He has been evaluated by a team of Psychiatrists, Clinical Psychologists and Social Workers. On Mental State Examination his mood is still blunt and has thought block and passivity phenomenon. His abstract thinking is also impaired and insight is also absent. He is suffering from Chronic Schizophrenia and is not fit to appear before the Court."
10. ' Another report on the mental state of the accused Exh.C.4, is also available on record. On receipt of the report Exh.C.1 Dr. Sohail Bakhsh was summoned to appear and make statement in Court. His statement was recorded on 25-4-1989. He was cross-examined by Deputy District Attorney and also the defence counsel. Thereafter, the case was adjourned to 3-5-1989 for hearing of arguments on the petition for bail. On the adjourned date, arguments were heard and impugned order was made. Its concluding part which sums up the result states:-- "For the aforesaid reasons by relying upon the report and the statement of the Doctor I hold that the accused being a chronic patient of schizophrenia was incapable to make defence or to face trial. Reliance is placed on PLD 1985 Kar.
594. Thus, in view of the provisions of section 466, Cr.P.C. Presently I release the accused on furnishing of security in the sum of Rs,30,000 with two sureties each in the like amount to the satisfaction of this Court. The sureties must be father and brother or any other close relatives of the accused who are directed that they should take care of the petitioner so that he may not be able to cause injury to himself or to any other person and to produce him in the Court when required.
11. The trial of the case is to commence only after the petitioner stands fully recovered of this disease."
12. ' Against postponing of trial and release of the accused on security till after his recovery from the alleged mental ailment, son of the deceased has come up in revision to this Court.
13. ' On behalf of the petitioner, his learned counsel Raja Muhammad Akram submitted that accused suffered from a mere pretended and feigned unsoundness of mind and consequent incapability to stand his trial; provisions in sections 465 and 466 were misconstrued and incorrectly applied; prosecution was not allowed an opportunity of rebutting the statement in the medical report to show that what was contained in it was insufficient to establish the unsoundness of mind of the accused and his incapacity to make defence. In support of the contentions, reference was made to cases of Santo Singh v. Emperor AIR 1926 Lah. 498, Emperor v. Sherdil Sher Baz AIR 1938 Pesh. 24, Abdul Hamid v. The State PLD 1962 (W.P.) Quetta 111. Learned Assistant Advocate-General expressed his inability to defend the impugned order and submitted that it was not in consonance with the requirements of law. Accused was represented by Malik Muhammad Nawaz Khan, Advocate who addressed the Court in support of the impugned order and relied upon the decisions in Ejaz Ahmed Malik v. The State 1980 P Cr. L J 1129 (Azad J & K), Munshi Khan v. The State 1983 P Cr. L J 778, Salimuddin v. The State PLD 1985 Kar.
594. Also submitted that prosecution claimed no right for producing evidence to disprove the plea of unsoundness of mind set up on behalf of the accused and was, therefore, estopped to find fault with the impugned order.
14. ' Facts have been set out above. Points emerging for decision are whether the provisions in section 465 have been correctly understood and appreciated and procedure applied was in consonance with mandatory requirements of law. It is agreed that upon the facts, section of law applicable is 465 Criminal Procedure Code. As solution to the problem posed for decision is to be sought within the framework of section 465, Cr.P.C., it shall be profitable to make a reference thereto. It provides:- - "465. Procedure in case of person (sent for trial) Court of Session or High Court being lunatic:--
(1) If any person before 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 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."
15. ' Section 466 which deals with release of the lunatic pending investigation or trial is a corollary of the aforenoticed section of law. Dealing with section 465, Criminal Procedure Code and different stages of procedure contemplated by it, a Division Bench of Calcutta High Court in Emperor v.
16. Durga Charan Sing AIR 1938 Cal. 6 had this to say:-- "It seems to us that the argument advanced in this behalf in favour of the accused person entirely overlooks the two different stages of procedure contemplated by section 465, Criminal Procedure Code. Section 465 of the Code contains the provision that if any person committed for trial before a Court of session appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury or the Court with the aid of assessors, shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied of the fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged. The first stage in the procedure laid down by the section is that it must appear to the Court that the accused placed on his trial was of unsound mind and incapable of making his defence. The next stage that was to follow when it appeared to the Judge that the accused was of unsound mind and consequently incapable of making his defence was that the fact of such unsoundness of mind and incapacity should be inquired into on the materials placed before the Court."
17. ' This view of Calcutta High Court was approved in Abdul Hamid v. The State PLD 1962 Quetta 111. At page 122 of the report, after reproducing section 465, Criminal Procedure Code, the Court observed:-- "The terminology of the section makes it plain that the Court is required to try the fact of unsoundness of mind or incapacity of making his defence with the aid of assessors, if it appears to the Court, at the trial, that a person committed for trial is of unsound mind, and consequently, incapable of making his defence. There are two stages in the section. The first stage is that it must appear to the Court that the accused, placed on trial before it, was of unsound mind and incapable of making his defence. The next stage is of trying the question of unsoundness of mind which has to follow the first stage namely, when it appears to the Judge that the accused was of unsound mind and incapable of making his defence. Then starts an enquiry into the second question, which has to be tried by the Court as a preliminary proceeding with the aid of the assessors."
18. ' At page 123, above view was reiterated in the following observations:-- "The first stage in the procedure laid down by the section was that it must appear to the Court that the accused, placed on his trial, was of unsound mind and incapable of making his defence. The next stage that was to follow, when it appeared to the Judge, that the accused was of unsound mind and consequently incapable of making his defence, was that the fact of such unsound mind and incapacity should be gone into on the materials placed before the Court."
19. ' Therefore, if the Court entertains any doubt about the sanity of the accused and his capacity to make defence, it is required to try the fact of unsoundness of mind and incapacity to make defence and this trial of the fact of unsoundness of mind is deemed to be part of trial of the accused before the Court. Phraseology in section 465, Cr.P.C. Is somewhat different from that stated in section 464, Cr.P.C. Therefore, whenever the Court has any doubt about the sanity of the accused produced before it for trial, it is its duty to try and determine the issue as a preliminary step to the hearing of the evidence on the main charge. Next point which comes up for consideration is of the parties, which ought to commence first and give evidence. In Emperor v.
20. Gopi Mohan Saha AIR 1925 Cal. 479, on this point, Pearson, J. Said:- "The only question is whether the prosecution or the defence has to begin. There have been various English cases cited, some of which incline to one view and some to the other. It appears to me that the most satisfactory method to adopt in this case is that if the enquiry is to be commenced under section 465 of the Criminal Procedure Code, it should be regarded, not so much, as has been stated in one of the cases, as the issue joined between the parties, but as a preliminary enquiry which is conducted for the satisfaction of the Court, and in that view I think the prosecution ought to commence and give their evidence."
21. ' In State v. Kochan Chellayyan AIR 1954 TC 435 side note D reads:-- "If the Judge entertains a doubt about the sanity, it will be for the prosecution to establish that the accused is sane and capable of making his defence."
22. ' For the above view, decisions reported in AIR 1924 Cal. 713, AIR 1925 Cal. 479 were approvingly referred to and relied upon.
23. ' In Manga v. Sarkar PLD 1963 Azad J & K 88, it was held:-- "The words 'shall in the first instance, try the fact of such unsoundness and incapacity and the words appearing in clause (2) of section 465 leave no manner of doubt that the question of unsoundness of mind and hence incapacity of the accused of making his defence shall be tried first and such trial shall be deemed to be part of the accused's trial before the Court. The onus of proof in such a trial that the accused is of sound mind is on the prosecution, and therefore, prosecution has to begin first and after the prosecution closes its evidence the accused is to be given chance to prove that he is of unsound mind and therefore, incapable of making his defence."
24. ' From the above, it appears that in case of doubt about the sanity of the accused and consequent incapacity to make defence, it is for the prosecution to first commence and give evidence upon the aforenoticed points. Trial can be postponed only if the Court after making necessary enquiry in terms of section 465, Cr.P.C. Holds that the accused was of unsound mind and incapable of making his defence. In the aforesaid enquiry, both the prosecution and the accused are entitled to produce evidence in proof or disproof about the sanity and the capacity of the accused to stand his trial and make defence. In Emperor v. Sheri Sher Baz AIR 1938 Pesh. 24, Almond J.C. Held that both sides i,e, prosecution and defence are entitled to lead evidence. After reproducing section 464, Cr.P.0 , learned Judicial Commissioner observed:-- "It is clear that the inquiry which is contemplated by this section is not confined to the examination of the Civil Surgeon alone and neither party contends that this is so. In fact learned counsel for the accused himself relies on a case reported in AIR 1933 Oudh 362 in which the accused was allowed to produce evidence to rebut the opinion of the Civil Surgeon. The question as to whether the prosecution could also produce evidence was not considered in that case, but in my opinion it would be contrary to all principles of administration of justice to allow one party to produce evidence and not allow the other party to do so. The learned Magistrate who passed the order of 13th November appears to have been under the impression that the evidence of the Civil Surgeon was evidence produced by the prosecution. It is clear that this is not so. The examination of the Civil Surgeon is a duty which is placed by statute upon the Magistrate himself and it is obvious that if one party can produce other evidence, both parties must be allowed to do so. It is further obvious to me that the burden of proving that the accused is of unsound mind and incapable of making his defence lies upon the accused and it is for him to lead evidence on the point in the first place and such evidence as is led on his behalf can be rebutted by the prosecution. I, therefore, set aside the order of the Magistrate dated 13th November and direct that he should examine the evidence produced on behalf of the accused in the first place and allow the prosecution an opportunity of rebutting it."
25. ' In the above case, opinion was expressed on two points, one that both parties are entitled to lead evidence and rebut each other's case and the second that it is for the accused first to commence and give evidence to prove that he was of unsound mind and incapable of making his defence and thereafter, the prosecution could give rebutting evidence. In regard to the view expressed on the second point, earlier case-law in which it was held that the onus lay upon the prosecution and it is for the prosecution to first commence and give evidence does not seem to have been referred to. In these circumstances, I shall prefer to be in safer company and respectfully agree with the views expressed on this point by the Calcutta High Court in two cases and approved in subsequent decisions of the Travancore-Cochin and Azad Jammu & Kashmir High Courts. Therefore, when the accused appears' to the Court of unsound mind and incapable to stand trial, it is first for the prosecution to commence and give evidence in support of his sanity and capacity to make defence. Trial of the case can be postponed only if the Court after making necessary enquiry in terms of section 465, Cr.P.C. Holds that the accused was of unsound mind and incapable of making his defence. However, whatever be the rule as to the initial burden of proof and right to begin and give evidence whether accused or prosecution, one thing is clear that an enquiry into unsoundness of mind of the accused and his consequent incapacity to stand trial was bound to be made in accordance with section 465, Cr.P.C. As a preliminary step before taking evidence on the main charge and that in this enquiry, both prosecution and defence ought to be associated with full opportunity for leading evidence in support of their respective versions. It cannot be gainsaid that provisions of section 465 are of compulsory and mandatory nature. Their nonobservance must vitiate the conclusions made and the result reached. When the case is examined from this angle, it is evident that the enquiry held into state of mind of the accused and his incapacity to make defence was not in accordance with law. Learned trial Judge ought to have given an opportunity to prosecution to rebut the evidence of Doctor Sohail Bakhsh. I do not consider it necessary to B say what form the further enquiry ought to take place before the trial Court but it must be observed that the enquiry must be in accordance with the letter and spirit of section 465, Cr.P.C.
26. ' Having regard to what has been said above, I have no alternative but to set aside the impugned order and direct learned trial Judge to hold a fresh enquiry within the procedure contemplated by section 645, Criminal Procedure Code and record a formal finding as to the capacity of the accused for making his defence. Though I have set aside the impugned order in regard to the capacity of the accused to make his defence, yet I do not propose to interfere with the' consequential order releasing him on security and leave this question for consideration of the learned trial Judge.