MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Leave to appeal was granted on 17-4-1995 in the following words:-- "Brother of the accused, who is facing trial on the charge of murder in the trial Court, made an application in the trial Court raising plea that his brother is mentally deranged and is unable to understand the nature of the proceedings. Application was dismissed and in the High Court revision application was filed which also has been dismissed. Learned counsel for the petitioner has filed documents which show that the accused remained in the mental hospital for treatment.
Plea is rejected by the to Courts below on the ground that the accused does not claim to be insane and refuses to go for medical examination on the ground that he is normal. Question arises whether in such circumstances it was incumbent upon the Courts to have sent the accused for medical examination on the point whether he is insane or not or the Courts could decide this question on the basis of other attending circumstances of the case.
2. Leave is granted to consider the above contention. Proceedings in the trial Court are stayed until further orders. "
2. Fauqual Bashar, appellant, is the real brother of Zubair Hussain Malik who is facing trial before the learned Sessions Judge, Rawalpindi, on the charge of murder in case F.I.R. No.367 registered on 31- 10-1992 at Police Station, Bani, Rawalpindi. The appellant, being real brother of the accused, moved an application on 17-11-1994 before the learned Sessions Judge, seized of the trial, for suspension of the trial and examination of the accused as to his soundness or otherwise of his mind. The learned trial Judge declined the plea on the grounds, firstly, that according to the accused, "he can understand trial and he is not of unsound mind in any manner" and, secondly, that" he does not want to be examined by doctor because he is not an ailing person." Feeling aggrieved, the appellant challenged this order before the High Court, Rawalpindi Bench, Rawalpindi. A learned Judge in Chambers of the High Court "found desirable to have the point of view of Khan Mushtaq Ahmad Khan, Advocate, who was defending the accused in the lower Court... Who stated that he never found Zubair Malik as being (mentally) deranged or of unsound mind and during the entire period of to years, he had been associated with the trial and that the said accused had been instructing him properly". The documents relied upon on behalf of the accused did not impress the learned Single Judge in order to advance the appellant's case in any manner. On the evidentiary value of these documents, it was observed as under:-- "One is the cancellation report prepared by the S.H.O. And the facts contained therein are hardly evidence in the matter. As far as order of Additional Sessions Judge directing the Superintendent Jail to send Zubair Malik to Mental Hospital is concerned that appears to be ill---advised order without support of any material and as such cannot be considered as being the evidence of the fact that Zubair Malik is a person of unsound mind. The trial in the case has almost concluded now and for the last to years the trial Court or the defence counsel never found any sign of insanity or lunacy in the accused. As such the petition is considered to be without merit and is dismissed."
3. Malik Rab Nawaz Khan, learned counsel appearing on behalf of the appellant, invited our attention to a number of documents in support of the plea that the accused was suffering from the disease of "Schizophrenia" including a photo copy Annexure ' A' of Discharge Slip dated 18-12-1991 issued by Unit-D of Government Mental Hospital, Lahore, photo copy Annexure ' B' of a certificate issued by Professor Muhammad Rashid Chaudhry, S.I. Chairman, Fountain House Foundation Trust, Lahore, a directive dated 15-1-1991 photo copy placed at page 28 of the Paper Book, by a learned Additional Sessions Judge, Lahore, for shifting the accused from Jail to Mental Hospital within three days or else to appear before him and explain as to why he should not be shifted to the said Hospital, photo copy of F.I.R. No.364 registered on 17-9-1983 under section 506, P.P.C. Lodged by the accused himself and; a photo copy of an official communication dated 13-3-1995 from the Superintendent Central Jail, Rawalpindi, to the learned Sessions Judge, Rawalpindi. According to Malik Rab Nawaz, a serious plea of continuous insanity having been raised, the learned trial Judge ought to have enquired into the unsoundness of mind of the accused and his consequent incapacity . To stand trial in accordance with section 465, Cr.P.C. As a preliminary step before taking evidence on the charge. Reliance was placed on: (1), Noor Jehan v. The State (PLD 1980 Peshawar 103), (11) Muhammad Naseem v. The State (1982 SCMR 754), (i.e) Tariq Zaman v. The State (PLD 1986 Peshawar 27) and (iv) Said Rasul v. Muhammad Fazil and another (1990 PCr.LJ 210).
4. Sardar M. Ishaq, learned counsel appearing on behalf of the complainant duly assisted by Mr..
Karam Elahi Bhatti, learned counsel representing the State, on the other hand, relied on the precedents reported as (i) Ata Muhammad v. The State (PLD 1960 (W. P.) Lahore 111), (ii) Abdul Hamid v. The State (PLD 1962 (W.P.) Quetta 111) and (i.e) Mubarak Ali v. Muhammad Hachi Miah (PLD 1967 Dacca 701) to contend hat the trial Court has to make an inquiry only when it finds that there is reason to believe that accused is of unsound mind. It was further submitted that there was no provision of law in this country making it incumbent upon the trial Court to order medical inquiry upon a defence of insanity and that as provided under sections 465 and 466, Cr.P.C., the issue of insanity must be tried before the trial for the offence is proceeded.
5. In context of insanity, the state of mind of an accused person, firstly, at the the of occurrence and, secondly, at the the of inquiry of trial is a question of fact. When a-Court is confronted with the question during an inquiry or trial, whether or not an accused is of unsound mind and incapable of understanding the proceedings against him, it has to take action under sections 464 and 465, Cr.P.C. According as one or other is attracted to the case. In order to appreciate the controversy, the to sections are reproduced below:-- "464.--(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 Local Government directs, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.
(1-A) 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 consequently incapable of making his defence he shall record a finding to that effect and shall postpone further proceedings in the case. "
465.--(1) If any person committed for trial 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 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.
(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. "
In Ata Muhammad's case supra, a fine comparison of the to provisions was drawn by this Court in paragraph 12 of the report which is as under:-- "In cases of trials before the Court of Session or a High Court, if it appears to the Court at the trial that an accused person is of unsound mind and consequently incapable of making his defence, the Court, in the first instance, has to try the fact of such unsoundness and incapacity and the trial of this question shall be deemed to be a part of the trial under subsection (2) of section 465 of the Criminal Procedure Code. The legal position which emerges from the to sections is that under section 464 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 Magistrate 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. The phrase 'to appear' in my judgment used in the context of section 465 in its meaning is nearest to the phrase 'to be in one's opinion' as given in the Shorter Oxford Dictionary."
It was further observed in Ata Muhammad's case and which we are inclined to reiterate that "in a trial in the Sessions Court, an accused person may feign insanity, but if it appears to the Court, that it is unable to detect the simulation that the, accused may be of unsound mind, the question has to be tried as a fact and medical evidence on the point would, of course, be an indispensable necessity". No doubt, the opinion of the learned Judges of this Court in Ata Muhammad's case further is that where the Court sees that insanity is a feigned one, it has simply to ignore it.
Nonetheless, we are in no doubt that where it does not appear to the Court at all from its own observations or any other factor that the accused is because of unsoundness of mind incapable to make his defence, it is under no obligation to investigate the fact of unsoundness of mind.
6. But the appellant's plea before the Courts below and reiterated before us lends full support from the judgment of this Court in the case of Muhammad Naseem v. The State (1982 SCMR 754) wherein it was observed as under: -- "It seems, apart from the petitioner's interest/grievance, a plea of insanity having been raised with some material in support of it, it would be in public interest to examine this aspect of the matter.
Indeed, the learned Additional Sessions Judge had proceeded to examine the case under section 466, Cr.P.C. But he dropped the matter on the asking of the learned counsel for the petitioner. As this aspect of the matter relating to the plea of insanity for the purpose of the provisions contained in section 466, Cr.P.C. Has not been finally concluded, we feel that if so advised, the petitioner can still make an application under the said provisions. It would be competent for the Court concerned, keeping in view, the gravity of the matter (alleged insanity) either to at under subsection (1) or subsection (2) of section 466, Cr.P.C."
We are further inclined to approve the principles of law laid down by the Lahore High Court in Said Rasool v. Muhammad Fazil and another (1990 PCr.LJ 210) that a trial of the case can be postponed only if the Court after making necessary inquiry in terms of section 465, Cr.P.C., holds that the accused was of unsound mind and incapable of making his defence and that whatever be the rule as to the initial burden of proof and right to begin and lead evidence either by the accused or prosecution, it is clear that an inquiry into unsoundness of mind of the accused and his consequent incapacity to stand trial has to be made in accordance with section 465, Cr.P.C. As a preliminary step before taking any evidence on any charge and that in this inquiry both the prosecution and defence ought to be associated with full opportunity for leading evidence in support of their versions.
7. We have no doubt that the provisions of section 465, Cr.P.C. Are of compulsory and mandatory nature and that omission to observe the provisions thereof would vitiate the conclusions made and the result reached.
8. We would now examine the authorities cited at the bar on behalf of the private respondent opposing the plea raised on behalf of the appellant We have already noticed that Ata Muhammad's case supra does not advance the case of the private respondent. Conversely, as has been discussed, it supports the case of the appellant. In Abdul Hamid v. The State (PLD 1962 (W. P.)
Quetta 111) mere making of an application on behalf of a person committed for trial, that he was of unsound mind, was held to be insufficient to necessitate the holding of an inquiry unless it appears to the Court that the accused may be of unsound mind and when it so appears, an inquiry is necessary and the question whether the accused person is of unsound mind or not and incapable of making his defence, has to be decided with the aid of the assessors. In our considered opinion, the facts of this case are clearly distinguishable. Besides, the principle laid down therein runs counter to what had been held by this Court in the case of Ata Muhammad supra wherein it was held that if the Court of Session is unable to detect the simulation that the accused may be of unsound mind, question has to be tried as a fact and medical evidence on the point would, of course, be an indispensable necessity. (Underlining is for emphasis). The trial Judge was unnecessarily impressed by the stance of the accused that he could understand trial and that he was not of unsound mind in any manner and further that he did not want to be examined by the doctor because he was not an ailing person. To say the least, it was hardly a correct approach to reach the conclusion on the mind of a "Schizophrenic" person. This admission of the accused by itself should have put the trial Court on caution who ought to have referred him for medical examination/keeping him under observation of a qualified Psychiatrist. The learned Judge in Chambers of the High Court, on the other hand, was influenced by the opinion of the learned counsel appearing on behalf of the accused in the lower Court. We can well-imagine that the that might have been made available to the learned counsel for the accused in the lower Court for consultation would have been very short. In our view, therefore, it could not have been possible for the learned counsel to have formed an opinion on the insanity or otherwise of the mind of the accused and in any case it could not be taken to be one of the factors for reaching a conclusion on the soundness or otherwise of the mind of the accused.
9. In the instant case, the Court of Session has not come to the conclusion that the insanity is a feigned one perhaps because it was not the accused himself who had pleaded it but it was the brother of the accused. In so far as the ratio in Mubarak Ali's case supra is concerned, there is no cavil with the proposition that under section 464, Cr.P.C. The Magistrate has to make an inquiry only when he finds that there is reason to believe that the accused is of unsound mind and that in a case before the Court of Session question of insanity will be enquired into it "appears to the Court" that the accused is of unsound mind. In the case of Ata Muhammad supra the reasons for the belief of the Magistrate were held to be based on his own observations from the conduct of an accused person before him or other factors including evidence that led to the unsoundness of the mind of the accused person. (Underlining is for emphasis). In the present case, therefore, besides observation from the conduct of a person accused herein, the other factors including the evidence in this case are the documents referred to in para. 3 ante which had not been adverted to at all by the learned trial Court but one or to of this had only been referred to by the learned Judge in Chambers of the High Court. We are, therefore, of the considered view that the provisions of section 465, Cr.P.C. Which are of mandatory nature have not been observed by the learned trial Judge as also by the learned Single Judge in the High Court resulting in the conclusions made and the result reached. When the case is examined from this angle, that no substantial inquiry was held into the state of mind of the accused and his incapacity to make defence was not in accordance with law.
Photo copy of Annexure ' A' of Discharge Slip dated 18-12-1991; that of Annexure ' B' of a certificate issued by Professor Muhammad Rashid Chaudhry S.I. Chairman, Fountain House Foundation Trust, Lahore; the directive dated 15-1-1991 made available at page 28 of the Paper Book from the learned Additional Session Judge, Lahore for shifting the accused from Jail to the Hospital; photo copy of F.I.R. No.364 registered on 17-9-1983 under section 506, P.P.C. Which were brushed aside by the trial Court without sufficient reasons ought to have been considered "as any other factor including the evidence" the terminology used in the case of Ata Muhammad supra. Having not examined the case in this context, the learned trial Judge has erred to refuse to refer the accused for medical examination/keeping under observation with particular reference to the documentary evidence alluded to by us in para. 3 ante.
10. As a sequel to what has been held above, we have no alternative but to set aside the impugned order and direct the learned trial Judge to hold a fresh inquiry within the procedure contemplated by section 465, Cr.P.C. And record a formal finding as to the capacity of the accused for making his defence.