1968 P Cr (PLP)

The background of this case has been narrated in the order disposing of the bail application filed by the petitioner (Criminal Miscellaneous No. 3951/68).

2. Stated shortly the prosecution case is that on 15th June 1968, at about 12‑30 noon, Brigadier Muhammad Abbas Abbasi, Amir of Bahawalpur, was fired at while he was returning to Flashman Hotel, Rawalpindi in his car from the National Assembly. The petitioner has been charged, in connection with this incident with an offence under section 307, P. P. C.

3. The petitioner submitted an application under sec tions 466(i) and 497, Cr. P. C. before the trial Magistrate that be ing of unsound mind and incapable of making his defence, he may be released on bail during the 'pendency of the proceedings. On behalf of the accused it was urged that he had been suffering from mental imbalance and had been under the treatment of Colonel Shoaib and, therefore, an enquiry should be undertaken in respect of his plea that he was incapable of making his defence on account of unsoundness of mind. The learned Magistrate did not agree, observing that Colonel Shoaib had examined the petitioner a long time ago, on 24‑10‑65 and all that he had noted was that the petitioner was a doubtful case of schizophrenia or schezoid personality. It was ‑also observed by the learned Magistrate that Doctor Shoaib simply suspected that the petitioner might be suffering from such a mental disease but he did not prescribe or administer the normal electric treatment as he was not definite about it. He also noticed the fact that the petitioner had never been treated for insanity before 24‑10‑65 or after that. The Magistrate also examined the petitioner in Court and finally held that "it can be safely concluded that the accused is quite of sound mind at present and he is fit enough to under stand the proceedings". It was accordingly held that there is:‑ "no ground for believing that the accused is of unsound mind and consequently incapable of making his defence."

4. The petitioner thereafter filed an application under section 435, Cr. P. C. before the learned Sessions Judge, Rawal pindi, for revision of the learned Magistrate's order which was rejected by the Additional Sessions Judge, Rawalpindi, vide his order dated 22nd July 1968. This is a Revision under section 439 of the Code of Criminal Procedure.

5. Learned counsel for the petitioner has addressed a lengthy argument before me in support of the Revision Petition. The learned Advocate‑General has been heard in reply.

6. The principles applicable to such cases are now, well settled. They can be conveniently summarised as follows:‑ (a) Before the provisions of section 464, Cr. P. C. can become applicable it must appear to the Court, before whom an accused is brought that the said accused is of unsound mind and consequently incapable of making his defence. (b) The Court is under no obligation to investigate the fact of soundness of mind which is ordinarily to be presumed. (c) An enquiry under section 464, Cr. P. C. shall not be held merely because the accused has made an application claiming that he is of unsound mind. This shall, on the other hand, only be undertaken where it appears to the Court, from its own observations or from any other factor, that the accused is incapable of making his defence because of unsound mind.

4. The circumstance relied for the grievance that an enquiry should have been held is based upon Doctor Shoaib's opinion. The mere fact that some three years ago, the petitioner had consulted a psychiatrist is not sufficient to show that the petitioner is of unsound mind today. What is to be seen is whether the petitioner at present is also of unsound mind and is riot capable of making his defence. The learned trial Magistrate asked questions from him and from his own observation reached the conclusion that the petitioner was not incapable of making his defence. I also had the occasion to question him as he was summoned in Court in connection with his application under section 498, Cr. P. C. and am inclined to agree with the observa tion of the learned trial Magistrate that he is capable of under taking his defence.

5. Since it did not appear to the trial Magistrate that the accused is of unsound mind and consequently incapable of making his defence he rightly declined to have him examined by a civil surgeon. His discretion does not appear to have been illegally or arbitrarily exercised. The upshot of this discussion is that the revision fails, which is hereby accordingly dismissed. Petition dismissed.