P L D 2011 Lahore 153 (PLP)

IJAZ AHMAD CHAUDHRY, J.

Through this revision petition filed under sections 435/439, Cr.P.C. read with section 561-A, Cr.P.C. the petitioner has challenged the order dated 22-5-2010 passed by the learned Sections Judge, Mianwali through which he has dismissed the application submitted by the petitioner during pendency of his trial in case F.I.R. No.258 registered at Police Station Mochh, District Mianwali on 22-12-2009 in respect of an offence under section 302, P.P.C. while observing that the trial of the petitioner could not be stayed on the plea of lunacy put fourth by the petitioner.

2. The learned counsel for the petitioner contends that the petitioner is a patient of hypomania disease and is unable to defend himself during his trial. The petitioner has appended sufficient documentary evidence in support of his lunacy but the learned trial court has remained unable to properly appreciate such evidence. The discharge certificate issued by the Pakistan Army, requiring the petitioner to leave his job on the basis of his lunacy, has exclusively determined unsoundness of the petitioner but even then the learned trial court has not put worthy reliance upon such document. Thus, the impugned order dated 22-5-2010 is not sustainable in the eyes of law and the same may be set aside.

3. On the other hand the learned Additional Prosecutor-General and the learned counsel for respondents No.2 have opposes the revision petition and contended in unison that the petitioner is involved in a murder case and the plea of insanity has been taken to avoid from trial otherwise, the petitioner, after leaving Pakistan Army had contracted marriage in the year 1991 and enjoying his matrimonial life. During the interegnum he has been actively participating in execution of mutations for selling and purchasing land in revenue department. The learned counsel for respondent No.2 has also referred some criminal cases to establish that the petitioner has been leading a normal life.

4. I have heard the learned counsel for the parties and gone through the documents appended with this revision petition as well as the case law produced before this Court. The petitioner is an accused person in case F.I.R. No.258 registered at Police Station Mochh, District Mianwali on 22-12-2009 in respect of an offence under section 302, P.P.C. and during the trial he has submitted an application for postponement of the trial on the ground that the petitioner was suffering from "hyponamia" and, thus, a lunatic person. I have carefully examined the documents, which are photocopies submitted by the petitioner in support of his lunacy and observed that the learned trial Court has rightly disbelieved the same because they do not suggest whether the disease carrying by the petitioner was permanently suffering from insanity, thereby, incapable of making his defence or not. On the other hand the documents produced by the learned counsel for respondent No.2 before the learned trial court relating to some transaction in Revenue Department reflected an impression that the petitioner is quite of sound mind at present and he is fit enough to understand the proceedings of the trial pending before the learned Sessions Judge, Mianwali. Even otherwise the petitioner was relieved from Pakistan Army and thereafter he had contracted marriage in the year 1991 and till filing the application for postponement of his trial leading a normal life.

5. Another legal aspect of this matter is that the provisions of 465, Cr.P.C. should be adhered to if any accused, before the 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. Here in this case the learned trial court has ascertained the sanity of the petitioner by orally examined him, putting different question to check his prudence and found the answers to be relevant and rational rather abrupt/apt which shows that the petitioner is capable to undertake his defence. It is well-settled law that an inquiry 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. Reliance is placed of the case of Raja Aurangzeb v. The State 1968 PCr.LJ 1930.

6. Even otherwise no jurisdiction infirmity, illegality of approach, irregularity of procedure or perversity of reasoning has been pointed out by the learned counsel for the petitioner so as to warrant an interference in the jurisdiction and discretion exercised by the learned trial Court in dismissing the application of the petitioner. This revision is, therefore, dismissed. H.B.T./W-2/L Petition dismissed.