P L D 1995 Peshawar 121 (PLP)

Shaukat Hayat Khan for the State. Respondent No.2 in person. Abdul Latif Khan for Respondent No.3. Date of hearing: 5th April, 1995. Mashal Khan son of Mir Qalam Khan of Kotka Khod, Lakki Marwat was involved in the murder of Mir Nawaz through F.I.R. No.41, Dated 22‑6‑1985 of P.S., Ghazni Khel. He was suspected to be a lunatic and thereupon referred to a Medical Board, according to the report Annexure A whereof, the accused Mashal Khan was held to be a paranoid schizophrenia and not capable of understanding the proceedings of trial.

2. With the passage of time, the accused got involved in other cases and for so many reasons the Court of Session at Lakki Marwat was asked by the complainant party to resume the trial and to cancel the bail granted to g respondent No.l. It was refused vide orders dated 14‑9‑1994 and 25‑9‑1994 which, being an abuse of the process of the Court, are challenged before this Court under section 561‑A, Cr.P.C.

3. The Court never seemed to be fully alive to the contents of Chapter XXXIV of Cr.P.C. It did not examine the ingredients of section 464 and more particularly section 465 of the Cr.P.C. that pertained to the Court of Session. The Court also was not alive, to the subsequent provisions of law that related to the resumption of trial of a lunatic in case he is considered to be capable of understanding the proceedings.

4. It is quite evident that the Court in such eventualities shall try the fact of unsoundness and incapacity of the accused. Such trial is of any mode that satisfies the judicial mind of the Court about the unsoundness or otherwise of the mind of the accused. There are occasions when the unsoundness is temporary and the trial can be resumed during such lucid intervals of the accused. Such enquiry or trial is nowhere restricted to the sheer report of the Medical Officer or the Board and the Court may take into consideration any other independent factor or factors as well, particularly when a duty is cast upon the Court to see if the lunacy is real or feigned one. The possibility cannot be ruled out that an accused is trying to avoid the trial through feigned insanity.

5. All these factors cannot be determined unless all the attending circumstances are brought under consideration, unless the cases subsequently registered by and against the accused are looked into and unless the Doctors giving the report are examined and cross‑examined in Court, the expression of an Expert is a mere opinion which might or might not be accepted by the Court and such acceptance or rejection cannot be resorted to unless an elaborate enquiry is conducted. The impugned orders give an impression that the Court has taken the view of the Medical Board as a verdict for the life time. The learned Sessions Judge is not mindful of the fact that the accused could recover as well and could be tried after such recovery. According to him there was no fresh report of the Board before him but this view he has taken without referring the accused to the Board for second time despite the fact that more than seven years had passed when the accused was last examined.

6. The Courts while conducting such enquiry should be conscious of the intricacies and the delicacies involved on either side. The report of the Board be taken no more than the opinion of the Experts and same Medical Officers should be examined in Court as to what were the circumstances, technical or otherwise, under which they were capable of determining as to whether the lunacy was real or feigned. Mr. Muhammad Rustam Khan Kundi learned counsel for the complainant has quite logically pointed out that there are certain psychiatric diseases that require numerous interviews to be conducted with intervals in order to arrive at a definite conclusion. May be it is true but the same cannot be done without examining the Medical Officer of Officers.

7. The failure to appreciate the different aspects of the point involved and the failure td hold a thorough inquiry would give a latitude to a feigning accused to go without trial and this would be an abuse of the process of the Court. Accordingly, the petition is accepted and the learned Sessions Judge, Lakki Marwat is directed to hold a proper and thorough enquiry within the contemplation of Chapter XXXIV of, the Cr.P.C. and to examine also the Medical Officers of the Board so that they are cross‑examined to the satisfaction of the opposite‑party and also to the satisfaction of the Court. Mir Qalam respondent who happens to be the father of Mashal Khan accused and also his surety, is directed to produce the accused before learned Sessions Judge, Lakki Marwat on 20‑4‑1995 for further proceedings. N.H.Q./1780/P Petition accepted.