1980 P Cr (PLP)

Rafique Mahmood Khan, Addl. A.‑G. assisted by Mujeeb‑ur‑Rehman for the Complainant. Date of institution : 18th November, 1979. This reference dated 30‑10‑1979, has been made by the District Criminal Court, Kotli, on account of difference of opinion on grant of bail to Ejaz Ahmad Malik accused, facing trial on the charge of murder of 11am Din deceased. The prosecution version is that on 13‑8‑1979 at 9.45 a. m., Ilam, Din deceased, a petition writer of old age, left his house for District Courts. He had covered 40/50 yards when the accused attacked him, thereby inflicting injuries on chest, abdomen and arms and finally cut the neck with Razor‑blade. The place of occurrence was a street leading to main bazar of Kotli city. The challan was submitted in the District Criminal Court on 24‑9‑1979 and the trial is at the stage of statement of accused under section 242, Cr. P. C. An application for grant of bail was made on 13‑9‑1979. Bail was sought on various grounds. The District Qazi was persuaded to allow bail on account c f sickness of the accused, whereas the learned Sessions Judge was not persuaded to agree with the reasoning of the District Qazi and rejected the application. Mr. Abdul Khaliq Ansari, appearing for defence, pressed for bail on sole plea of mental illness of the accused. It was urged that the accused was suffering from Schizophrenia, and needed treatment at Lahore as no adequate medial aid was available in Azad Kashmir. In support of his case, Mr. Ansari cited 1972 P Cr. L J 1041, 1970 P Cr. L J 1128, 1969 P Cr. L J 63, 1969 S C M R 289 and 1979 P Cr. L J 1104. In case 1972 P Cr. L J. insanity was pleaded as defence. The question of insanity was considered in the light of merits of the case. Therefore, principle settled in that case would not apply to the terms of bail. In all other cases, bail was allowed to accused persons facing charge of murder, on the grounds of old age and sickness Mr. Mujeeb‑ur‑Rehman, the learned counsel for the complainant opposed grant of bail on the alleged ground and pointed out that by seeking bail on account of ailment of Schizophrenia, the accused was trying to build up a case of ultimate defence. In his view, concession of bail would strengthen the defence version. He further argued that the trial Court may be directed to try the fact of insanity as envisaged by section 465, Cr. P. C. Unless such an inquiry was made, the question of bail be kept in abeyance. He supported his view by P L D 1960 Lab. 111, P L D 1962 S C 472, A I R 1938 Pesh. 24, A I R 1940 Sind 161 and 1968 SCMR

73. It is on record that the accused, a young practising lawyer, suffered head injuries in an accident at Rawalpindi in 1976. Thereafter, he was given treatment by various specialists. Lately, Prof. Muhammad Rashid Chaudhary, a Professor of Psychiatry, Mental Hospital, Lahore, was treating the accused. A plethora of Specialists' opinions and prescriptions was placed on record. Precisely, the accused was shown to have been suffering from Schizophrenia. The learned Additional Advocate‑General and the learned Counsel for the complainant were not in a position to refute it. Firstly, defence did not seek bail on the premises that the accused was insane at the time of occurrence and on such account was entitled to bail. If this would had been the approach of defence, I could have examined the proposition in that perspective. But Mr. Ansari, advanced the plea of current illness of the accused and very wisely did so. He was alive to the situation that bail would not be allowed on the ground directly teaching merits of the case. In this view, the first objection stands repelled. During arguments on 17‑12‑1979, I told the learned counsel of the parties that in view of sensitiveness of the ground of bail, I would confine to the present condition of illness. At this, the learned counsel agreed that Specialist may be directed to furnish report on latest condition of illness of the accused. Prof. Muhammad Rashid Chaudhary examined the accused for two days and submitted his report dated 8‑1‑1980, as under :‑ "(1) The accused Ijaz Ahmed Malik is no doubt suffering from psychotic illness (Schezophrenia) at the present moment. (2) The treatment cannot be given in the lock‑up. His condition is likely to become worse if he is detained longer in the Jail. (3) He certainly needs hospitalization. At the moment he should be admitted in the Government Mental Hospital, Lahore. As soon as his condition improves and he becomes manageable he can be trans ferred to Fountain House for future rehabilitation." On receipt of report, full arguments were made on the last date. Before coming to conclusion, I would like to deal with second point relating to inquiry under section 465, Cr. P. C. As suggested by Mr. Mujeeb‑ur -Rehman, the learned counsel for the complainant, an inquiry envisaged under section 465, Cr. P. C. is incumbent, if during trial it appears to the Sessions Judge or High Court, that the accused person is of unsound mind and consequently incapable of making his defence. In that case, question of bail shall be decided under section 466, Cr. P. C. In the case in hand, it neither appeared to the trial Court nor was so alleged that the accuse was of unsound mind and consequently incapable of comprehending proceedings. This being so, scope of inquiry under section 465, Cr. P. C. was eliminated. Moreover, the aforesaid provision related to trial. The intention of Legislature was to protect the right of defence of an accused in cases of insanity. Here, we are not confronted with a position like the one suggested by the counsel. The dicta in the aforesaid cases referred b by Mr. Mujeeb‑ur‑Rehman may be relevant to the decision on merits, but n guidance was available in matter of bail. Now, I come to the actual ground. The defence view is that the accused was currently suffering from Schezophrenia and needed immediate treatment and for this, the accused was entitled to bail. In addition to bail application, two other applications relating to illness of the accused were moved before the trial Court. No action was shown to have been taken by the Court. Another application was moved before the A. D. M., Kotli, on whose direction the accused was examined by D. H. O. Kotli, on 1‑9‑1979. The D. H. O. advised the accused to continue medicines prescribed by Prof. Muhammad Rashid Chaudhary. By pointing out this, it is just to show that there was evidence of the fact that the accused was suffering from Schezophrenia. As a precaution, the current condition of , illness was further ascertained by examination of the accused on 7th and 8th January, 1980. This was done in the interests of safe administration of justice. Bail in an offence punishable with `Qisas', death or life imprisonment, on the ground of illness, old age and infirmity could be allowed on strong evidence. A duty is case upon the Court to satisfy its judicial conscience by acquiring evidence on current condition of illness. Thus, in addition to evidence produced b the parties, court could direct for further evidence on its own. I a persuaded to hold that the accused is currently suffering from Schezophreni and needs treatment. This cannot be done unless he is released on bail.. In view of aforesaid observations, the reference stands answered. Thus, the accused shall be released on bail provided he furnishes bail bond in the sum of Rs. 1,00,000 (Rs. one lac) with two sureties, with his personal bond to the same amount, to the satisfaction of A. D. M. Kotli. Bail allowed.