ملزم کے فاتر العقل ہونے کے عذر کی صورت میں اسکے فاتر العقل ہونے کے تعین، اسکی ضمانت اور ٹرائل کے طریقہ کار کے بارے میں لاہور ہائیکورٹ کا رہنما فیصلہ

  Voir dire (a trial within trial) is a necessity to assess the accused as of unsound mind.

Principle of fair trial and due process having its roots in our Constitutional framework set in Article 10-A is when juxtaposed to the provisions of Code of Criminal Procedure, 1898 (the Code) for trial of an accused on a criminal charge it requires not only the physical presence of accused as per Section 353 of the Code barring some exceptional situations like under Section 205 or 540-A of the Code but his mental presence is also essential otherwise trial would be a farce. The law requires that if any person is found as of unsound mind during his trial, case shall not proceed further until he is declared fit by the court concerned after conducting a thorough inquiry.

The section 465 CrPC requires the court to try first the fact of unsoundness and incapacity of accused to make his defence which means that ‘a trial within a trial’ would be conducted in order to ensure that accused understand the proceedings of trial against him so as to make the evidence admissible at trial. Such trial obviously includes the examination of witnesses produced on behalf of accused, report of a medical board including examination of doctors/expert and cross examination by the prosecution or the complainant on such witnesses and expert, and recording of any other evidence which the court considers necessary. After recording of such evidence court shall hear the parties and either pass an order as to the fact that accused is of unsound mind and incapable to make his defence or otherwise. As per Section 465(2) of the Code such record shall be part of his main trial before the court.

The concept of trial within a trial is known as “voir dire” pronounced as “vwa dear” a recognized term to try a fact within the trial. The meaning of voir dire is ‘to speak the truth’. In a trial there are certain primary facts which are must to be proved as condition precedent to the admissibility of certain items of evidence. For example, (i) where the prosecution proposes to adduce evidence of a confession made by the accused and defence object to its admissibility on the grounds that it was or may have been obtained by oppression of the accused or in consequence of anything said or done which likely, in circumstances, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be admitted except in so far as the prosecution proves to the court that confession was not obtained by such means; (ii) proof of a due search for the original of a lost document on the contents of which a party seeks to rely, a condition precedent to the admissibility of a copy of that document; (iii) if a party seeks to adduce a video clip or audio recording in the evidence, the question of its being genuine or nontempered shall be decided first before its admission to evidence; (iv) similarly, it may become necessary to show that a person is competent to give evidence as a witness or that a witness is privileged from answering a particular question. Questions of above kind are also matter of law for the judge. The preliminary facts may be agreed or assumed, but where they are in dispute, it is for the judge to hear evidence and adjudicate upon them. The witnesses give their evidence on a special form of oath knowns as a voir dire. The hearing before the judge is called hearing on voir dire or ‘a trial within a trial’.

All questions referred above are question of law in our law of evidence except confession made to a police officer or during custody of police as per Articles 38 & 39 of Qanun-e-Shahadat Order, 1984, however there is one exception for a confession made during police custody in cases triable under Anti-terrorism Act, 1997 (see section 21-H of said Act), therefore, voir dire process can be initiated in above situations. Likewise, for trying a fact of unsoundness of mind, a voir dire is to be preferred.

If after trying the fact of unsoundness of the accused, court comes to the conclusion that accused is of unsound mind, the court shall postpone further proceedings in the case and proceed to release the accused on bail or make an order that the accused to be detained in safe custody in such place and manner as it may think fit.

The procedure required under sections 465 & 466 of the code is mandatory which cannot be circumvented in any circumstances.

There are two situations which are met in chapter XXXIV of the Code for trial of an accused of unsound mind.

Law requires that if an accused is unable to defend himself during trial due to unsoundness of mind, he shall request the court to process his case u/s 465 of the Code; whereas if he is fit to face the trial but claims that at the time of commission of offence, he was unsound mind, he would be taken care of within the requirement of section 469 of the Code The above section requires that trial would proceed in a normal course led through prosecution evidence first including evidence of mental health of accused at the time of commission of offence and circumstantial evidence that spurs out from the mode and manner of committing such offence. Sanity is a rebuttable presumption, therefore, once the prosecution completes its evidence, the accused can lead the evidence to rebut the prosecution evidence as well as adducing anything favouring or supporting his plea. The law permits to claim such disability for diminished responsibility which is known as M’Naughton Rule, sometimes spelled McNaghten, the first legal test for criminal insanity. The rules so formulated as “M'Naghten's Case 1843 10 C & F 200” have been a standard test for criminal liability in relation to mentally disordered defendants in common law jurisdictions ever since, with some minor adjustments. The test originated in 1843 in England during the case against Daniel M’Naghten who shot and killed the secretary to the Prime Minister, Edward Drummond, believing he was the Prime Minister of UK, Robert Peel. During his arrest, M’Naghten claimed he needed to murder the Prime Minister because “the tories” were conspiring against him and wished to murder him. At trial, M’Naghten’s counsel put forth a defence of insanity, offering expert testimony and other evidence in support of this. Following instructions from the judge, the jury’s verdict was not guilty “by reason of insanity” and M’Naghten spent the rest of his life in a mental institution. After public outrage following M’Naghten’s verdict, a stricter test for criminal insanity was articulated. Under this M’Naghten test, all defendants are presumed to be sane unless they can prove that at the time of committing the criminal act, the defendant’s state of mind caused them to (1) not know what they were doing when they committed said act, or (2) that they knew what they were doing, but did not know that it was wrong. A common example for the second prong is if a person is acting on orders from “God.”

The M’Naughton Rule is incorporated in section 84 of Pakistan Penal Code, 1860 (PPC) falling in chapter dealing with general exceptions.

To prove inanity the accused would adduce evidence as required by Article 121 of Qanun-e-Shahadat Order, 1984 which shall include proceedings conducted u/s 465 of the Code in earlier round of trial, and burden to prove that plea would be on the accused as per principles of evidence required for proving any other general exception referred in PPC read with Article 121 ibid.

If the accused succeeded to prove the fact of his unsoundness of mind the trial court would proceed to acquit the accused and shall pass judgment in the terms keeping in view the requirement of section 470 CrPC.

Trial court is required to give specific finding as to whether accused committed the offence charged or not, and then would speak the fact about two aspects in either of the way it was found in the evidence, i.e., accused did not know that he was committing an offence, or alleged act was wrong or contrary to law. If it is concluded that accused has not committed the offence, he would be set at liberty but when an accused earns acquittal on the ground of insanity, he would still be kept or detained in safe custody as required under section 471 of the Code.

Whether a particular condition amounts to a disease of the mind within the Rules is not a medical but a legal question to be decided in accordance with the ordinary rules of interpretation. It seems that any disease which produces a malfunctioning of the mind is a disease of the mind and need not be a disease of the brain itself.

Law requires that after completing the process, finding the accused as of unsound mind, the court if does not think proper to grant bail to the accused under section 466(1) of the Code, it shall pass order for safe custody of accused as per section 466(2) of the Code.

Crl. Revision-Final Order-PPC
173-22
MUHAMMAD HANIF VS THE STATE ETC.
Mr. Justice Muhammad Amjad Rafiq
10-01-2023
2023 LHC 76