Whenever, an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or the court under subsection (1) of Section 466 Cr.P.C................

 Whenever, an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or the court under subsection (1) of Section 466 Cr.P.C. as the case may be irrespective whether the case is one in which the bail may be taken or not, may release him on sufficient security being given “that the accused shall be properly taken care of and shall be prevented from doing any injury to himself or any other person and for his appearance, as and when required as the Magistrate or the court may appoint in this behalf. However, under subsection (2) of Sections 466 Cr.P.C, where the court or the Magistrate is of the opinion that the bail of the accused should not be taken, if sufficient security is not given to the Magistrate or the court as the case may be, shall order that the accused be detained in safe custody in such place and manner, as it may think fit under the law. A report, however, shall have to be made in this regard to Provincial Government by Court or Magistrate accordingly. Such order, under this provision, in case the court considers it appropriate that the accused be detained in a lunatic asylum, shall be made in accordance with such rules, made under relevant law.

It may be observed that since the insanity defence, which may be claimed by an accused facing a charge in a trial, has duly been recognized through Section 84 of PPC by the Legislature, stating that nothing is an offence done by a person, who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law, drawing a strength from the spirit ofmaxim “actus non facit reum nisi mens siti rea” an act is not criminal unless there is criminal intent, embodied by the legislature. It may be relevant to mention here that a trial of a case either under Chapter XX or XXI [Summary Trial] by a Magistrate or before High Court or Court of Sessions consisting of various procedural and substantive exercise including mainly the steps i.e. delivery of copies of statements of witnesses, option of pleading guilty of the charge by the accused or denial thereto while claiming trial, cross-examination over the witnesses either personally or through exercise of his right to be represented through a lawyer of his own choice, his examination under Section 342 Cr.P.C, examination of the accused himself as his own witness under section 340(2) of Cr.P.C and recording of evidence in his defence, requires his active participation, before deciding about the guilt or otherwise of the accused facing the charge, which definitely cannot be undertaken by a person of unsoundness of mind. Needless to observe that a trial of an accused facing charge of an offence, entails either into his acquittal or conviction, give rise to forereaching consequences on his life including his progenies, if any and his other relations. In case of certain individuals, the role they are destined to play depending upon the situation and their importance, in view of globalization of the world, the consequences may affect the society or the world at large. Moreover, a right of fair trial guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which in unequivocal words ordains that for determination of his civil right of obligation or any criminal charge against him, a person shall be entitled to a fair trial and due process, therefore, every trial Magistrate or the Judge as the case may be, has been enjoined to perform a more sensitive duty as an adjudicator. This Court is quite certain that the legislature to achieve its above highlighted objects legislated the special provisions contained in Chapter XXXIV followed by the Mental Health Ordinance, 2001 amended up to date, to regulate the procedure to protect the interest of the lunatics and has vested the powers of rule making in the Provincial Government for carrying out the purposes of the Ordinance ibid. Any omission resulting into a mistaken prima facie tentative opinion by a Court, about unsoundness of mind or otherwise of an accused facing trial may cause a serious prejudice to the accused may vitiate his trial ultimately, bringing the entire exercise of trial to a nugatory therefore would amount to defeating the celebrated wisdom of the legislation.

Crl. Revision No.33626 of 2023

Muhammad Ramzan Versus The state, etc