Criminal Appeal No.1067-P/2017
The Criminal appeal was filed before Justice Waqar Ahmed Seth in the Peshawar High Court. Mr. Hizar Hayat Daudzai, Advocate represented the Petitioner (Yasir) and the Respondents (The State and another) were represented by M/s Syed Qaiser Ali Shah AAG & Astaghfirullah.
The Petitioner, Yasir, son of Munir Khattak, involved in case FIR No. 235 dated 28.04.2014 under section 302 PPC registered at Police Station Tehkal, Peshawar was not released on bail on medical grounds and his trial had been postponed previously under section 465 Cr.P.C by the Additional Session judge, in the Peshawar order dated 15.5.2017. The current appeal was therefore made.
The charge against the Petitioner was that he murdered his aunt Mst. Saba Khan. The Court went through the report of the Standing medical Board, which examined the accused on 4.8.2016 and provided the accused to have a prolonged history of Chronic Psychiatric illness which was schizophrenic in nature. He had already been treated in different Government Psychiatric facilities and was being kept under observation in the detention Unit of the central prison in Peshawar. The prison reported him to remain ‘quarrelsome, impulsive, unpredictable, at times whispering and talking to himself, exhibiting hallucinatory behavior, not cooperating with the jail staff and refusing to eat’. The prison had also concluded that he could not be kept in other jail barracks.
The Standing Medical Board was finally of the opinion that the accused still suffered from schizophrenia, a major mental illness and since he was at risk of harming himself , he needed treatment in a secure unit similar to the detention unit he was then being held in. He was being provided with anti-psychotic medication and mood stabilizing drugs by the medical staff of the Prison and a local hospital. His mental state was being reviewed and recorded by a psychiatrist, periodically. The Board planned to review him after one year and was of the view that during the appeal, the accused was incapable of understanding the nature of his crime, its consequences and the proceedings before the court and was therefore unfit to plead in a court of law.
Section 466 Cr.P.C states that whenever the accused is found to be of unsound mind and incapable of making its defence, the Magistrate or Court, regardless of the fact that the case is one in which bail may be taken or not, may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from injuring himself or any other person. The court while employing this provision stated that denial of a bail would be in contravention with the universal principal of justice. The court highlighted the fact that the accused was incapable of defending himself or to make sense of the proceedings he was a subject of, and relying on sec.466 Cr.P.C. linked in art.4 of the constitution of Pakistan which mandated every individual to be treated in accordance with the law. The Judge specified that the trial court was not justified in refusing the accused’s bail on medical grounds despite the existence of the chronic medical illness described above. Placing the accused within the protection of sec.466 of the Cr.P.C., the appeal for bail was granted by the court.
The bail was granted with a bail bond of Rs. 700,000/- and two sureties; the Court stated that the accused-petitioner shall be properly taken care of and be managed and controlled in a manner so as to ensure he is prevented from harming himself or any other person, with admittance in a hospital for Psychiatric rehabilitation. The Director General Health, Khyber Pakhtunkhwa, Peshawar was directed to constitute a Medical Board for this purpose, which has been required to examine the petitioner once in a month and submit its report to the trial Court, until the accused is found capable of forming a defence, following which his trial for murder will resume.