Whether bail can be given as a Matter of Right or as an exception to unsound minded Accused!

"Background & Facts"

A case was registered against the petitioner, Zagham Hassan Khan, under section 295-C of Pakistan Penal Code, 1860 for using derogatory remarks against Holy Prophet Muhammad (PBUH). He was arrested and the trial began.

Before framing of the the charge, his counsel submitted an application to the court, mentioning that the petitioner is an person with unsound mind claiming he is unfit for trials. After necessary inquiry, the court came to the funding that he was suffering from schizophrenia, which resultantly postponed the proceedings under section 465 of CrPC.

The question was arise whether to release him on bail or to detain in Mental Hospital under section 466 CrPC.

An order was passed by the trial court to shift the petitioner from prison to Mental Health Hospital. This order was assailed in High Court, but High Court declined to interfere. Therefore, petitioner filed an appeal against the order of High Court in the Supreme Court of Pakistan (hereinafter referred as 'Court').

Section 466 of CrPC, clearly mentions to release the accused who is of unsound mind and is unable to defend himself in sufficient security (taken as a rule) and to detain him in safe custody (taken as exception).

"Question of Law"

The court raised a question that under what circumstances it can be suggested to exercise detaining an unsound person in safe custody?

"Reasoning"

Section 466 of CrPC renders discretionary powers to the court. The court gave the opinion that there exists an apprehension on the basis of which it can be declined to release such a person. Therefore relatives shall came forward to give sufficient security and surety if they fail to prevent him doing bodily injuries to himself and others.

The counsel for the petitioner argued that the family members of petitioner are ready to give sufficient security to prevent him from doing bodily injuries and they are also ready to fulfill all the terms and requirements of accused. On the other hand, the counsel for the respondents argued that there is no such record in which their family members remained successful for this kind of prevention while in present case there exist no certain facts under section 466 which can prevail the release of accused and adopting the exception to detain himself in Mental Health Hospital. They argued that this discretion is unreasonable.

"Decision"

After hearing the arguments at length, petitioner was ordered to be released on bail having certain subjects of a bond by any relative. The court also ordered that after every three months of his medical examination in Mental Health Hospital, a report shall be submitted to trial court for appropriate order and satisfaction with addition of two sureties giving sum of Rs.1,000,000/-.

This Important Judgment Is Written By Justice Syed Mansoor Ali Shah And Can Be Searched And Cited As Crl.P.172--L/2023

Alishba Shahlalay

Islamia College University?Peshawar