Mentally unfit blasphemy suspect given bail

SC reprimands HC for not correcting error made by trial court

ISLAMABAD:

The Supreme Court has granted bail to a person charged with committing blasphemy on account of his mental health. The court has ruled that a suspect, who was of unsound mind and incapable of making his defence, should be released with sufficient security under Section 466 of the Code of Criminal Procedure (CrPC).

“The order for detaining him in safe custody is to be made only as an exception when there is an apprehension that he would not be properly taken care of or prevented from doing injury to himself or any other person,” read a four-page order authored by Justice Syed Mansoor Ali Shah.

"By setting aside the order of the high court, dated 30.01.2023, the revision petition of the petitioner is accepted. The order of the trial court, dated 21.12.2022, is set aside and the petitioner is ordered to be released on bail subject to furnishing of a bond by any family member of the petitioner,” it added.

However, the court ordered that family member should properly take care of the petitioner, prevent him from doing any injury to himself or any other person, produce him before the court when required, take him before the medical board of the Punjab Institute of Mental Health in Lahore after every three months for his examination to check if he was fit to stand trial, and to submit the report of the board to the trial court for an appropriate order.

A three-judge bench of the apex court, led by Justice Shah, adjudicated the question as to whether or not the trial court had reasonably exercised the discretion vested in it under Section 466 of the CrPC in declining to release of the accused over sufficient security after postponing the further proceedings in the case under Section 465 of the same law.

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The SC bench also took up the issue of whether or not the trial court had enunciated the principles that should guide the reasonable exercise of this discretion. According to the facts, a case was registered against the petitioner on the allegation of having uttered derogatory remarks against the Holy Prophet (peace be upon him), punishable under section 295-C of the Pakistan Penal Code 1860.

The petitioner was arrested, and after an investigation, was sent for trial. Before the framing of the charge against him, his lawyer submitted an application to the trial court that the petitioner was a person with mental disability, and thus unfit to stand trial. The trial court conducted an inquiry into the matter, had the petitioner examined by a medical board, and recorded the statements of two doctors on that board.

The trail court concluded that the petitioner was suffering from schizophrenia and indeed not fit to stand trial and make his defence. Upon this finding, the trial court postponed the proceedings of the case, under Section 465 of the CrPC till recovery of the petitioner from the mental disease.

On the question of whether after postponing the proceedings of the case the petitioner was to be released on bail or to be detained in some mental healthcare hospital under Section 466 of the CrPC, the trial court chose the second option. By its order on December 21, 2022, the trial court directed to shift the petitioner from the prison to the Punjab Institute of Mental Health, Lahore.

This order was challenged in revision before the high court but by the order dated January 30 this year, the high court declined to interfere in the matter and the present petition. The SC judgment noted that by reading Section 466 of the CrPC, it transpired that the primary course prescribed was to release the suspects, who was of unsound mind and incapable of making his defence, on sufficient security while detaining him in safe custody secondary to the primary course.

Therefore, f the course of releasing such an accused on sufficient security must be adopted as a rule while the order for detaining him in safe custody was to be made only as an exception. With the deduction of this principle, the matter however does not end. Next comes the question: what may be the circumstances that can justify adopting the exceptional course of detaining the accused in safe custody.

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"The answer to this question also lies within the provisions of Section 466. The noticeable point is that while conferring the discretion on the court, by using the word ‘may’, Section 466 provides an inbuilt guidance for the exercise of that discretion by making it conditional on giving sufficient security to properly take care of the accused and to prevent him from doing injury to himself or any other person,” the SC verdict read.

“These two conditions are the touchstone on the basis of which the court is to exercise its discretion in either way. If keeping in view the facts and circumstances the court forms an opinion that in releasing the accused on bail, there is an apprehension that he would not be properly taken care of or prevented from doing injury to himself or any other person, it can then decline to release him on bail and direct for keeping him in safe custody in such place and manner as it may think fit,” it added.

“The facts and circumstances that are relevant in forming such an opinion by the court may be that no one from the kith and kin of the accused comes forward to give sufficient security for the fulfillment of the said conditions, or that his kith and kin have previously remained unsuccessful in preventing him from doing injury to other persons," the verdict continued.
In present case, the court noted that the family members of the petitioner were pursuing legal remedies for the suspect and were ready to give the requisite sufficient security for the fulfillment of the conditions that they would properly take care of him and prevent him from doing any injury to the body or property of other persons.

It added that there was no past record of the petitioner to have inflicted any injury to other people that might show that his family members had previously remained unsuccessful in preventing him from carrying out this act.
"The discretion is found to have been exercised unreasonably and capriciously. It was a fit case for interference by the high court in its revisional jurisdiction, to correct the error committed by the trial court; but the high court failed to do so,” the order concluded.