Mst. Rahila (Petitioner) VS NAB and Ors (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

Before:-

Mr. Justice Ahmed Ali M. Sharkh, C.J.

Mr. JtiStice Mohammad Karim Khan Agha, J

C.P. No.D-822 of 2016

Petitioner: Mst. Rahila w/ o Fawad Ahmed Batra through Mr. Muhammad Ilyas Khan, Advocate.

Respondents: NAB through its Chairman & others, through Mr. Muhammad Alta-f, Special Prosecutor, NAB alongwith Baqa Mohammad, I.O.

Date of hearing: 29-OB-2O17.

Date of order: 03-to-2017.

ORDER

Mohammad Karim Khan Asha, J:- Through this petition, the. petitioner (the wife of the accused Fawad Ahmed Batra) has challenged the order dated 02.12.2015 passed by the Accountabilit5r Court No.lV Sindh at Karachi whereby the petitioner's application under S.465 Cr.PC was dismissed (the impugned order) and prayed that the same be set aside and that this court order that the case of the petitioner's husband .comes within the arribit of Section 84 PPC.

2.Briefly stated the facts of the case are that the husband of the petitioner is facing trial vide Referen.ce No' 09 of 2009 hled by the National Accountability Bureau (NABI under the ry

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Nationa-l Accountability Ordinance 1999 (NAO) for hjs involvement in corruption and corrupt practices, more partrcularly his role in embezzling approx RS7 crore whilst he was HBL Garden branch manager through operating a parallel banking system wrth other co-accused who have now entered into plea bargains under the NAO, whrch reference ts presently proceeding before before the Accountabrlity Court No. IV, Karachi and according to the special prosecutor NAB is on the verge of conclusion ,

3.The petitroner's husband was arrested by the NAB on 08-05-2009 ald as per record he sought admisslon to a psychiatric hosprtal on the grounds of hrs poor state of mental hea-1th. By order dated 26-04-2012 this court granted the petitioner's husband bail on medical grounds wheretn it was held that in uew of two reports of two renowned Doctors the stay of the petitioner rn jail would be dangerous to his hfe as accordtng to the doctors the accused / petitioner has the tendency of suicidal rdea.

4 It appears that the Petitioner then moved an apphcation before the trial court under S' 465 Cr.PC which was dismrssed and then challenged before this court This court vide order dated O2-O5-2O11 with the agreement of the DPG remanded matter back to the trial court for a fresh .the decision on the petitioner's apphcation u/s 465 Cr'P C' keeping rn view of all the provlsrons whtch are relevant to be examrned including 464 Cr .P.C. After heaflng both partres and recordrng evrdence and constdering medtcal evidence the w

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trial court dismissed the petitioner's application under 5.465 Cr.PC vide the impugned order which the petitioner's wife has now assailed before this court through this Constitutional petition.

5.Learned counsel for the petitiorier's husband contended that at the time of commission of the offense in 2005 whilst working at the bank the petitioner's husband was of unsound mind due io mental health reasons and as such could not be tfed for the commission of the offense as he in effect did not know what he was doing or that he was committing any wrong on account of his on going mental health condition. In this respect he contended that the evidence and matei"ial on record based on his hearing before the trial court under 5.465 Cr.PC had shown that he was of unsound mind at the time when he committed the offense and as such S.B4 PPC was appligable which meant that he could not be liable for committing any offense. He contended that the trial court in the impugrred order had erred in not fully appreciating or understanding the medical evidence placed before it dnd as such the.impugned order should be set aside and this court should find that S.84 PPC was applicable to him' In lhis respect he placed reliance on various medical reports and evidence of CW Prof. Mohammed Iqbal Afridi , Article 59 Qarioon-e-Sliahadat Ordinance 1984 and the following authorities; Khan Balg v. The State (PLD L984 Lahore 4341 State of Rajasthan v. Shera Ram aliair Vlshnu Dutta (20|p SCMR 1768), Fauqual Bashar v. The State (1997 SCMR 239), Munshi Khan v. The State (1983 P. Cr- L'J 77S ISC

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(AJ&K)] 1955 NUC (Madhya Bharat 5686) (V 42), Surendra Mishra V State of Jharkhand (SC Indta dated 06-O1-2011f and Archbold (2OO8l.

6.On the other hand learned Special Prosecutor for NAB fully supported the impugned order and emphasized that there was no medical evidence that at the time of the commission of the offense the petitioner's husband was of unsound mind and that even now he was not of unsound mind and was fully aware of the nature of the proceedings and was simply raising the 5.465 issue now at this belated stage in order to wriggle out of facing the trial which was close to conclusion and as such his petition should be dismissed. In support of his contentions learned counsel for NAB placed reliance on the following authbrities; Muhammad Anwar v. The State (2000 P. Cr.L.J. 64 (Karachi), Walidad Khan v. The State'and another (PLD 2Oi1 Lahore 153) ald Irfan ul Haq v. The State and another (2O 12 P. Cr.L.J, 1328 (Lahore),

7 . We have considered ttre submissions of learned counsel for the parties, case laws cited by them qnd carefully perused the material available on record.

8, In essence this petition revolves around whether the petitioner's husbaird was/is of unsound- mind. In our viqw this aspect divides into two parts:

(a)Whether the petitiOner was of unsound mind at the time when the offense was committel *O

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(b)If not, whether the petitioner is now of unsound mind so that he is unable to understand the nature of the proceedings and thereby is incapable of making a defense.

Turning to whether ihe petitioner was of unsound mind at the time when the offense was committed. When is a person of "unsound mlnd"?

9.In answering Para B (a) arrd (b) above we must first define what we mean by an "unsound mind" since it is of brucial significance in terms of S.B4 PPC.

10.According to Blacks Law Dictionary (6th Ed) "unsound mind" is defined as follows:

"Unsound mind. Non-legal term referring to one who from infirmity of mind is incapable of managing himself or his affairs. The term, therefore, includes insane pdrsons (see Insanity). It exists were there is an essential deprivation of the reasoning faculties, or where a person is incapable of understandlng and acting with discretion in the ordinary affairs of life. Oklahoma Natural Gas Corporation v. Lay, 175 Okl. 75, 51 P.2d 589, 582. But eccentricity, uncleanliness, slovenliness, neglect of person and clothing, and offensive and disgusting personal habits do not constitute unsoundness of mind (bold added)".

11.According to Blacks Law Dictionary (6th Ed) "insanity" is defined as follows:

"lnsanity. The term is a social and legal term rather than a medical one, and indicates a condition which renders the affected person unfit to enjoy liberty of action because of the unreliability of his behavior with concomitant danger to himself and others The term is more or less synonymous with mental illness or psychosis. In law, the term is used to denote that aegree of mental illness whlch negates the individual's legal responsibility or capacity'"(bold added)

Insanity as Defense to Crime 'There are various tests used by the courts to determine criminal responsibility, or lack thereof, of a defendalt who asserts the defense that he or she was

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insane at the time of crime. A frequently used test as provided in Section 4.01 of the Model Penal Code is as follows: "A person is not responsible for crimlnal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capaclty elther to appreciate the criminality (wrongfulness) of his conduct or to corlform his conduct to the requirements of law,,' Under this test there must be a sufficient causal link between the defendant's mental disease or defect and his inability to control his behavior. U. S v. Jackson, 553 F.2d 109, 113, 179 U.S, App. D.C. 375. This test, as delined by the American Law Institute, has been adopted (sometimes wlth slight modifications) by a number of states and also in most federal courts. See 18 U.S.C.A. s 4241 . (bold added)

12.According to K,J.Aiyar Judicial Dictionary (13thEd) "unsound mind" is defined as follows:

"Unsound mind. The term comprehends imbecility whether congenital or arising from old age or mental aberration, resulting from disease" ISee Lunatic].

13.According to K.J.Alyar Judicial Dictionary (13ihEd) "Lunatic" is defined as follows:

ol-unatic. The word 'lunatic' except in the phrase 'criminal lunatic' and in relation to person detained as lunatics outside England, shall cease to be used in relation to any person ofor alleged to be of unsound mlnd, and the words 'person of unsound mind, tperson' patient of unsound mind't or 'of unsound mind', or such other expression as the context may tequira are to be substituted in any enactment or document thereunder. (Wharion's Law Lextcon, 7976 reprint, p 613, See also Mental Health Act 1987 , s 21.

The Act is intended to be exercised in respect of lunatic or a criminal lunatic. No body has case that Satyanathan is a criminal lunatic as defined in s 3(4) of the Lunacy Act is defined as an idiot or person of unsound mind. Who is a person of unsoutrd mind? The said words have not been delined in the Act, but those words indicate an abnormal state of mind as distinguished from weakness of mind. A man of weak mental strength cannot be called a man of unsound mind. Unsoundness of mind implies an unusual feature of the mind as has tended to make if different from the normal and has in effect impaired the man's capacity to look after his affairs w

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in manner ln which another person without such mental irregularity wlll be able to do in the matter of his own. The idea suggests some derangement of the mind. Whatever be its degree and it ls not to be confused with or taken as analogous a mere mental weakness or lack of intelligence, [Abdul Kareem v, T Gopala-krishnan Nambisan 1990 Crt J 742 ffaQ (Ker).

A lunatic is one who is affected by his disorder only at certain periods of vicissitudes, having rntervals of reason. Madness is permanent. Lunacy and madness are spoken of as requrred rnsanrty, and rdrocy as natural rnsanlty.

The detlnition is very wide in terms and will certainly include a schizopherenic. In the I\4ental Health Act 1987, expression 'lunatrc'rs not used, but instead, the expressron 'menta1ly i1l person' is used. [Mini'v. James Koshy Alexarcler (i996) 1 Hin LR 294 at 296 (Madl; Usha Gupta v Santosh Kumar 1996 MPLJ 42, (1996) 1 Hrnd LR 2331. (bold added)"

74.According to K.J.Aiyar's Judicial Dictionary (13th Ed) "lnsanity" is defined as follows:

"Insanity" rmplies the existence of either or both of the mental condrtrons narnely, an lncapaclty (r) to know the nature of the act; and (ii) to know that the act is wrong or contraqr to law. [Sankaram v. State 1994 CrLJ 7773 at 1 178 (Ker).

There is a clear drstinction between legal insarrtty and medical rnsanity. Legal insanity is the insanity which affects not only the cognltlve faculties of the mind, whlch guide our actlons, but also our emotlons which prompt our actions and the wil-l by which our actions are performed. It is only unsoundness of mind which materially impairs the cognitive faculties of the mlnd that can form a ground of exemption from crimlnal responsibility, the nature and extent of the unsoundness of mind required being such as would make the offender incapable of knowlng the nature of the act or that he is doing what is wrong or contrary to law. It is this rule urhich is the basis of s 84 IPC. (Kalicharan v Emperor ILR 1947 Nag. 226; Baswantrao Balrao v. Emperor (bold added)

15 In M Illyas Khan's and Farah Khan's Medrco Legal Digest of Pahistan "insanity" is defined as follows:-

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Insanity: In law the term insanity is used interchangeably with unsoundness of mlnd. This covers a wide range of synonyms lunacy, madness, mental disorder, and mental disarrangement. In this situation al individual loses the power of regulating his actions and conduct according to the rules of society in which he is moving. Insanity is solely a legal and a sociological concept, has no technical meaning in I law or in medicine and does not connote any definite medical entity. Insanity is s€en to be,a social inadequacy and medically it takes the form of a mental disease. Insanlty implies a degree of mentel disturbance so meaning and so dlsabling that the person may be considered from the legal point of view'to be immune from certain responsibilities and may disallow him certain privileges that may require a degree of competence such as a decision to marry, make business contracts or manage property (Modi). (bold added)

16.In Pakistal the Lunacy Act of 1912 was repealed and was replaced by the Mental Health Ordinance 2OOl (Ordinance VIII of 2OO 1) which no longer uses the word lunatic which is in line with I(.J.Aiyar's aforementioned Judicial Dictionary definition which appears to reflect the Indian Mental health Act 1987 with a view to perhaps helping reduce the' negative social stigma which is associated with this term. The Mental Health Ordinance 2OO I provides the following definition in terms of mental illness at S. 2 (m) as set out below:

"(m). "mental disorder" means. mentai illness, inciuding mental impairment, severe personality disorder, severe mental impairment and any other disorder or disability of mind and "mentally disordered" shall be construed accordingly and as explained hereunder:

(i)"mental impairment" means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes sig:nificant impairment of intelligence and socia-l functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the pa-rt of the person concerned and

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"mentally tmparred" shall be construed accordingly;

(ii)"severe personality disorder" mears a perststent disorder or drsability of mind (whether o. not tncludtng slgnificant impairment of intelligence) which results ln abnormally . aggressive or seriously irresponsible conduct on the pa-rt of the person concerned'

(ur)"severe mentai tmpatrment" mealls a state of arrested or incornplete development of mind which rncludes severe lmpalrment of intelhgence and social functioning a'rld is assocrated with abnormally or seriously irresponsrble ^gg.."itre conduct o" tfr" part of the person concerned and 'lseverely mentJly tmpaired" shall be construed accordinglY;

Explanatron. - Nothing contained ln clause (m), sub-clause (r), (ri) and (iii) above shall be construed as implying that person may be dealt with under tnis Cjrdlnince ai suffering from mental dtsorder or from any other form of such mental disorder defined in this sectlon, by reason only of promlscutty or other rmmoral conduct, sexual 'deviancy or dependence on alcohol or drugs' 17 . Under the Mental Health Ordinance 2001 the courts in Pakrstan ln recent ttmes have tended to glve a narrow interpretation to these definitions under the Mental Hea-lth Ordinance 2OO i For instance, tn the recent Supreme Court case of Mst Safia Bano V Home Department Government of Punjab (PLD 2017 SC i8) it was held at P 26 Para l0 that schizophrenia rn all cases was not a permanent mental disorder as to come within the definition of "mental disorder" as defined' ln the Mental Health Ordrnance 20O 1 rn the followrng terms:

"10. Thus, schizophrenia is not alncreaslng permanent or mental disorder, rather imbalance' In recent ",h;' depending the level of stress' ;"."""i"g, ;;;;, p.og"o"i"- has been rmproved with druss. bv vlgorous psychologicalls'and soctal lt Lherelore' -",i.g.-Lnt", and rehabilitatjon W

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a recoverable disease, which, in all the cases, does not fall within the definition of 'menta.l disorder' as defined in the Mental Health Ordinance, 20O 1".

18.However in the earlier case of Mehran alias Muna V L State (PLD 2OO2 SC 92) which dealt specilically with S.84 PPC at P..96 the Hon ble Supreme Court laid down some guidance on the potential wldth of S.84 PPC which we shall consider later in this order.

19.In considering the question of unsound mind/insanity as a defense in criminal law it is also useful to consider the various tests as mentioned in Parikh's (2006 Ed) Textbook on Medica-i Jurisprudence, Forensic Medicine and Toxicologl (for class rooms and Court rooms) which at P.6.29 provides as l. under:

McNaghten Rules

The present legal test on the defence plea of insanity is based on McNaghten rules. McNaghten was an accused in a criminal case. He, while laboring under a delusion of persecution, shot Mr. . Drummond, the private secretary of the Prime Minster Sir Robert Peel, at Charing Cross, London, in mistake for the latter' Evidence of insanity was led and a verdict of "not guilty by reason of insality" was given. The public reacted adversely to the acquittal and a discussion took place in parliament. The House of Lords put certain questions to all the 14 judges in connection with this case. From the answers given by them, some rules were framed for the criminal responsibility of the insane, and they have been named after McNaghten. According to these rules, to establish defence on the ground of lnsanity, it must be clearly shown that at the time of comr.nitting the act, the accused was laboring under such defect of reason from disease of the mind as not to know the nature and quallty ofthe act he was doing, or if he did know this, that he dld not -know that what he was doing was wrong lt must be borne in mind that the defence can be founded only on a known and nameable disease of the mind. Lesser conditions which may prevail temporarily at the time of the act do not suffice, and these include rage, jealousy,

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transi'ent loss of control, and others including unresisted impulse.

The legal test of insanity that is accepted in India is embodied in Section 84 IPC which lays down that nothing is an offence which is done by a person who at the time of doing it is by reason by unsoundness of mind, incapable of knowing the nature. of the act, or that he is doing what is either wrong or contrar5r to law.

With the I advances ln medlcine, insanity is better understg6d now and many criminologists and psychiatrists aie of the opinion that McNaghten Rules are now totally outdated and require a complete revision. Some of the States in the West have already formulated certain improvements in these rules.

Criticlsm of McNaghten Rules.

l The primarSz defect of McNaghten rules is that the criterion for deciding that a person is insane is purely an intellectual one. There is no place for emotional factors of the ability of the individual to control his impulses. Medicine has now come to recognise that there is mental disorder, however partial, that does not have its repercussions throughout the rest of the affected mind. Consequently, it is now accepted that intellectual defect means deficient emotional control. Allowance is therefore being made in some states for all such well-known phenomena as the disordered ideation of the schizophrenic, post- hypnotic and epileptic automatisms, and the overwhelming influenbe of affective disorders which may, for example, cause a depressed person to murder his wife or children whom he loves and whom he knows full well it is normally wrong to kill.

Doctrine of Partial Responsibility The doctrine is recognized in some of the states in the West. According to it, if a person who had committed a crime is suffering from some aberration or weakness of mind, though not completely insane, he is not fu1ly but only partially responsible lor his act. Thus, a charge of murder may be reduped to one of manslaughter. This doctrine ts applidAble in cases of depression, obsessional states, paranoid states, and certain organic states.

Durham Rule

In 1954, the United States Court of Appeals in the case of Durham vs. United States held that an accused v

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is not criminally responsible lf his unlawful act was the product of mental disease or mental defect. This corresponds very nearly to the strong subJective sense that psychiatrists have of what responslbility should mean. It has al advantage over the irresistible impulse rule in that it covers acts which are the result of slowly rather than suddenly formed resolutions such as the acts of the melancholic and the paranoiac.

Currens Rule

Currens Rule (196 1) postulates that.an accused is not criminally responsible if at the time of committing the act he did not have the capacity to regulate his conduct to the requirements ofthe law as a result of mental disease or mental defect. This is similar to the irresistible impulse rule. proposed by Lord Justice Atkin's Committee tn 1923 but withdrawn in 1924.

American Law Institute's Test

Under this test (197O), proof that a criminal defendant as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to requirements of law now constitutes defence to a crimin'at charge. The test does not cover repeated criminal or otherwise antisocial acts of psychopaths.

Norwegian System

Norwegian law provides that no defendant considered insane or unconscious at the time of committing the offence may be punished. The term insane means whatever doctors at the time classify as mental illness, Thus, there ls no difference between medical and legal insanity. The term unconscious includes a series of abnormal mental states characterized by peculiar conduct associated, among other things, with a total Ioss of memory. Many pathologic states such as hysterical or schizoid reaction, or epileptic seizure, are considered legally as predisposing the offender to a state of unconsciousness during which time he could not be considered responslble for his actions. Once insanity or unc.onsciousness is established as existing at the time of the crime, this is complete defence under the Norwegian law. No other element, e.g., a lack of knowledge that what he did was wrong, or a casua.l link between insanity and crime needs to tJe established. (bold added)

20.Under English law in recent times it even appears that the defense of insanity is not limited to mentally ill people v7

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through a. so called disease of the mind as is illustrated in Smith and Hogan's crimina-l law (13th Ed) at P.295 to 298 as under:

11,2,2.2 The test of insanlty

Whatever the effect of the iecent changes on procedure and disposal, the M'Naghten Rules remain of !-reat importance symbollcally both because they provide the legal test of responsibility of the mentally abnormal and because they set a limit to the defences of automatlsm and, in theory, of diminished responsibility. The basic propositions of the law are to be found in the answers to Questlons 2 and 3 of the M'Naghten Rules,

the jurors ought to be told in all cases that every man in presumed to be sane, and to possess a sufficier.rt degrtie of reason to be responsible for his crimes, until the contrarSr be proved to their satisfactions; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quallty of the act he was dolng, or, if he did know it, that he dld not know he was doing what was wrong.

It will be seen that there are two lines of defence open to an accused person (often called the two limbs'):

(1)He must be acquitted if, because of the mind, he did not know the nature and quality of his act (effectively a denial of mens rea); or

(2)Even if he did know the nature and quality of his act, he. must be acquitted if, because of a disease of the mind, he did not know it was krong'.

The Rules have been heavily criticized for being bver-inclusive; 'disease of the mind' has been widely construed as to include within the scope of insanity such everyda5; illnesses as diabetes. In addition, in some instances D qualifies for the defence even though he was responsible for his inability to appreciate the nature or wrongness of his actions. As Mackay has recently pointed out, some commentators have argued that the first limb is superfluous as anyone who did not know the nature and quality of the act must also not have known it was wrong. Others, including Glanville Williams, argued that the second limb was superfluous since anyone who did not know the nature and quality of his act must also have lacked awareness that it was wrong. The Rules are also Vz

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criticized for focus on the cognitive state of D (has he appreciated the nature or wrongness) rather than on whether D had the capacify to be held responsible or to conform with criminal regulation.

Disease of the mind

The two limbs of the Rule require separate consideration but the first question, under either limt;--is whether D was sufferlng from 'a defect of reason from a disease of the mind', lf D was unaware of the nature and quality of his act for some reason other than a defect of reason from a disease of the mind (such as mistal<e) he will usually be entitled to a straightforward acquittal on the ground that he lacked the necessary mens rea. Moreover, in such a case the onus of proof remains on the Crown, whereas it shifts to D once he tenders evidence of a delect of reason arising from disease of the mind. lf D was unaware that his act was \,vrong' for some reason other tltan from a defect of reason from a disease of the mind, this will generally not amount to a defence at all. It is a cardlnal principle that nelther ignorance of the liw, nor good motive will normally afford a defence.

The question whether D has ralsed the defence of insanit5r is one of 1aw for the judge. Whether D, or indeed his medical witnesses, would call the condition on which he relies, 'insanity' is immateria.l. The expert witnesses may testify as to the factual nature of the condition but it is for the judge to say whether that is evidence of 'a defect of reason, from disease of the mindt, because, as will become apparent, these are legal not medical, concepts. In the leading case of Sullivan, the defence to a charge of assault occasioning actual bodily harm was that D attacked V while recovering from a minor epileptic seizure and did not know what he was doing. The House of Lords held that the judge had rightly ruled that this raised the defence of insanity. D had thei pleaded guilty to the charge of which he was manifestly innocent, and his conviction was upheld.

It seems that any disease which produces a malfunctioning of the mind is a disease of the mind' Commonly the insanity plea will involve mental illness (schizophrenia being the most common' epilepsy, diabetes, sleePwalking, pre-menstrual syndiome and all physical diseases, may amount 'in law to a disease of the mind if they produce the relevant malfunction. The lack of correlation with medical definitions of mental illness renders this aspect of the test potentially incompatible with the ECHR (see below,) wheie it results in D's loss of liberty or loss of private life.

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It is critical to reiterate the distinction between pleas of insanity and pleas of sane automatism. A tran3itory malfunctioning of the mind is not a diseaie of the mind when it is caused by some external factor - a blow on the head causing concussion, the consumption of alccihol or drugs, or the administration of an anaesthetic. In such cases I sane automatism may be pleaded. That 'defence' imp"\es no burden of proof on D and, if successful, results'in a compiete acquittal. Insanity on the other hand must be proved by D1 (on the balance of probabilities) and results in a special verdict of not guilty by reason of insanity. In terms oI process and outcome much turns on this distinctlon between internal and external causes of the malfunction of the mind, yet the basis for the distinction is unsatisfactory.

In determining whether D suffers a disease of the mind, it is clear that the law considers not only D's state of mind at the time, but how it came about. Devlin J thought that the object of the inclusion of the words 'disease of the mind'was to exclude 'defence of reason caused simply by brutish stupidity without rational power; but it seems the words exclude more than that. In Quick, D who had inflicted actual bodily harm called medical evidence to show that he was a diabetic and that he was suffering from a hypoglycqemic attack at the time of the alleged ollence and was unaware of what he was doing. Bridge J ruled that he had thereby raised a defence of insanity, whereupon D pleaded guilty. On appeal it was held that D's mental condition at the tlme of the offence was caused not by D's diabetes (an internal factor) but by his use of insulin prescribed by the doctor coupled with his failure to follow that prescrlption by eating after inJecting insulin (an external factor), This use of the prescribed drug was an external factor and the plea of sane automatism should have been left to the jury. If D's mental condition had been caused by his diabetes the plea would have been insanity, being based on that internal factor of disease, The case illustrates the fine line between the two pleas although the consequence of pleading them successfully is markedly drfferent. The unsatisfactory nature of this distinction is further discussed in the next section.

Disease of the mind lncludes physical illnesses that. manifest themselves by affecting reasoring. In Kemp, D made an entiiely motiveless and irrational attack on his wife with a hammer. He was charged with causing grievous bodily harm to her with intent. D suffCred from arteriosclerosis which caused a congestlon of blood ln hls brain, leading to a temporary lapse of conseiousneas during whlch he v

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made the attack. It was conceded that D dld not know the nature and quallty of hls act and that he suffered frorri a defect of reason but it was argued on his behalf that this aroae, not from any mentel disedse, but from a purely physlcal one. It was argued that, if a physical dlsease caused the braln cells $o degenerate (as in time, it mtghtf, then it wouldf be a disease of the mind; but until it did so, it I was $aid, this temporary interference with the workipg of the braln was like d concussion or something of that aort and not a disease of the mind. Devin J reJected this argument and held that D was suffering from a dlsease of the mind. He sald.

"The law ls not concerned with the brain but with the mind, in the sense that 'mind' is ordinarily used, the mental facultles 'of reason, memory and understanding. If one reada for 'disease of the mlnd' disease of the brain', it would follow that in many case3 pleas of insanlty would not be established because it could not be proved that the brain had been affected ln any way, either by degeneration of the cells or in any other way. In my Judgment the condition of the braln ls irrelevant and so is the question of whether the condition of the mind ie cutable or incurable, transltory or permanent".

In the earlier case of Charlson, where the evidence was that D was 'acting as an automaton without any real knowledge of what he was doing as a result of cerebral tumour. Barry J directed the jury to acquit if the defence might reasonably be true. Devlin J distinguished Charlson on the ground that there the doctors were agreed that D was not suffering from a mental disease. As this is a question of law the distinction seems unsound and in Bratty Lord Denning approved Kemp and disagreed with Charlson. Lord Denning put forward his own view of a disease of the mind.

"It seems to me that any mental disorder which has manifested itstilf in violence and is prone to recur is a dlsease of the mlnd. At any rate lt ls the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal",

Quick casts some doubt on this dictum, and it is surely right to do so. The definition might fit a diabetic, but 'n6 menta-l hospital would admit a diabetic merely because he had a low blood sugar reaction' , and it might be feit to be 'an affront to common sen se' to ' regard such a person as insane; yet the Court saw the weakness of the argument, agreeing with Devlin 'l that the disease might be 'curable or incurable' . transitolJ or permanent' , and the fact that the Home Secretar!

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might have had a difficult problem of disposal did not a affect the matter. Lord Denning ,s dictum has also been rightly criticized on the ground that it is tautologous and that a disease of the mind may manifest itself in wrongful acts other than violence, such as theft.,, (bold added)

1 21 For thb purposes of Pakistarii law the case of Mehran alias Muna V State IPLD 2OO2 SC 921 at p.96 the Hon,ble Supreme Cirurt laid down some guidance on the potential width of S.84 PPC in the following terms;

"84. Act of a person of unsound mind.-Nothing is an offence which is 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."

A bare perusai would indicate that there are four important ingredients of the said section, which are as under: - -

(a)Commission of an offence;

(b)Unsoundness of mind;

(c)Incapability of knowing the nature of act/offence;

(d)Distinction between right and wrong.

5.It may be kept in view that word "insanity" has not been used in the sald Bection but on the contrary the Legislature has chosen the word "unsoundness of mind". It is not an accldental choice but a dellberate one because an ungoundness of mind covers almoet all the ailments concerning mind. The very intendment of the Legislature as manlfested in the sald section seems to be that provisions as contained therein should be consldered in a broader spectrum. The plvotal question, however, would bL as to whether the petitioner was capable enough to know the nature of the act duly committed, whether he wss permanently incapable (antecedents, subsequent and pest condirct, family hlstory . and medical expert's opinion are to be seenl or'is lncapable during certain intervals and thereafter cause/causes for permanent or temporary incapability wlll have to be examlned which can possibly be as follows:-- w

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( 1)Lunacy.

(2)Idiocy / imbecility.

(3)None compos merits (sic) I (4) Temporary paroxysms.

(5)Insanity/lnsane delusions.

(6)Somnambulism.

(7)Frantic humour and its gravity.

z (B) Maniacal trend.

(9)Periodic epileptic fits.

(1 0) Delirium tremens.

(1 1) Irresistible impulsive insanity.

(12)Obsession.

(13)Mania.

(14)Amentia.

(i 5) Dementia.

(16)Melancholia.

ilone of the above mentioned causes were ever referred by the learned counsel except that he was an insane person that too without any evidence. The plea of unsoundness of mind carnot be agitated if at the time of commission of offence accused was capable enough and can make distinction in between right and wrong. It is also to be examined as to whether his cognitive facllities were impalred due torunsoundness of mlnd and if so up to what extent. It is well settled by now that "the crucial point of time for decidlng whether the benefit of this section should be given or not is the material time when the offence takes place!'. If at that moment a man is found to be labouring under such a defect of reason as not to know the nature of the act he was doing or that, even if he knew it, he did not know it was either wrong or contrary to law, then tl-ris section must be applied. In coming to that conclusion, the relevant circumstances like the behavlour of the accused before the commission of the olfence and his behaviour after the commission of the offence, should be taken into consideration' It may be kept in view that it is not every person suffering from mental disease that can avold responslbility for a crime by invoking the plea of insanity. There is distlnction between medlcal insanity and legal insanity and the Courts are only concerned with the legal and not with the medical view of the question' (Bagga v. Emperor (1931) 32 Cr.LJ1230, Emperor v. Saggan Singh (1991) 32 Cr i) 816). There is no cavil to the proposition that there is a clear difference between medical insanity and legal insa:rity. It is only legal insanity which furnishes a ground for exemption from criminal responsibility' ihere can be no legal insanity unless the cognitive faculties of the accused are' as a result of

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unsou[dness of nind, completely impaired' In order to constltute legal insanity the unsoundness of mind must be such as should make the offender incapable 9f knowing the nature of the act or that he ls doing swtat is wrong or contrary to law. (1952) Patiala 254)".(bold added)

22.The point of setting out the above definitions and tests is to show how difficult it is to precisely determine whether a person is ofunsound mind although lt appears that despite the lmportance of medical reports it is a questlon of law for the Judge to decide,

23.Whilst it seems that no hard and fast rule can be set down which defines unsoundness of mind and that each' case will depend on its own particular facts and circumstances' the medical opinion of an expert medical board and . the extent of that illness taking the various definitions/ tests into account we are of the view that from a Pakistani legal perspective being of unsound mind would in most cases be a permanent . medically recognized mentai condition I impairment which was not self induced ald which was so severe/disabling that the person having such illness was incapable of knowing the nature of the act or that what he was doing is eitherrvrong or contraqr to law'

24.This 'determination of what amounts to an unsound mind is of key significance since under S'84 PPC, which very ' \ much follows the above mentioned. McNaughten Rules (as does S.84 of the Indian Penal Code 1860 which is identical to .

S.B4 PPC as pointed out in Modi's, Medical Jurlsprudence and Toxlcolo EY 23'a EdJ if a person is of unsound mind at

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the ti when the offense is committed then he cannot be held liable for committing any olfense and will be entitled to be acquitted. For ease of reference S.84 PPC is set out as under:

"S. 84. Act of a Person of unsound mind. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing tl-re nature of the act, or that he is doing what is either wrong or contrary to law.(bold added)

25.It is also of significance that S.84 PPC as mentioned earlier is also identically worded to S.84 of the Indian Penal Code 1860 dnd as such the Indian courts interpretation of the section may also be of some assistance.

26.Thus, having come to a determination of what, in our humble opinion, is most likely to amount to an 'unsound mind" for the purposes of S.84 PPC we need to consider whether the petitioner's husband was of unsound mind at the time of the commission of the offense.

27.If, as in this case, ttte accused through an application raises the plea under S.84 PPC of being of art unsouhd mind then the procedure to be foliowed by the court is set out under 5.465 Cr.PC which provides as under; S. 465. Procedure in case of person [sent for trial] before Court of Session or High Court being lunatic. [(!) If any person before a Court of Session' or a High Court appears to the Court at his trial to be of rinsouna mina and consequently incapable first of making his defence, the Court shall, in the iand instalce,- try the fact of such unsoundness incapacity, and if the Court is satisfied of the fact, it sfr* reco.d a finding to that effect and shall postpone further proceedings in the case'l . v

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\ (Z) fn" trial of the fact of the unsoundness of mind And incapacity of the accused sha-ll be deemed to be part of his trial before the Court."

24.At the outset we would make it clear that having reviewed the record we are satisfied that the trial court fully complied with 5.465 Cr.PC and in effect hetd a.trial to see if the petitioner's husband could satisfy the court that he was of unsound mind at the time of commission of the offense or was of unsound mind now so that he was incapable of making his' defense. For example, arr expert medical board was constituted which produced an expert medical report on the petitioners husbald's mental condition (including past history) which was considered and the Chairman of that medical board was examined by the Court and cross examined try the petitioners husband's counsel as well as counsel for the NAB in order to assist the trial court in reaching the decision of whether the petitioners husband was of unsound mind at the time of committing the offense that found through the impugned order, which is a well reasoned and speaking order and is now under challenge, that the petitioner's husband was of sound mind at the time when the offense was committed and was capable of making his defense. Thus, the requirements as ''set out in Fauqual Bashar V State (1997 SCMR 239) and Khan Baig V State (PLD 1984 Lah 434l,rryere fully satisfied.

29.In our vl'ew in making this det€rmination of whether the petitioners husband was of urlsound mind at the time of committing the offense we must consider (a) .ry medical evidence srlpporting the contention of the petitioners V,

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husband the tlme when the offense was commltted and

(b)the conduct of the petitioner at the tlme when the offense was commltted i.e. it is obvious/deducible from his behavior, demeanor, attitude and general conduct that he '-j' was of unsound mind bearing in mind the possibility that the petitioner's husband may be feigning his illness in order to avoid his criminai liability as alluded to in the case of l{aslr Mehmood V State (2O17 P.Cr.LJ 255 SC AJK)).

30.As alluded to above, it is for the concerned judge to decide whether the petitioner's husband was of unsound mind and the following criteria may of be assistance in this regard as was held in Nasir Mehmood V State l2O17 P.Ct.L) 255 SC AJK) as under at P.265

"The provisions of section 465, Cr.P.C' are mandatory in nature and omission to observe the provisions thereof would vitiate the conclusion and the result reached thereon. There may be the casee where the accused may feign to be insane. The section confers the power upon the Court by using the words uappeals to the Court" for determining the fact that the accused is of unsound mind. The question of unsoundness of mind of an accused is to be decided by the Court from the attendlng eircumstances' attitude, behavior of the accused and the medical tecord if any, and if from the attending circumstances, the accused appears to the Court to be ol unsound mind and consequently incapable of making his defense, the Court in the first instance shaJl try such fact of unsoundness of mind and, incapability to defend the case and determination of such fact shall proceed in the matter.(bold added)

31.However in cases such as this where a past history of mental illness exists in our view it is incumbent upon the court to constitute a medical board consisting of experts in the relevant field to opine through detailed reasoning whether the accused is of unsound mind and whilst not being bound

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by such report use it in assisting it to reach its determination on this issue. In this respect reliance is placed on State of kj"Rgbao V Shera Ram. (2012 SCMR 1768 which held as under at P.1776 Para's 19 and 20

""79. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiost nulla voluntaus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed ' a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit ream nisi mens sit rba, Every normal and sane human being is expected to Possess some degree of reason to be responslble for his/her conduct and acts unless contrary is proved. But a person of unsound mlnd or a person suffering from mental disorder cannot be said to possess this baslc norm of human behavioi. In the case of Surendra Mishra v. State of Jharkhand (2O11) 3 SCC (Crl) 232 : (AIR 2011 SC 627)1, the Court was dealing with a case where the accused was charged for an offence under section 3O2, l.P.C. and section 27 of the Arms Act. While denying the protection of section 84 of the LP.C. to the accused, the Court held as under:-- '9. In our opinion, an accused who seeks 'exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and lt has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals pr that he was subject to epileptic fits and there was abnormal behavior or the behavior is queer are not sufficient to attract the application of section 84 of the Indian Penal Code.

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20.From the above-stated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso The onus would be on the accused to prove by ^'- -lacto.

expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act." (bold added)

32.In espence the petitioners husband's case is that he was suffering from the mental illness/disease of Biopolar at the time when he committed the offense and as such was incapable of knowing the nature of the act, or that what he was doing was either wrong or contrarJi to law due to this mental impairment.

33.In support of his contention learned counsel for the petitioner's husbald placecl reliance on a Report of under trial prisoner Fawad Ahmed (the petitioner's husband) dated O1-O4-2O10 by Prof Syed Haroon Ahmed which in essence stated ttrat the petitioner's husband had been suffering from mental illness since 7979 and in 199 i was tentatively diagnosed as suffering from, "Biopolar Disorder and OCD with suicidal ideation" He was proscribed appropriate medication for his illness and followed up in 199 , 1992, fer.r,er visits in 1993 and more visits in 1994. He was next seer-r in 2OO 1 approximately 7 years later and then in 2007 approximately 6 years later and lastly in 2O09 after the petitioner's.husband was arrested by NAB. lt was largely on the basis of this report that the petitioner's husband was graritec1bailonrnedica1groundsbythiscourtaSreferreclto earlier in this order

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34.The medica-l report of Prof Syed Haroon Ahmed is set out in below in full for ease of reference.

PSYCHO.SOCIAL CENTRE

Prof. Syed Haroon Ahmed MD. FRC Psych. (Lond) DPM (Eng)

CONFIDENTIAL

April,2010

Report of under trial Prisoner Mr. Fawad Ahmed (our ref # K-7561 Referred by Hon. High Court Sindh

Mr. Fawad Ahmed was examined in detail by me and psychometric test were introduced by our psychologist today.. He was first seen on 17tt' Noyember 1991 with history of depression and obsessive cilmpulsive disorder from 1979. Earlier he has had three mqjor depressive episodes and in 1987 a manic attack for the first time. He was tentatively diagnosed as. suffering from 'Bipolar Disorder and OCD with suicida-l ideation".

The presenting symptoms on first intake were profound depression (crying) irritability, dryness of mouth, impuise to tear off clothes and pessimistic thought, guilt about past and fear from future.

He was treated with a mood stabilizer (lithium carbonate) and antidepressant (Clomfranil).

He was regularly followed up in 1991 and 1992, fewer visits in 1993 but more frequent in 1994' At this stage he was maintained on mood stabilizer' (Lithium) and anti-depressant Prozac (Fluoxentine); Regular,tests for serum: lithium 1evel, kidney function (creatinine) and thyroid function (T3, T4, TSH) were carried out.

He was seen after a gap of several years on 31"t August 2001 and last time on 6th March 2007 when he was taking medicine rather erratically. Besides depression he wis a serious suicidal risk. Admission was advised but they disapPeared.

It was 6rh July, 2OO9 when Mrs. Fawad approached arrd complained hlr husband was arrested by NAB and he is severally depressed.

Mr. Fawacl is 3'd in birth order of four siblings' After gracluation he joincd Habib Bank, married with children ind positive family history of depression' .

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He was also evaluated by our psychologist and conclusion is as undcr:

"Mr. Fawad Ahmed Batra is a 52 years oid married male, come with the Court order from jail' After detail background history SA-45 was administered. His overall level of psychological distress or disturbance was found significant. Significant elevation (T> 60) were noted on Depression, Anxiety, Phobia, OCD, Somatization and Psychoticism scales. . The evaluation was consistent with clinical presumption (Major Depression Disorder)". : On current menta-l state examination he was found to be anxious, speaking incessantly about his depression, insomnia, negative rumination and restlessness, FIe complained of having several black outs. Suicidal impulses were much more severe than reported earlier.

Mr. Fawad was also very upset about the delay in trial and that he does not foresee any in near future. Hopelessness was profound.

A diagnosis of Bipolar Depressive Disorder currently in Major Depressive phase with Sulcidal ideation was ,} made. In his current mental state, and separation from family, the hopelessness is likely to damage his personality. (bold added)

sd- 21.4.2010 Prof. S. Haroon Ahmed M.D.

35.The trial court also constituted a medical board consisting of five. eminent doctors in the relevant field (Chaired by Prof Mohammed Iqbal Afridi (Head of Dept of Psychiatry JPMC) which also included Prof Syed Haroon Ahmed (who had previously treated the petitioner's husband as hoted above) to examine the petitioners husband medical condition as at 18-04-2O15 which was when the board was held. The.board in essetrco opined that the petltloner's husband had mental impairment (unsound mtnd; which wlll hlnder hls capabllity to plead before the court'

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36.The Report of the Medical Board is set out in full below for ease of reference

Medical Board of accused Fawad Ahmed Batra Reference No:O9 of 2OO9.

A meeting of the Medical Board accused Fawad Ahmed Batra was held on 18.4.201,5 at 12.30 pm in the committee Room NO.1 Administration Block, JPMC, Karachi. The following consultants attended the meeting.

Prof. Muhammad Iqbal Afridi. Chairman Head of Department Psychiarty.

. Prof. S. Haroon Ahmed M.D. Member Hilal-e-Ahmer Clifton, Karachi

Prof. S. Masroor Ahmed Member Incharge Department of Medicine w-7.

Dr. Khalid Sher. Member Incharge Department of Neurologr w-28.

Dr. S. Zafar Haider.

Associate Prof. Department of Psychiatry. Member/ Secretary.

57 years Mr. Fawad Ahmed Batra smoker; non diabetic, obese was examined by the Board. He was accompanied by his wife, came with history of weeping spells, ideas of suspiciousness, decreased, attention and concentration, there is history of his previous Psychiatric treatment. There is also history of loud noises during sleep and recurrent day time attacks of sleep. There is also previous history of Alcohol use, which he left in 2006. On General examination he was found with morbid obesity, his height was 5 feet 7 inches, weight 150 kg. and his BP 1601100. There was piting edema both lower limbs, pigmentation was found around the neck. Ophthalmoscopy was unremarkable. There was Bilateral frozen shoulders. On chest examination he was having bilateral polymorphic wheezes. On Mental State Examination mood v/as depressed and there was ideas of suspiclousness against wife. He has been diagnosed as case 'of Bipolar Affective Disorder currently Deptessed with Psychotic feature. Hypertension, sleep apnea, frozen shoulders and decreased concentration' Board has the oplnion that the Person is havlng mental impairment (unsound mindl whlch wlll v

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hinder his capability to plead before the Coutt'(bold added)

sd/- sd/' Prof. Muhammad lqbal Afridi Prof. S. Haroon Ahmed Chairman Member.

sd/ sd/- Prof. S. Masroor Ahmed Dr. Khalid Sher Member Member sd/- Dr. S. Zafar Haider Member/ SecretarY

37.Prof Mohammed Iqbal Afridi who chaired the Medical Board gave evidence as a court witness in connection with the Report of the Medical Board who confirmed the contents of the Board's medical report and its unanii, rous opinion'

38.During his cross examination by the learned counsel for the NAB he stated in relevant part as under;

"It is correct to suggest that accused Fawad Ahmed from Batra was patient of Bipolar Affective Disorder igzs tilt is.+.zors. It is correct to suggest that the medical board diagnoses the accused as patient of Bipolar Affective Disorder whereas Prof' Syed Haroon ehmed in his report (Exh. 18/2) diagnoses him as patient of Bipolar bepressive Disorder' Vol ,says that in tur report the diagnoses were with psychotic feature' lt is correct to suggelt that no tinle duration cal. b-e fixcd for the oiEipolar Affective Disorder and Bipolar "ureDisorder. It is possible that the accused D"p."""iu" Fawad Ahmed Batra would be out of symptoms of ;id;t lmective Disorder at the time ofphase' this ioiia"t t. Vol. says that can be a temporarily It is incorrect to suggest that Bipolar Affective Disord.r or Bipolar Depressive Disorder are not Vol. s-ays that it can be controlled by ""i"fri"' according to ir.*t*"t t. It is correct to suggest thatdisease the previous hi"tory of accused his is not ."Lir"t.rv curable but it was controlled by treatment. It is correct to suggest that Bipolar- Affective of oi*tJ"ii" not caused by gerrns, bacteria and fungus brain. It is incorrect to sluggest that Bipolar Affective Disorder is caused if a person faces or recelves any ;;;;"; difficulty ol problim Vol savs that this is not genetic ;;";;ly "rr"", ihi" di""""" is also linkedIttoisthe correct to l.ctor"-uttd other environmental factors' W

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suggest that Bipolar Affective Disorder is a hereditary disease. It is correct to suggest that no test of parents of accused was brought before use to determine that such disease was also found in his parent. It is incorrect to sugge.st that Bipolar Affective Disorder is a minor disease. Vol, says that Bipolar Affective Disorder is a major disease of mind. It is correct to suggest that no treatment of Electro Conversive Therapy' Anti- psychotic Depot injection and psycho surgery were detected in the previous history of accused. It is correct to suggest that the psycho patient of major disease can be provided these treatment. It is correct to suggest that the patient of Bipolar Affective Disorder can live normal life with proper treatment. It is correct to suggest that the treatment of Bipolar Affective Disorder is the same which is mentioned in Ex.18/2. There is possibility that a patient after taking these medicines/treatment can understand the matters and participate ln other activities' lt is incorrect to suggest that we opined faJsely that accused Fawad Ahmed Batra is a patient of Bipolar Affective Disorder' It is incorrect to suggest that I have not attached the notes of Members of the Board with the opinion produced at trx. 18/1 matafidely. It is correct to suggest that we have not performed the forensic psychiatric assessment test of accused' It is incorrect to suggest ! that our report is false and baseless"(bold added)'

39.Duling cross exarnination by learned counsel for the petitioner he stated in relevant part as under;

"It is correct to suggest that without proper treatment people with Hypomania may develop severe Mania or Depression. It is correct to suggest that 'Simon test is the test to check intelligence of a person. Vol. says that I have never carried out such test in my department. It is correct to suggest that the Bipoiar Affective Disorder is a chronic disease and co'ntinued till death. lt is correct to suggest that Lunacy Act 1925 has been repealed by Mental Health Ordinance 2001. It is correcl to suggest that word "lunatic" has been repealed by the Mental Heaith Ordinance 2001. It is correct to suggest that Mental Health Ordinance 2001 is broader in approach to the comprehension tbward the mental illness' lt is incorrect to suggest that Hallucination, loss of memory and loss oi are the symptoms of Bipolar Affective ' Di"order. Vol. says thai some of them can be the ""if]"rtrttol symptoms of Bipoiar Affective Disorder' It is correct to that tire Board formed an opinion that the "irii."t ;;;"" (acctsed Fawad mlnd Ahmed Batra) having mental imp"irm"nt, unsound whlch wlll hinder his v

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capability to plead before the Court. Vol. says that keiping in mind the many disease of accused such as bipolar affective disorder with psychiatric feature, hypertension, sleep apnea, obesity frozen shoulder and deceased concentration can lead to mental impairment. I cannot give opinlon that at the time of offence what sort of mental condltlons he had as we have given the opinion on examination of accused and on I the bisis of history and current condltion. A person with Bipolar Affective Disorder can have change of motion in his emotional and mental status depending on the treatment he is receiving. There are possibilities that a patient of Bipolar Affective Disorder can decide wrongly. It is correct that there are possibilities that a patient of Bipolar Affective Disorder continues doing an act which comes in his rrlind or instructed by any other person during the phase of bipolar affective disorder."(bold added)

40.Apart from the above referred reports and court witness no other evidence or material was placed before the trial court whilst determining the question of whether the petitioner's husband was of unsouud mind at the time of commission of the offense,

41.The petitioner's husband joined Habib Bank Limited (HBL) after graduation which means since he is 57 years of age as of 2O15 he has been working for HBL for at least 25 years over which period he alsb received achievement awards' According to Dr. Haroon's report the petitioner's husband had been suffering from mental health issuesi sometimes severe in nature, including tentatively a diagnosis of Biopolar Disorder (not Biopolar Affective disorder), from 1979 and was receiving appropriate medication in respect of the same right up to his arrest by the NAB and even in his after arrl'est report he is found by Dr.Haroon as suffering from Biopolar depressive disorder and not Biopolar Affective disorder'

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42.There is no evidence that during his approximately 25 years service at HBL that the petitioner's husband was either hospitalized or took considerable time off work during .his service at the HBL on account of his mental health problems'

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In fact he received performance awards and rose to the position of branch manager at HBL Ga-rden where the offense for which he has been charged was committed. No material was produced that during his career at HBL he had acted in arl unusual, bizalre or weird manner or had been warned ot any late coming or early leaving which may be attributed to the effect of medication which he was taking. Even Prof. Mohammed. Iqbal Afridi has admitted in his cross examination that a person having the same mental condition can lead a norma-l life if they are receiving the appropriate medication and treatment. It appears from Dr.Haroon's report that the petitioner's husband was receiving the appropriate 'medication and treatment around the time the offense was committed and that throughout his illness he was regularly attending work and carrying oul his required functions and was in effect for all intents and purposes leading a normal life. Furthermore, Prof. Afridi in his cross examination stated that,

"I cannot give opinion that at the tlme of' offence what sort of mental conditions he had as we have given the opinion on examination of accused end on fhe basis of histoty and current condition'" (bold " added) and ..ItispossiblethattheaccusedFawadAhmedBatra would be out of symptoms of Bipolar Affective Disorder at the time of this incident' Vol' says that can be a temporarily phase. It is incorrect to suggest that Bipolar Affective Disorder or Bipolar Depressive. u-

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Disorder are not tur"tt.' Vol. says that lt can be controlled by treatment. It is correct to suggest that according to the previous hlstory of accused hls disease is not completely curable but lt was controlled by treatment". (bold added)

43.It is also relevant in our view that the petitioner's husband was involved in a complex financial fraud which caused a loss of millions of rupees period of time 1,u". ".

involving parallel barking ald over 60 accounts which in our view tends to suggest that this was a planned and calqulated act motivated by greed and he was not of utlsound mind at the tlme of commission of the offense in 2OO5 at HBL where he continued working for another 4 years without any noticeable mental health problems (which indicates that his mental health problems were being kept under control through his medication and treatment) until this scam was uncovered and he was arrested by the NAB. Even a brief peep at some of th" .rid".rce recorded indicates that he was arranging with other co-accused to pay back the embezzled money and thus prima facie must have known that his acts were illegal especially as he was a seasoned banker and the I fraud couid not have taken place with out his active

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involvement over a period of time. :

44.Thus, taking into account the medical reports and the evidence of Prof. Mohammed Iqbal Afridi with great respect to Prof. Mohammed Iqbal Afridi, despite him being an expert falling under A.59 of the Qanun-e-shahadat Order 1984, we do not see how it was possible for him or the rnedica'l board to i

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independently conclude (especially as the petitioner's husbancl appears to have been examined by the Medical y-

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board on only one occasion and then only for a period of approximately I hour atrd 30 minutes without any long term observation or forensic psychiatric assessment or production of notes taken at the time which seems to us a very casual -l approach by Dr's of such eminence bearing in mind the potential importance and significance of their opinion) that the petitioner's husband had been suffering from Biopolar affective disorder since 1979 to date since this opinion rvas not in the report of Prof. Haroon dated O1-04-2010 and there is no other evidence on record to support this contentlon (medical or otherwise|.Thus, there ls no evidence on record to prove that at the tiine of commlsslon of the offense the petitloner's husbarrd by reason of uneo"'rd mind was incapable of knowlng the nature of hls act or

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that what he was doing was either wrong or contrary to law.

45.In this respect the case of Iifan Ul Haq V The State (2012 P.Cr.LJ P. 1328) is relevant at P, l33O Para 5 and 6 which held as under;

5."The learned trial court had called for the report and according to Consultant Psychiatrlst' the pdtitiottut is suffering from "Bipolar affective disorder". This ailment connotes two different condilions of the patient. In one condition, he is a person but in the other, when he is under fit, "o.-"f ioses control over his mind and may become dangerous for himself and others. Such person under fit canrlot. defend himself but once he is out of it, he behaves normally and rationally. In this condition he becornes consciois of his gains and losses. May be at the time of . examination, he was in manic phase but his statement dated 04. lt.2Oll before the learned Magistrate clearly reveals that he was mentally fit and fully understood the nature of the statemen[ made by him He had categorically stated that with the intervention of the

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respectable of the locality, the matter has been patched up and he has forgiven the accused persons of the private complaint in the name of Allah Almighty. The contention of the learned counsel for the petitioner that this statement was got recorded by the wife of the petitioner from him has no force and appears to be a lame excuse tailored to avoid the impact of the same. Under section 465 Cr. P.C. the opinion of the tria.l court has its own significance ar"rd it is required to try the fact of unsoundness or incapacity only if it arrives at the conclusion that the accused is of unsound mind and is incaph.ble of making his defence.

6.The learned Additional Sessions Judge after observing the accused in the court has made observations, which cannot be brushed aside merely due to the fact that the Psychiatrist had given a different oplnion as the opinion of the learned trial Court is confirmed from the 'sane and rational statement made by the accused. In these circumstances, the irnpugned order does not suffer from , any illegality or infirmity. The revision petition is without merits and the same is hereby dismissed. However, if the leaned trial Court at any stage of the trial is satisfied that due to recurrence of the ailment, the accused has become incapable to make his defence, it may reler him to the Punjab Institute of Mental , Health, Lahore for examination by a competent board and then decide the matter afresh".(bold added)

46.It. was also found in the case of Noor uddin V State (2O14 P.Cr'.iJ 113) which was a case invoiving schizophrenia that the initial burden of proof of the defense of insanity fell on the defense in the lollowing terms at P.72O Para 11 which is set out as under;

"lt is true that the onus of proof always remairrs on the prosecution and the accused is only required to show that there is a reasonable possibility of his case falling. within the exception clause and the standard of proof of a plea bringing the case of an accused within the exception clause need not be similar to the degree of proof as expected of the prosecution, yet, it is equally -( true that if an accused raises a defence falling within the exceptions, the burden of proving the existencc of the Pakistan Penal Code is upon him and the court shall presume the absence, of such circumstances, as contemplated under Article 121 of the Qanun-e-Shahadat Order, 1984. Reference can also be made to the above noted citation i.e, in the case

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of Khizar Hayat v. The State 2006 SCMR 1755, wherein it was observed as under:-- "lt is settled maxim in law, until the, contrary is proved every man is presumed to be sane and possessed of a sufficient decree of reasons to be responsible for his actions. This cled'rly following from Article 121 of the Qanun-e-Shahadat Order, 1984 which provides that the burden of proving that the case, of an accused person falls within an exception is on him"

12.'Medical and legal standards of sanity are not identical. From the medical point of view, it is probably correct to say that act o[ murder by itself denotes an unhealthy and abnormril state of mind of the murderer, but from the legal point of view, he is sane as long as he can understand that his act is contrary to law. The mere fact that at the time of examining the appellant, the Medical Standing Board found the appellant suffering from Paranold Schizophrenia, is not sufficient to hold the appellant of unsound mind within the meaning of section 465 of the Cr.P.C. or under section 84 of the P.P.C.' because queernesa above is not sufficient to hold the appellant of unsound mlnd and incapable of making defence' In this regard, reference can be made to the case of + Aurangzeb v. the State, 1971 PCT.LJ 1285, wherein it was held as under:- . "If benefit wag to be had from section 84' establish P.P.C, it was necessary for the appellant '!p legal insanity in the context of reasonat'ft doubt at the ttme of corirmltting the offence. There ls no material on record to establish that by reason of unsoundness of mind he was incapable of knowiag the nature of his own acts or that what he had done was either wtong or contrary to law. All that appears on record is queer behavior before the occurretlce' This by itself; even if we were to accept that he acted in that manner, would not throw light on hls mental imbalance at the time he had committeA the offence in the context of legal insanlty." (bold added) 47 . Thus we find that there is no evidence that at the tlme of the commission bf the offense the petitioner's husbeurd -i rvas of unsound mind and as such we find that S 84 PPC wi'll not be applicable to him and he will not stand acquitted on that count and in this respect the impugned order is upheld':V,

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Turnlng to the second issue as to whether the petitloner is nour of unsound mind so that he is unable to understand the nature of the proceedings and thereby is iacapable of making a defense,

48, It may be that at the time . when the offense was committed the petitioner's husband was not of unsound mind as we have already found. However, the offense was committed in 2006 and it is now 2Ol7 so it may well be possible that over a period of 11 years the petitioners husband's menta-l health may have deteriorated to the extent that he is now of an unsound mind and is unable to understand the nature of the proceedings and thereby is incapable of making a defense.

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49.There are some mental illnesses such as advanced vascular dementia and advanced Alzheimer's disease which are permanent and incurable ald where the accused/patient's condition gets progressively worse over the passage of time not with standing treatment and the best medication available so that the accqsed/patient would' not be able to understand the nature of the proceedings and/or plead his defense. In such cases on a positive repoft to this effect from a medical board consisting of experts in the relevant field it may be that the trj$l needs to !e postponed on -( account of the patient not being able to mal<e a defense'

50.There 'are a-lso cases such as this where the mental illness i.e. Biopolar Affective disotder may. be permanent but may also be treated with proper medication so that the effects u-

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of the illness/disease can be controlled so that a person can lead a normal life and would be in a position at some stage of being capable of making a defense. As stated by prof Afridi in cross examination.

"It is correct to suggest that the patieirt of Bipolar Aflective Dlsorder can llve normal life with proper treatment. It is correct to suggest that the treatment of Bipolaf Alfectlve Disorder ls the same whlch is mentioned in Ex.l$/2. There is posslbility that. a patient after taking these medicines I treatment can understand the matters and participate in other activltles"

51.Even in the recent case recent case.of Mst Safia Bano V Home Department Government of Punjab (PLD 2017 SC 18) although concerning a stay bf execution so that a person convicted of murder who was suffering from Schizophrenia could write his will the Hon'ble Supreme Court dismissed the petition, which was considered in the light of Mental health Ordinarrce 2001 and held as under at P.28 Para 12 !'72. In the light of above discussion, we have been again perused the material placed on record, which reveals that indeed right from the stage of trial Imdad Ali, husband of the petitioner, took such plea in defence, but all the Courts discarded his plea of mental illness of the nature, which could be made basis to term him as Lunatic. Even the medlcal record produced before us reveals that husband of the petitioner was all along considered as. psychiatric patient suffering from paranoid schizophrenia. Learned Division Bench in its impugned order has aptly taken into account all these relevant facts and circumstances in the light of Prison Rules, 1978 and thus rightly rejected the plea of petitioner and dismissed her petition".(bold added)

52.Indeed, in our view as was sigrrificantly mentioned in Mst Safi1a Bano's case (Supra) much would depend on the "extent" of the menta-l illness bearing in mind, in this case, the ability of the petitioners husband's to under6tand the ll.

l6t nature of the proceedings and his capability of making his defense especially keeping in view the fact that the petitioner's husband's mental state/condition can be managed through appropriate medication and treatment'

53.In this particular case, on the one hand we have a categorical. report from 5 renowned experts in the relevant field which has opined that that the petitioner's husband had 'mental impairment (unsound mind) which wlll hindet his capability to plead before t.l.e court as of 18-O4-2015 and a background of mental illness of the petitioner's husband stretching back to 1979 Whilst on the other hand we have Board evidence under oath from the Chairman of the Medical that a person with the menta'l disorder which tire petitioner's husband is suffering from can lead a normal life if he is

provided with the appropriate treatment and medicatio" *if there is a possibility that a patlent after taking these medicines/treatment can undelstand the matters and

participate in other actlvitles' We also note that the nd appears from a fleeting glance of the to be well represented by his counsel at trial ' 'evidence The

impugned order also indicates that on 26-10-2010 the

present ancl petitioner's husband entered his plea and was time whilst the ', personally instructed his counsel from time to first 4 PW's gave evidbnce and is still regu i ploceedings and is not causing any concern / disturbance 'to thetrialcourtinconnectionwithhisconduct(andheilnot' ,. l

tends to indicate being kept in a psychiatric hospital) which i'e' 26-10- ' ' that the petitioners husband at least at that time v-/

2OlO (7 years ago) and even now was not, and is not at this point in time, of an unsound mind and was/ is capable of making his defense. Thus, even if we take into account the broader approach to the definition of mental illness as set out in Mehran aiias Muna (Supra) the severity of the petitioners husband's illness which appears to be a fluctuating condition may not prevent him from making a defense

54.We are also mindful of A. 1O (A) of the Constitution, which in essence provides the right to a fair trial and is reproduced as under for ease of reference, and the need for 5.465 and 466 only being pressed into service in genuine cases and not on account of feigned illnesses in order to avoid criminal liability as alldged by the prosecution in this case.

"A. 10 (A). Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person sha-ll be entitted to a fair trial and due process.'

55.Whilst fully appreciating that it is the decision of the trial court based on the medical reports artd conduct and demeanor . of ttre accused in court to make the final determination as to whether the accused is of unsound mind and understands the nature of the proceedings against him and is capable of making a defense we also note that the words used by the medical board are, "will hlnder his capability to plead" rather than, "will prevent his capability -t to plead." And that Prof. Afndi in his cross examination has conceded that if a person ta.kes the appropriate medication .

for an illness such as the petitioner's husband he can lead a b

tel

norma-l life and understand matters and participate in other activities.

56.In the Conclse Oxford Engllsh Dlctionary (l2thEd) "hinder" is defined as under;

"ma-ke it difficult for (someone) to do something or for sometl'ring to happen' (bold adcled) *hinder" is defined as;

57 . In Blacks Dictionary (6th Ed)

"to obstruct ol imPede"

58.Thus, in terms of the "nature and extent" of the petitioner's hirsband illness in our view, and keeping in mind the findings in Irfan ul Haq's case (Supra) which also conceined Biopolar Affective disorder and the fact that the petitioner is not presently confined as a patient in a arld is in fact on Psl'chiatric Hospital on account of his illness the contrar5r regularly attending the trial proceedings artd as per the trial judge seems to be understarding the nature of those proceedings, at this point in time since the petitionet's iilness is being controlled through medication it has not reached the extent that it \,\.ill Prevent him from understanding the nature of the proceedings or prevent him

from being incapable ol making his defense which is a

requirement of 5.465 Cr'PC' Thus taking into account the

discussioninthisorderfrompara43onwardsthisaspectof this point { the impugned order is also upheld Namely' that at in time the petitroner's husband is not of such arl unsoutad his defense' mind so as to mal<e it incapable for him to make

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59.Thus, thrs petltion stands drsmrssed however it is made clear- that if in the oprnion of the tnal court the petrtroner's husbarrd rs becoming incapable oI making his defense due to a detenoration rn his medrcal condrtron or another apphcatron to this effect is made to the tnal court by the petitioner the trial court may consider seeking a medical boards opinron on whether the medical conditron of the petrtioner at the relevarrt tlme is preventing him from having the capabihty of making his defense In addrtron srnce the trial of the petltioner's husband appears to be at an advanced stage wlth only a few witnesses left and the petltloner's husband is now the only accused we hereby drrect the trial court to decide this matter within 3 months of the date of thrs order. A copy of this order shall be sent to the concerned trial court for compliance,

60.The petition stands dtsposed of in the above terms

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