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Official Citation: 2017 PCRLJ 255
Court / Jurisdiction: Sindh High Court
Year of Decision: 2017
Decision Date: 2017-10-03
Parties: Mst. RAHILA widow of FAWAD AHMAD BATRA vs NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and 2 others
This judicial decision was delivered by the Sindh High Court on 2017-10-03. The matter involves proceedings between Mst. RAHILA widow of FAWAD AHMAD BATRA and NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and 2 others, officially reported as 2017 PCRLJ 255. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2017 PCRLJ 255
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title:Mst. RAHILA widow of FAWAD AHMAD BATRA vs NATIONAL ACCOUNTABILITY
BUREAU through Chairman NAB and 2 others Case No.: Constitutional Petition No.822 of 2016 Date of Judgment:2017-10-03 Reported As: PLJ 2019 Karachi 116, PLD 2019 Sindh 96 Result: Petition dismissed Judgment ORDER MOHAMMAD KARIM KHAN AGHA, 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 Accountability Court No.IV Sindh at Karachi whereby the petitioner's application under section 465 Cr.P.C was dismissed (the impugned order) and prayed that the same be set aside and that this cowl order that the case of the petitioner's husband comes within the ambit of Section 84 P.P.C.. 2. Briefly stated the facts of the case are that the husband of the petitioner is facing trial vide Reference No. 09 of 2009 filed by the National Accountability Bureau (NAB) under the National Accountability Ordinance 1999 (NAO) for his involvement in corruption and corrupt practices, more particularly his role in embezzling approx RS7 crore whilst he was HBL Garden branch manager through operating a parallel banking system with other co-accused who have now entered into plea bargains under the NAO, which reference is presently proceeding before the Accountability Court No. IV, Karachi and according to the Special Prosecutor NAB is on the verge of conclusion. 3. The petitioner's husband was arrested by the NAB on 08.05.2009 and as per record he sought admission to a psychiatric hospital on the grounds of his poor state of mental health. By order dated 26-04-2012 this court granted the petitioner's husband bail on medical grounds wherein it was held that in view of two reports of two renowned Doctors the stay of the petitioner in jail would be dangerous to his life as according to the doctors the accused/petitioner has the tendency of suicidal idea. 4. It appears that the petitioner then moved an application before the trial court under Section 465 Cr.P.C which was dismissed and then challenged before this court. This court vide order dated 02-05- 2011 with the agreement of the DPG remanded the matter back to the trial court for a fresh decision
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on the petitioner's application under section 465 Cr.P.C. keeping in view of all the provisions which are relevant to be examined including 464 Cr.P.C. After hearing both parties and recording evidence and considering medical evidence the trial court dismissed the petitioner's application under Section 465 Cr.P.C vide the impugned order which the petitioner's wife has now assailed before this court through this Constitutional petition. 5. Learned counsel for the petitioner'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 to mental health reasons and as such could not be tried 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 material on record based on his hearing before the trial court under Section 465 Cr.P.0 had shown that he was of unsound mind at the time when he committed the offense and as such Section 84 P.P.C. was applicable which meant that he could not be liable for committing any offense. He contended that the trial court in the impugned order had erred in not fully appreciating or understanding the medical evidence placed before it and as such the impugned order should be set aside and this court should find that Section 84 P.P.C. was applicable to him. In this respect he placed reliance on various medical reports and evidence of CW Prof. Mohammed Iqbal Afridi , Article 59 Qanun-e-Shahadat Ordinance 1984 and the following authorities; Khan Bain v. The State (PLD 1984 Lahore 434) State of Rajasthan v. Shera Ram alias Vishnu Dutta (2012 SCMR 1768) Fauqual Bashar v. The State (1997 SCMR 239), Munshi Khan v. The State (1983 PCr.LJ 778 [SC(AJ&K)], 1955 NUC (Madhya Bharat 5686) (V 42), Surendra Mishra v. State of Jharkhand (SC India dated 06.01.2011) and Archbold (2008). 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 Section 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 authorities; Muhammad Anwar v. The State (2000 P.Cr.LJ 64 (Karachi), Walidad Khan v. The State and another (PLD 2011 Lahore 153) and Irfan ul Haq v. The State and another (2012 P.Cr.LJ 1328 (Lahore). 7. We have considered the submissions of learned counsel for the parties, case laws cited by them and carefully perused the material available on record. 8. In essence this petition revolves around whether the petitioner's husband was/is of unsound mind. In our view this aspect divides into two parts: (a) Whether the petitioner was of unsound mind at the time when the offense was committed and (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 the petitioner was of unsound mind at the time when the offense was committed. When is a person of "unsound mind"? 9. In answering Para 8 (a) and (b) above we must first define what we mean by an "unsound mind" since it is of crucial significance in terms of Section 84 P.P.C. 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 persons (see Insanity). It exists where there is an essential deprivation of the reasoning faculties, or where a person is incapable of understanding 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
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person and clothing, and offensive and disgusting personal habits do not constitute unsoundness of mind (bold added)". 11. According to Blacks Laws Dictionary (6th Ed) "insanity" is defined as follows: "Insanity. 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 synonym ous with mental illness or psychosis. In law, the term is used to denote that degree of mental illness which 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 defendant who asserts the defense that he or she was 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 criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform 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 defined by the American Law Institute, has been adopted (sometimes with 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 (13th Ed) "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" [See Lunatic]. 13.According to K.J.Aiyar Judicial Dictionary (13th Ed) "Lunatic" is defined as follows: "Lunatic. 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 of or alleged to be of unsound mind, and the words 'person of unsound mind, ' person' patient of unsound mind', or 'of unsound mind', or such other expression as the context may require are to be substituted in any enactment or document thereunder. (Wharion's Law Lexicon, 1976 reprint, p 613. See also Mental Health Act 1987, S. 2]. 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 section 3(4) of the Lunacy Act is defined as an idiot or person of unsound mind. Who is a person of unsound mind? The said words have not been defined 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 in manner in which another person without such mental irregularity will be able to do in the matter of his own. The idea suggests some derangement of the mind. Whatever be its degree and it is not to be confused with or taken as analogous a mere mental weakness or lack of intelligence. [Abdul Kareem v. T Gopalakrishnan Nambisan 1990 Cr.LJ 742 (745) (Ker). A lunatic is one who is affected by his disorder only at certain periods of vicissitudes, having intervals of reason. Madness is permanent. Lunacy and madness are spoken of as required insanity, and idiocy as natural insanity. The definition is very wide in terms and will certainly include a schizopherenic. In the Mental Health. Act 1987, expression 'lunatic' is not used, but instead, the expression 'mentally ill person' is used. [Mini v. James Koshy Alexander (1996) 1 Hin LR 294 at 296 (Mad); Usha Gupta v. Santosh Kumar 1996 MPLJ.42, (1996) 1 Hind LR 233]. (bold added)" 14. According to K.J.Aiyar's "Judicial Dictionary (13th Ed) "Insanity" is defined as follows: "Insanity" implies the existence of either or both of the mental conditions namely, an incapacity (i) to
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know the nature of the act; and (ii) to know that the act is wrong .or contrary to law. [Sankaram v. State 1994 Cr.LJ 1173 at 1178 (Ker). There is a clear distinction between legal insanity and medical . insanity. Legal insanity is the insanity which affects not only the cognitive faculties of the mind, which guide our actions, but also our emotions which prompt our actions and the will by which our actions are performed. It is only unsoundness of mind which materially impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility, the nature and extent of the unsoundness of mind required being such as would make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law. It is this rule which is the basis of section 84 I.P.C. (Kalicharan v. Emperor ILR 1947 Nag. 226; Baswantrao Bajrao v. Emperor (bold added) 15.In M. Illyas Khan's and Farah Khan's Medico Legal Digest of Pakistan "insanity" is defined as follows:-- Insanity: In law the term insanity is used interchangeably with unsoundness of mind. This covers a wide range of synonyms lunacy, madness, mental disorder, and mental disarrangement. In this situation an 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 law or in medicine and does not connote any definite medical entity. Insanity is seen to be a social inadequacy and medically it takes the form of a mental disease. Insanity implies a degree of mental disturbance so meaning and so disabling 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 Pakistan the Lunacy Act of 1912 was repealed and was replaced by the Mental Health Ordinance 2001 (Ordinance VIII of 2001) which no longer uses the word lunatic which is in line with K.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 2001 provides the following definition in terms of mental illness at Section 2 (m) as set out below: "(m). "mental disorder" means mental illness, including 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 significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "mentally impaired" shall be construed accordingly; (ii) "severe personality disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned' (iii) "severe mental impairment" means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "severely mentally impaired" shall be construed accordingly; Explanation. - Nothing contained in clause (m), sub-clauses (i), (ii) and (iii) above shall be construed as implying that person may be dealt with under this Ordinance as suffering from mental disorder or from any other form of such mental disorder defined in this section, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs. 17.Under the Mental Health Ordinance 2001 the courts in Pakistan in recent times have tended to give a narrow interpretation to these definitions under the Mental Health Ordinance 2001. For instance, in the recent Supreme Court case of Mst. Safia Bano v. Home Department Government of
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Punjab (PLD 2017 SC 18) it was held at P.26 Para 10 that schizophrenia in all cases was not a permanent mental disorder as to come within the definition of "mental disorder" as defined in the Mental Health Ordinance 2001 in the following terms: "10. Thus, schizophrenia is not a permanent mental disorder, rather imbalance, increasing or decreasing, depending the level of stress. In recent years, the prognosis has been improved with drugs, by vigorous psychological and social managements, and rehabilitation. It is, therefore, a recoverable disease, which, in all the cases, does not fall within the definition of "mental disorder" as defined in the Mental Health Ordinance, 2001" 18.However in the earlier case of Mehrban alias Muna v. State (PLD 2002 SC 92) which dealt specifically with Section 84 P.P.C. at P..96 the Hon'ble Supreme Court laid down some guidance on the potential width of Section 84 P.P.C. 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 Medical Jurisprudence, Forensic Medicine and Toxicology (for class rooms and Court rooms) which at P.6.29 provides as 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 insanity" 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 insanity, it must be clearly shown that at the time of committing the act, the accused was laboring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know this, that he did not know that what he was doing was wrong it 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, transient loss of control, and others including unresisted impulse. The legal test of insanity that is accepted in India is embodied in Section 84 I.P.C. which lays down that nothing is an offence which is done by a person, who at the time of doing it, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. With the advances in medicine, insanity is better understood now and many criminologists and psychiatrists are 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. Criticism of McNaghten Rules. The primary 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 influence 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
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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 fully but only partially responsible for his act. Thus, a charge of murder may be reduced to one of manslaughter. This doctrine is applicable 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 v. United State held that an accused is not criminally responsible if 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 responsibility should mean. It has an 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 (1961) 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 of the 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 in 1923 but withdrawn in 1924. American Law Institute's Test Under this test (1970), 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 criminal 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 is 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 loss 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 responsible for his actions. Once insanity or unconsciousness 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 casual link between insanity and crime needs to be 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 through a so called disease of the mind as is illustrated in Smith and Hogan's criminal law (13th Ed) at P.295 to 298 as under: 11.2.2.2 The test of insanity Whatever the effect of the recent changes on procedure and disposal, the M'Naghten Rules remain of great importance sym bolically both because they provide the legal test of responsibility of the mentally abnormal and because they set a limit to the defences of automatism and, in theory, of diminished responsibility. The basic propositions of the law are to be found in the answers to Questions 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 sufficient degree of reason to be responsible for his crimes, until the contrary 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 quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.
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It will be seen that there are two limbs 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 'wrong'. The Rules have been heavily criticized for being over-inclusive; 'disease of the mind' has been widely construed as to include within the scope of insanity such everyday 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 criticized for focus on the cognitive state of D (has he appreciated the nature or wrongness) rather than on whether D had the capacity to be held responsible or to conform with criminal regulation. Disease of the mind The two limbs of the Rule require separate…
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