FIR lodged after 25 years of Transaction

 PLJ 2024 Cr.C. 618

[Islamabad High Court]

Present: Arbab Muhammad Tahir, J.

Ms. GHAZALA ALI--Appellant

versus

SIKANDAR RAMZAN Chaudhry and another--Respondents

Crl. A. No. 172 of 2021, decided on 5.12.2023.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 249-A & 417(2A)--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Acquittal from charge--Registration of FIR--Transfer of house--Family settlement agreement--Settlement agreement was not cancelled--FIR was lodged after twenty years of transaction--Report of handwriting expert--Allegation of forgery--Non-implication of respondent--Estate of deceased was settled through an agreement--The appellant and her brother were also signatories of agreement--The said agreement, as per documents, still holds field and was not yet been cancelled by Court of competent jurisdiction despite questioned by appellant and her brother--Subject FIR was got registered by appellant in year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of first agreement wherein she had also been a signatory, challenged same subsequently after twenty years of alleged transaction--Before registration of instant FIR, appellant had already filed suit for cancellation of agreement with a delay of more than twenty years--The report reveals that signatures of late Ch. Ramzan Ali were similar in characteristics with his routine signatures--Report, authenticated and verified by Deputy Director and Director Technical Wing FIA, negated allegation of forgery, as alleged by appellant in her FIR-- Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict respondents for offence alleged, comprised of documents mentioned in recovery memo.--Neither CDA nor Investigation Agency alleged any forgery in preparation of said documents--Entire prosecution evidence did not implicate respondents for commission of alleged fraud and forgery--Appeal dismissed.

                                                      [Pp. 621, 624 & 625] A, B, C, D & E

PLD 2007 SC 386 & 2022 CLC 1064 ref.

Raja Iftikhar Ahmad, Advocate for Appellant.

Mr. Mudassar Hussain Malik, Advocate for Respondents.

Mr. Hazrat Younas for State.

Date of hearing: 8.11.2023.

Judgment

Through the listed criminal appeal in terms of Section 417 (2A) Cr.P.C., “appellant” namely Ms. Ghazala Ali (complainant) impugns order dated 12.10.2021, passed by learned Judicial Magistrate Section-30, Islamabad-West whereby respondents 1&2 namely Sikandar Ramzan Ch. and Ms. Samina Babar Ramzan (‘respondents’) were acquitted in terms of Section 249-A Cr. P.C in case FIR No. 228, dated 25.05.2018, under Sections 420, 468 & 471 PPC, Police Station Aabpara, Islamabad.

2. Precisely, subject FIR stood registered on the complaint of appellant Ms. Ghazala Ali wherein it was alleged that she is daughter of Ch. Ramzan Ali, who was owner of House No. 41, Street No. 12, Sector F-6/3 Islamabad (‘subject house’); that her father died in the year 1990; that her two brothers namely Sikander Ramzan Ch. (Respondent No. 1) and Babar Ramzan Ch. (late), by producing fake person in CDA and putting fake signatures of her father got transferred subject house in their name; that at the relevant time, other brother and sisters had been abroad, therefore, remained unaware regarding said forged transaction; that their father Ch. Ramzan Ali died on 30.10.1990 while the subject house stood transferred in the name of two brothers on 23.11.1991; that her brother Babar Ramzan Ch. died in the year 1992 and at that time their mother Ms. Anwar Sultana was alive and entitled to 1/6th share in subject house; that her mother Ms. Anwar Sultana died in the year 1997; that after the death of her mother, her legal heirs including appellant and brother Tariq Ramzan Ch. were entitled to their due share in the subject house; that in the year 2005 respondents Sikandar Ramzan. and Ms. Samina Babar Ramzan prepared forged succession certificate and fraudulently got transferred the subject house in their names and in the names of their children, thus deprived the appellant and other legal heirs of their legal share in subject house by employing fraud and forgery.

3. After due investigation, report in terms of Section 173 Cr.P.C was submitted before the Court of competent jurisdiction for trial. The said report primarily based upon documentary evidence including the application and transfer forms collected from CDA containing signatures of late Ch. Ramzan Ali and Opinion of Handwriting Expert wherein on examination, questioned signatures of the late found not similar with that of his routine signatures. Subsequently, on an application by Respondent No. 1 regarding tendering of Opinion with fake signatures of the Examiner, supplementary report under Section 173, Cr.P.C. was submitted before the Court with Opinion of Handwriting Expert of even date i.e. 19.04.2019 wherein, the signatures of the late on questioned documents and routine signatures were found similar in nature. At the trial, respondents were charge-sheeted on 31.07.2019 where after they filed an application under Section 249-A, Cr.P.C. The learned Trial Court after hearing the parties, accepted the application vide order dated 12.10.2021, being impugned through the listed appeal.

4. Learned counsel for the parties addressed lengthy arguments by referring previous litigation, both civil and criminal, launched by the appellant and one of her brother Tariq Ramzan Ch. against respondents and others. Both the sides documented the appeal to highlight their respective contentions. Respondents through separate civil misc. placed on record copies of FIRs, orders passed thereupon and copies of civil litigation and orders thereupon besides an agreement-family settlement dated 17.01.1998.

5. The circumference of the submissions advanced by learned counsel for the appellant had been to the effect that respondents by playing fraud and forgery, deprived the appellant and other legal heirs of their share in the subject house; that forgery and fraud is substantiated by the Opinion of Handwriting Expert and that in order to perpetuate illegal act just to grab the property by depriving other legal heirs, respondents subsequently got prepared succession certificate by deliberately concealing all legal heirs and then fraudulently got transferred the subject house in their names and in the names of their children. Learned counsel in support of his submissions referred various documents, tendered before the CDA for the purpose of transfer of allotment of subject house by the respondents. According to learned counsel, the subject transfer of allotment in the name of respondents, on the face of it, is bogus as it was made after the death of Ch. Ramzan Ali, who died on 30.10.1990 while alleged transfer of allotment in the name of respondents was made much later on 23.11.1991, therefore, under the circumstances, proper course for the Trial Court was to record evidence and then decide the case on merits instead to knockout the appellant without affording her due opportunity to produce evidence, thus impugned order being against the spirit of natural justice, contrary to incriminating material made basis to indict the respondents for the alleged offence and offensive to right of fair trial envisaged in Article 10-A of the Constitution is liable to be set aside.

6. On the other hand, learned counsel for respondents vehemently repelled the submissions advanced by learned counsel for the appellant by contending that respondents had been/are facing dense litigation, both civil and criminal, initiated by the appellant and the other brother Tariq Ramzan Ch. while none of the other two sisters came forward to support the appellant; that the matter inter se the parties had already been settled regarding estate of their predecessor through family settlement in the year 1998 where after, appellant and her brother Tariq Ramzan Ch. launched criminal and civil actions, one after the other out of personal grudge and vendetta against widow of their late brother and the other brother with whom they had already settled the family issue; that in an identical case lodged by Tariq Ramzan Ch, respondents were acquitted in terms of Section 249-A, Cr.P.C. and appeal against the said order was also dismissed by this Court with costs, therefore, instant appeal being frivolous, vexatious and offshoot of malicious prosecution launched by appellant, deserves the same treatment.

7. Heard the learned counsel for the parties and consulted the documents made available on file with their able assistance.

8. The parties-to-lis hail from common pedigree. The subject house was owned by Ch. Ramzan Ali (predecessor in interest of the parties) who died on 30.10.1990. the appellant and respondents are closely related with each other. The appellant and Respondent No. 1 Sikander Ramzan Chaudhry are real brother and sister while Respondent No. 2 Ms. Samina Babar Ramzan Ch. is widow of Babar Ramzan Chaudhry, late brother of appellant and sister-in-law (bhabi) of appellant. Late Ch. Ramzan Ali (died in 1990) was survived by Ms. Anwar Sultana (died in 1997) widow, three sons Tariq Ramzan Ch., Sikander Ramzan Ch. (Respondent No. 1), Babar Ramzan Ch. (died in 1992) and three daughters Bushra Bibi, Zahida Parveen and Ms. Ghazala Ali (appellant).

9. As per the documents made available on file, before the rift cropped up between the parties, dispute with regard to estate of the deceased was settled through an agreement dated 17.01.1998. The appellant and her brother Tariq Ramzan Ch. were also signatories of the said agreement. The said agreement, as per documents, still holds the field and has not yet been cancelled/revoked by the Court of competent jurisdiction despite questioned by the appellant and her brother Tariq Ramzan Ch through a civil suit.

10. Record further reveals that appellant and her brother Tariq Ramzan Ch commenced the litigation, both civil and criminal, against respondents and others in the year 2018, then in 2019 and 2020 as well.

The first action was initiated on 09.01.2018 by appellant and her brother Tariq Ramzan Ch by filing suit against respondents and others seeking decree for declaration, partition, cancellation of agreement dated 17.01.1998, permanent and mandatory injunction.

After about five months of filing of said suit on 25.05.2018 appellant got registered FIR, subject matter of instant appeal wherein respondents were acquitted vide impugned order.

Thereafter, on 11.12.2018, Tariq Ramzan Chaudhry got registered FIR No. 432, under Section 420 PPC, at same Police Station i.e. Aabpara Islamabad, regarding preparation of forged agreement dated 13.02.2007 (after more than ten years of said agreement) against respondents. In the said case, respondents were acquitted in terms of Section 249-A Cr.P.C by learned Judicial Magistrate Section-30 Islamabad-West vide Judgment dated 12.10.2021. Tariq Ramzan Chaudhry assailed the said order before this Court through Crl. Appeal No. 199 of 2021 which was dismissed with costs of Rs. 200,000/-. Paragraph 7, 8 and 9 being significant are reproduced:

          “07. Father of the appellant namely Ch. Ramzan Ali, got transferred House No. 41, Street No. 12, Sector F-6/3, Islamabad in the names of his sons Sikandar Ramzan and Babar Ramzan on 11.08.1990, in his life time, by adopting legal procedure in the office of Capital Development Authority, Islamabad.

          08. The deceased father affixed his signatures and thumb impression himself on the transfer application form, consequently transfer letter was issued by the office of C.D.A on 23.11.1991, after the death of Ch. Ramzan Ali but all the legal and codal formalities of transfer of the property were completed on 11.08.1990, during life time of Ch. Ramzan Ali.

          09. When confronted, learned counsel for the appellant has admitted that there is no expert report that the thumb impressions and the signatures of deceased father are fake or forged.” {Emphasis added}

On 20.02.2019, Tariq Ramzan Chaudhry again got registered another FIR Bearing No. 131, under Section 420, 468, 471 PPC, this time at Police Station Civil Lines Rawalpindi, against the respondents on the same allegation of preparing forged agreement dated 13.02.2007. It this juncture, it is necessary to mention that as per stance of respondents said agreement had been made pursuant to original agreement/ settlement of 1998 in order to protect rights of legal heirs.

On 09.05.2019 Tariq Ramzann Chaudhry filed an application against his sister-in-law/Respondent No. 2 Ms. Samina Babar Ramzan for cancellation of guardianship certificate dated 25.07.1995 but the same was dismissed by learned Guardian Judge vide order dated 02.12.2021.

On 11.09.2019 Tariq Ramzan Chaudhry fled suit for declaration, possession, mesne profits and permanent injunction against respondents and others.

On 23.12.2019, one Tariq Masood, employee of Hammad son of Tariq Ramzan Chaudhry got registered FIR No. 435, under Sections 324, 34 and 109 PPC, at Police Station Shalimar Islamabad against respondents and others wherein the latter were acquitted in terms of Section 249-A Cr.P.C by the learned Judicial Magistrate Section 30 Islamabad-West vide order dated 02.11.2021.

On 01.05.2020, Tariq Ramzanan Chaudhry got registered FIR No. 122, under Section 420, 468, 471, 201, 498-A and 466 PC, at Police Station Shahzad Town Islamabad, on the allegation of fraudulent transfer of property of her in laws by excluding other legal heirs wherein Respondent No. 2 Samina Babar Ramzan was allowed pre-arrest bail by learned ASJ-II Islamabad East vide order dated 30.07.2021.

11. Perusal of documents regarding above litigation, launched by appellant and her brother Tariq Ramzan Chaudhry reveals that respondents were subjected to face criminal and civil litigation primarily on the same subject matter. Besides present FIR, four FIRs were got registered against them besides two civil suits, filed by appellant and her brother Tariq Ramzan Chaudhry against respondents and an application for cancellation of guardianship certificate which was dismissed. It appears that the appellant and her brother Tariq Ramzan Chaudhry had been/are keeping the respondents on their target. The above mentioned proceedings though no directly related to subject FIR yet their relevance and significance cannot be ignored, primarily for the reason of having one and the same original cause of action, made basis by appellant and her brother Tariq Ramzan Ch. to launch proceedings against respondents and the aspect that same do form part of judicial record, having direct nexus with the subject matter of instant appeal. Under the principle, documents that retain such like qualifications can be made basis to take judicial notice of the same. Ordinarily, documents are produced through a witness who testifies on oath and who may be cross-examined by the other side. However, there are exceptions with regard to facts which need not be proved; these are those which the Court can take judicial notice of under Article 111 of the Qanun-e-Shahdat Order, 1984 and are mentioned in Article 112, and facts which are admitted (Article 113, Qanun-e-Shahdat Order, 1984), pertaining to part of judicial record, having direct nexus with subject matter of instant appeal. Reliance is placed upon recent pronouncement of the Supreme Court of Pakistan in the case of Manzoor Hussain (deceased) through LRs v. Misri Khan (CA No. 1698 of 2014).

12. Adverting to the merits of the case, it is noticed that the alleged transaction of transfer of allotment in the name of two brothers i.e. Respondent No. 1 Sikandar Ramzan Chaudhry and Babar Ramzan Chaudhry (late), husband of Respondent No. 2 was made in the year 1991 while subject FIR was got registered by the appellant in the year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of the first agreement wherein she had also been a signatory, challenged the same subsequently after twenty years of alleged transaction. Before the registration of instant FIR, the appellant had already filed suit on 09.01.2018 for cancellation of agreement dated 17.01.1998 with a delay of more than twenty years.

13. As there were two reports of Handwriting Expert of even date, filed before the Trial Court along with reports under Section 173 Cr.P.C, one allegedly contained fake signatures of the Official concerned while the other, filed with supplementary report under Section 173 Cr.P.C, testified as genuine. In order to verify the veracity of the report, on the direction of this Court, FIA filed comprehensive report on 24.10.2022 highlighting the procedure and SOPs, being followed for examination of questioned documents. As per said report, made part of file, after careful examination and adopting due process, report was prepared by the concerned official, then examined and approved by Deputy Director Technical and thereafter Director Technical Wing FIA. The report dated 19.04.2019 reveals that signatures of late Ch. Ramzan Ali are similar in characteristics with his routine signatures. Thus, report, authenticated and verified by the Deputy Director and Director Technical Wing FIA, negates allegation of forgery, as alleged by the appellant in her FIR and pressed to seek full-length inquiry on the basis of reports containing fake signatures of the official concerned, which of course, deserves stern departmental action against the delinquent/s, after tracing them out by the FIA and the police as well.

14. Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict the respondents for the offence alleged, comprised of documents mentioned in the recovery memo. The same are allotment letter in the name of original owner pertaining to the year 1964, application form for transfer of allotment, requisition of transfer application, document containing signatures of late-predecessor in interest of the parties, transfer letter, application for transfer of share, letter of transfer of allotment in the name of Respondent No. 2, letter of division of subject house and photo copies of CNICs. None of these documents even remotely suggest that any fraud, as alleged, had been played by the respondents. It was also for the reason that neither the CDA nor the Investigation Agency alleged any forgery in preparation of said documents. Therefore, entire prosecution evidence did not implicate the respondents for commission of alleged fraud and forgery.

15. It is well settled that in terms of Section 249-A Cr.P.C, the Magistrate may acquit an accused at any stage of the case if, after hearing the prosecutors and the accused and for reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence. The prerequisites for invoking the power in terms of Section 249 Cr.P.C are to the effect that before passing the order, Magistrate should hear the parties and consult the incriminating material and draw opinion regarding acquittal on the basis of said incriminating material only in case when the charge appears to be groundless or there is no probability of the accused being convicted of any offence. In the present case, as discussed above, charge against respondents, on examination of incriminating material, appears to be groundless and there was no probability of the respondents being convicted of any offence, in case prosecution was allowed to lead entire prosecution evidence.

16. To sum up, on careful examination of incriminating material, made basis to indict the respondents coupled with the fact of launching dense litigation, both civil and criminal highlighted above, by the appellant and her brother Tariq Ramzan Ch., whose identical appeal was earlier dismissed by this Court with costs, it can safely be held that charge against the respondents was groundless and there was no remote probability of their conviction in case the prosecution was allowed to produce entire evidence.

17. It is significant to note that instant case appears to be a classic example of frivolous litigation. It appears that there was blatant abuse of process of law to settle personal vendetta instead to agitate genuine grievance despite the fact that parties are closely related to each other. Such frivolous, vexatious and speculative litigation unduly burdens the Courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes. Such type of litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs. The specter of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious claim or defence before the Court. These costs in an appropriate case can be over and above the nominal costs which include costs of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost, besides the amount of the process fee and lawyer’s fee paid in relation to the litigation. The imposition of costs in frivolous and vexatious cases meets the requirement of fair trial under Article 10A of the Constitution, as it not only discourages frivolous claims or defences brought to the Court but also absence of such cases allows more Court time for the adjudication of genuine claims. The imposition of costs lay foundation for expeditious justice and promotes a smart legal system that enhances access to justice by entertaining genuine claims. The purpose of awarding costs at one level is to compensate the successful party for the expenses incurred to which he has been subjected and at another level to be an effective tool to purge the legal system of frivolous, vexatious and speculative claims and defences. The imposition of costs encourages alternative dispute resolution; settlements between the parties; and reduces unnecessary burden of the Courts, so that they can attend to genuine claims. The costs are a weapon of offence for the plaintiff with a just claim to present and a shield to the defendant who has been unfairly brought into Court. Reliance is placed upon Qazi Naveed ul Islam v. District Judge, Gujrat etc. (CP 3127 of 2020), Province of Balochistan v. Murree Brewery Company (PLD 2007 SC 386 (5-MB), Vinod Seth v. Devinder Bajaj (2010) 8 SCC) and Edwin Coe LLP v. Naseem Ahmad Sarfraz Khan (2022 CLC 1064-Islamabad).

18. In view of above, impugned order, being in accordance with law and facts of the case, does not call for any interference. Consequently, by following the course adopted by learned co-equal Bench while dismissing Crl. Appeal No. 199 of 2021, titled “Tariq Ramzan Chaudhry v. Sikander Ramzan etc.” instant appeal is dismissed with costs of Rs. 200,000/-which the appellant shall pay to respondents within a period of two months from the date of this judgment. In case of non-payment of costs by the appellant within the prescribed time, same shall be recovered from her as money decree with 10% monthly increase, and the costs of the execution proceedings shall also be recovered in addition thereto. Office is directed to transmit copy of this judgment to IG, ICT and DG FIA to hold in-depth inquiry and proceed against the delinquent(s) in accordance with law in terms of Paragraph 12 above.

(Y.A.)  Appeal dismissed

Jurisdiction and Authority to pass order for reinvestigation

 PLJ 2015 Karachi 190 (DB)

Present: Muhammad Ali Mazhar and Naimatullah Phulpoto, JJ.

ZEESHAN MUSTAFA LASHARI and another--Petitioners

versus

PROVINCE OF SINDH through the Chief Secretary, Sindh, Karachi and others--Respondents

C.P. No. D-5158 of 2014, decided on 24.11.2014.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 169, 170 & 173--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Reinvestigation-Essential for re-investigation after submission of challan--No power to C.M. to issue direction for reinvestigation--Police cannot adjudicate guilt or innocence of offender--Question of--Whether person is guilt or not rests with Court of law and not with police--Fair and impartial investigation--Jurisdiction and authority to pass order for reinvestigation--Validity--If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential FIR cannot be cancelled nor the accused can be discharged--Guilt or innocence of the accused can only be determined by the Court.       [Pp. 195 & 196] A

Police Order, 2002--

----S. 18(6)--Constitution of Pakistan, 1973, Art. 199--Reinvestigation--Change of investigation--Recommendations of board--Validity--Investigation would not be changed except after due deliberations and recommendation by a board headed by an officer not below the rank of SSP.                 [P. 197] B

Investigation--

----Change of investigation--Final order for changing of investigation--Second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer.  [P. 197] C

Re-investigation--

----Essential--Reinvestigation would be ordered denovo in routine--Validity--Reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation.       [P. 198] D

Investigation--

----Defect in investigation or challan--Non-allowance of reinvestigation--Validity--It is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all accused will be afforded ample opportunity to defend the indictment--Non-allowance of reinvestigation does not mean the deprivation of the right of fair trial of the accused persons.                              [P. 198] E

Re-investigation--

----Victim of reinvestigation--Deteriorate criminal administration of justice--Validity--Exercise of jurisdiction of passing orders for reinvestigation would not be taken so casually, callously and or offhandedly at the whims or aspiration.  [P. 198] F

Mr. Faisal Siddiqui, Advocate for Petitioners.

Mr. Abdul Razak, Advocate for Respondents Nos. 5 & 6.

Mr. Mustafa Mahesar, AAG.

Mr. Shahzado Saleem, APG.

Mr. Mazhar Hussain Alvi, ADIGP (Legal) Karachi.

S.I. (Legal) Tariq Jawed Bhatti and I.O. Inspector Muhammad Mubeen, P.S. Darakhshan, Karachi.

Date of hearing: 30.10.2014.

Order

Muhammad Ali Mazhar, J.--This constitutional petition is brought to challenge the impugned order dated 10.9.2014 issued by AIGP/Operation for and on behalf of Inspector General, Sindh Police whereby a committee was constituted for the re-investigation of Crime No. 235/2014, lodged at P.S.Darakhshan South Zone, Karachi under Sections 302, 324 and 34, PPC read with Section 7 of Anti-Terrorism Act, 1997.

2.  The brief facts of the case as narrated in the memo of petition are that the brother of Petitioner No. 1 and son of Petitioner No. 2 was murdered by Respondent No. 5 and his police guards on 8.5.2014. The Petitioner No. 1 lodged the FIR No. 235/2014 at P.S. Darakshan, Karachi on same date against Respondent No. 5 and others. Pursuant to the FIR, the I.O. submitted the charge-sheet No. 181/2014 on 11.6.2014 in the trial Court which was accepted on 16.6.2014. The Respondent No. 5 moved an application in the trial Court under Section 7 of Juvenile Justice System Ordinance, 2000 and vide order dated 30.6.2014 the Respondent No. 5 was declared juvenile and his case was separated for trial. He moved one more application under Section 23 of Anti-Terrorism Act, 1997 for the transfer of the case to the ordinary Court for trial, which was dismissed vide order dated 2.9.2014. Before submission of the charge-sheet the Petitioner No. 2 filed a Constitutional Petition No. 2667/2014 in this Court which was disposed of vide order dated 21.5.2014 with the following directions:

“After hearing all the learned counsel for the respective parties, Mr.Ali Sher Jakhrani DIG Police (Legal), Karachi makes a categorical statement before this Court that the investigation of the incident would be carried out in a very transparent, impartial and legal manner and it would be a test case for the Police Department and the Inspector General of Police will ensure that the Investigating Officer of the case is not influenced from anyone including the father of the alleged assailant. This statement satisfies the learned counsel for the petitioner, who seeks disposal of this petition in the above terms. Order accordingly. This petition stands disposed of in the above terms.”

3.  It is also a matter of record that the Respondent No. 5 filed a Criminal Misc. Application No. 211/2014 in this Court with the grievance that the I.O. has concealed vital piece of evidence so he prayed for reinvestigation of the case. However, on 12.9.2014 the Criminal misc. was dismissed as withdrawn.

4.  The learned counsel for the petitioners argued that the impugned order does not reflect any convincing reason as to why re-investigation is essential after submission of report under Section 173 Cr.P.C in the trial Court. The Respondent No. 5 though filed a criminal misc. application for reinvestigation, but it was withdrawn unconditionally. The challan has already been submitted and the matter is fixed for framing of charge. The impugned order has been issued to subvert and trigger interference in the fair trial with an obvious reason that the Respondent No. 5 is son of an influential police officer of Sindh Police. He further argued that the impugned order is without jurisdiction, illegal and has no legal effect. He also referred to the parawise comments filed on behalf of Respondent No. 3 (Inspector General of Police Sindh) in which it is clearly stated that the Respondent No. 5 has moved an application to the Chief Minister Sindh in which he requested for reinvestigation of the matter and in compliance of the order of the Chief Minister, a team has been constituted for reinvestigation vide impugned order. Learned counsel for the petitioners further argued that the Chief Minister has no powers under the Sindh Government Rules of Business or otherwise to issue any directions to the I.G. Police for reinvestigation of any matter and on this notch also the impugned order is liable to be set-aside. According to the Entry No. 14 of Schedule-I of the Sindh Government Rules of Business, 1986, the Secretariat Department of Police is Home Department while its head is the I.G. of Police. Learned counsel for the petitioners relied upon the case of Riaz Hussain v. State, reported in 1986 SCMR 1934 in which the apex Court held that the System of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favorable reports obtained. This in no way assists Courts in coming to a correct conclusion. It rather creates more complications to the Court administering justice. In the case of Muhammad Nasir Cheema v. Mazhar Javaid reported in PLD 2007 S.C. 31, the apex Court held that no power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the Court desired or only with respect to such offences as the Court wished. It was further held that the report under Section 173, Cr.P.C., had already reached to the trial Court where the trial has already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law.

5.  Mr.Abdul Razak, learned counsel for the Respondent Nos. 5 & 6 argued that the Respondent No. 5 has been falsely implicated in the case. The investigation was not properly carried out by the I.O. The alleged crime was committed inside the bungalow while the accused received firearm injuries at his back side while he was sitting at the driving seat of his vehicle parked outside the main gate. Challan does not carry particulars of inquest report of the deceased Suleman Lashari and P.C. Zaheer Ahmed Rind. The investigation conducted by the I.O. was mala fide and dishonest. According to post mortem report one S.M.G. bullet was recovered from the body of deceased Suleman Lashari, while in the FSL report one steel core of crime bullet was shown. The Respondent No. 5 arrived at the main gate of bungalow of the complainant and immediately his vehicle was ambushed and on his vehicle “Vigo” various bullets were fired from upper and back side resultantly the accused had received bullet injuries and P.S. Zaheer Ahmed Rind had died. He further argued that criminal misc. application was not dismissed on merits but the I.G. Police had passed an order for re-investigation on 10.9.2014, therefore, the application was withdrawn on 12.9.2014. It was further contended that the I.O. has concealed material piece of evidence therefore, the re-investigation in this case is a fundamental right of the accused in terms of Article 10-A of the Constitution. It was further contended that while accepting the challan, the learned trial Court did not apply its mind properly. He referred to the case of Bahadur Khan v. Muhammad Azam, reported in 2006 SCMR 373 in which the hon’ble Supreme Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence on which the accused had been tried and the case was finally decided up to the level of the High Court or Supreme Court.

6.  The learned AAG argued that Chief Minister has only passed the order that the reinvestigation may be conducted. He further argued that nothing has been placed on the record by the Respondent Nos. 5 and 6 to show that on what basis the reinvestigation was required to be carried out while the learned APG opposed the order of the reinvestigation on the premise that the Chief Minister has no power to order any reinvestigation and the AIG who issued the reinvestigation order has completely failed to mention any reason in which the reinvestigation is required in this case. The I.O. Muhammad Mubeen stated that the entire investigation was carried out independently and honestly. The identification parade was conducted by the Judicial Magistrate. The eyewitness identified the accused. Empties were also recovered from the place of incident and FSL examination was also conducted. One bullet of SMG was recovered from the dead body of Suleman Lashari while one bullet was passed through his body. No application was made for reinvestigation to the I.O. The challan has already been submitted and the matter is fixed for framing of charge.

7.  Heard the arguments. All the learned counsel for the parties had mutually agreed the disposal of this petition at katcha peshi stage and they argued their case extensively. The crux of Section 169, 170 and 173, Cr.P.C. is that the I.O. has to submit the final report with regard to the result of his investigation for taking cognizance or passing order under Section 173. The police cannot adjudicate the guilt or innocence of the offender because it is not their duty to decide which party is wrong or right. The investigation is required to be completed without unnecessary delay or impediment and as soon as it is complete the challan is required to be submitted not later than 14 days. Ultimate decision as to whether a person is guilty or not rests with the Court of law and not with the police. Since the Petitioner No. 2 had an apprehension that a fair and impartial investigation would not be conducted due to influence of Respondent No. 6 therefore, he filed C.P. No. D-2667/2014 in this Court which was disposed of in view of the statement of AIG Police (Legal) who assured that the investigation would be carried out in a transparent, impartial and legal manner. On the other hand, the Respondent No. 5 had filed Criminal Misc. Application for the reinvestigation of the Crime No. 235/2014, however, his criminal misc. application was withdrawn on 12.9.2014. The Respondent No. 5 written a letter to the Chief Minister Sindh on 15.8.2014 requesting reinvestigation of the case by an honest, reputable and intelligent joint investigation team headed by senior officer of the department. The AIGP (Legal) submitted comments on behalf of I.G. Police and also attached a copy of letter dated 25.8.2014 communicated by Deputy Secretary, Chief Minister's Secretariat, Sindh Karachi to the I.G. Police with the direction of the Chief Minister which is reproduced as under:--

“May be re-investigated through some
independent Senior Officer

Sd/-
23-08-2014
Chief Minister, Sindh”

8.  While the Respondent No. 4 in his comments stated that the I.G. Police Sindh has jurisdiction and authority under law to pass the order for reinvestigation of a matter in order to reach just and correct conclusion. On the contrary, in the comments filed on behalf of I.G. it is stated that the order for reinvestigation was made to comply with the order of the Chief Minister Sindh, so that fair trial in view of Article 10-A of the Constitution of Pakistan, 1973 may be made. Nothing is transpiring from the impugned order or the comments to demonstrate us whether reinvestigation is required by the police department to unearth the truth because earlier investigation was found defective and not good enough due to visible and seeming lapses on the part of Investigating Officer. We are also fortified by the dictum laid down by the hon’ble Supreme Court in the cases of Riaz Hussain & Muhammad Nasir Cheema (supra) that the system of reinvestigation is a recent innovation which is always taken up at instance of influential people and favorable reports are obtained. This in no way assists Courts in coming to a correct conclusion. Where the trial has already commenced, changing the investigation or ordering further investigation is an exercise unsustainable in law.

9.  Nothing is reflecting to us from the impugned order to decipher that while ordering reinvestigation any independent mind was applied to decide whether the reinvestigation is necessary or not? Whether the I.O. in the earlier investigation ignored or failed to collect material piece of evidence. The trend of directing fresh investigation after submission of challan and taking cognizance is neither warranted nor approved. If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential because the FIR cannot be cancelled nor the accused can be discharged after taking cognizance of the case by the trial Court and the question of guilt or innocence of the accused can only be determined by the Court alone and none else.

10.  The learned counsel for the Respondent No. 5 referred to the case of Bahadur Khan (supra) in which the apex Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but in this very judgment the case of Riaz Hussain (supra) was also quoted in which the system of reinvestigation was considered to be a recent innovation taken up at the instance of influential people. In the case of Muhammad Yousaf v. State reported in 2000 SCMR 453, son of the petitioner died in police custody. His death was caused due to torture by police and the petitioner got registered a case against police officials responsible for the offence, but the investigation agency was not submitting challan in the trial Court under Section 302. The apex Court held that no legal bar exists on reinvestigation of a case even after submission of final report under Section 173, Cr.P.C. and police could carry out fresh investigation and submit its report to the Court. Consequently, the hon'ble Supreme Court directed the investigation agency to complete reinvestigation and submits its report to the trial Court within a period of four wreeks. At this juncture, we would like to quote the case reported in PLD 1965 (W.P) Lahore 734 (Atta Muhammad v. Inspector General of Police, West Pakistan Lahore & others). In which the learned Court held as under:--

“There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, the corrupt behavior of the police officers concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of crime and lay the whole facts bare for determination by the competent tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous investigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and has himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late.”

11.  A visit to the precedents quoted above and the law expounded therein unequivocally shows that the reinvestigation may be conducted by the police in peculiar circumstances of the case and this can also be directed by the superior Courts but not at the instance of influential people to obtain favorable reports which may create complications to the Court, while administering justice. One more significant facet which we cannot ignore at this echelon is Section 18 of the Police Order, 2002 which was relevant to the posting of head of investigation in which under sub-section (6) it was provided that investigation shall not be changed except after due deliberations and recommendation by a board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendent of Police, one being Incharge of the investigation of the concerned district. The first proviso attached to this section enumerated that final order for the change of investigation shall be passed by the head of investigation in the general police area who shall record reasons for change of such investigation. One more proviso was also attached that the second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer as the case may be. At this point in time, it is necessary to point out that Police Order, 2002 to the extent of its application to the Province of Sindh was repealed on 15.7.2011 by Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act 1861) Act, 2011, which means that from the date of aforesaid repeal, Police Order, 2002 is not applicable to the Province of Sindh.

12.  Notwithstanding the repeal of Police Order, 2002, there is no absolute bar in Cr.P.C. which debars the I.O. from submitting fresh report in supersession of his earlier one either on his own endeavor or on the direction of the superior police officer but there are certain conditions and the limitation which may include the visible defects in the first investigation or flaws in the final report detected subsequently or the first investigation is unsatisfactory for many reasons including non-availability of the evidence or the successful induction of false evidence during the investigation or the corrupt behavior of the police officer. What we find out in this case is neither the I.O. has made any request for the reinvestigation, rather he robustly argued before us that he has completed the entire investigation with utmost care nor anything is available on record to show that the superior officers or the I.O. feel reinvestigation necessary. The reinvestigation may be conducted to unearth the truth where the fairness, rectitude and impartiality demands but it does not mean that after submission of challan; reinvestigation should be ordered denovo in a routine or as a custom without any rational or articulated justification. The reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation. The defect in the investigation or the challan if any can be easily examined by the trial Court and it is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all the accused will be afforded ample opportunity to defend the indictment so in our view non-allowance of the reinvestigation in this case does not mean the deprivation of the right of fair trial of the accused persons as envisioned under Article 10-A of the Constitution. On the contrary if the trend of applying or directing reinvestigation in every case is promoted or permitted as a fashion without any rational or pressing need then there will be no end to it rather it would amount an invitation to every person to apply for reinvestigation in order to drag and delay the proceedings and being aggrieved with the result of reinvestigation, the other side feeling as a victim of reinvestigation may also move similar applications for another investigation. This marathon will have no end but it will indeed create chaos and deteriorate the criminal administration of justice. So in our view the exercise of jurisdiction of passing orders for reinvestigation should not be taken so casually, callously and or offhandedly at the whims or aspiration but application of impartial and independent mind of the authority concerned is indispensable. Recently, in the case of Raja Khursheed Ahmed v. Muhammad Bilal reported in 2014 SCMR 474 the hon'ble Supreme Court held that for changing of investigation, the head of the investigation in the general police area shall record reasons for the same which means that such

officer is not merely a post office but has to apply his mind in order to reach correct conclusion.

13.  In the wake of above discussion, the petition is admitted to regular hearing and allowed. Consequently, the impugned order dated 10.9.2014 issued for reinvestigation of Crime No. 235/2014 is set aside.

(R.A.)  Petition allowed

Procedure when accused is of unsound mind

PLJ 1992 Cr.C. (Karachi) 227

Present: QAISFR AHMAD HAMIDI, J. ABDUL HAMEED-Applicant

versus STATE and anothcr-Respondents

Criminal Misc. No. 421 of 1991, dismissed on 2.12.1991.

Criminal Procedure Code, 1898 (V of 1898)--

—-S. 497 (5) read with Sections 464,465,466 and 497 (l)--Accused of unsound mind-Grant of bail to-Cancelaltion of bail-Prayer for~Both Sections 464 and 465 Cr.P.C. are attracted when accused is found to be  f unsound mind attime of trial and not at time of commission of offence-A tentative satisfaction of court about mental capacity of accused is condition precedent to adhere to procedure laid down in Sections 464  nd 465 Cr.P.C.-Provisions of Sections 464, 465 and 466 Cr.P.C. were not followed by both Additional Sessions Judges-Held: Respondent No. 2 is a sick person within meaning of Section 497 (1) and is entitled  o grant of bail—Application for cancellation of bail dismissed.  [Pp.230,231&233]A,B,C&D 

PLJ 1985 Cr.C (Karachi) 418 rel.

Mr. M~A. Kazi, Advocate for Applicant.

Mr. S.Z.A Qureshi, Advocate for A.G.

Mr. Abdul Ghafoor Khan, Advocate for Respondent No. 2.

Date of hearing: 20.11,1991.

ORDER

It is desirable to state in detail certain facts giving rise to this application filed under sub-section (5) of Section 497, Cr.P.C.2. Deceased Muhammad Yaqub, the father of applicant Abdul Hameed was sitting in Aitekaf in Gole Memon Masjid, PECH Society, Karachi when on 4.5.1989 at about 5.45 A.M. he was fired at by Farooque Tayyab Imrani, the respondent No.* 2 by means of pistol who died on the spot. On the same day at 7.35 A.M. applicant/complainant lodged F.I.R. at Ferozabad P.S. (Crime No. 274 ef 1989) under Section 302 PPC. During the course of investigation the respondent No. 2 was arrested and after usual investigation he was sent up to stand trial. On 12.7.1989 charge under Section 302 PPC was framed against respondent No. 2 who claimed a trial. No progress in the case could, however, be made for want of case property. On 5.10.1989 an application under Section 465 (1) Cr.P.C. was made on behalf of respondent No.2 in the following words:-"It is respectfully submitted that the above named accused who is facing trial in the above case and confined in Central Prison, Karachi is reported to be of unsound mind and as such incapable of making his defence.It is prayed that this Honourable Court may be pleased to make an enquiry about the unsoundness and incapacity of the accused by calling report from the Medical Officer of Central Prison, Karachi and by getting the accused examined by the Civil Surgeon and/or other Doctor.

The prayer is made in the interest of justice."

On this application the learned VII Additional Sessions Judge (East) Karachi, before whom the case was pending passed the following order:--"Heard APP for State. He stated that M.O. from jail be called and enquiry be held into the matter. Issue letter to C.M.O. Central Prison, Karachi for his statement."

3.   No progress was, however, made from 4.1.1990 to 2.7.1990, when on this date the learned Additional Sessions Judge constituted a Medical Board. In the meanwhile the Court of VII Additional Sessions Judge (East) Karachi fell vacant. On 23.12.1990 the case was transferred to the Court of Sessions Judge (East) Karachi. The application dated 5.10.1989 made under Section 465 (1) Cr.P.C., however, remained  undecided.  During the  pendency of this application the respondent No. 2 applied for bail and on 21.4.1991 he was allowed interim bail with the following direction:-- "Let Dr. Samina Matin, Assistant Professor, Department of Psychological, Medicine Dow Medical College and Civil Hospital Karachi be summoned alongwith the case history of the applicant/accused to depose facts about the nature of illness of the applicant/accused and the treatment required for that ailment and thereafter the final order on the bail application would be passed.

Put off to 4.5.91 for confirmation."

4.          On 22.5.1991 the Sessions Judge (East) Karachi examined Dr. Samina Matin (C.W.-l). On 28.7.1991 Dr. Ni/.amuddin Memon (C.W-2) was examined and on 19.8.1991 the statement of Dr. Muhammad Ayaz (C.W-3) was recorded. On 19.9.1991 the interim bail granted to respondent No. 2 was confirmed. The orders dated 21.4.1991 and 19.9.1991 passed by learned Sessions Judge are the subject matter of the present application filed under sub-section (5) of section 497, Cr.P.C. seeking cancellation of bail granted to respondent No. 2. 

5.          I have heard Mr. MA. Kazi. learned counsel for applicant/complainant, Mr. Abdul Ghafoor Khan, learned counsel for respondent No. 2, and Mr. S.Z.A. Qureshi, learned counsel for State. Mr. Qureshi has supported the impugned orders.

6.     Admittedly the application made on behalf of respondent No. 2 under Section 465 (1) Cr.P.C. is still pending. Chapter XXXIV of the Code of Criminal Procedure, 1898, deals with the trial of cases in which lunatics are involved. Section 464, Cr.P.C. provides such procedure in the following words:—  (1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making hisdefence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the (Provincial Government)directs, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.(1-A)  Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of Section 466.(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making defence, he (shall record a finding to that effect and) shall postpone further proceedings in the case."From a bare persual of Section 464, Cr.P.C., it appears that when there is some evidence to believe that a person facing inquiry or trial before a Magistrate was insane and consequently incapable of making defence, it is obligatory upon the Magistrate to stop proceedings and hold an inquiry after causing such person to be examined by the Civil Surgeon of the district (re-designated as Medical Superintendent in some districts) or such other medical officer as the Provincial Government directs, and after examining such Surgeon or other officer as a witness record a finding. Section 465, Cr.P.C. lays down the procedure to be adopted by the Court of Sessions or the High Court, as the case may be, where the accused sent for trial appears to be a lunatic in the following words:-

"(1) If any person before a Court of Sessions or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness.and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.

(2) Trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."

7. Both Scctirins 464 and 465 Cr.P.C. are attracted when the accused is found to be of unsound mind at the time of trial and not at the time of commission of offence. Section 84 PPC deals with cases falling within the mischief of latter category. A close examination of Sections 464 and 465 Cr.P.C., will make it clear that the latter section, viz, Section 465 PPC is not to be construed to extend the powers of the Court of Sessions or the High Court in matter relating to an inquiry about the mental capability of an accused for making his defence and it is to be read alongwith Section 464 Cr.P.C. A tentative satisfaction of the Court about the mental incapacity of the accused is the condition precedent to adhere to the procedure laid down in Sections 464 and 465 Cr.P.C., followed by the examination of accused by the Civil Surgeon of the district or such other medical officer as the Provincial Government directs. The only course open to VII Aditional Sessions Judge (East) Karachi, was to refer the respondent No. 2 to Civil Surgeon concerned for examination and then to record his statement to find out if the respondent No. 2 was incapable of making his defence. Suchexamination could  have also been made by such  other  medical officer so empowered by the Provincial Government.

8.   Where  the  Court finds that the  accused is of unsound mind and consequently incapable of making his defence, it must proceed under Section 466 Cr.P.C., which provides as unden-"(1) Whenever an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or Court, as the case may be, (whether the case is one in which bail may be taken or not), may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearence when required before the Magistrate or Court or such officer as the Magistrate or Court appoints in this behalf.

(2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the accused to be detained in sale custody in such place and manner as he or it may think fit, and shall report the action taken to the (Privincial Government):

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the (Provincial Government) may have made under the Lunacy

9.   Rule 1, Part F, Chapter V of the Federal Capital and Sindh CourtsCriminal Circulars furlher lays down as follows:—Before releasing a criminal lunatic under Section 466 (1), Criminal Procedure Code, a Court or Magistrate should, if the accused has exhibited a tendency to violence or if the crime charged is of serious nature, question the Civil Surgeon or other officer examined under Section 464 (1), Criminal Procedure Code, about the safety of the proposed procedure. Such medical opinion should also be taken before a Court or Magistrate orders an accused person, acquitted on the ground of insanity, to be detained in any place other than mental hospital."

10.    The provisions of Sections 464, 465 and 466 Cr.P.C. were, however, not followed by both VII Additional Sessions Judge (East) Karachi, and Sessions Judge (East) Karachi, and the case against respondent No. 2 is still at the same stage where it was at the time of challan.

11.  Coming now to the question whether the respondent No. 2 is a 'sick' person within the meaning of first proviso to sub-section (1) of Section 497, Cr.P.C.. it may be observed that a mental illness is also a sickness entitling an accused to the grant of bail. Dr. Samina Matin (C.W-1) who was examined in the  trial Court has opined th;ii respondent No. 1 is suffering fiom schi/ophrcniu andrequires treatment for a long time followed by regular check up by a psychiatric. Dr. Nizamuddin CMO fC.W-2) who had examined him in lunatic ward, Central Prison, Karachi, had treated him as a mental case. Dr. Muhammad Ayaz (C.W-3) who had the occasion to examine the respondent No. 2 in Mental Ward, Central Prison, Karachi, found him a patient of hypomania. The illness of schizophrenia as defined by Dr. Modi is as follows:--"Kraepeiin, in 18%, named this disease dementia proecox. In 1911 Eugen Bleuler introduced the term "Schizophrenia" which literally means" splitting of the personality". The terms dementia proecox was changed because it implied that the disease always ended in dementia, which it did not. The tei .1 proecox meant that the disease developed at the time of puberty or adolescence, but many cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prongnosis which created a spirit of defeatism in the minds of people.The cause of this illness is still not known but there is general agreement about the multiplicity of factors in its causation. Heredity plays a part as shown by Kallmann's work. He found the expected incidence of schizophrenia in the relatives of schizophrenic patients to be as follows:--Monozygotic twins, 86%; dizygotic twins, 15%; children, 16%; full sibs, 14%; parents, 9.%; half sibs, 7%; grand-children, 4%; nephews and nieces, 4%; marriage partners, 2%; general population, 0.85%."

12. According to Dr. Modi the symptoms of 'hypomania' are as follows:-"Invthis phase the three outstanding symptoms of mania, viz, elation exce'ssive psychomotor activity and flight of ideas, are not fully developed. The person feels very cheerful, optimistic and self-confident and his inhibitions are diminished. Thoguh the general demeanour and conduct of the patient are greatly altered, there is not much change in the personality. He is quick-witted and entertaining in conversation but there is flight of ideas so that he switches on from one topic to another without having any connection with the various topics. He is full of schemes which seldom materialized. He oozes self-confidence and if he happens to be a businessman he takes too many risks and is uncritical about his over-optimism. He is overactive, always in a hurry, and moves in buses or taxis from one end of the city to the other throughout the day. He squanders money on things which normally he would not dream of buying. He goes on a shopping spree and if he happens to be sophisticated, westernised person, he indulges in heavy tipping to cabbies and waiters.Later, the patient becomes restless, irritable and interfering. He resents being corrected and becomes argumentative, quarrelsome and so violently excited as to tear or destroy his clothes, furniture and other articles in the house. He may become abusive and beat other people. Delusions and hallucinations are absent at this stage. Physically the manic patient generally does not look or feel ill and physical examination shows no organic disease."Thus, from whatever point of view the matter may be looked at it is clear that the respondent No. 2 is a sick person within the meaning of first proviso to sub-section (1) of Section 497, Cr.P.C. and in such a situation he is entitled to the grant of bail. The case of Salimuddin \. Tfie Sate,reported in PLJ 1985 Cr.C (Karachi) 418, lends support to this view.

13.    Having regard to the above legal position, I see no substance in the application made under sub-section (5) of Section 497, Cr.P.C. on behalf of applicant. The application is accordingly dismissed.

14.    It is needless to observe that if the Sessions Judge after necessary inquiry finds respondent No. 2 incapable of making defence and from his conduct he appears to be violent it will be open to him  o cancel his bail directing his detention in some mental hospital under sub-section (2) of Section 466, Cr.P.C.

(MBC)                             (Approved for reporting)         Application dismissed.