the witnesses were deposing about his/her act; and whether he/she was able to
understand the evidence being produced by the prosecution against him/her.
However a prima facie tentative opinion could not be formed by the Court only on
the basis of such questions posed to the accused. The Court was required to
objectively consider all the material available before it, including the material
placed/relied upon by the prosecution.
Ata Muhammad v. The State PLD 1960 (W.P.) Lah. 111; Sher Afzal v. The State
PLD 1960 (W.P.) Pesh. 66; Abdul Hamid v. The State PLD 1962 (W.P.) Quetta 111;
Munshi Khan v. The State 1982 PCr.LJ 778; Abdul Wahid alias Wahdi v. The State
1994 SCMR 1517; Fauqual Bashar v. The State 1997 SCMR 239; Sirajuddin v.
Afzal Khan and another PLD 1997 SC 847; Chaudhry Shujaat Hussain v. The State
1995 SCMR 1249 and Moulvi Fazlul Qader Choudhury v. Crown PLD 1952 FC 19
ref.
Once the Court had formed a prima facie tentative opinion that the accused may
be incapable of understanding the proceedings of trial or make his/her defence, it
became obligatory upon the Court to embark upon conducting an inquiry to decide
the issue of incapacity of the accused to face trial due to mental illness. Medical
opinion was sine qua non in such an inquiry. For this purpose, the Court must get
the accused examined by a Medical Board, to be notified by the Provincial
Government, consisting of qualified medical experts in the field of mental health,
to examine the accused person and opine whether accused was capable or otherwise
to understand the proceedings of trial and make his/her defence. The report/opinion
of the Medical Board must not be a mere diagnosis of a mental illness or absence
thereof. It must be a detailed and structured report with specific reference to
psychopathology (if any) in the mental functions of consciousness, intellect,
thinking, mood, emotions, perceptions, cognition, judgment and insight. The head
of the Medical Board shall then be examined as Court witness and such
examination shall be reduced in writing. Both the prosecution and defence should
be given an opportunity to cross examine him in support of their respective stance.
Thereafter, if the accused wished to adduce any evidence in support of his/her
claim, then he/she should be allowed to produce such evidence, including expert
opinion with the prosecution given an opportunity to cross examine. Similarly, the
prosecution may also be allowed to produce evidence which it deemed relevant to
this preliminary issue with opportunity given to the defence to cross examine. It
was upon the consideration of this evidence procured and adduced before the Court
that a finding on this question of fact i.e. the capability of the accused to face trial
within the contemplation of sections 464 and 465, Cr.P.C. shall be recorded by the
Court.
(e) Criminal Procedure Code (V of 1898)------Chap. XXXIV---Prisons Rules, 1978, Chap. 18---Act of a person suffering
mental illness/disorder---Words "Civil Surgeon" and "medical officer" used in
Chapter XXXIV, Cr.P.C. and the Prisons Rules, 1978---Supreme Court directed that
said words should be substituted by the relevant Legislatures with "Medical
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