1. ' The applicant Salimuddin is being tried for the offences under section 3/4 Prohibition (E.
0. H.) Order, 1979.
2. ' The bail is prayed on the sole ground of sickness of the applicant. The plea taken before the trial Court was that applicant is of unsound mind and sick. In support of the contentions certificate of Dr. Captain Akbar Khowja, Neuro Physician of Jinnah Post Graduate Medical Centre, Karachi, was produced before the trial Court. But learned Additional Sessions Judge rejected his bail and declared that Salimuddin is fit person to be tried. At the suggestion of the learned Additional Advocate-General, Dr. Akbar Khowja, was summoned and today he appeared alongwith history of the applicant. He has stated that applicant is unsound mind and needs treatment.
3. In these circumstances Mr. M. I. Memon, learned A. A.-G. Has no objection if applicant is granted bail. I admit the applicant to bail under section 466, Cr. P. C. And direct his father Hakeemuddin to furnish surety in the sum of Rs, 25,000 and P. R. Bond in the like amount to the satisfaction of the Nazir of this Court. Surety is further directed that he should take care of the applicant so that he may not be able to cause injury to himself or to any other person. However, applicant should appear before the trial Court.
4. The trial Court has passed an order on 21-3-1985 in which it has I been observed that applicant is fit person to defend himself. 'This order has also been challenged. In my view the order is contrary to the provisions of sections 464, 465 and 466 of Cr. P. C. And learned A. A.-G. Also submits that order of 21-3-1985 be set aside.
5. Mr. Lakho has relied on the cases reported in PLD 1963 Azad J & K 41 where it has been held that doctor is to be cross-examined on the point C of the unsound mind of the applicant. The case reported in PLD 1960 Pesh. 66 also supports the cont ention raised by the learned counsel for the applicant.
6. In these circumstances, in exercise of my power under section 561-A Cr. P. C., I set aside the order dated 21-3-1985 of the Vth Additional Sessions Judge and direct that before deciding the mode of trial, the doctor should be examined and accused be given chance to cross-examine him and then only the learned Judge should decide the matter as to how the case should proceed.