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Criminal Bail Application No. 550 of 1984, decided on 26th June, 1984.

‑‑‑S.497‑Penal Code (XLV of 1860), S. 302‑‑Bail‑‑Accused killing her own daughter declared to be of unsound mind and not liable to be tried for offence unless declared fit‑‑Accused mother of seven children and coming of respectable family and that due to her unsound mind occurrence took place‑‑Bail granted in circumstances.

Imam Ali Kazi for Applicant.

Muhammad Ibrahim Memon, Additional A.‑G. for the State.

Mst. Zubaida is facing trial in a case under section 302, P.P.C. Her bail application has been rejected by the Sessions Judge, Thatta.

2. Briefly stated the facts of the prosecution case are that Abdul Ghani is married to Mst. Zubaida, niece of complainant Ali Muhammad. After marriage Abdul Ghani alongwith his wife and children went to Karachi and started living there. He has two sons Irfan, Rizwan and five daughters. About 10/12 days before the incident, Ali Muhammad, father‑in‑law of Mst. Zubaida, brought her to Jati alongwith her children. On 26‑3‑1984, while Ali Muhammad was sitting in his shop where his grandson came running and informed him that his mother Zubaida at about 4.00 p.m. cut the throat of her own daughter with knife. On getting this news, he rushed to house and found Saima was lying dead and there were cuts on left side on her neck. The inmates of the house informed him that Mst. Zubaida went in the kitchen alongwith her daughter Saima where she took out knife and cut the throat of her own daughter. Ali Muhammad went and lodged report at Police Station Jati.

3. Mr. Imam Ali Kazi Advocate has contended that applicant /accused Mst. Zubaida is of unsound mind and suffering from mental disease. It has also been stated that she has been under treatment at Nerves Health Centre, Habib Medical Trust, Nazimabad, Karachi since 1980, and still she is getting treatment from that health centre. A bail application was moved before the Sessions Judge, Thatta, who referred her to Civil Surgeon for examination. According to medical certificate she was declared to be of unsound mind and not fit to understand the judicial proceedings. The Civil Surgeon further recommended that applicant be sent for treatment at Phychiatary Hospital, Hyderabad. The certificate of Dr. Sibtain Ali R. Dossa of Nerves Health Centre, Habib Medical Trust, Nazimabad, Karachi issued on 29‑3‑1984 was also produced before the Sessions Judge, wherein it is shown that applicant was under treatment for the above‑mentioned disease from 14‑6‑1980 off and on. The learned Sessions Judge in view of certificate observed as under:‑

"Keeping all the circumstances of the case and the illness of the woman and subsequent incident I feel it would be proper to send accused Mst. Zubaida for treatment at Phychistary Hospital, Hyderabad as suggested by Civil Surgeon which would be more appropriate and suitable in the circumstances and would further avoid any unhappy incident. Accordingly the bail application is rejected and Mst. Zubaida be sent to the Institute for proper treatment."

4. Mr. Imam Ali Kazi has argued that Central Prison, Hyderabad and Mental Hospital, Hyderabad, have declined to admit her in the hospitals for want of proper arrangements as police guard is required for accused and such arrangement is not available with them. He states that in these circumstances, it is not possible for them to get her admitted as under‑trial prisoner, therefore, he prayed that applicant be released on bail as contemplated under section 466, Cr.P.C.

5. It is an admitted fact that she has been declared to be of unsound mind and is not liable to be tried for the offence till she is declared fit. It is argued that she is mother of seven children and comes from respectable family and due to her unsound mind this unfortunate incident occurred.

6. Mr. Muhammad Ibrahim Memon, learned Additional Advocate General, appearing for the State, has submitted that in these circum stances it is proper that she may be released on bail as provided under section 466, Cr.P.C. and sufficient security be taken from her parents for taking her proper care and be prevented from doing any injury to herself or any other person.

7. For the purpose of the reference the contents of section 466 are as under:

(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 once 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 appearance 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 safe custody in such place and manner as he or it may think fit, and shall report the action taken to the Provincial Government :

Provided that no order for the detention of the accused in a lunatic aslyum shall be made otherwise than in accordance with such rules as the Provincial Government may have made under the Lunacy Act, 1912."

8. In view of the above dicussions, I admit her to bail on the following conditions:-

(1) That Ali Muhammad, complainant the uncle of the applicant, and Abdul Ghani, her husband, should furnish sureties in the sum of Rs. 50,000 each, separately and P.R. bonds in the like amount to the satisfaction of tpe Sessions Judge, Thatta, on the following conditions :

(i) That they will properly take care of her and they will see that she is prevented from doing any injury to herself or any other person;

(ii)That they will be bound to produce her before the Court of Sessions Judge, Thatta, or any other Court as directed from time to time or before such officer as Court appoints in this behalf.

The Sessions Judge, Thatta, should see that sureties/bonds are furnished in light of the above observations.

M.Y.H. Bail granted.

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