2025 PLP 1220 (YLR)

Farah Jamshed, J.

Through this petition petitioners, namely, Mst. Asima wife of Shakir and Mst Razia wife of Mehboob, have prayed for their release on bail in FIR No. 26 dated 31.01.2025, registered under Sections 9-D/17-KP The Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (CNSA) at Police Station Excise Peshawar.

2. According to the contents of FIR, Inspector, Fakhr-Alam Khan, along with other police official including female constable, Razia Sultana, during routine mobile duty, apprehended the accused/petitioners, suspicion. During personal search, they on disclosed their names as Asma wife of Shakir resident of Pishtakhara Chowk, Peshawar, whereas accompanying minors named Humaira, aged 03 years and Haroon aged 04 years. The other lady disclosed her name as Razia wife of Mehboob resident of Mattani, Peshawar. Upon their personal search of 06 packets contraband opium, weighing 7200 gm was recovered from petitioner Asma, whereas, 06 packets of contraband Chars, weighing 7200 gms was recovered from petitioner Razia. Their earlier bail application was declined by the Court of learned Additional Sessions Judge-X Peshawar vide order dated 10.02.2025, hence this petition.

3. Arguments heard and record perused.

4. No doubt, both petitioners were found in possession of huge quantity of contraband Opium and Chars, however, for the purpose of this bail petition, record prima facie reveals that in complete disregard of this court judgment reported as case titled Imdad Ullah v. The State (2024 PCr.LJ 652), spot/recovery proceedings were not recorded in the shape of video. No private witness has been associated with the spot proceedings for ensuring transparency. Record is also silent to show any previous involvement of petitioners in such like offence or that they are drug peddlers. Besides, investigation of the case is complete and the petitioner is no more required for the purpose of investigation. At the same time, the record of C.M. No. 40-P/2025, also reveals that in respect of petitioner, Mst. Asma, positive pregnancy report there. Besides, on account of her arrest her two minor children, namely, Humaira (03 yrs) and Haroon (04 yrs) are also confined with her and exposed to hostile as well as unfavorable environment of the prison. In famous case of Ghamidiyyah, our Holy Prophet Muhammad A (p.b.u.h) had suspended the sentence on pregnant woman, not only till delivery of the child but also postponed it till suckling period i.e. two years, obviously for the welfare of the child." (Mst. Nusrat v. The State, 1996 SCMR 973). The question of welfare of minor children cannot be ignored while following the principle as discussed the apex court in its judgment in case already referred above, wherein it was further observed that: that instead of detaining the innocent child//infant in the Jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor that the mother be released from Jail. Hon'ble the Lahore High Court in the case of Sadiq Waqas v. The State and another (2012 PCr.LJ 842) as well as this Court in case titled Mst. Shehnaz V. The State and another, decided on 02.06.2017, in Criminal Misc. (BA) No.1023-P/2017 also followed the above principle. No doubt, petitioners were arrested on account of recovery of huge quantity of contraband from their direct possession however, considering the golden principles of administration of justice in the above cited case, positive pregnancy report coupled with the confinement of minors with her, petitioner Asma has made out her case for the purpose of bail under first proviso of section 497 Cr.P.C.

5. Needless to mention here that release of accused on bail does not amount to acquittal. It is merely a change in the custody of accused where same is taken from the State and entrusted to his/her sureties. In this respect reliance can be placed reported as case title Haji Muhammad Nazir and others v. The State (2008 SCMR 807). The relevant portion is reproduced as under;- "Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he is required to be produced."

6. Besides, a mistaken relief of bail may be repaired by convicting the accused, if proved guilty, but no proper reparation can be offered for his unjustified incarceration, albeit, his acquittal in the long run. "Reliance is placed on case titled Zaigham Ashraf v. The State and others," (2016 SCMR 18). Reliance is also placed on case titled Zahid Sarfaraz Gill v. The State (2024 SCMR 934).

7. Although, the case of co-accused Razia, is distinguishable from that of Mst. Asma however, for what has been discussed above, she has also made out her case for the purpose of bail. Resultantly, this petition is allowed and the accused/petitioners are admitted to bail subject to furnishing of bail bonds in the sum of Rs. 100,000/- each, with two local, reliable and men of means sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate. Above are the detailed reasons of short order of even date. JK/40/P. Bail granted.