1991 PLP 518 (MLD)

This is an application for grant of bail to test. Zarina petitioner in a case. under section 10 of the Offence, of Zina (Enforcement of Hudood) Ordinance. 1979, registered at P.S. City Alipur, vide F.I.R. No.237 dated J4-"12-1989.

2. The prosecution case is that Mst. Zarina petitioner had illicit relations with Muhammad Ayyaz and she alongwith her paramour were seen naked in the house of the petitioner.

3. Learned counsel for the petitioner submitted that 'the petitioner submitted that the petitioner is detained in jail for ;about one year and she has a suckling baby. Learned counsel for the State has opposed this application on the ground that the petitioner was seen lying naked with Muhammad Ayyaz, her paramour by two witnesses namely Faqir Muhammad and Fazal Hussain and that she has given birth to an illegitimate child in jail.

4. Mst. Zarina was pregnant when she was sent to jail about a year back. She gave birth to child in jail. She is present in the Court carrying a suckling bady of 4 months. She states that she being poor and helpless could not move any application for bail before the trial Court or before this Court. She states that she alongwith her stickling baby had appeared before Ch. Muhammad Ali, Additional Sessions Judge. Muzaffarearh on several dates but can each date of hearing she arid her baby were remanded to judicial custody without any progress in the case.

5. I have considered the matter carefully. The petitioner being woman, her case falls within proviso second to section 497, Cr.P.C. She is in jail for last one year: Alongwith he a suckling baby is detained in jail for the last 4 months. So a case for grant of bail to her is made out. She be released on furnishing personal bond in the sum of Rs.10,000 to the satisfaction of Deputy Registrar of this Court. To enable her to appear before the Deputy Registrar and execute personal bond, she has been released in the Court in the presence of her mother.

6. Before parting with the judgment, I feel constrained to observe that in the course of hearing of bail application of the female accused arrested and detained in different cases, it has come to my notice that the children including suckling babies have suffered/are suffering the agony of detention in jail and some of them were not only born in jail but were also brought up therein for the alleged sin/crime committed by their mothers. When a female accused having! sucking baby/minor child is arrested in a case, she alongwith her suckling A baby/child is remanded to a police/judicial custody by the Magistrate. On the expiry of 15 days of her arrest, the female accused alongwith her child is remanded to judicial custody by a warrant of the trial Court as a matter of course/routine although under proviso second to section 497, Cr.P.C. a female accused may be released on bail in case punishable with death or imprisonment for life. Under the law an accused person is presumed to be innocent till he/she is proved to be guilty. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief bail granted to him, but no satisfactory reparation can be offered to an innocent person for his unjustified incarceration at any stage of the case in the event of her/his acquittal in the long run. I have painfully noted growing tendency on the part of the Courts to remand the female accused alongwith their children to police/judicial custody as a matter of course or routine without realising the possible hardship to an innocent child. In the instant case, as stated by the petitioner, Ch. Muhammad Ali, the learned Additional Sessions Judge, Muzaffargarh, has callously been remanding the petitioner and her baby to judicial custody as a matter of course although there was no moral or legal compulsion to keep them in jail merely on the charge of the commission of a non-bailable offence or offence falling within prohibitory clause of section 497, Cr.P.C. He has shown reckless disregard for the suckling baby. He has failed to perform his duties under section 344, Cr.P.C. which may be reproduced advantageously:-- Section 344, Cr.P.C. (1) "If, from, the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial the Court may, if it thinks fit, by order in writing stating the reasons therefore from time to time, postpone or adjourn the same on such term as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days al a time. (2) Every order made under this section by a Court other than a High Court shall be in writing-signed by the Presiding Judge or Magistrate." An examination of the provisions of Criminal Procedure Code relating to the detention of an accused person will show that the law, is very much jealous of the liberty, of human being. The presumption of innocence attached with an accused requires that he/she should not be kept in jail as punishment. Law does not permit the police to detain any person for more than 24 hours. Under section 167, Cr.P.C., the person arrested or detained in custody has to be produced before the Magistrate within 24 hours of his arrest, who may authorise the detention of the accused in such custody as he thinks-fit. Again under section 344, Cr.P.C., the trial Court while adjourning the case may by a warrant remand the accused to judicial custody. The word "may" used in section 167, Cr.P.C. and 344, Cr.P.C. is not without significance, which will show that the Magistrate/trial, Court is not obliged to send the accused to jail while postponing the commencement of the case or adjourning the inquiry/Trial. So Court may or may not send the accused to jail while adjourning the case. Under, Section 344, Cr.P.C., the Court has judicial option to send him to custody by a warrant or release him on bail on his executing bond with or without surety although no application for grant of bail is made by him. Needless to say there is no legal bar, to release the accused on bail without application by him. No application for bail is required under sections 496/497/498 and 426, Cr.P.C. When an accused is produced before .a Magistrate in a non-bailable offence and the Magistrate finds that the accused has committed bailable offence, he may release him, on bail although no application has been made by him. Furthermore, on the enforcement, of Oisas and Diyat Ordinance, it is no more possible to send or keep a pregnant or female accused carrying suckling babies till the expiry of the period of 'tip. In Islam punishment cannot be executed on mother (in a family way) till the expiry of the period of

of the child. Then how can she be sent to jail at a `age (during trial) when she is presumed to be innocent. The Presiding Officers' have to bear in mind the prevalent circumstances of our society and other human reactions and consideration and it is with this purpose that a discretionary jurisdiction to allow bail in a suitable case is vested in Courts. I feel that it is better to err in releasing female accused carrying suckling baby on bail than in remanding her child alongwith her to jail during trial. M.B.A./Z-185/L Bail granted.