2004 PLP 2393 (YLR)

Petitioner Mst. Shamshad Akhtar through the instant petition has sought for after-arrest bail in case F.I.R. No. 350, dated 31-8-2003 under section 302/201, P.P.C., registered with Police Station City Arifwala, District Pakpattan Sharif.

2. Briefly the allegation against her is that she was party to the criminal conspiracy to do away with the deceased.

3. The bail has been sought by her on the ground that she has falsely been roped in due to family dispute; that she is a woman and hence the Ist proviso to section 497(I), Cr.P.C. is attracted to her case; and that she is having with her in the jail the female baby aged about nine months while whose welfare entitles her to enlargement on bail. In this regard, reliance has been placed upon the causes of Mst. Nasurat v. The State (1996 SCMR 973) and Mst. Nasreen v. State (1998 MLD 1350 Lahore). The copy of the birth entry of the child has been placed on the record.

4. Conversely, the learned counsel for the State has opposed the petition on the ground that she is named in the F.I.R.; and that she had been party to the criminal conspiracy to do away with the deceased. He, however, has not been able to controvert that the petitioner is having with her in the jail the milk suckling baby. The ASI present in Court, however has submitted that the petitioner is having with her in the jail the milk suckling child.

5. I have carefully considered the submission made by both the sides with the help of available record.

6. The petitioner is a woman. She statedly is having with her in the jail the milk suckling baby.

7. The certified copy of the birth entry of Mst. Maryam Batool, who is stated to be her daughter has been placed on the record. According to the same, her date of birth is 9-3-2003. It means that she is aged about nine months at the moment.

8. In the case of Mst. Nusrat v. The State (1996 SCMR 973), the female accused was allowed bail with the following observations:- "The suckling child of the petitioner kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of' "welfare of minor" is incompatiable with jail life. So, 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 if the mother is releaseci from the jail. In famous case of Ghamidiyyah, our Holy Prophet Muhammad (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. This shows the paramount importance and significance of the right of a suckling child in Islam and the unprecedented care taken of, and the protection given to a child born or expected to be born, by our Holy Prophet Muhammad (p.b.u.h.). This golden principle of administration of justice enunciated by the Holy Prophet Muhammad (p.b.u.h.) must be strictly observed and followed in our country."

9. Similarly in the case of Mst. Nasreen v. State (1998 MLD 1350 Lahore), the bail was granted to the lady accused merely on ground that welfare of the suckling child so demanded and that the child should not be made to suffer in jail for murder allegedly committed by his mother.

10. She is behind the bars and stated to be previous non-convict.

11. In view of the above cited cases, I find that the case for her enlargement on bail has been made out. The petition, therefore, is accepted and she is admitted to bail subject to her furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./S-816/L Bail granted.