2011 PLP 2975 (YLR)

WAQAR AHMAD SETH, J.--Petitioner namely Mstt Kabla has been booked under section 9(c) Control of Narcotic Substances Act, 1997 vide F.I.R. No.109 dated 27-6-2011 in Police Station Railway Station, Peshawar, hence this post-arrest bail.

2. Brief facts of the case are that heroin weighing 3 kilograms was recovered at 1715 hours on 27-6-2011 on the spy information and the accused petitioner was subsequently apprehended on the opposite reservation gate at Jehangira Railway Station and from her personal search the case property wrapped in other garments kept in a shopping bag placed inside the wearing clothes were recovered.

3. The learned counsel for the accused-petitioner mainly contended for the concession of bail for a woman and specially when there is a suckling baby and relied on 2009 PCr.LJ 702, 1998 MLD 1339 and 2004 PCr.LJ 20.

4. As against this the State has rebutted the arguments and stated that as huge quantity of narcotic' drug i.e. heroin weighing 1 kilogram was allegedly recovered from her personal possession, therefore, she is not entitled to the grant of bail.

5. I, on evaluation of record find that no doubt petitioner is directly involved in a narcotics case but there is a suckling baby along with accused who is behind the bars for the last two months but at this stage the welfare of the minor will be taken into account. Admittedly punishment provided for the offence, mentioned above, is either death or life imprisonment because the quantity of the narcotic recovered from her possession exceeds more than 1 kilogram. The petitioner cannot be, therefore, released on bail as laid down in section 51 of the Control of Narcotic Substances Act, 1997, which reads as under:-- "Section

51. No bail to be granted in respect of certain offence. (1) Notwithstanding anything con?tained in sections 496 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death."

6. Since there is suckling baby of the petitioner who is kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of "welfare of minor" is incompatible 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 released from the jail. In famous case of Ghamidiyyah, our Holy Prophet Muhammad (p.b.u.h) had suspended the sentence of 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 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. In cited case Parveen Iqbal v. State reported as 2004 PCr.LJ 20 the honourable Federal Shariat Court has held as under:-- "It would be worthwhile to mention that in the famous case of Ghamidiyyah, the Holy Prophet Muhammad (p.b.u.h) was pleased to suspend the sentence passed on a pregnant woman not only till delivery of child but for the period of Riza at as well, basically for welfare of the child." So when the sentence was suspended then why not bail. From the perusal of the above mentioned case-laws it has become clear that the women having suckling child like petitioner should not be detained and the superior Courts had been pleased to grant bail in such situation. For the reasons above recorded the present application for post-arrest bail is allowed to the petitioner and she is admitted to bail provided she furnishes bail bond in the sum of Rs.200,000 (two hundred thousand) with two sureties in the like amount to the satisfaction of the Illaqa/Duty Magistrate who is to ensure that the sureties II are local, men of means and reliable. H.B.T./269/P?????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.