' SALIM KHAN, J.---I heard the arguments of Mr. Noor Alam Khan, Advocate, for the petitioner, and Miss Neelam A. Khan, Advocate, for the State. I also perused the record of the case.
2. Learned counsel for the petitioner argued that the petitioner was allegedly arrested on the road side while she was asked to come down from a Flying Coach and it was mentioned that she was searched through a lady Constable, but the name of the lady Constable has not been mentioned in the Murasila, as well as in F.I.R. And that the lady Constable has not been named as a witness to the recovery memo. He, on referring to the Murasila, F.I.R. And the recovery memo. Argued that the Number of the Flying Coach was not mentioned, and neither the driver nor the conductor of the said Flying Coach, and nor any other private person was made a witness to the recovery memo. He further argued that there was a suckling baby with the petitioner, there was no huge quantity of the contraband allegedly recovered from the petitioner, and it was not expected that maximum punishment may be awarded to the petitioner in the circumstances of the case. He relied on the judgments in the following cases:--
(i) 1996 SCMR 973;
(ii) 2000 PCr.LJ 167;
(iii) 2003 YLR 2401;
(iv) Bano v. State Cr. Misc. B.A. No.1084 of 2004 decided by this Court on 15-10-2004;
(v) Mujahid Shah v. State Cr. Misc. B.A. No.503 of 2003 decided by this Court on 14-6-2004;
(vi) Zarshad v. State Cr. Misc. B.A. No. 9 of 2005 decided by this Court 24-3-2005;
(vii) 2000 PCr.LJ (Karachi) 657;
(viii) PLD 2004 Peshawar 228 and
(ix) PLD 2005 Lahore 352. ' and requested that the petitioner may be released on bail till the decision of the case.
3. The learned counsel for the State argued that the offence committed by the petitioner was a heinous offence against the society, and a free licence could not be given to women having suckling babies as it would encourage such women to get involved in the offences like the one in question. She further contended that there is a good prima facie case against the petitioner on merits, and she is not entitled to bail in the circumstances of the case.
4. It is yet to be proved at the time of trial that the petitioner was actually searched by ,a lady Constable, and the contraband was recovered from the physical possession of the petitioner.
There would have been no need for this bail petition, and the case would have been decided by now, had the prosecution been vigilant to get the investigation completed at the earliest, submit complete challan to the Court strictly in accordance with the provision of section 173, Cr.P.C., and produce the prosecution evidence with normal speed. The petitioner, being a woman with two children by her side, cannot be kept behind the bars only for the sake of delay caused by the prosecution. There is nothing to show that the accused-petitioner may, abscond if released on bail.
The Courts are Guardians of the minors, and the welfare of the minors is to be kept in mind in all circumstances. The two minors with the petitioner are not shown to have any other refuge, except with the petitioner. They are not to undergo the punishment along with the petitioner and that too at the pre-trial stage.
5. In these circumstances, I deem it proper to release the accused-petitioner on bail on her furnishing bail bond in the sum of Rs.1,00,000 (rupees one lac only) with two sureties each in the like amount to the satisfaction of the learned Sessions Judge, Swabi, who shall ensure that each of the sureties is permanent domiciled of District Swabi, is a reliable person and has enough financial means to satisfy the bond.