Mst. Haleema Mai, accused/petitioner, after the rejection of her prayer for bail by the learned Judge, Special Court/Additional Sessions Judge-II D.I.Khan vide order dated 19/4/2008 in case FIR No, 165 dated 25/4/2008 under Section 9 CNSA of Police Station Gomal University D.I.Khan, has filed the application for the same relief.
2. Sona Khan SHO of Police Station Gomal University D.I.Khan alongwith police party was present on the check post of D.I.Khan - Darya Khan bridge for checking outlaws when Bus No, LHP-7589 came which I was stopped for checking and four guttu (small bags) of white colour plastic were found therein. When enquired, an aged lady sitting therein claimed its ownership who disclosed her name as Mst. Haleema Mai, widow of Pir Bakhsh, caste Chandeo Baloch, resident of Kaima Zan, near Railway Station Karor-Punjab. Accordingly, she was arrested in the FIR ibid.
3. Learned counsel for the petitioner argued that the petitioner is innocent and falsely roped in the offence; that there is no independent evidence against the petitioner and the alleged recovery is in violation of the mandatory provision of Section 103 Cr.P.C., that nothing incriminating was recovered from the personal possession of the accused/petitioner; that the accused/petitioner is a female and under the provisions of Section 497(1) Cr.P.C. she is entitled to the discretionary relief of bail and that the accused/petitioner is an aged lady of seventy years also deserves to be released on bail.
2. The learned counsel for State has, however, opposed the grant of bail to the petitioner on the grounds that old-age by itself is no ground for grant of bail when the accused/petitioner is otherwise reasonably linked with the commission of offence; which falls under the prohibitory clause of Section 497 Cr.P.C. and the petitioner is not entitled to be released on bail.
3. I have given my anxious consideration to the respective arguments of learned counsel for the parties in the light of record.
4. Admittedly the accused/petitioner is a female with an advanced age of seventy years. Sub- section (1) of Section 497 Cr.P.C. entitles the female accused to be released on bail in all other offences except terrorism, financial corruption and murder. The petitioner is not involved in either of the said exceptions. She is behind the bars since 25/4/2008 and her trial is not in sight in the near future. Being a female, the petitioner might not be in the know of the fact that the recovery of alleged four guttu (small bags) of poppy straw would fall under the definition of 'narcotic substances' because same indigenously were available and used by quacks for medical purposes and thus in the given circumstances, no mens rea was attached. Reliance in this respect is placed on the case of Allah Ditta Vs. The State reported in 2005 P.Cr.LJ. 568.
5. Consequently, I allow this application and admit the accused/petitioner to bail provided she furnishes bail bond in the sum of Rs, two lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Duty/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
Above are the reasons for my short order of even date.