' M.A. ZAFAR, J.---Farzana Kausar respondent is an accused in case F.I.R. No,61, dated 5-3-2008, registered under section 302/34, P.P.C. With Police Station Dina, District Jhelum at the instance of Abdur Rauf brother of deceased Hafeez-urRehman. In the F.I.R. Neither anybody has been named as an accused nor the name of any eye-witnesses has been mentioned. However, it is mentioned in the F.I.R. That one Rasheed used to come to their house who had illicit relations with Mst. Farzana Kausar wife of his deceased brother.
2. Mst. Farzana Kausar has suckling baby aged about four months who was allegedly snatched by Fatima Bibi (mother-in-law of Farzana Kausar). She made an application under section 491, Cr.P.C.
To the learned Additional Sessions Judge Gujranwala for taking the custody of her minor son namely Aftab Zakee, after recovering him from the custody of Mst. Farzana Kausar. Learned Additional Sessions Judge, Gujranwala vide order, dated 3-6-2008 allowed Habeous Corpus petition and directed to hand over the custody of minor to Mst. Farazana Kausar and also directed Superintendent District Jail, Jhelum to depute a Deputy Superintendent Jail to appear in the Court on 6-6-2008 so that necessary arrangement for the delivery of the custody of the minor could be made.
3. The aforesaid order passed by learned Additional Sessions Judge, Gujranwala was challenged by Fatima Bibi grand-mother of the minor by filing Criminal Revision Petition No,317 of 2008, which came up for hearing on 9-6-2008 and this Court while dismissing the revision petition took notice of the fact that Farzana Kausar has a suckling baby aged about four months and she is in jail with the allegation of assisting her paramour for the murder of her husband, so suo motu notice was issued to the State that why Farzana Kausar respondent be not released on bail in case F.I.R. No,61 of 2008, dated 5-3-2008 registered with Police Station Dina, District Jhelum, thereafter, matter came up for hearing on 24-6-2008 and learned counsel for the complainant sought an adjournment and today case has been taken up for hearing and learned counsel for the complainant as well as learned D.P.G. Have been heard at length.
4. The main stress of learned counsel for the complainant is that case is fixed for evidence today.
By relying upon a judgment of this Court in case of Muhammad Bashir v. Mst. Farhat Bibi 2001 PCr.LJ 1582 he submits that law does not ipso facto entitles a woman for grant of bail irrespective of the gravity of offence and the attending circumstances he further submits that bail application of Mst.
Farzana Kausar was rejected by learned Additional Sessions Judge, Jhelum on 23-4-2008.
5. Admittedly, there is no eye-witness of the alleged occurrence and police recorded the statements of witnesses of last seen and extra-judicial confession after 5/6 days of the alleged occurrence. As per prosecution, respondent Farzana Kausar only assisted her co-accused Rashad in committing the murder of her deceased husband Hafeez-ur-Rehman by strangulation with "Azar Band". Any observation made by this Court regarding the credibility of the prosecution evidence may prejudice the case of either side during the trial.
6. Be that as it may, Farzana Kausar being a woman, her case falls under the first proviso of section 497(1), Cr.P.C., she is behind the bars for the last more than four months and now suckling baby is with A her in jail, she is previously non-convict and thus she is entitled to be released on bail. I am fortified in my view from judgment of the apex Court in a case titled as Mst Nusrat v. The State 1996 SCM R 973. The operative part of the judgment reads as under:-- ' " 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 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 (PBUH) 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 (PBUH). This golden principle of administration of justice enunciated by the Holy Prophet Muhammad (PBUH) must be strictly observed and followed in our country."
7. For the foregoing reasons, I in exercise of my suo motu powers conferred under revisional and inherent jurisdiction direct that Farzana Kausar respondent, who is an accused in case F.I.R. No,61, dated 5-3-2008 registered under section 302/34, c P.P.C. With Police Station Dina, District Jhelum, be released on bail subject to her furnishing bail bonds in the sum of Rs,25,000 (Rupees twenty five thousand) with one-surety in the like amount to the satisfaction of learned trial Court. Office is directed to convey the order to learned Additional Sessions Judge Jhelum and Superintendent District Jail Jhelum and also to Mst. Farzana Kausar for making necessary arrangement for submission of bail bonds. Compliance report be submitted to Deputy Registrar (Judicial) of this Court.