1. ' ABDUL RAHSEED KALWAR, J.--- Applicant Mst. Shah Jehan Bibi has been booked under section 9(c), C.N.S. Act, 1997 vide Crime No,4 of 2008 at Police Station A.N.F., Hyderabad.
2. ' The F.I.R. Was lodged on 28-6-2008 at 1630 hours whereas the incident took place on the same day on .1530 hours at Shah Latif Town near Pakola Factory Site Hyderabad. Complainant Muhammad Muzammil Ahmed Sub-Inspector/S.H.O of the aforesaid police station along with his subordinate staff namely Sobedar Abdullah, H.C. Sher Muhammad, P.C. Imtiaz Ali, Lnk Rustam and others of A.N.F. Staff duly armed left police station in a Government vehicle driven by driver Ghulam Rasool after keeping Roznamcha Entry No,7 at 1430 hours for the purpose of patrolling. When they reached on Auto Bhan road at Fateh Chowk they received spy information that Shah Jehan Bibi, Ashiq Ali, Mashooq Ali, Zubair Ali residents of Shah Latif Town Site Area Hyderabad are involved in the trade of narcotics since long time. On that day Mst. Shah Jehan Bibi was going to bring narcotics at her home. On this information police party started looking for the woman, and 1530 hours at the place of incident applicant was seen wearing black Burqa with blue shopping bag in her hand, she was apprehended. Due to refusal of private persons H.C. Rahim Bux and H.C. Sher Muhammad were appointed as witnesses. The lady disclosed her name as Shah Jehan Bibi. The shopping bag was taken from the hand of lady and it was found that 6 foiled packets containing slabs of Charas were found. Each packet was separately weighed and it was found that each packet was containing 1 kg Charas whereas total recovered Charas was 6 kg. The police separated 10 grams Charas from each bag for Chemical Examiner and sealed in envelope and remaining Charas was sealed separately in cloth bag. From personal search of lady Rs,120 were also recovered. Mashirnama was prepared on spot; case property and Mst. Shah Jehan Bibi were brought at police station. During interrogation Mst. Shah Jehan Bibi disclosed that she had purchased the Charas from Mst. Farzana wife of Budhal.
3. ' Learned Advocate for the applicant has stated that applicant is innocent and has been falsely implicated in the case. He has filed statement along with medical record of applicant in proof of delivery of child by the applicant in jail during detention. Learned Advocate for the applicant has also stressed on the ground that after delivery, suckling child is with the applicant. The search of lady applicant is made in violation of section 52 of Criminal Procedure Code. In spite of recovery having been made in thickly populated area no private person has been associated as Mashir.
4. P.Ws/Mashirs are interested and their testimony cannot be relied upon. As per him lower Court has wrongly dismissed the bail of applicant. He has relied upon 2004 PCr.LJ 20, 1997 SCM R 947, 1996 SCM R 973.
5. ' Learned Special Prosecutor for A.N.F. Has .Opposed the grant of bail to applicant. According to him the case of applicant is fresh one. It is a serious offence against the society and the applicant has been arrested red-handed with huge quantity of contraband material. He further stated thai now a days women are used for drug trafficking and the grant of bail shall encourage more women to indulge in such kind of activities. He has relied upon 2008 SCM R 742.
6. ' Heard arguments of counsel for the applicant, learned Special Prosecutor for A.N.F. And perused the material on record.
7. From the factual point of view, the applicant is not entitled for grant of bail on any count, but in view of the cited case-law, the applicant being lady with suckling child has been considered for grant of bail. Let us have guidance from the case-law cited by learned counsel for the applicant.
8. ' In cited case of Fahmida v. State reported as 1997 SC MR 947 the Honourable Supreme Court of Pakistan has held as under:--- "Apparently there is a violation of the provisions of section 103, Cr.P.C. As two respectable inhabitants of the locality have not been associated in the search proceedings; there is recovery of only 35 grams of heroin for which the maximum punishment is 7 years and the petitioner is a female. In our view, a case for grant of bail is made out."
9. ' In my humble view this case-law has no application in the present situation because this case was decided by Honourable Supreme Court on 20th October, 1996 and Control of Narcotic Substances Act was promulgated on 11th July, 1997. Section 25 of C.N.S. Act, 1997 excludes the application of section 103, Cr.P.C.
10. ' In cited case of Muhammad Waseem Khan v. Station House Officer, reported as 1996 SCM R 973 the Honourable Supreme Court of Pakistan has held 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.
11. 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.).
12. 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. So, respectfully following the same, I allow ad interim bail to the petitioner."
13. ' In cited case Parveen Iqbal v. State reported as 2004 PCr.L.I 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."
14. From the perusal of above mentioned two case laws it has become clear that the women having suckling child like applicant should not be detained and the superior Courts had been pleased to grant bail in such situation.
15. ' Before deciding this matter I would like to discuss the case-law cited by learned Special Prosecutor for ANF i.e. 2008 SCM R 742. Since on merits I have already held herein above that the applicant is not entitled for grant of bail, therefore, case-law cited by learned Special Prosecutor for ANF is very much applicable and there is no cavil in the principle enunciated in the said case-law.
16. For the reasons hereinabove and specially the case-law cited by the applicant on the point that lady having suckling child, the bail is granted to the applicant in the sum of Rs,2,00,000 and PR bond in the like amount to the satisfaction of trial Court.