1. Criminal Miscellaneous No,20/L of 2011 SHAHZADO SHAIKH, J.---Learned counsel for the appellant argued for bail of appellant Mst. Nadia on the ground that she is in jail along with an innocent infant, aged nine months, who was born in jail.
2. ' On the last date of hearing the learned counsel for appellant had raised the point that there were no proper facilities and conditions suitable to keep the child in jail.
3. ' The learned Counsel for appellant had relied upon the following judgments:-- 2Q03 PCr.LJ 402 Mst. Sitara Bibi v. The State Contention of the female accused was that since a suckling child had been kept in jail where he was suffering for want of proper care and medical facilities as the Jails in Pakistan did not cater for the needs of infants and sentence recorded against the accused was short, therefore, pending decision of her appeal, the accused be released on bail---Validity---Jails in Pakistan did not normally provide for the facilities which were needed for the upbringing of small children and babies---Welfare of baby, therefore, demanded that his mother was to be kept in better living conditions/environment, where she was not only be able to take care of herself but look after and bring her child up according to the modern living standards, besides, providing suitable medical facilities to him in the hour of need; which was not possible in jail---Federal Shariat Court allowed the application for suspension of operation of impugned judgment and accused lady was released on bail----.
4. ' 1996 SCM R 973 Mst. Nusrat v. The State Concept of "welfare of minor" was incompatible with jail life-- Instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it was in the interest of justice as well as welfare of minor if the mother was released from jail---Holy Prophet Muhammad (P.B.H.H.) in the famous case of "Ghamidiyyah" 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 welfare of the child which 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 Holy Prophet Muhammad (P.B. U.H.) and this golden principle of administration of justice must be strictly observed and followed in the country---Ad interim bail was consequently allowed to accused till the hearing of the petition for leave to appeal.
5. ' In the above judgment of 2003, the honourable Supreme Court of Pakistan's observations about the jails "suffering for want of proper care and medical facilities," "did not cater for the needs of infants, " and "did not normally provide for the facilities which were needed for the upbringing of small children and babies... ", were very important. Therefore, latest report was called from the Jail Superintendent, in this regard, who has reported vide his Report No,18954 dated 3-10-2011 as follows:-- "At the time of admission into this Jail the subject noted female prisoner was pregnant. The said female prisoner and her child medically examined by the Medical Officer of this jail and recorded that she gave birth to baby boy 9 months ago inside the Juil. At present the age of baby boy is 9 months. His name is Shoaib. The convicted mother complains of backache for which necessary treatment is being provided. No other remarkable disease could be detected clinically at the time of examination. The condition of the baby boy is satisfactory. The baby boy is taking mother feed regularly inside the Jail. No extra feed other than mother feed is required inside the Jail. (Copy of Medical Report is enclosed). The conduct of subject noted female prisoner during confinement in this jail is satisfactory."
6. ' While appreciating the assistance provided by the learned Counsel for the appellant, and guidance taken from the above quoted judgment of the Hon'ble Supreme Court, it is noted with due deference that it mainly requires to ensure care including medical care, welfare and proper upbringing of a child, while meeting the ends of justice. The report of the Jail Superintendent indicates that right from the day of birth, the child, now nine months, who is with her mother is.
7. Being B provided regular medical care, regular feed, etc., as a necessary welfare measure according to the law.
8. ' So far judgment of the Honourable Supreme Court of Pakistan reported as 1996 SCM R 973, is concerned, on a query put to the learned counsel, it was clarified that it pertained to the case in which the woman . Was awarded death sentence, in which case the fetus would also have died with her execution, and similarly till suckling age of the infant, postponement of the death sentence was necessary. Therefore, the present case does not fit into the extremely laudable principle laid down in the above historic precedent of Islamic justice.
9. ' The learned counsel for the appellant relied on the following also:-- 1999 PCr.LJ 1004 Liaquat and another v. The State Suspension of sentence of lady convict who gave birth to a baby in jail---Newly-born baby not being a convicted person, her remaining in jail would be negation of fundamental right of liberty conferred upon baby from the very day of her birth by Constitution of Pakistan, 1973---Newly born baby being a suckling child, her separation from her convicted mother might prove detrimental to physical as well as psychic health--- Execution of sentence of convicted mother was suspended pending her appeal against her conviction and sentence and she was released on bail.
10. ' Today he relied on PLD 1971 SC 617.
11. ' The present case is not congruent in its ingredients with all the relevant factors of the above quoted referred precedent of the honourable apex Court. In the above quoted case "separation from her convicted mother might prove detrimental to physical as well as psychic health" of the infant was involved, whereas in the present case separation is not agitated to be the issue.
12. The learned Counsel has pressed mainly on the ground of compassion which, in fact, has already been shown by the learned trial Court by not awarding the death sentence to the lady convict. In this connection discussion and analysis in the impugned judgment of the learned trial Court, particularly its para 18, is relevant where the learned trial Court determined multiplicity of series of crimes including abduction, coercion, forced administration of intoxicant/ liquor, sale of the girl, and compelling her to prostitution through a den operated by the gang which trapped such innocent girls. In Para 20 of the impugned judgment of the learned trial Court it has been determined as under:- "As far as quantum of the punishment is, concerned accused Mst. Nadia, Re hmat Ali and Jahangir committed wanton act, they threw the victim into a sinful life, spoiled her future. The story reflects that accused have made a gang, which abducts the innocent girls from the different places and then they play, enjoy and earn money after selling those girls through prostitution. The conduct of the accused Mst. Nadia, Rehmat Ali and Jahangir is very heinous against whole society and they do not deserve any type of leniency."
13. It is also evident from the statement under section 342, Cr.P.C. Of appellant/convict herself that she had been to jail earlier also, which shows that she is habitual and a desperado for the society. In this view of the matter, since neither statutory provision, nor compassion, or any precedent in congruence on all four corners, support the bail plea, the same is rejected.