The applicant has applied bail in Crime No, 211 of 2011, P. S. Rohri, lodged under Section 9-C of Control of Narcotic Substances Act, 1997.
2. Concisely, the facts are that the SIP Rafique Ahmed Selaro, P.S. Rohri lodged the FIR on 9.8.2011 in which he stated that on spy information that a woman is coming for selling charas towards custom Nako, he called the lady police and departed from P.S. towards custom Nako along with other staff members in Govt. vehicle and found the applicant who had a plastic bag which was taken into custody and when it was opened there were three pieces of charas. The weight of charas was 1100 grams, out of which 100 grams from each piece was separated for chemical examination and 800 grams were separately sealed.
3. The learned counsel for the applicant argued that the applicant is household lady who has suckling baby, aged about 14 months. The alleged recovery was made by the police from thickly populated area but no one was taken up from public as Mashir which is a violation of Section 103 Cr.P.C. He further argued that total recovered charas was 1100 grams which is a borderline case and it is to be determined whether the case of the applicant falls under Section 9 (b) or 9 (c) of the CNS Act, 1997. He further argued that suckling baby is also confined in jail with her mother which is against the humanity as she cannot live without her mother. In support of his arguments, he referred to 1996 SCM R 973 (Mst. Nusrat us. State), in which it was held that 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 (p.b.u.h.) had suspended the sentence of a pregnant women, 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 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 our Holy Prophet Muhammad (p.b.u.h.) and 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. In the same case, it was further held that the principles of justice enunciated by Muslim Jurists/lmams/Qazis are more illuminating and full of wisdom than principles enunciated by Western Jurists and Scholars. For the true and safe administration of justice in the Courts in Pakistan must seek guidance from decisions given and the principles of dispensation of justice enunciated by our Holy Prophet Muhammad (p.b.u.h), the four Caliphs (Razi Allah Ta'ala un Hum), Imams and eminent Qazis. These decisions and principles should be given overriding effect over Western principles of justice. The learned counsel further referred to PLJ 2005 Cr.0 (Lahore) 1190 (Mst. Latifan Bibi vs. State), in which Court went on to hold that female accused is entitled to concession of bail on the ground of having suckling baby lodged with her in jail. He further referred to 2006 P.Cr.L.J 726 (Sherin Muhammad vs. State), in which it was held that contraband charas weighing 1130 grams had been recovered from the house of accused during raid which quantity marginally exceeded limit of 1000 grams. Being .a borderline case between Clauses (b) & (c) of Section 9 of CNS, Act 1997, the matter requires further inquiry to determine the guilt of accused. In another case reported in 2004 YLR 439 (Taj Ali Khan vs. State); in which case, 1500 grams of charas was recovered and it was held that quantity of 500 grams exceeded upper limit of 1000 grams, but it was considered to be a borderline case between clauses (b) & (c) of Section 9 of the CNS Act, 1997. The question whether in such circumstances maximum punishment of 14 years provided in alternative would be awarded or not which needs discussion and a case of further inquiry, therefore, the accused was granted bail. In another case reported in 2009 YLR 189 (Gulab Hussain vs. State), the recovered quantity of charas had been 1200 grams so it was held that quantum marginally exceeded 1000 grams. The bail was allowed with the observation that Court while seized of the bail application had also to keep in mind the maximum sentence likely to be awarded to accused.
4. Vide order dated 21.11.2011, I called the report from Superintendent, central prison-II, Sukkur to verify whether the applicant is lodged in the jail along with suckling child or not. On 26.11.2011, the Superintendent, Central Prison-II, Sukkur submitted his report in which he stated that UTP Naseeban wife of Nizamuddin (applicant) along with her suckling baby was remanded to the jail on 10.8.2011 in Crime No, 211 of 2011, P.S. Rohri District Sukkur and said UTP is still confined in prison along with her suckling baby.
5. The learned APG argued that since the recovered quantity of charas shows a borderline case and this fact has also been proved that the applicant has suckling baby who is also confined with her in Central jail, therefore, learned APG keeping in view the aforesaid circumstances and in the light of dictum referred to above, he concedes his no objection to the grant of bail.
6. The report of. Superintendent, central prison-II, Sukkur unequivocally proves that the applicant is confined in central prison along with her suckling baby and being fortified by the dictum laid down by the hon'ble Supreme Court that the welfare of minor is incompatible with jail life and instead of detaining innocent infant in the jail in the crime allegedly committed by her mother it would be in the interest of justice as well as welfare of the minor if mother is released from jail on bail. It is also clear from the FIR that total recovered quantity of charas is only 1100 grams, out of which 300 grams were separated for chemical examination, therefore, in my view this is a borderline case and only 100 grams exceeded to the upper limit, therefore, being a borderline case, it will be decided at the time of trial whether present case comes within the purview and scope of Section 9
(b) or 9 (c) of the Control of Narcotic Substances Act, 1997 which is also a sufficient ground for further inquiry into the guilt of applicant.
7. For what has been discussed above, this bail application is allowed and the applicant is admitted to bail subject to executing bail bond in the sum of Rs,100,000/-(Rupees one lac) with one surety in the like amount to the satisfaction of the trial Court.