' KHALID MEHMOOD, J.---Petitioner Saima has been refused bail by the learned Judge Special Court, Peshawar in case F.I.R. No,1443, dated 18-12-2012, of Police Station Hayatabad, Peshawar, registered under section C.N.S.A. Therefore, she has lodged the present bail petition before this Court.
2. I have heard learned counsel for the parties and have also perused the record.
3. A perusal of record reveals that admittedly, there, was prior information about the trafficking of the narcotics through the female folk, and it was morally incumbent upon the complainant, who was heading the search party to have arranged for a female to search the said ladies but despite that no female constable was accompanying at the time of laying nakabandi. No doubt, that huge quantity of narcotics weighing 8 Kg was recovered from the present petitioner and the offence is non-bailable, but keeping in view the quantity of recovered incriminating substances and being female and also having two suckling babies, which fact is admitted by the prosecution who are also behind the bar, hence, suffering of innocent babies cannot be ignored. It is also B worth- mentioning that welfare of minor is prime consideration which has been properly appreciated in landmark judgment of apex Court in case of Mst. Nusrat v. The State, reported as 1996 SCM R 973, which is reproduced as under:-- "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
(PBUH) 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 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 Holy Prophet Muhammad (PBUH) 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".
4. Moreover, the petitioner is riot likely to get maximum punishment because the quantum of sentence has to commensurate with the quantum of substance recovered, if case against her is proved at trial. Moreover, there is no evidence on record that petitioner is a previous convict or involved in similar cases.
5. For the reasons discussed above, this petition is allowed and it is directed that the petitioner be released on bail if she furnishes bail bond in the sum of Rs,10,00,000 (Rupees Ten Lacs) with two sureties each the like amount to the satisfaction of the Duty/Illaqa Magistrate, who shall ensure that the sureties must be local, reliable and men of means.
6. Above are the reasons of my short order dated 22-2-2013.