' SHAHID BILAL HASSAN, J.---Petitioner claims post arrest bail in case F.I.R. No,471 of 2012 dated 18-9- 2012 registered under section 406 read with section 506 of the Pakistan Penal Code, 1860 at Police Station City Ahmedpur, District Bahawalpur.
2. According to the prosecution story as narrated by the complainant of this case namely Farrukh Anwar son of Anwaar Ahmed is to the effect that sister of the complainant namely Mst. Shazia Bari wife of Abdul Bari was known to the petitioner and had good relation with her. The petitioner according to the prosecution story used to keep the belongings of the people as bailment and she is very popular in keeping the people belongings. In this regard there are several names given who have entrusted their belongings to the petitioner. One month earlier the sister of the complainant namely Mst. Shazia Bari had to travel to Bahawalpur and prior to the said she in presence of witnesses gave 291-tolas of gold ornaments and cash amounting to Rs,56,00,000 to the petitioner while saying they will get the said belongings back after returning from Bahawalpur. The complainant's sister remained with him and returned to Ahmedpur East, from Bahawalpur, that is, where the petitioner and sister of the complainant used to live and demanded the entrusted property mentioned hereinbefore which the petitioner promised to return on the next day. On the next day the complainant's sister went to get her entrusted property back but the needful was not done. At the time of refusal there were many other claimants whose entrustment had also been misappropriated by the petitioner.
3. The learned counsel for the petitioner has maintained that no time, date and place of occurrence has been mentioned in this case by the complainant, simply stating that the occurrence took place one month prior without any explanation is not enough for the purpose of lodging of F.I.R. As delay of each and every day is to be explained and that is not the case under discussion. Further maintained that there is no calendar of witnesses in this case and no statement under section 161 of Cr.P.C., recorded either against the petitioner or any other co-accused in this case. Adds that the whole prosecution story revolves around Mst. Shazia Bari sister of the complainant, who gave the alleged amount and gold to the petitioner but did not join the investigation in support of the prosecution story being star witness rather, the only aggrieved person, therefore, according to the learned counsel for the petitioner no case is made out in the given circumstances against the petitioner as the complainant is not witness of the Crime and all which has been narrated by him is hear-say. Further adds that the petitioner joined the investigation and no recovery was effected from her, no criminal breach of trust has been made out. From the bare reading of the prosecution story and therefore, the case of the petitioner falls within the ambit of further inquiry under section 497(2) of Cr.P.C. The petitioner is behind the bars since her arrest i,e, 13-10-2012 and is mother of a suckling baby namely Mah Noor who was born on 10-4-2012 and as such the petitioner is entitled to the grant of post arrest bail.
4. On the other hand, the learned D.P.G. Assisted by the learned counsel for the complainant has opposed the bail application and maintained that section 406 of the P.P.C. Duly attracted in this case and the statements of two witnesses are on the record so as to connect the petitioner with the commission of offence and as such the petitioner is not entitled for the grant of post arrest bail as she has committed the criminal breach of trust as defined in section 405 of the P.P.C. The punishment of which is given in section 406 of the said Act and there are threats of dire consequences to the life of the complainant's side by the petitioner.
5. Arguments heard. Record perused.
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10. It is an admitted fact that the petitioner was arrested on 13-10-2012 and since then she is behind the bars, after arrest she joined the investigation of this case during which no recovery was got effected from the petitioner. It is an admitted fact that the petitioner is mother of a daughter who is a suckling baby aged one year and approximately two months old. Apart from the said, on the face of it the petitioner has not committed any crime with the complainant who is not a witness to the entrustment that he has alleged according to the prosecution story. It is the sister of the complainant namely Mst. Shazia Bari wife of Abdul Bari who allegedly entrusted the petitioner 291- tolas of gold and Rs,56,00,000 and admittedly Mst. Shazia Bari did not appear before the Investigating Officer or any other competent forum so as to support the stance taken up by the complainant. It will not be wrong to say that Mst. Shazia Bari is the star witness of this case who ever-since 18-9-2012, that is, the date of lodging of F.I.R. Has not approached the investigating agency or any other forum so a, to support stance taken up by the complainant who happens to be her real brother. Apparently on the face of it, it seems that the issue if any between the complainant and the petitioner party is that of civil liability/contract, the offences levelled against the petitioner do not fall within the ambit of prohibitory clause of section 497, Cr.P.C. Even otherwise there is no denial of the fact that the petitioner is mother of a suckling baby namely Mah Noor aged one year and approximately two months, presently confined in New Central Jail, Bahawalpur.
Reliance in this regard has been made by the learned counsel for the petitioner upon "Mst. NUSRAT v. THE STATE" (1996 SCM R 973), wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:-- "Suckling child of accused was kept with mother in jail obviously for his welfare---Concept of "welfare of minor" was compatible 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.---"
' Similar view has been adopted by this Court in a number of cases.
' Reliance is placed upon "GHULAM SAKINA and others v. THE STATE" (1991 PCr.LJ 1316), "Mst. IRSHAD alias Mst. WAZIRAN v. THE STATE" (2000 PCr.LJ 613), "Mst. LATIFAN BIBI v. THE STATE" (2006 PCr.LJ 251), "THE STATE v. FARZANA KAUSAR" (2008 YLR 2600), "NASREEN BIBI v. THE STATE" (2011 YLR 1028), and "Mst. KABELA v. THE STATE" (2011 YLR 2975). In all the said verdicts of this Court, a mother of a suckling baby has been given the right to the concession of bail.
Though incomplete challan has been submitted in the trial court but there is yet to be any progress, which accordingly is at initial stage and as such in absence of any exceptional circumstances grant of bail to an accused is a right, which should be given and refusal is an exception as held by the Hon'ble Supreme Court of Pakistan in "ZAFAR IQBAL v. MUHAMMAD ANWAR and others" (2009 SCM R 1488), "RIAZ JAFAR NATIQ v. MUHAMMAD NADEEM DAR and others" (2011 SCM R 1708) and "TARIQ BASHIR and 5 others v. THE STATE" (PLD 1995 SC 34).
7. In the light of what has been discussed above and particularly keeping in view the fact that the petitioner is mother of suckling baby while following the dictum laid down by the Hon'ble Supreme Court of Pakistan in "Mst. NUSRAT (supra) and the case lodged against her falls within the ambit of further inquiry as no exceptional ground has been made out by the prosecution so as to deny the petitioner her liberty as she is behind the bars since 13-10-2012 i,e, approximately seven months and there is no likelihood of the conclusion of trial in the near future, therefore, this petition is accepted and the petitioner is admitted to after arrest bail till the final decision of the case subject to furnishing bail bonds in the sum of Rs,10,00,000 (rupees one million only) with one surety in the like amount to the satisfaction of the learned trial court.
8. Before parting with this order, it is however, clarified that the reasons given in this order are tentative in nature and it will have no effect upon the merits of the case in accordance with law.