1. Applicant in this case is a lady and she is involved in themurder of her husband. The F.I.R. Was registered at the instance of one Muhammad Shafi, who claimed to be a tenant of the deceased Shafiq Hussain Qureshi. Shafiq Hussain Qureshi was aged about 30 to 32 years and was living in his house alongwith Mst. Tabassum Qureshi, his wife in Bilal Colony, Korangi Industrial Area.
2. Muhammad Shafi, the informant, was also living in the portion of the said house as tenant. On 3-3- 1996 at about 6-30 a.m. When Muhammad Shafi was leaving for his job he noticed the applicant Mst. Tabassum, his landlady, in company of one unknown person loading a gunnybag on a motorcycle. Muhammad Shafi suspected the gunnybag to be containing some dead body. He tried to enquire about the contents of the bag from the lady on which the lady informed him that it contained pieces of leather. Mr. Muhammad Shafi then proceeded to his work and there informing his colleagues he was incited to go and report the matter to the police His statement was recorded by the police in the Roznamcha at about 10 a.m. And at about 10-30 a.m. The police claims to have recovered the dead body of deceased Shafiq Hussain Qureshi from the bed of Malir River, which had injuries and ligature marks on the neck. The police hereafter got the statement of Muhammad Shafi recorded under section 164, Cr.P.C., in which Muhammad Shafi made the statement as above and showed suspicion in the applicant Mst. Tabassum for having killed her husband Shaftq Hussain Qureshi. The applicant was arrested on the same day by the police. She is having a suckling baby with herself. She has been challaned to stand the trial in the above case. The request of the applicant for bail has been declined by the trial Court and thereafter this Court has been approached. The learned counsel have been heard and the police papers have also been perused.
3. There is no direct evidence of causing the death of her husband against the applicant. The only evidence against the applicant is that she was seen by the informant when a bag was being placed on the motor-cycle by an unknown person, and the applicant was also present. The informant was suspicious that the bag right contain a dead body. Shortly thereafter the dead body of Shafiq was recovered from the bed of the river. However, there is no allegation of any motive against the applicant. There are number of injuries on the person of the deceased, with ligature marks on the neck. Co-accused Zahid son of Shakil, against whom the allegation was that he had loaded the gunnybag on the motorcycle containing the dead body of the deceased, and had driven the same away from the house of the applicant, has been granted bail by the Sessions Judge, Karachi-East, on the ground that he was 15 years old boy, and that his name did not appear in the F.I.R. The co-accused Zahid has not been connected with the applicant Mst. Tabassum, by any evidence during investigation. It is yet to be established by evidence that the gunnybag, which was being loaded on the motorcycle by Zahid, at the instance of the applicant, actually contained the dead body of the deceased. It is an established position of law that in case of the female accused having a suckling baby, withholding of bail will amount to punish the baby who has to remain inside the jail with the mother for no fault of the baby. The certified copies of the orders of the Magistrate granting remand to the applicant during the investigation against the applicant show that she was remanded to judicial custody alongwith her suckling child. The applicant was also produced for recording her confession in this case but the Magistrate refused to record the same observing that after allowing her reflection time she denied the allegations against her and stated that she was being pressurised by the police for making confession. Thereafter she was remanded to judicial custody alongwith her suckling baby. Learned counsel for the applicant has relied on a book of Fatawa--e-Alamgiri, translated by Allama Syed Ameer A.I, Volume III, in which at page 262, it has been shown that in case of a lady having a suckling baby punishment against her was to be effected only when the baby had reached the age where the baby did not need the breast feeding. Apart from that, in the case of Wt. Nusratv. The State, reported in 1996 SCM R 973, the Supreme Court granted bail to a woman accused in a case of murder, who was put in jail alongwith her suckling child on the ground that the welfare of the suckling child demanded that accused mother should be released on bail rather than suckling child should suffer in jail for the murder committed by his mother. It has been held in many cases that the principles of justice under the Islamic Criminal Law, require that mothers having suckling babies should not be punished in a way that the punishment reaches their babies. In the present case the trial Court will come to its logical conclusion on evidence about the culpability of the applicant, but till then looking to the circumstances, and the fact that direct evidence of murder is lacking against her, and that she is lodged in jail alongwith her suckling baby, I feel that the applicant is entitled to be released on bail. Consequently, this application is allowed. The applicant is granted bail on furnishing one surety in the sum of Rs.100,000 (Rupees one lac) with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.