' In pursuance of a secret information that a woman is going to transport contraband narcotics in a bus from Kohat to Rawalpindi, A.S.-I. Garib Nawaz, held a Nakabandi at Khushal Gardh Bridge, Police Check Post on 21-3-1999.
2. When the bus (registration number not mentioned in the F.I.R.) arrived there, it was stopped. The petitioner accused, wearing a Burqa was deboarded from the bus and searched thoroughly by Lady Constable namely, Mumtaz Begum (No,152) who recovered 10 packets of opium weighing 4000 grams (4 Kgs.) from the petitioner's possession. Since the lady petitioner-accused could not produce any evidence to show that she was in lawful possession of the same, therefore, she was arrested and the opium was taken into its possession by the police party. The A.S.-I. Scribed the Murasila and sent the same to. Police Station, Gumbat where, on its basis, the present case was registered against her under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979, vide F.I.R.
No,43, dated 21-3-1999.
3. After her arrest the petitioner applied for bail. Her bail petition was rejected by Additional Sessions Judge, Kohat (Mr. Muhammad Jamshed) by his order, dated 17-4-1999. The operative part of the said order is as under:-- "I have considered the above arguments in the light of record. No private witness is associated in the case but police witnesses are competent for the purpose. It is not worth consideration that she was not in the know of the crime and was merely travelling with her relative. The case against the accused falls within the prohibitory clause as contraband opium more than 1000 grams has been recovered from her possession. She cannot be extended the benefit of being lady as she has misused her womanhood.
' In the light of above, accused-petitioner is not entitled to the concession of bail. As such, her application stands. Rejected. Consign.
' Announced (Sd.) Muhammad Jamshed, 17-4-1999. Additional Sessions Judge, Kohat."
4. Hence this petition.
5. I have heard Malik Hameed Khan Afridi, Advocate, Kohat learned counsel for the petitioner and Kh. Azhar Rashid, learned Assistant Advocate-General for respondent/State in detail. Record of the case has been perused minutely.
6. It may be observed, at the outset, that a tentative assessment of the available record would show that the lady petitioner-accused has no case on merits. The learned counsel for the petitioner contends that the petitioner, alongwith his suckling baby, was travelling from Kohat to Rawalpindi with one of her relative namely, Muhammad Javed and that she had no knowledge, whatsoever that the said relative was carrying narcotics with him. According to the petitioner's counsel, entire quantity of opium was recovered from the possession of Muhammad Javed.
However, the recovered quantity of opium was divided into two parts. One case was registered against the petitioner-lady for carrying 4000 grams (4 Kgs.) of opium vide F.I.R. No,43 whereas the other case for carrying 3100 grams of opium, was registered against Muhammad Javed vide F.I.R.
No,40. The contention of the learned counsel for the lady accused has not impressed me at all. This factual controversy, pointed out by the learned counsel for the petitioner, can only be determined/decided after the recording of the prosecution evidence.
7. The second contention of the learned counsel for the petitioner that the petitioner is a woman, with a suckling child, and that her retention in the jail shall be detrimental to the health of the child and that, therefore, she may be released on bail under the 1st proviso to section 497, Cr.P.C. Has force in it and I have no hesitation in agreeing with same.
8. Accordingly this petition for bail is accepted.
9. The petitioner shall be released forthwith, alongwith the suckling baby, if the baby is in the jail, provided she is not required in any other case, and furnishes bail bonds in the sum of Rs,1,00,000 (Rs, one lac only) with two sureties, each in the like amount, to the satisfaction, of the Additional Registrar/Deputy Registrar of this Court.
10. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons, are men of means having sufficient property in their names and hail from the settled areas of District Kohat. Attested copies of their property documents/identity cards shall be obtained from them and placed on record.