Mst. ZUBAIDA BIBI vs THE STATE

ORDER

' This is bail application under section 497, Cr.P.C. For the grant of post arrest bail in F.I.R. No,364 of 2004 dated 22-7-2004 under sections 302 and 325, P.P.C. At Police Station Bhalwal District Sargodha.

2. This is very unfortunate F.I.R. The petitioner, real mother is alleged to have killed by drowning her two daughters aged about 3 and half years, 1 and half years respectively. After drowning and killing her daughters, she herself tried to commit suicide but by intervention of eyewitnesses, her life was saved.

3. The learned counsel for the petitioner submits that reading of F.I.R. Itself shows that complainant who is also husband of the petitioner is responsible for this unfortunate occurrence as he used to scold petitioner of giving birth to female babies. The complainant wanted a male child from petitioner which unfortunately she failed to deliver. The learned counsel also submits that after going to jail, the petitioner gave birth to another child, again a girl who is not about 8/9 months old, still a suckling baby. He refers to 1996 SCMR page 973 wherein it was held that jail life is incompatible with environment necessary for the welfare of a suckling baby. He also refers to 1998 MLD page 1350, Lahore wherein bail was granted on ground that welfare of suckling child should not be made to suffer in jail. He also refers 1991 PCr.LJ 1361 Lahore. In the said judgment also it was held that a woman having suckling baby should be granted bail.

4. The learned counsel for the State submits that challan in this case has been submitted on 30th July, 2004 but only one witness has been examined so far. The learned counsel for the State also confirms birth of child in jail who is in jail with petitioner.

5. I have heard the learned counsel for the parties and have gone through the record. Investigating Officer in his investigation has confirmed that the petitioner and complainant used to quarrel amongst themselves on not having male child. The complainant/husband used to scold petitioner for not delivering him a son. It seems that the complainant is also responsible to some extent for this unfortunate occurrence for which the present F.I.R. Has been registered and the petitioner has been booked. In any case, the investigation of the case is complete, the petitioner is not required for the purpose of investigation, and no useful purpose would be served if she is kept in jail for an indefinite period. As far as innocence or guilt of the petitioner is concerned the learned trial Court will decide this same after following the procedure given under the law. At the moment the child, a suckling baby is also suffering with petitioner in jail. The baby has not committed any offence, therefore, why the baby should suffer? The baby can also not be separated from her mother, the present petitioner. The learned counsel for the petitioner has already referred three judgments to which I also concur. Another aspect of the case is an example of Holy Prophet (p.b.u.h.) wherein he had suspended the sentence of a pregnant woman till the delivery of child.

' The ratio decidendi in the above case is that a child must not be punished in any manner Under the present circumstances, the presence of baby in jail amounts to punishment. In view of the above discussion and consideration, this bail application is allowed and the petitioner shall be released from jail subject to her furnishing bail bonds in the sum of Rs,10,000 with one surety in the 'like amount to the satisfaction of learned trial Court.