Mst. NUSRAT vs THE STATE

ORDER

' Mst. Nusrat, the petitioner, having a suckling baby, is booked for the murder of Mst. Surrayya.

According to the prosecution the petitioner and her brother Muhammad Rafique had caused the death of the deceased on 18-1-1994 at 2-00 p.m. In Chak No,324/GB, Police Station, Chatiana, District Toba Tek Singh over domestic differences. The sucking body was admitted in the jail with her mother.

2. The bail applications of the petitioner were rejected by the Lahore High Court, Lahore on 16-8- 1994. Hence this Miscellaneous Application for ad interim bail.

3. The learned counsel for the petitioner and the learned counsel for the State heard.

4. The suckling child of the petitioner kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of "welfare of minor" is incompatible with jail life. So, instead of detaining the innocent child infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from the jail. In famous case of Ghamidiyyah, our Holy Prophet Muhammad (p.b.u.h.) had suspended the sentence on 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. This 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 our Holy Prophet Muhammad (p.b.u.h.). This golden principle of administration of justice enunciated by the Holy Prophet Muhammad (p.b.u.h.) must be strictly observed and followed in our country, So, respectfully following the same, I allow ad interim bail to the petitioner in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Toba Tek Singh, till the hearing of the petition for leave to appeal.

5. Before parting with the order, I would like to add that the principles of justice enunciated by Muslim Jurists/Imams/Qazis are more illuminating and full of wisdom than principles enunciated by Western Jurists and Scholars. For the true and safe administration of justice in civil and criminal cases, the Courts in Pakistan must seek guidance from decisions given , and the principles of dispensation of justice enunciated by our Holy Prophet Muhammad (p.b.u.h.), the four Caliphs (Razi Allah Ta' ala un Hum), Imams and eminent Qazis. These decisions and principles should be given overriding effect over Western principles of justice.