Mst. SITARA BIBI vs THE STATE

' Criminal Miscellaneous No,1 /P of 2003 ' This is an application for suspension of the impugned judgment dated 23-12-2002 and release of the applicant/appellant on bail on the ground that she has a suckling baby.

2. Facts of the case, in brief, are that applicant/appellant alongwith six others were charged and tried under sections 10, 11 and 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 494, P.P.C. By the learned Sessions Judge/Zila Qazi, Swat in case F.I.R. No,87 of 2000. On the conclusion of the trial the applicant was convicted and sentenced to five years' rigorous imprisonment alongwith a fine of Rs,10,000 or in default thereof to further undergo S.I. For six months, whereas, the rest of the accused persons were acquitted of the charge. Being aggrieved, Appeal bearing No,2/P of 2003 was filed by the applicant, in this Court, which is pending.

3. It has been mainly, contended by the learned counsel for the applicant/appellant that the applicant has ,a suckling baby to whom she gave birth on 23-9-2001. Birth Certificate has been placed on record. He has added that since the child alongwith lits mother has been kept in jail where he is suffering for want of proper care and medical facilities as the jails in Pakistan do not cater for the needs of infants, therefore, pending decision of the appeal, the applicant may be released on bail. Reliance has been placed on the following reported judgments:--

(1) Mst. Nusrat v. The State 1996 SCM R 973 in which case Mst. Nusrat, the petitioner was booked for trial on the charge of murder. Her suckling child was also admitted in jail with her. Bail application for the petitioner was rejected by the Lahore High Court. The order was assailed before the Honourable Supreme Court of Pakistan by way of a miscellaneous petition. The Honourable Supreme Court of Pakistan, in view of the case of `Ghamidiyyah' wherein, the Holy Prophet Muhammad (peace be upon Him) had suspended the sentence passed on a pregnant woman not only till delivery of child but had postponed the same for suckling period as well, obviously, for the welfare of the child, had allowed bail to the petitioner..

(2) Liaqat and another v. The State 1999 PCr.LJ 1004 wherein a Single Bench of this Court keeping in view of the principle that 'no one should suffer for the misdeed of others' was pleased to suspend the sentence inflicted on the appellant, who had a suckling baby.

(3) Mst. Nasreen v. The State 1998 M LD 1350 in which case the appellant though charged for murder was granted bail keeping in view the welfare of her baby child.

(4) Mst. Ansar Jan v. The State and another 2000 PCr.LJ 586, wherein the petitioner was involved in a case registered under section 302, P.P.C. Bail applications moved by her, before the Judicial Magistrate as well as the Additional Sessions Judge, Abbottabad were turned down. However, a Single Bench of the High Court was pleased to release her on bail keeping in view the fact that the petitioner was found pregnant and welfare of the child, who was expected to be born in a couple of days, demanded so."

' It has been further submitted by the learned counsel for the applicant/appellant that since the sentence recorded against the petitioner otherwise is short, therefore, on this ground too, she is entitled to be released on bail. Reliance in this regard, has been placed on the case of Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2587, wherein, five years' sentence inflicted on the appellant was treated to be a short sentence and bail was allowed.

5. Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State has candidly conceded and submitted that welfare of the suckling baby, in fact, demands that his mother be released on bail, as the jails in Pakistan do not provide for the facilities which are needed for bringing up the infants.

6. I have given my anxious consideration to the submissions made by the learned counsel for the parties. The applicant/appellant has been sentenced to undergo five years' R.I. She alongwith his baby child, is in jail since pronouncement of the impugned judgment. The learned counsel for the State has confirmed that jails in Pakistan do not normally, provide for the facilities which are needed for the upbringing of small children and babies. Welfare of the baby, therefore, demands that his mother may be kept in better living conditions/environment where she may not only be able to take care of herself but look after and bring her child up according to the modern living standards besides, providing suitable medical facilities to him in the hour of need; which obviously is not possible in jail. I, therefore, while humbly following the decision made by the Holy Prophet Muhammad (s.a.w.) in the famous case of "Ghamidiyyah" as well as the dictums of the afore- quoted judgments, am inclined to allow the application. Resultantly, operation of the impugned judgment is suspended and the applicant/appellant is released on bail on her furnishing surety in the sum of Rs,20,000 with one surety and P.R. Bond in the like amount to the satisfaction of the learned trial Court.