Mst. Samina VS The State

JUDGMENT SHEET

IN THE PESHAWARHIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Cr.M B.A. No. 465-M/2017.

JADGMENT

Date of hearing: 26.10.2017

Petitioner:- (Mst Ssmina) bv Muhummsd Anwa Advocute.

Respondents:- fthe Stute & I unothe r) bv Mr. Ru Ahmu Astt: Advocate General MOHAN{MAD IBRAI{IM KHAN. J.- On heT implication, the accused/Petitioner Mst. Samina in case FIR No. l20l dated 26.09.2011 charged under section 9 (C) CNSA registered at Police Station Ghalegay District Swat is optimistic for the grant ofher post arrest bail.

) Prior to, the prayer ofthe Petitioner for the similar relief before the Court of learned Additional Sessions Judge-Vl/Izafi Zlla Qazi Swat through an application No. 52914 of the td. year 2017 was dismissed in slipshod manner for reasons thal "it is fo und that accused/Petitioner has sot direct nexus with commission o a non- f bailable ofence -falling within the restrictive N,$ib(S,8,)Uotr'1,1.ll1r.J!Iic.Mohnmnrdll,rnhinXhnn

clause of statutorv orovision of orocedural law.

The orosecution has collected sufficient material connectins the accused/Petitioner with the comrnis;iqn of a non-bailable offence. Hence. the aoolication was stood dismissed."

3 The contents of the 'Murasila' followed by lodging of the First Information Report would reveal that Kaleem Jan ASI alongwith other police party were present at Landaki Check Post and had fenced the road, when a Flying Coach emerged from Malakand side, was halted on account of suspicion. The present accused/Petitioner was seated in the front seat of the Flying Coach, after cursory interrogation by the Lady Constable when belonging in shape of AIWA TV of the lady accused was searched out, it contained 6 packets d. of Chars wrapped up with yellow solution tape' After weighment of all the packets, total of which came out to 7200 grams. Out of each packet 5/5 grams were separated for chemical analysis while the rest 7170 grams were sealed into separate parcels.

NrEib (S,B.) rr0n'bk Mr. J!slic. Mohrmnud Ibnhim Khin

4.Having heard arguments of learned counsel for the Petitioner and learned Astt:

Advocate General for the State, record with their assistance gone through.

5 No doubt huge quantity of Chars weighing 7200 grams have been allegedly recovered from the T.V if owned by the present accused/Petitioner contained in 6 packets wrapped up with yellow solution tape and the offence being non-bailable in view of the section 9 (C) CNSA read with section 51 of the ibid Act, but whether accusedlPetitioner has conscious knowledge ofthe contraband Chars in question or otherwise, this aspect of the case would be thrashed-out by the learned Trial Court after recording of the evidence. Moreover, the lady accused was seated in front alongside of the driver whereas the AIWA TV f t)- was found beneath the rear seat occupied by the other passenger. It is astonishing that the police officials could smell the contraband packed in TV set but none of the passenger was even with unstufff and airy nose who could not smell all Nrsrb (S,B.) llon'bl. l\lr. Justi.. Iroh.n rd lbrrhim Xhm

the way and even objected to that Chars was transporting by any ofthe travelling passengers other than the accused/Petitioner with sucklins babv.

6.Above all, the accused/Petitioner has 213 years old suckling baby by the name of Mst. Duaa in her custody, as per information conveyed by the concerned Muharir warrant of District Jail Timergara. In this respect, reliance has been placed on the case law cited as 2011 YLR 2975 (Peshuwsr) " MsL Kqbeh vs the Slote", wherein the relevant citation enunciates:-

"Accused lhough was directly involved in the narcolics case, bul a suckling boby wos along with the accused who hsd been behind the bars for the lasl two months, llelfare of minor at such a stoge would be token inlo account' This f, t)- judgmenl further avers thal HolY Prophet peace be upon him in ctse of "Ghamidiyyah" had suspended the senlence of pregnant womon' not only till deliverY of the child, bul olso poslponed the same till suckling period i.e. two Years for Nrwrb (S,B.)Hon'bt Mr. Jutli.. Moh.n6..l lbntir Kh.n

welfore of tlre chiltl which showed paromount and signiJicance of the rigltt of a suckling child in Islsm. Held, ,somsn hoving suckling child, should not be detuined und granled bail, in such ci rc u mslanc e s, O rder a ccordi n gly.,, 7 In view of the above and while deriving wisdom from the above-referred judgment, there is no need to further keep the Petitioner in jail for an indefinite period, therefore, Petitioner is released on bail subject to furnishing bail bonds in the sum of Rs. 200,000/- (Rupees two lacs) with two sureties each in the like amount to the satisfaction of learned Trial Court, who shall ensure that the sureties are 1o0al, reliable and men of means.

8 These are the reasons of my short order ofeven date.

Announced f,

I)-.

Dt:26.10.2017. JUDGE

A*..f( dt\'*-\ x!prb (5.8,) Hon'bl. Mr. Justic. MohrhnDd lbrrltim Khrn