South Asian Journal

Contents

Rights of Imprisoned Mothers in Pakistan

Sikander Ahmed Shah and Moeen Cheema

Introduction
A large number of women and their children are incarcerated in prisons around the world--this phenomenon is not restricted to developing nations. Developed nations such as the US and countries in Europe confront the same problem. A large number of women prisoners throughout the world are also mothers: in the US, an estimated 80 percent of women incarcerated in prisons are mothers;1 in the UK, over 60 percent of women prisoners have young children, and 3 percent have a child living in prison with them.2 The phenomenon that is causing worldwide concern is the number of children who are living in prison with their mothers.

It is claimed that, even in developed nations, imprisoned women and their children are subjected to humiliation, abuse, and torture, both mental and physical. In Marseilles, France, a woman prisoner gave birth in jail, doubly immobilised by shackles and an intravenous drip, while in the US, women in labour are often chained until given an epidural.3 However, there are various institutions in developed countries, both at the government and non-government levels, which document cases of abuse, provide checks and balances, and assist and counsel vulnerable women and children in order to procure a better quality of life for them. In the US, the Federal Bureau of Prisons operates the Mothers and Infants Together (MINT) programme for pregnant inmates, through which some women are able to spend three months prior to delivery and two months after giving birth in a halfway house facility.4

In contrast, the tabulation of relevant raw data and information relating to abuse/discrimination, material assistance, and the determination of social welfare needs of women in prison with their children, are negligible in a developing country like Pakistan. Yet public outcry over reported cases of abuse of women and their children could result in positive steps being taken to address the situation. Such awareness could, in the long run, lead to the creation of much needed organisations to address these problems; these organisations could also monitor the working of the government branch related to prison functioning.

In India, where a child can stay up to five years with his or her mother in prison, the status of these groups is dismal. With a population of over a billion people, the officially reported number of mothers in jail with their infants is very high. In 2001, the federal home ministry reported that there were an estimated 1,392 children living with their mothers in jails across India. The harsh, regimented life and administrative rules are as applicable to these children as they are to their mothers. In addition, many prison officials “admit in private that the children are viewed as a liability and a drain on their already meagre jail budgets.”
The social, physical, and mental impact of imprisonment on such children is acute, and this has been openly acknowledged by India's intelligentsia. The Hindu, India's leading English newspaper, stated that the “effects of incarceration can be particularly catastrophic on the children and costly to the state--both immediately, in terms of providing for their care, and long-term, because of the social problems arising from early separation.” It was further mentioned that a “shocking survey on children of women prisoners--conducted by the National Institute of Criminology and Forensic Sciences, Ministry of Home Affairs in India, between 1997-2000--documents the conditions of deprivation and criminality in which they are forced to grow up, lack of proper nutrition, inadequate medical care and little opportunity for education.” Jeet Kaur, in charge of Tihar's crèche stated: “[T]he children are unnaturally docile, lack self-confidence and don't like being cuddled or touched. They are reserved because they don't receive regular love and care like normal children.”5

Even though the situation of imprisoned women and children in India is bleak, there is at least some data available, and initiatives are being taken both by government and non-government organisations (NGOs) to collect more information and provide assistance to the affected. In addition, specific organisations, such as the India Vision Foundation, have been set up to assuage the hardships of women and children prisoners. The foundation's projects began outside prison to provide education and rehabilitation to the children of prisoners in its “Crime Home Children” project. The foundation now has resource centres in Atlanta and San Francisco in the US, Melbourne and Tasmania in Australia, and in Port Louis, Mauritius.6

State of Incarcerated Women and their Children in Pakistani Jails
Compared to India, data and initiatives on women prisoners are very limited in Pakistan. The following abstract on women and children in Pakistan in 2004 was provided to the Senate by the Interior Ministry in response to a question by Senator Enver Baig:7

“As many as 85 children, including 45 newborns, are languishing in different jails of the country just because their mothers are undergoing various prison terms. The official record shows that 45 children were born to women prisoners during [the] first six months of the current year. A copy of the record obtained by Dawn showed that the number of children born to women in captivity was the highest in Punjab, followed by the NWFP and Sindh, while no births had been recorded in official prison records of Balochistan. According to the record, 11 children were born to women in captivity in the NWFP, 10 in Sindh and 24 in Punjab. As many as nine women prisoners, including seven under-trial ones and two convicts, gave birth in Rawalpindi Central Jail during 2004. All these women fell in the age group of 19 to 28 years. In New Central Jail Bahawalpur, four women were living with children, while no birth was recorded in the prison. Similarly, in Central Jail Gujranwala, one woman gave birth this year, while eight women were shown with sucklings and one was admitted with three children. In District Jail Sheikhupura, the record provided to the Senate showed that one woman gave birth this year. In District Jail Gujrat, the record shows that two children were born, while another two were living with their mothers. In District Jail Jhang, five children were born, while another 11 were living with their mothers. The record of District Jail Sargodha showed that two children born in the prison were living with their mothers. Three children were born in District Jail Shahpur, while one child was born in District Jail Faisalabad. Likewise, one child was born in District Jail Attock. In the women's jail in Multan, ten women, five under-trial ones, four convicted and one condemned, are imprisoned with their children. The only condemned prisoner with a child in Multan women's jail is a 22-year-old woman undergoing imprisonment with her three-year-old boy, Shakeel Ahmed, for committing an offence under section 302 of PPC. Four convicted women in Multan Jail undergoing imprisonment on account of 302, 302/34 or 308 PPC have children as young as 10 months old. The five under-trial women prisoners in Multan have sucklings with the eldest being a three-year-old baby girl.”

In addition, the capacity of prisons, such as the Karachi Women's Prison, has been surpassed manifold and medical facilities are scarce. Since children, mothers, and pregnant women are the most vulnerable, the negative impact on them is greatest. For example, in 2004, the Karachi Women's Prison, a separate barracks, had over 265 women prisoners and 40 child inmates, although its total capacity was 105. However, the prison had only two female doctors and one nurse.

It is pertinent to add that the psychological stigma attached to children imprisoned with their mothers has been recognised by related community professionals. According to Dr Abbas, a psychiatrist, “Remaining with mothers in a prison could lead to mental disorders in the children.”

Some isolated initiatives have been undertaken for the welfare of imprisoned women and children. The Human Welfare Society organized an eid milan party for children inside the Karachi Prison, at which Dr Hameeda Khuhro, the Sindh minister for education and literacy, announced that a vocational training school was to be established at the women's prison in Larkana. She also said: “Education is the need of the hour, which should be imparted to the female inmates. The children, living with their mothers in women jails, have equal right to get education in jail.” The minister directed the executive district officer for education in Larkana to post a teacher there to help school jail inmates. However, actions like these are not sustainable in impact and promises such as the one made by the minister are often poorly implemented. In fact, such initiatives can even be counter-productive, because they create the perception that constructive steps are being taken with regard to the problem. In turn, this dissuades individuals who want to work towards the welfare of women and children in prisons, because they are misled into thinking that enough is already being done.

Constitutional Provisions for Imprisoned Women
Very few provisions of the 1973 constitution of Pakistan have been directly implicated or specifically mentioned in Pakistani case law with regard to the plight of imprisoned women and their children. Where such provisions are mentioned, courts have nebulously stated that the fundamental rights provisions of the constitution are implicated, without providing any sort of analysis or mention of a specific provision.8
However, from a textual point of view, coupled with the fact that similar constitutional provisions have been interpreted in other states, various provisions of the constitution can be interpreted to apply to imprisoned women and their children in Pakistan.

A possible reason why such cases are not brought within the realm of constitutional law is that the judiciary has avoided deciding issues of civil liberties and fundamental non-economic individual rights, such as equal protection and due process under the constitution, as is practiced in countries such as the US. It could be argued that one reason for the apathy of the courts towards civil/political rights is that, in a third-world country like Pakistan, such rights are not perceived to be as important as other socioeconomic rights. Another reason might be that very few cases involving women and children are brought to court, since many women are unaware that they can challenge their imprisonment in court on the grounds that they are either pregnant or are mothers. Finally, the most likely reason for why constitutional provisions are not implicated and constitutional petitions not filed is that, under the Criminal (Statute) Procedure Code, the courts can decide such cases by granting or denying bail to the affected.

The relevant constitutional provisions are given in the preamble to the constitution, in Chapter 1 (“Fundamental Rights”), and Chapter 2 (“Principles of Policy”). The preamble to the 1970 constitution, known as the Objectives Resolution, was used as a guiding document and later became part of the constitution via an amendment made in 1985 under Article 2A.

Theoretically, two parts of the Objectives Resolution are contravened with regard to the situation of imprisoned women and their children. The two relevant provisions state: “Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed”, and “[t]herein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality”. It is relevant to mention here that the Federal Shariat Court has held in cases that the state of women and their children in prisons indicates violation of their rights under the injunctions of Islam.

Subsequent to the Objectives Resolution, the foremost provision of the constitution relevant to this topic is Article 4, which is equivalent to the Fifth and Fourteenth Amendments of the US constitution and deals with the provision of substantive and procedural due process to its citizens. Article 4 is termed “Right of Individuals to be Dealt with in Accordance with Law” and states:

“(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular: (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”

In this context, imprisoned women and children are not accorded the protection of the law and are deprived of their life, liberty, and body interests.

Chapter 1 of the constitution deals with the fundamental rights of citizens (Articles 8 to 22), and numerous “fundamental rights” provisions are invoked and violated in the case of imprisoned women and children. Under Article 9, “[n]o person shall be deprived of life or liberty save in accordance with law”. Article 10(1) deals with the necessary safeguards with regard to arrest and detention: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.” Article 10(2) states: “Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”

Under Article 22(3)(b), “[Subject to law: No citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.” Yet children living with their mothers in prison are deprived of proper educational institutions on the grounds of their place of birth. These children cannot attend schools located outside the prisons and the prisons themselves do not offer proper educational facilities.

Under Article 25, which is the equivalent of the Equal Protection Clause of the US constitution, “(1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.” This article is extremely relevant to the discussion, because imprisoned children are denied the equal protection of the law and are surely not equal before the law compared to children living with their mothers outside prison.

Discrimination based on gender is also apparent when one compares the disadvantages experienced by pregnant women and mothers to male prisoners. Equal treatment under the law and absence of discrimination in such instances would mean according preferential treatment to the disadvantaged (i.e., additional medical facilities and amenities), which in practice is not the norm in Pakistani jails. In fact, the last provision of this article explicitly emphasises the need for affirmative action to improve the state of women and children in the community. No tangible action has been taken by the government in this regard. That there is no separate legislative act dealing specifically with the state of imprisoned women and children is testimony to this conclusion.

Chapter 2 of the constitution, “Principles of Policy”, contains relevant articles that provide constitutional rights and safeguards to affected women and children. Under Article 35, “[t]he State shall protect the marriage, the family, the mother and the child.” Article 37, (“Promotion of Social Justice and Eradication of Social Evils”) is also generally relevant and states, “The State shall: (a) promote, with special care, the educational and economic interests of backward classes or areas; (b) remove illiteracy and provide free and compulsory secondary education within minimum possible period; (c) ensure inexpensive and expeditious justice; (d) make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment…”. Article 38, also of general relevance, promotes the social and economic well being of people, and states: “[T]he State shall: (a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living… (b) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment.”

Legal Protection of Imprisoned Women
As mentioned earlier, Parliament can enact laws under the constitution for the protection of women and children. However, no such laws have been enacted that deal with the state of pregnant women, mothers, and their children in jails. In addition, no constitutional challenges or constitutional writ petitions that deal with unlawful detention under Article 199 have been filed by parties concerned. However, there is protection available for imprisoned women under the Criminal Procedure Code (CrPC), which affected women almost always avail under the relevant code sections described in more detail below.

Section 426 of the CrPC 1898
This code section is titled “Suspension of Sentence Pending Appeal: Release of Appellant on Bail”. In 426 (1), it states: “Pending any appeal by a convicted person, the Appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail or on his own bond.” This is the focal legislative provision used by courts to grant bail to imprisoned women when they are pregnant or have children living with them in jail. Under Section 426, the court has discretion to grant bail where it deems fit, after considering the facts and circumstances of the case. The court has to provide reasons for its bail decision, which should be based on sound “judicial principles”

Section 497 of the CrPC 1898
Under Section 497(1), even in cases involving non-bailable offences, inclusive of commission of murder, courts have the power to grant bail to the accused if compelling circumstances are present. The second proviso of 497(1) goes further and clarifies that special circumstances are present when women, children and the aged are involved, as they are entitled to special treatment for bail. In fact, men have been granted bail on humanitarian grounds when the welfare of their children so requires, because the mother of the children is dead.

Section 497(1) of the CrPC states:
[W]hen any person accused of a non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

Provided further that a person accused of an offense as aforementioned shall not be released on bail unless the prosecution has been given notice to show cause why he should not be released.

However, it is still within the discretion of the court to grant bail under 497(1). The word “may” for grant of bail does not mean “shall”.9 Women are not entitled to grant of bail as a right in every case.10 However, in principle the courts give the impression that they are more conducive towards granting bail to women. In a case in Karachi the court ruled, “The grant of bail to a woman should be a rule and the discretion must be exercised in her favour in the absence of some compelling circumstances disentitling her to the grant of bail…. The applicant who is a young educated lady is thus entitled to the grant of bail on this score alone.”11 In one case, the court held that it was not in the interest of justice to give the custody of the woman to the police.12

Section 497(1) allows bail in non-bailable offenses to the infirm. Therefore, when a woman is infirm there is an even stronger case for granting her bail. Infirmity includes pregnancy. Courts generally do grant bail to the affected women and children, because the Courts take into account the nature of the illness and the lack of medical facilities in prisons.

Local human rights monitors have determined that the preferential treatment regarding bail under section 497 has not provided any meaningful relief for women. In addition, though the procurement of bail seems to be much easier under the law for women, in practice women are denied bail more frequently than men.13

Grant of bail has two components. Firstly, the accused has to post a bond in a certain amount, which is determined by the court. Secondly, there must be one or two sureties on whose assurances the accused is released. Only when these two conditions are met does the grant of bail take effect. Both these conditions are major impediments for women even when bail has been granted. In Pakistani society the overwhelming majority of women are dependent on their family or their in-laws for monetary support. Therefore, the bond requirement is much harder for women to fulfill than it is for men. Even though under section 497, courts have to take into account the financial status of the accused, they seldom do so when the accused is a woman.

The surety requirement is much more problematic for women than for men because, in the predominantly paternalistic Pakistani society, it is possible for men only to be in a position to act as sureties. However, most men refrain from acting as sureties for their female relatives and wives. In some cases the concerned women refuse to accept some male family members as sureties. This is because these men had initially filed complaints against the women because of some family feud, domestic disturbance or under the Hudood laws. In a case in Lahore, Nasim who was granted bail refused to go with the surety who was her father, as the father had registered a case against her for zina (adultery). However, when she provided a new surety, the court refused to accept such surety by stating “Keeping in view the concept of the Hudood laws it is in the fitness of things that her surety should not be a person who may later coerce her to lead an immoral life.14” In addition, if males do provide surety for women they can revoke it at any time. Invariably a greater number of women prisoners even after grant of bail stay in jail, while men go free.

Although a court itself has the power to move for bail without that initiative being taken by the accused, in practice it is only when the accused through her attorney moves the court that bail is considered. The overwhelming majority of women prisoners inclusive of pregnant women and mothers are unaware of their basic rights including the right to move for bail.15

Relevant Rules for the Superintendence and Management of Prisons in Pakistan 1978
These administrative rules were enacted in 1978 under Section 59 of the Prison Act, 1894. Chapter 13 of these Prison Rules is titled “Women Prisoners and Children” and specifically deals with the special treatment warranted to such prisoners. Rule 322 to Rule 328 directly address the topic of women and children in jail.

The case of every imprisoned woman in an advanced state of pregnancy has to be reported to the Inspector General for reference to the Government with a view to the suspension and remission of her sentence or otherwise (Rule 322).

According to Rule 323 a child birth in prison should be avoided, but if this is not possible, the services of a lady Medical Officer or a qualified midwife must be requisitioned. In the event of a child being born in prison, notice of the birth shall be sent to the municipal authorities under Rule 325.

Under Rule 326 women prisoners were allowed to keep their children with them in prison till they attained the age of three years, but this rule was amended and women are now allowed to keep their children with them in prison till they attain the age of six years.

When a child becomes disqualified for further retention in jail on account of age, or when a woman prisoner dies leaving her child behind, the Superintendent must inform the District Magistrate of the place where the prisoner resided and the latter must arrange for the proper care of the child. If the relatives or friends of the prisoner are unable to support the child, the District Magistrate will arrange for care of the child in a nursery through special societies managing such institutes. The child will be returned to the mother on her release if she is capable of looking after it (Rule 327).

According to Rule 328 children in prison will be provided clothing as prescribed by the Superintendent. The scale of the diet for children is also prescribed in the rules.
On paper such rules with some exceptions are in general compliance with the UN Standard Minimum Rules for the Treatment of Prisoners. However, in application the utility and efficiency of these rules is highly suspect. In a report of the Human Rights Commission of Pakistan in 1990, it was stated with regard to the conditions in prison that “overcrowding, unhygienic accommodations, unsatisfactory diets, degrading punishments, unlawful solitary confinement, tyrannical behavior of warders, molestation of women prisoners, confinement of babies with convicted mothers, and the spread of drug abuse were the major complaints.”16

The prison rules are highly simplistic, abstract and brief. They do not elaborate on details and the prison authorities have a lot of discretion to deal with situations on which the rules are silent. In addition, no circulars interpreting the rules have been generated by the prison authorities. In some cases even when prison rules are applicable to a situation they are violated, for example, the prison rule requiring immediate medical examination of in-coming female detainees is rarely followed.17 Pregnant women are not provided medical attention or special food in prison.18 The violation of prison rules is not limited to those rules that govern the daily life of prisoners but also to other kinds of substantive rights violations, such as those related to counseling women on their right of bail. Under the prison rules the Superintendent of the prison is required to inform all prisoners of the period for an appeal of sentence and to provide all assistance and facilities in filing it.19 Under the Hudood laws, convictions can be appealed as a matter of right.20 Statistical evidence historically tends to prove that such assistance is not provided. “Studies of women prisoners reveal that nearly a third never appealed their convictions to the higher court. Approximately 13 percent of 90 women prisoners interviewed in 1988 had no idea whether or not an appeal had ever been filed on their behalf.”21

Under the prison rules, all pregnancies in prison have to be reported to the district magistrate if bail is to be secured.22 Though the grant of bail in such instances is discretionary, bail is generally granted in the higher courts. However, evidence suggests that in practice, lower courts are not as conducive towards granting bail to the affected. “In one case investigated by the Human Rights Commission of Pakistan, the Lahore High Court ordered a woman who had been in jail for nearly a year to be released on personal surety. The woman had given birth to a child in prison and the baby was confined with its mother. She complained to the Lahore High Court that she had requested bail from the lower court several times and was repeatedly rejected.” In addition, as previously discussed, many bail cases that are ripe for favorable adjudication by the courts never come before the court, as the concerned women are unaware of their legal right to apply for bail.

Case Law Regarding Bail for Pregnant Women, Mothers and their Children in Prison
The rights of the unborn, the newborn and minor children are reiterated in several cases involving imprisoned women. Judgments have been based upon the principle “No one shall suffer for the misdeeds of others” (Aayat No: 15, Surah Bani Israel of the Quran), and on the fundamental right of liberty conferred upon every individual by the Constitution of the Islamic Republic of Pakistan. The welfare of the child has been a supreme consideration whereby pregnant women and women with suckling babies have been granted bail. There have even been cases where women have been granted bail because there was no one to look after their minor children outside the jail.

Federal Shariat Court Cases
The Federal Shariat Courts have jurisdiction over cases which come under the realm of Islamic Law and include Hudood Offences, where women are imprisoned and/or awarded other penal awards. In fact, many a time the conventional courts have themselves refused to grant bail to the imprisoned, citing their lack of subject matter jurisdiction over the matter. Such a course of action has not affected the general favorable outcome in cases where the concerned women have demanded bail (see Appendix 1 for Case Law showing preferential treatment of women for grant of bail). If there is any difference between these two courts when dealing with bail concerning pregnant women and mothers, it is in the nature of focusing differently on stare decisis,23 legislation and procedural laws/rules. The Federal Shariat Court accords more credence in arriving at its holding to Quran, Sunnah, the principles of Islamic law and the life of the prophet, Shariat Rules and Procedure than common law based principles (see Appendix 2 for some pertinent rulings of the Shariat Court regarding bail).

Criminal Court Cases
In several cases the criminal court not only gave favorable bail decisions to women with children, but they also directed prison staff to undertake fact finding to determine the number of the affected prisoners languishing in various jails. Such an exercise was highly beneficial for purposes of improving the condition of the concerned, because notification would be provided to the Court with regard to all those women who were unaccounted for various reasons and who were eligible for bail (see Appendix 3 for some relevant cases of the criminal courts).

In the Ghulam Sakina v The State case the court held that “they (session courts) shall protect/watch the welfare of the suckling babies and minor children detained in jails just like real mother. Needless to add that the Court enjoyed unlimited power in this behalf (see Appendix 3 for details).”24

In another case Hameedan Bibi and her newborn baby were removed from jail and interned in Darul Aman at state expense until her case was disposed by the trial court or for a the suckling period of two years stipulated by Islam (see Appendix 3 for more details). The Court pointed out that Pakistan's obligation as a responsible member state to the international community demanded a certain course of action with regard to the social welfare of imprisoned mothers and children and added:

We are signatory to the United Nations Charter of 1945. Article 25(2) of the Charter reads as follows: “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” “Reference may also be made to the Convention on the Rights of the Child adopted by the United Nations General Assembly on November 20 of 1989. A reference may also be made to Article 20 of the Convention which reads as follows: “A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. (2) State parties shall in accordance with their national laws ensure alternative care for such a child. (3) Such care could include, inter alia, foster placement, Kafala of Islamic Law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regards shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural, and linguistic background.

Reference may also be made to the Cairo Declaration on Human Rights in Islam, dated 5 August, 1990. Its Article 7 (a) reads as follows: “As of the moment of birth, every child had rights due from the parents, society and the State to be accorded proper nursing, education and material, hygienic and moral care. Both the fetus and the mother must be protected and accorded special care.”

The court finally concluded that Chapter 13 of the prison rules was deficient with regards to Pakistan's obligations under international law. The Court stated, “We are supposed to amend the rules for catering for the needs of the newly born children in jail by amending Chapter 13 and particularly rule 327 in this connection.”

This High Court's opinion is exceptionally favorable towards the amelioration of the plight of imprisoned pregnant women, mothers and their children in jail. In fact, the Court directs the State to send the concerned to community centers for care, without any legal formalities and requirements such as posting of bond and provision of sureties.

The Court also demanded an amendment to administrative and legislative rules and regulations in order to bring such rules in line with norms of justice, international and Islamic laws. Though critics would argue that such a move by the Court is an infringement on the executive and legislative branch, the counter argument would be that the Court is only indulging in the clarification of the law, which has been ordained under Islamic Law and the Constitution.

Conclusion
Pakistan ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on 12 March 1996 and the Convention on the Rights of the Child (CRC) on 12 November 1990. However, if one is to critique the status of pregnant imprisoned women, and children in prisons, Pakistan is in violation of multiple provisions of both these conventions.25

The High Courts and the Federal Shariat Courts are generally conducive towards granting bail to the concerned women. However, many cases involving such women do not reach the higher courts because the women are ignorant of their right to contest their imprisonment and never challenge the decisions. Where a decision is challenged, the lower courts having the jurisdiction to hear bail applications frequently deny such applications summarily. Even in cases where women are granted bail, they still have to post a bond and provide sureties. Both these requirements are cumbersome for the women to provide because of lack of monetary/financial ability and socio-cultural status. Very often women are unable to avail the bail because of the condition that bail be posted by a mehram. When it is the father, brother or husband who has implicated the woman in a zina case there is no mehram to post bail.

In addition, information about many pregnant women, mothers and children is hidden from the judicial system, because the Courts are not provided notice of the woman's status and the child's existence. This is because the superintendent of the jails and the district magistrates do not perform their duties vigilantly. Inside the jails the women and children are not informed of their legal right to apply for bail and continue to remain in prison. Children are subjected to the same appalling conditions as their mothers; jails are filthy and overcrowded and no effective procedures have been developed for the education and upbringing of children in these jails. Moreover, they are not being accorded adequate medical facilities, and their problems are compounded by lack of adequate psychological counseling.

Appendix 1: Imprisoned Mothers and their Children in Pakistan

Preferential Treatment of Women for Grant of Bail
Women are accorded special status under bail legislation as enumerated in the Code of Criminal Procedure. In Boota and another vs. The State, 1970 SCMR 762 the Supreme Court of Pakistan held that the accused Mst Sardaran could move the court for bail when charged for commission of murder, which is a non-bailable offense solely on the grounds of her sex.

In Rahim Khatoon vs. The State, 1989 P Cr. L.J 1861 (Lahore), the High Court rendered a judgment that reinforced the special status enjoyed by women in prison. The petitioner, Ms Rahim Khatoon was granted bail without the imposition of any condition as to the surety to be a mehram (family male guardian generally a father or a brother). Ms Khatoon was imprisoned under section 10/11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for committing zina with consent. The Court determined that her case clearly fell under the proviso to section 497 of the Cr. P.C and stated that:

The grant of bail in her case is a right and refusal is an exception. I do not see any special reason to deprive her of the concession of bail…It is a matter of common experience that in such like cases, the female accused invariably refuses to be released on bail furnished by a person not of her choice. In some cases the mehram do not come forward to stand surety for the accused with the result that in spite of bail in her favour, the female accused remains in jail. In a number of cases, the similar condition imposed by the court has virtually frustrated the bail order.

However, in Mst Asia vs. The State, PLD 1996 Lahore 45, where the petitioner assisted her husband in the rape of an 11 year old kidnapped girl, bail was denied. The petitioner moved the court under 497 of the Cr.P.C, arguing that grant of bail was her right. The Court rejected this argument by stating:

A woman is not entitled to the grant of bail as a right in every case. Generally the Courts take lenient view while dealing with the bail application of women and exercise discretion in their favour in suitable cases in the light of the first proviso to section 497, Cr.P.C. However, this discretion is to be exercised keeping in view the circumstances and facts of the case.

In Mst Baboo Jana vs. The State, 1990 P Cr. L.J 326 (Karachi), the petitioner subsequent to her arrest at Karachi airport for possession of heroin was charged under clause 8 of section 156(1) of the Customs Act, 1969. The court granted the petitioner bail and stated that:

Admittedly the applicant is a women and her case falls within the first proviso to subsection (1) of section 497, CrPC. The grant of bail to a woman although discretionary, the Courts have leaned towards granting of bail even when the accused was found involved in a murder case inviting capital punishment. I am fortified in my view from the cases reported as Mst Allah Jiwai vs. The State 1984 P Cr. L. J. 129, Mst Elvinia alias Guddi vs. The State 1984 P Cr. L. J. 2911 and Nasir Mahmood Khan vs. The State 1985 P .Cr. L. J. 159. In the last citation it was observed that mere heinousness of the offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as punishment and there is no legal or moral compulsion to keep a person in jail.

The court opinions in the case of Mst Asia and Mst Baboo Jana seem to be contradictory to one another. This is because, in the first case, a woman was denied bail and the gravity of the crime played a vital role in that decision, whereas in the second case, bail was granted despite the gravity of the crime, coupled with the court's statement that the heinousness of the offence is not per se sufficient to disallow bail. In reality, there is no contradiction between these two cases. Though the conclusions are different, the reasoning and the holding of the courts is the same, which is that courts have discretion to grant bail, and circumstances involved are factors which courts take into account when exercising this discretion.

The fact that the courts have the power and discretion to grant bail to the accused even when the accused does not move the court is highlighted by the case of Sajjad and 3 others vs. The State, 1991 P Cr. L J 1 (Lahore). The petitioners, four men, were charged under the Zina Ordinance, 1979 for commission of adultery. The petitioners were eventually granted bail. The court subsequently determined that the four imprisoned women alleged to have been involved in the adultery must also be granted bail even when these women had not applied for bail, after the provision of a surety acceptable to the Duty Magistrate. The court stated:

The allegations are identical and the ocular evidence is common, so the women should be released on bail and the concessions of bail should not be withheld similarly because they are not in a position to pursue their cases or they have not filed any application for bail. Nothing in the Code of Criminal Procedure shall be deemed to limit, or affect the inherent powers of this court to make such order as may be necessary to secure the ends of justice or to do complete justice.

Appendix 2: Imprisoned Mothers and their Children in Pakistan

Federal Shariat Court Cases
Liaquat and another v. The State, 1999 P.Cr. L J 1004. This case involved an application for bail under section 426 Cr P.C read with Rule 27 of the Federal Shariat Court (Procedure) Rules, 1981.26 The application was moved by convicted Mst Shahdia, as she had recently given birth to a child in jail (Nazia) and had argued that the conditions in jail throughout the country were detrimental to the health of a newborn child. The court granted bail subject to the posting of a bond and one surety and stated:

These jails do not contain necessary facilities for upbringing of the newly-born children in conformity with the established standards of health and child psychology in the civilized world. Aayat No. 15 of Surat Bani Israel of the Holy Quran reads, 'No one shall suffer for the misdeeds of others'. The newly born baby child is not a convicted person. She remaining in jail shall be negation of the fundamental rights of liberty conferred upon her from the very date of birth of the Constitution of Islamic Republic of Pakistan. She is a suckling child. Her separation from the lap of her convicted mother might prove detrimental to her physical as well as psychic health.27

Mst Sitara Bibi v. The State, 2003 P Cr. L J 402. The applicant was convicted under section 10, 11, and 19 of the Offense of Zina (Enforcement of Hudood) Ordinance 1970. The court released the woman on bail because she had a suckling baby in jail. The court stated:

Since the child, along with his mother, has been kept in jail where he is suffering from want of proper care and medical facilities as the jails in Pakistan do not cater to the needs of infants, therefore, pending decisions of the appeal, the applicant may be released on bail.

The court added that the learned council for the state had conceded the fact that facilities for child rearing were inadequate in the jails and the court held that:

The [w]elfare 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 (p.b.u.h.) in the famous case of “Ghamidiyyah” as well as the dictums of the afore-quoted judgments, am inclined to allow the application.28

Mst Parveen Iqbal vs. The State, 2004 P. Cr. L. J. 20. The Court granted bail when the accused had a suckling baby of 9 months living with her in jail as the court determined that the child was suffering from want of proper care and medical facilities in jail. The court took note of the fact that the Assistant Advocate general of Sindh did not oppose the bail as he was aware that jails in the country did not cater for the needs of infants. The court quoted verbatim the reasoning of the Mst Sitara Bibi vs. The State on arriving at its verdict. In addition, the court outlined the famous case of Ghamiddiyah involving the Holy Prophet where “the Holy Prophet (p.b.u.h.) was pleased to suspend the sentence passed on a pregnant woman not only till delivery of child but for the period of Riza'at (breastfeeding) as well, basically for welfare of the child.”29

Appendix 3: Imprisoned Mothers and their Children in Pakistan

Criminal Court Cases
Ghulam Sakina vs. The State, 1991 P Cr. L J 1316 (Lahore). In this case, the Court not only rendered favourable bail decisions, but also directed prison staff to undertake fact finding to determine the number of the affected prisoners languishing in various jails in Punjab. The Court noted that the Superintendent Women Jail, Multan revealed that 30 women having minor children were detained in Multan Jail, out of which 12 were convicts and 18 were under trail prisoners. Out of these, 14 had children under the age of 2, who under the second proviso of section 497 were to be released immediately, after posting of bond and the fulfillment of the surety requirement.

The Court held that they would not pass a judgment on the convicted at that time as they wanted to give time to the Additional Advocate General to examine their cases. Moreover, the Additional Advocate was ordered to make a list with the assistance of the provincial police, of all the women in all the jails of Punjab and then appear before the Court so that it could make grant of bail determinations.

Such an exercise was highly beneficial for purpose of improving the condition of the concerned, because notification would be provided to the Court with regard to all those women, who were unaccounted for various reasons and who were eligible for bail.

The Court further added that with regards to the women detained within the local jurisdiction of the Multan bench, the session judge of the concerned district was to inspect the respective jails in accordance with the High Court rules and orders, and thereafter pass the necessary orders in related cases. The Court held that “they (session courts) shall protect/watch the welfare of the suckling babies and minor children detained in jails just like real mother. Needless to add that the Court enjoyed unlimited power in this behalf.”30

Importantly, the Court noted that the women convicted under the Hudood Ordinance could not be granted bail, because it had no jurisdiction to suspend the execution of their sentences and the Federal Shariat Court could be approached on that front.31

Mst Zarina vs. The State, 1991 MLD 518. Mst Zarina had moved an application for grant of bail, when she had been imprisoned under section 10 of the Hudood Ordinance for over one year. When she arrived in jail she was pregnant and subsequently gave birth within six months. The child, which the prosecution had argued was illegitimate and a product of the offense of Zina, had also been living in the prison for four months.

The petitioner had argued that she being poor and helpless could not move an application for bail before the trial court or before this court. The court granted bail under the second proviso of section 497, but still required a personal bond to be posted in the amount of Rs 10,000 and the surety of the petitioner's mother. The Court stated:

I feel constrained to observe that in the course of hearing bail application of the female accused arrested and detained in different cases, it has come to my notice that the children including suckling babies have suffered/are suffering the agony of detention in jail and some of them were not only born in jail but were also brought up therein for the alleged sin/crime committed by their mothers.

The Court noted that under Section 344 of the Cr.P.C. the Additional Session Judge of the area had callously remanded the petitioner and her child to judicial custody, which was within his power, but the judge was under no moral or legal compulsion to keep them in jail merely on the charge of the commission of a non-bailable offence. The court noted that in both bailable and non-bailable offenses the magistrate could release the accused on bail on his own volition, even when the accused had not moved an application for bail.

The Court stated:
[F]urthermore, on the enforcement of Qisas and Diyat Ordinance, it is no more possible to send or keep a pregnant or female accused carrying suckling babies till the expiry of the period of Riazat. In Islam punishment cannot be executed on mother (in a family way) till the expiry of the period of Riazat of the child… I feel that it is better to err in releasing female accused carrying sucking baby on bail than in remanding her child along with her to jail during trial.

Muhammed Yaqoob vs. The State 1992 P Cr. L J 2294 (Supreme Appellate Court). Mst Majidan wife of Muhammed Yaqoob was convicted under Section 11 and 10 (3) of the Hudood Ordinance, 1979 and 109 and 342 of the Pakistan Penal Code for two years when she assisted her husband to commit rape (Zina-bil Jabr) on Zahida Paveen, a 13 year old girl. Mst Majidan had lured Zahida to visit her house and thereafter had locked Zahida in the same room with her husband. The Court granted Mst Majida her request for bail on the grounds that she had two minor children aged 4 and 2 respectively living with her in jail, and because her husband was also in jail. The Court held, “[t]his being so, keeping in view the welfare of the minors we take a lenient view and sentence her to the period already undergone by her.”32

Mst Neelam Mawaz vs. The State 1994 P. Cr. L J 1922 (Lahore). Neelam Mawaz was tried along with her husband Javed Mawaz and nine others by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 under section 65 A of the PPC. She was convicted and sentenced to seven years in jail. The court granted her bail and stated:

The petitioner is a woman, and is stated to be mother of three school and college going daughters. Her husband is in jail for having been convicted and sentenced. In such circumstances, we are inclined to extend her the concession of grant of bail, provided she furnishes bail bonds… with two sureties.33

It is pertinent to note that the Court was lenient in granting the petitioner bail even when the petitioner had children who were not living with her in jail.

Mst Nusrat vs. The State, NLR 1995 Criminal 8 (Supreme Court of Pakistan). This is a leading case involving the status of imprisoned women prisoners and suckling children in jails. Mst Nusrat, the petitioner was convicted for the murder of Mst Surrayya, a relative, over domestic differences. Nusrat was imprisoned and her suckling child was admitted to jail with her. Nusrat's request for bail was rejected by the Lahore High Court.

However, the Supreme Court granted her bail subject to the posting of a bond and the provision of one surety. The Court held:

[T]he 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 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 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 (pbuh).

Mst Nasreen vs. The State, 1989 MLD 1350 (Lahore). The Court granted bail to Mst Nasreen, an accused in a murder case, subject to the postage of a bond and the provision of two sureties. The Court took notice of the fact that the State counsel conceded the fact that the accused had a suckling child around the age of one year. The Court granted bail “merely on the ground that the welfare of the suckling child so demands that the child should not be made to suffer in jail for the murder allegedly committed by his mother” and the release of such woman “would be in furtherance of principles of justice expounded under Islamic Criminal Law.”

Mst Ansar Jan vs. The State, 2000 P. Cr. L. J. 585 (Peshawar). Mst Ansar Jan was charged under PPC 302 for the murder of Mst Naseem. The murder was a final consequence of a domestic dispute. Naseem was set on fire and finally succumbed to her injuries. The factual contention was whether the deceased committed suicide or was murdered by the petitioner. The court granted bail to the petitioner. The court cited prominent case law34 including the Ghamidiyyah incident. The Court noted that the petitioner had one child who was hardly 1 1/2 years of age and in addition the petitioner was also eight months pregnant. The Court granted bail subject to the surety and bond requirements “keeping in view the advance pregnancy and welfare of the child who is expected to be born in a couple of days.”35

Hameedan Bibi vs. The State 2001 P Cr. L. J 1296. The accused was caught with two kilograms of Charas and was subsequently arrested under Section 9-C of the Control of Narcotic Substance Act. She was pregnant at the time of her arrest and applied for bail from the Courts. Hameedan's application for bail was rejected by the Trial Court, with orders to the jail authority to make proper arrangements for the birth of her baby in prison. Once Hameedan had given birth to her baby in prison she reapplied for bail. The High Court came out with an unprecedented judgment in favor of the accused. This judgment was thorough and extensively analytical in nature.36 In addition, the Court made a concerted effort to conform to the principles of international law.

The Court dismissed the bail application and directed the District Magistrate:
…to arrange for the removal of the accused and her child to be interned in the Darul Aman immediately and to keep her there at state expense until her case was disposed of by the Trial Court or for the suckling period of two years allowed by Islam… state expenses were to be arranged under the Zakat fund or other funds meant for social welfare.

According to the learned counsel for the prosecution's side, the present trend is that pregnant women are being used for smuggling of narcotics because it is easier for them to obtain bail on this ground.

[B]ut the question is, should the new born child who has committed no wrong, also suffer in jail because of the necessitated company? The answer is in the negative.

The Court subsequently discussed the relevant provisions of the Prisons Rules, Chapter 13 and the fact that under such rules when the child attains the age of six in prison in the province of Punjab, the child is to be released from the prison. In this regard, the District Magistrate has to make arrangements for his care by arranging the removal of the child to “a health nursery surrounding through the special societies managing such institutions,” in case the relatives or friends of prisoners are unwilling to support the child. The court then discussed the case of Ghamidiyyah and the related Sunnah of the Holy Prophet (pbuh).

The Court pointed out that Pakistan's obligation as a responsible member state to the international community demanded a certain course of action with regard to the social welfare of imprisoned mothers and children. The Court added:

End Notes
1. < http://www.thefab.net/topics/social_general/sg01_prison.htm> Posted on 23 Nov 2005
2. <http://www.sheilakitzinger.com/Prisons.htm> Posted on 23 Nov 2005
3. <http://www.sheilakitzinger.com/ArticlesBySheila/BIRTH_Sept1997.htm> Posted on 23 Nov 2005
4. <http://november.org/stayinfo/breaking/Geographic.html> Posted on 23 Nov 2005
5. <http://www.dawn.com/2004/03/12/int7.htm> Posted on 24 Nov 2005
6. <http://www.indiavisionfoundation.org/about.htm> Posted on 24 Nov 2005
7. <http://www.dawn.com/2004/08/25/nat22.htm> Posted on 24 Nov 2005
8. See Liaquat and another v. The State, 1999 P. Cr. LT 1004 at 1005 (Article 10 of the Constitution highlighted without any discussion of how such Article was relevant). Article 10 relates to “Safeguards as to Arrest and Detention.”
9. Noor Khan v. The State, 1992 P.Cr. L.J. 2459
10. Asia v. The State, PLD 1996 Lahore 45
11. See Shahla Raza v. The State, 1991 MLD 1814 (Karachi) at 1816; See also Maqsood Ahmad v. The State, 1994 P Cr. L.J 514 at 515 (Lahore) “petitioner being a woman is entitled to special treatment.”
12. M. Ashraf v. Nusrat Sultana, 1995 MLD 1217
13. Double Jeopardy, Police Abuse of Women In Pakistan at 43, Human Rights Watch <http://www.hrw.org/reports/1992/pakistan/>
14. See 1983, P. Cr.L.J. 199 (Lahore)
15. Asma Jahangir and Hina Jilani, The Hudood Ordinance: A Divine Sanction ? (Lahore: Rhotac Books, 1990), pg 136
16. Ibid at 42
17. Ibid
18. Ibid
19. Prisons Rules, 1978, Chapter 5, Rule 90
20. Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 20 (1)
21. Double Jeopardy, Police Abuse of Women in Pakistan at 45, Human Rights Watch. <http://www.hrw.org/reports/1992/pakistan/>
22. Prisons Rules, 1978, Chapter 13, Rule 324: “The case of the under trial women prisoners expecting confinement shall be referred to the District Magistrate with a view to the release of such prisoners, but if release on bail is not possible provisions laid down in the preceding rule shall be followed.”
23. The doctrine under which courts adhere to precedent on questions of law
24. Ghulam Sakina v. The State, 1991 P Cr. L. J. 1316 at 1317 (Lahore)
25. See Preamble, Article 5(b), Article 11 and Article 12 of CEDAW; see Article 2 (2), Article 3 (1), Article 6, Article 9, Article 18 (2), Article 19, Article 20 (3), Article 24, Article 27, Article 28, Article 29 and Article 37 of the Convention on the Rights of the Child
26. “Application for bail (1) every application for bail shall be supported by an affidavit. (2) An application for bail shall be treated as urgent and shall ordinarily be placed before a Bench on the following day after its presentation.”
27. Liaquat and another v. The State, 1999 P.Cr. L. J. 1004 at 1005
28. Mst Sitara Bibi v. The State, 2003 P Cr. L. J. 402 at 405
29. Mst Parveen Iqbal v. The State 2004, P.Cr. L. J. 20 at 22
30. Ghulam Sakina v. The State, 1991 P Cr. L. J. 1316 at 1317 (Lahore)
31. In Sughran Bibi v. The State, 1991 P. Cr. L. J. Note 238. The Court allowed bail under S. 497 (second proviso) to the concerned females under-trial for different offences except for those being tried under the Hudood laws
32. But see Mst Asia v. The State, PLD 1996 Lahore 45
33. Mst Neelam Mawaz v. The State, 1994 P. Cr. L. J. 1922 at 1931(Lahore)
34. Mst Nusrat v. The State, NLR 1995 Criminal 8 (Supreme Court of Pakistan); Mst Nasreen v. The State, 1989 MLD 1350 (Lahore)
35. Mst Anwar Jan v. The State, 2000 P. Cr. L.J. 585 at 589 (Peshawar)
36. This judgment was rendered by Justice M. Javed Buttur and Justice Ali Nawaz Chohan. Justice Chohan is an extremely learned and unique judge. His judgments are extensively analytical and he substantiates his reasoning by critically analyzing not only Pakistani judgments and Islamic law, but also International Customary and Treaty based laws
37. Ibid at 1299. With regards to the procedure for bringing about such amendments the Court stated that “[w]hile the Provincial government is directed to amend the Rules reflected in Chapter 13 of the Prison Rules, [a] copy of the order may, therefore, be immediately sent to the Home Secretary, Government of the Punjab for compliance. While a copy of this order also be sent to the Secretary of the Pakistan Law Commission for necessary action in this connection. The District Magistrate shall be submitting a compliance report to this Court ensuring that it reaches this Court by the 1st of June, 2001. Obviously, the Jail Superintendent has to facilitate the District Magistrate for fulfillment of the requirements aforementioned.”