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Criminal Miscellaneous No. 7749 of 1969, decided on 6th January 1970

-- S. 491-where as corpus-Petitioner, accused of offence under S. 363, P. P. C, arrested on basis of age certificate of alleged abductee, showing her below 16 years of age-Evidence furnished by Radio logist, however, fixing her age at 16/17 years approximately--- Arrest of petitioner, held, not without legal authority, in circum stances-Petitioner, however, set at liberty to defend himself against accusation.

Yusuf Ali Khan for Petitioner.

Muhammad Ali Zaidi for Respondent.

Mst. Mukhtaran Bibi filed this application under section 491, Cr. P. C. for issue of a writ in the nature of habeas corpus, against S. H. O., Saddar Police Station, Jhang, directing him to produce Muhammad Bashir, with the further prayer that the said Muhammad Bashir be set at liberty, as he was being unlawfully detained by the respondent. The petition arose in the following circumstances:-

2. (a) Chiragh Din Mochi resident of Mauza Bagh, Police Station Saddar Jhang, has six sons and six daughters. The eldest daughter, Mst. Mehr Bibi is married to Farhad son of Amanat Ali Mochi. Chiragh Din's daughter, next junior to Mst. Mehr Bibi, is Mst. Mukhtar Bibi. Muhammad Bashir is another son of the said Amanat Ali. The wife of Amanat Ali and the wife of Chiragh Din are sisters. Muhammad Bashir lived for some time in the house of Chiragh Din as he wanted to learn the trade of a cobbler. On the night between 13th and 18th of Ramzan last, Muhammad Bashir and the said Mst. Mukhtaran Bibi (also described as Mst. Mughlan Bibi) were missing from the house. Chiragh Din made a search for his daughter for some days. Disappointed, on the 13th December, 1969, he lodged a first information report at Police Station Saddar, Jhang.

(b) On the 23rd December, 1969, Mst. Mukhtaran Bibi and Muhammad Bashir entered into marriage. The counterfoil of Nikahnama is Annexure 'A'.

(c) The S. H. O., Police Station, Saddar, Jhang, in the course of investi gation of the said criminal case, arrested Muhammad Bashir.

(d) On the 31st December, 1929 Mst. Mukhtaran Bibi filed the present petition under section 491, Cr. P. C. against the S. H. O. Police Station Saddar, Jhang, alleging that since she had contracted marriage with Muhammad Bashir against the wishes of her parents, they were trying to break the marriage with the help of the police, and the respondents had unlawfully detained Muhammad Bashir since the 29th December, 1969.

3. A Bailiff of this Court was deputed to recover Muhammad Bashir. He did so. A notice was served on the respondent.

4. The S. H. O., Police Station Saddar, Jhange, appeared in Court and explained that he had arrested Muhammad Bashir, as according to the copy of birth entry relating to the birth of Mst. Mukhtaran (born on the 23rd February, 1956), she was a minor.

5. Learned counsel for Mst. Mukhtaran Bibi contended that the birth entry related to some Mst. Mughlan Bibi, but did not relate to the petitioner. In support of his contention, he relied on a medical certificate issued by a Radiologist, to the effect that the age of Mst. Mukhtaran Bibi was between 17 and 18 years.

6. Evidently, according to Chiragh Din, Mst. Mukhtaran Bibi was lose than 16 years old and Muhammad Bashir had prima facie committed an offence in abducting her and entering into marriage with her, whereas accord ing to Mst. Mukhtaran Bibi, she was more than 16 years old and since she entered into marriage with Muhammad Bashir of her own free will. Muham mad Bashir committed no offence and his detention by the respondent was invalid. In order to settle the controversy, it was necessary to determine the age of Mst. Mukhtaran Bibi. Accordingly, she was directed to be examined by the Radiologist, Mayo Hospital, Lahore, for determination of the age The Radiologist, after examination, furnished his report Exh. P. A. A perusal of the report shows that the age of Mst. Mukhtaran Bibi "is about 16 years and below 17 years".

7. Learned counsel for the petitioner wanted the Radiologist to be examined in Court in order to prove the certificate. Mr. Muhammad Ali, Zaidi, learned counsel for Chiragh Din, wanted to cross-examine the Radiologist and also to ascertain if the person examined was none other than the petitioner.

8. The Radiologist was summoned and examined in Court. He affirmed the report Exh. P. A. and clarified that the age of Mst. Mukhtaran Bibi was more than 16 years and less than 17 years. He identified, in Court, that the person examined was the petitioner. Chiragh Din teas satisfied that the petitioner, present in Court, was his daughter, who had been mentioned in the first information report and had beers named as Mst. Mughlan Bibi.

9. The evidence furnished by the Radiologist is scientific evidence and is suffering support the conclusion that the copy of birth entry Exh. D/1, relating to cheat. Mughlan Bibi daughter of Chiragh Din son of Umar Din, did not relate to the petitioner. The afire of Mst. Mughlan Bibi shall be snore than 13 years and less than 14 years. The Doctor is definite that the age of Mst. Mukhtaran Bibi is more than 14 years and even 16 years. Accordingly Exh. D/1 is discarded from consideration.

10. The age of Mst. Mukhtaran Bibi, in the estimation of the Radiologist, is about 16 years. Such opinion is a bare approximation. The Radiologist found that the epiphysis was radius and ulna and of metacarpels in both hands had not yet completely united. The head of the left humereus, left acromion etc., indicated approximately that the age was about 16 years. For obvious reasons it cannot be said precisely beyond contradiction that the age is a few days less than 16 years, or a few days more than 16 years. According to section 361, P. P. C. "whoever takes or entices any minor . . . . . . under 16 years of age, if female, without the consent of the guardian is said to kidnap such minor". If such femme is more than 16 years old and states that she left the custody of guardian of her fro;: will, there shall be no kidnapping or any other graver offence. On the other hand, if she is less than 16 years of age, any consent on her behalf shall be of no avail. It follows that in order to determine the innocence or guilt of Muhammad Bashir, a Court of law shall have to determine the age of Mst. Mukhtaran Bibi precisely. In proceedings under section 491, Cr. P. C. this Court is not required to determine the age of Mst. Mukhtaran Bibi with that precisely. These proceedings are not tantamount to "trial" of Muhammad Bashir and Muhammad Bashir is not a party to the proceedings. The evidence furnished by the Radiologist, being in the nature of an appoximation, it may be said that the S. H. O., Police Station, Saddar, Jhang, in view of the material furnished to him, was justified in arresting Muhammad Bashir. This arrest, was riot without legal authority.

11. It follows, from what has been stated above, that the case of Mohammad Bashir is a border-line case. He is entitled to be at liberty to defend himself in the course of the police investigation, as also in the trial Court, if the challan is eventually put into Court.

12. Where as authority is competent to direct the doing of certain things, the authority is competent to impose conditions, subject to which that thing may be done. Accordingly, Muhammad Bashir is directed to be set at liberty, subject to his furnishing security in the sum of Re. 500 (Five hundred) with one surety to the satisfaction of the Deputy Registrar of this Court, the condition of the bond being that he shall continue to joint investigation by the police as and when required and to appear in the trial Court as and when required,

13. The police file and also the copy of birth entry relating to Mst. Mughlan Bibi (Exh. D/1) are returned to the S. H. O. Police Station Saddar, Jhang.

Order according.

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