1971 P Cr (PLP)

Kamal Mustafa Bokhari, Assistant Advocate‑General. This petition for habeas corpus arises out of the following circumstances; Muhammad Sharif, the petitioner was arrested along with the detenu whose name he gives as Sughran, by the Delhi Gate Police Post, Police Station Kup, Multan, on 19th of August 1970, under section 55/ 109, Cr. P. C. According to the Police report they could not give their correct address and could not explain the reasons for their presence in the locality. Muhammad Sharif was released on bail after sometime. Bail was offered separately on the behalf of the, detenu by her father Jindwadda and one Allah Bachaya, who is stated to be the uncle of Muhammad Sharif. A question was raised before the learned Magistrate as to the age of the detenu and thinking that she was a minor, he deffered passing orders on the application of bail till he had before him the medical opinion about the age of the girl. The girl was examined by two doctors. Dr. S. Z. Durrani, Medical Superintendent, Civil Hospital, Multan gave the opinion that she was between 16 and 17 of age. She was also examined by the Assistant Radiologist of the Nishtar Hospital, Multan who gave an opinion that she was about 15 years of age.

2. When the detenu was produced before me, it was alleged by her father, who is present in Court that her name vas Naziran and not Sughran and that she was less than 15 years of age. A copy of the birth certificate of a girl by the name of Naziran daughter of Jindwadda son of Khandu has teen placed on the record which shows that the girl was born on 14th of Febru ary 1956. By this calculation her age is about 14 years and 7 months.

3. At the request of Ch. Feroze Din, the learned counsel for the petitioner, I again sent the girl to the head of the Radio logy Department of the Mayo Hospital for her examination as to her age. According to the report received, the bone age of the girl is about 16 years. The contention of the petitioner is that the name of the girl is Sughran and not Naziran, and that Naziran is a younger sister of Sughran. He claims that he was, married to the detenu. I recorded the statement of the father of the girl in Court. He has also filed an affidavit to the effect that he had no daughter by the name of Sughran.

4. It is true that on the basis of the medical opinions before me it may be possible to come to the conclusion that the girl is between 15 and 16 years of age. The certificate of birth produced by the father of the girl, which is a more precise document, shows that the girl is below fifteen years of age. Whatever the estimate about the age of the girl upon the above data may be, it is clear that she is a minor. The learned Magistrate was not impressed by the marriage story and I must frankly confess that it cannot carry conviction.

5. It is permissible for me to determine in a habeas corpus petition as to who is entitled to the custody, of the minor detenu. Muhammad Sharif petitioner has not shown that the girl is Sughran or that he was married to her: There is no documentary evidence to that effect. The only person entitled to the custody of the girl, is, therefore, her father Jindwadda:

6. The girl could not be released on bail by the learned Magistrate because she had refused to sign the bail bond furnished by her father. I have seen the file and I find that the proceedings under section 55 and 109, Cr. P. C. so far as the girl is concerned were entirely uncalled for and unjustified. Sections 55 and 109, Cr. P. C. deal with vagabonds and suspected 'persons. In this case there were no circumstances to show that the girl was a vagabond or was about to commit an offence. She was just accompanying a young man and the circumstances under which she was accompanying him were still to be examined. I, therefore, quash the proceedings in so far as the girl is concerned and direct that she be handed over to her father.

7. Mr. Masud Tariq, A.S.I. of Police Sadar, Multan, who had brought the detenu from jail is present. He shall escort the girl to her village along with her father.

8. The jail and the Police authorities may be in formed accordingly. Petition dismissed.