P L D 1971 Lahore 944 (PLP)

D. M. Awan for Petitioner. Ch. Muhammad Ashraf for A: G. for Respondents. Date of hearing: 15th April 1971. Asst. Jannat, a minor daughter of Mst. Zohra, petitioner, was allegedly kidnapped by Ghulam Qadir son of Muhammad Bakhsh, her neighbour in the 3rd week of June 1967, who kept her confined at various places till the 28th of June 1967, when he got her medically examined by Lady Dr. Balqis Feroz, Women Medical Officer at Civil Hospital, Bahawalnagar, certifying her age as between 17/18 years. On the same day he also got an affidavit sworn in his favour before the Resident Magistrate, Bahawalnagar, and on the strength of these two documents he got his marriage solemnized with her on the next day, i.e., 29th June 1967, which was entered in the Register of the Union Council of Chak Sadiqnagar. She was then produced at the Police Station Chistian on 6th July 1967, by Ghulam Qadir and some other respectables, where she made a statement absolving him of all the responsibility in her elopement and their subsequent marriage, which was recorded in the daily diary at serial No. 7 by the Station House Officer, who later brought her to Court of the Sub‑Divisional Magistrate, Chistian on the same day. Taking a clue about it the petitioner also appeared in that Court and submitted tan application detailing all the circumstances in which she was kidnapped. The S. D. M. forwarded this application to the local police for the registration of a case under section 363/366, P. P. C. The police got her medically examined on the 10th of July 1967, from another Lady Doctor, namely, Maqsooda Begum, who fixed her age between 15 and 151 years. On this Mst. Zohra petitioner submitted an application before the Sub‑Divisional Magistrate, Chistian on 12th July 1967, for restoring the custody of her daughter to her as she was proved to be a minor on this medical examination. Consequently the Station House Officer was directed to produce Mst. Jannat before the District Magistrate, Bahawalnagar, for his orders under section 552 of the Criminal Procedure Code. In compliance with this order the police produced Mst. Jannat before the District Magistrate, Bahawalnagar, on 14th July 1967, who after the examination of the police file passed an order that she should be handed over to her mother Mst. Zohra, the present petitioner on her furni shing sufficient security for her production before the police or the Court concerned as and when required to do so. 1n pursuance of this order the police restored her to Mst. Zohra, the petitioner, after obtaining a surety bond in the sum of Rs. 10,000 (Rs. ten thousand) from Muhammad Shafi, res pondent No. 2 to that effect. The District Magistrate bad also directed the police that she should be got examined by the District Health Officer, Bahawalnagar, in view of the two con flicting opinions about her age. On being produced before the District Health Officer he advised the police that her statement should be got recorded before a Magistrate that she had no objection to her examination by a male doctor. The police file has further revealed that the District Health Officer suggested that she should be examined by a Medical Board to be constituted by the Director Health, Bahawalpur Region for that purpose. Mst. Jannat had in the meanwhile gone to the house of her parents and was summoned from time to time by the police for that purpose and Mst. Zohra, the petitioner, failed to produce her, conse quently a notice was issued to Muhammad Shafi, respondent No. 2, to show cause why the amount of the bond should not be recovered from him on account of the failure of Mst. Zohra to produce Mst. Jannat before the police. Aggrieved by this order she moved a writ petition in this Court under Article 98 of the Constitution of Islamic Republic of Pakistan that the orders of the District Magistrate dated 14th July 1967, to the extent of demanding surety (of Rs. 10,000) dated 6th August 1967, for forfeiting the amount of the surety bond were absolutely illegal ultra vires and without lawful authority. On the 24th of October 1967, learned counsel for the petitioner made a statement before the Division Bench seized of this case that this writ petition be converted into a revision under section 439 of the Criminal Procedure Code who were pleased to direct that it should be treated as a revision petition and be placed before a Single Bench for disposal in accordance with law. Thereafter it was placed before my learned brother Shaukat Ali, J., who admitted it to a regular hearing on the 12th of December 1967, to examine the correctness of the order of the District Magistrate demanding surety (of Rs. 10,000) for the production of the abducted girl as and when required.

2. I have heard learned counsel of the parties and find that the impugned order was not sustainable in law as the person produced before a District Magistrate under section 552 of the .Criminal Procedure Code is not an accused of any offence, and is at liberty to offer himself as a witness in the case, if any is registered, against the person who had A wrongfully detained her for any unlawful purpose as held to Tulsidas Janglyadas v. Chetandas Domadas and another (A I R 1933 Nag. 374). The only order which can be passed under this section would be for the immediate restoration of the woman to her liberty, or if she is a female child below 16 years, to the custody of her lawful guardian or other person having the lawful charge of such child as observed in Abdul Jalil Khan v. Emperor (1621 C 755). In fact after having passed this order the District Magistrate had become functus officio and had no power to pass any further orders in the matter as after being restored to liberty she could go wherever she desired and no restriction could be imposed on her personal liberty in exercise of the powers under this section like furnishing a bond or surety ‑for her production before the police or the Court as and when required: In this view of the matter I am fortified by the views expressed in Dhapu v. Puri Lal and others (A I R 1959 N4adh. Pra. 356) and Mukhtar Husain v. The District Magistrate (1970 P Cr. L J 1002).

3. The fact of the matter is that since 7th July 1967 when she was produced by aforesaid Ghulam Qadir at Police Station Chistian to make a report about her whereabouts and the registra tion of the present case on the application o f Mst. Zohra, the petitioner, as stated above. She was in the constant custody of the police or some person of their choice till 14th July 1967, as would appear from the police file who had no right to detain her in that manner as was observed in Muhammad Sharif v. Lal Muhammad and another (P L D 1962 Quetta 108).

4. As a result of this discussion I accept the petition and set aside the order of the District Magistrate, Bahawalnagar, dated 14th July 1967, about the taking of a surety bond from Mst. Zohra, the petitioner for the production of Mst. Jannat as and when required. The police file received in this case shall be returned forthwith. Petition accepted.