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Petitioner: Mst. FATIMA AND Another VS Respondent: S. H. O., POLICE STATION, GOLRA SHARIF AND 2 JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title:Mst. FATIMA AND Another vs S. H. O., POLICE STATION, GOLRA SHARIF AND 2
JUDGMENT
Reported As: PLD 1978 Lahore 1436 Result: Petition dismissed Judgment JUDGMENT This constitutional petition has been moved under Article 199 of the Constitution with a view to seek extraordinary reliefs: (i) that Mst. Naziran, an abductee in a case registered under section 366/ 342, P. P. C. With, and being investigated by, the police, be lodged in Dar-ul-Aman ; (it) her statement in connection with the said police case be recorded in presence of the Lady Superintendent of Dar- ul-Aman ; and (iii) the records relating to that statement be ordered to be made part of the Police investigation. 2. Mst. Naziran is a married woman. Aforenoted case, as admitted in the petition, has been registered against several persons including the son of petitioner No. 1. She claims to be an aunt of the abductee. Leaving aside the other facts stated in the petition, most of which are highly controversial, the two main grounds mentioned in the petition for seeking the aforenoted reliefs are ; (i) that Mst. Naziran petitioner No. 2 has not been abducted by the persons alleged by the police and that no offence with regard to the person of petitioner No. 2 has been committed ; and (ii) that petitioner No. 2 is no more interested in her husband, therefore, he could not set the machinery of law into action. In this connection it is mentioned that a suit for dissolution of marriage has also been lodged. The petition is in English and is purported to have been thumb marked by petitioner No. 2. Similarly the affidavit of Mst. Naziran filed with the Writ Petition is in English and is purported to have been thumb marked by her. It is interesting to note that affidavit of Mst. Naziran has been appended with the petition but no affidavit of the other petitioner, who claims to be the aunt of Mst. Naziran, has been filed therewith. As would be presently shown the main purpose in this behalf was
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to bind down the abductee only with regard to the position taken in the petition and the supporting affidavit. When the writ petition came up for motion hearing on 25-6-1978, learned counsel relying on the orders passed in Writ Petition No. 1509/76 decided on 28-6-1976, prayed that the statement of the abductee "should be recorded by the S. H. O. Under section 161, Cr. P. C. In accordance with the procedure laid down by this Court" in the said case. Notice was issued to the S. H. O., who appeared and produced the police file for perusal of this Court. After I had perused the police file and the learned counsel bad addressed the arguments, he wanted to withdraw the petition. As the request in this behalf was made by him without consulting his clients I thought it fit to decide the petition on merits. The following order was accordingly passed; "The S. H. O. Has produced the police file. I have gone through the F. I. R. As also the entire Zimni. The police has been fair to both the parties in recording Zimnis. Whatever was stated by the persons contacted by the police for the recovery of the abductee, it appears, was recorded without any embroidery or embellishment. In one Zimni, it is noted that the accused party were adamant in not producing the abductee. They, however, at another stage, indicated that they would produce her in the High Court. This aspect is mentioned more than once in the Zimni. It appears that the accused are instrumental in filing of the present petition which, obviously, is in pursuance of the undertaking given by them to a Deputy Director, Intelligence, with regard to the production of the abductee. This aspect also is mentioned in the Zimni. (2) After hearing the learned counsel, I am satisfied that the petition has not been moved with a bona fide intention to secure the ends of justice It has been filed to frustrate the investigation in a criminal case which is cognizable by police (registered under section 366/342, P. P. C). Learned counsel initially relied on an unreported case--Writ Petition No. 1509/76 decided on 28-6-76 as also my orders passed in Writ Petition No. 2220 of 1978. When called upon to show any legal sanction, learned counsel after some half-hearted arguments, frankly conceded that nothing can be spelled out in this behalf from Article 199 of the Constitution. He, however, repeated the often used phrase that the police is bound "to act in accordance with law". When told that all persons including the police officers are required to act in accordance with law, but there can be no general presumption that the police would not act in accordance with law ; learned counsel without any further comment straightway stated that he should be permitted to withdraw the petition. He made this request without consulting the petitioners who are present in Court. (3) After hearing the learned counsel as also the S. H. O., and going thro. Ugh the police file, for reasons to be recorded later I do not consider it a fit case for passing any direction under Article 199 of the Constitution. This petition accordingly is dismissed. The S. H. O. Is at liberty to join the abductee in the investigation and act in accordance with law. The police file, after perusal, has been returned." 3. As noted above, the reliance placed by the learned counsel .For the extraordinary procedure suggested for the conduct of a part of investigation in a case of abduction-366, P. P. C., namely, that the S. H. O. Must record the statement of the abductee under the supervision of the Superintendent, Dar-ul-Aman is, also, on my own orders passed in Writ Petition No. 2220/78. The file of that case reveals that the same learned counsel had appeared before me in that case and had pressed in service the orders passed in the earlier Writ Petition No. 1509/76. It was in motion hearing that without issuing notice to the other party and relying on the said unreported case I directed the abductee petitioner to be lodged in Dar-ul-Aman as was prayed for in the petition. However, even then I had some doubts about correctness of the view taken in the case of Mst. Rasulan v. S. H. O. W. P. No. 1509/76. It was pointed out in the order dated 3-5-1978 that "there is one glaring distinctive feature between the said petition and the present petition. The main target in this petition is the father of the petitioner while the said petition was moved against the S. H. O. Of a certain Police Station only". I had further noted in para. 3 of the said order that there is allegation of her having
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been abducted. It is not yet certain whether she is free agent or has been forced to file this petition. I have questioned her alleged husband, Muhammad Afzal, as also the petitioner. They have tried to support the petition but I am not certain whether the petitioner is, as noted earlier, a free agent". I had also visualized the possibility that the proceedings in the said writ petition might have been launched "in order to frustrate the criminal case by obtaining a certified copy of the petition and the affidavit filed with it and subsequently producing it before the trial Magistrate". The said order which was passed by relying on the earlier precedent order of this Court, on the request of the learned counsel, was not without serious reservations. Subsequent thereto several cases came up before me of similar nature wherein it was clearly found as a fact that attempt had been made to file writ petitions on behalf of the abductees with clear object of binding them down with the commitments in the writ petitions ; which usually are supported by affidavits purported to have been sworn by the petitioners. The further object is to seek quashment of the abduction case at the investigation stage through a further writ petition and, if the challan is submitted, to seek quashment of the prosecution under section 561-A, Cr. P. C. Apart from those, there are innumerable instances where some writ petitions purported to have been filed by the abductees themselves in the High Court, have been made basis for a defence of consent at the trial as also in bail proceedings. In some cases, after due enquiry, this aspect of the case was so obvious (as it was based on certain admissions also) that I had to direct that the copies of the proceedings in particular cases be placed on the files of the learned counsel moving such like petitions. For example, in Writ Petition No. 3024 of 1978, it was found that the abductee, who was present in Court and who had herself purported to file the writ petition, was of a very tender age, although it was represented in the documents that she was major. When everything got exposed the learned counsel made a very candid admission which was recorded in the final order and is reproduced below ; "Learned counsel states that he had decided to file this petition on behalf of Munir Ahmed, the alleged husband of the petitioner who had had come to him to give instructions but a learned senior Advocate advised him to file it on behalf of the alleged wife. He further states that he was not then aware that the petitioner was minor. He depended upon the age mentioned in the Nikahnama shown to him by Munir Ahmed. In the circumstances it was proper for the learned counsel to have filed the petition on behalf of Munir Ahmed and not on behalf of Mst. Hafizan Bibi, who had not come to him nor had she given him any instruction." Earlier on 14-6-1978 it was noted in the said writ petition, that the learned counsel had not: even seen the abductee, who was being made a petitioner in the writ petition. This was given by him as an excuse for not making an independent view with regard to her age. He had merely depended upon the documents shown to him by the alleged abductor which obviously could be forgeries. It was noted that the alleged abductor was almost double the age of the minor girl. It was also noted specifically that "an attempt has been made to bind down the minor abductee with a statement through an affidavit filed in High Court". In yet another similar Writ Petition No.2773/78, it was noted that although the medico legal report of the abductee, who was made to file a writ petition, showed her age as 16/17 years, yet the age given by her father in the F. I. R. Was 14 years. He had also asserted that his claim regarding age was supported by birth entry. From her appearance also she did not seem to be more than the age stated by the father. The doctor's opinion relied on for filing the writ petition was obviously wrong. As she was of tender age, questions were asked from her in order to find further facts. It was revealed that after the alleged abduction the accused had hurriedly gone through several proceedings with an attempt "to bind the child through an alleged Nikahnama". On the same day medical opinion was obtained. An affidavit of the minor was also obtained from her. The answers given by the so-called petitioner (abductee) created considerable doubt "whether the petitioner could have sworn such a detailed affidavit running into
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seven fool-scap pages, all in English". The Oath Commissioner had shown that the learned counsel filing the writ petition had identified the so-called petitioner but the learned counsel made a statement (at the bar about which it was then noted, there was no reason to doubt) that in fact he did not identify her before the Oath Commissioner and that somebody who claimed to be the brother of the abductor had gone in the company of the clerk of the counsel to do the identification. After considering all the aspects of the matter I was constrained to remark that; "an attempt has been made to misuse the process of this Court by getting an affidavit of an abductee filed in the High Court and for getting her statement recorded in the High Court so that it should be subsequently used as a piece of defence evidence when the main accused, Zahoor Ahmed is put to trial for the abduction of the petitioner. The petitioner according to the F. I. R. Remained with her alleged abductors for the last about 10 days. There is no certainty that she has not been subjected to inducement and/or coercion." 4. This method of filing writ petitions, some times quashment applications and some times habeas corpus petitions in the name of t be abductees in serious cases of abduction and rape, has almost become the 'Grder of the day. Innumerable petitions are being filed in the High Court. As to what is the effect of these proceedings on trial and other proceedings before lower Courts can well be imagined. I am aware of an old contrivance when the abductees were made to file criminal complaints mostly under section 107/151, Cr. P. C. Before Illaqa Magistrate against their own parents and first husbands giving therein full defence version of the culprits in the abduction and/or rape cases registered with the police. After recording of the statement of the so-called complainant, the complaints used to be filed for non-prosecution. Thereafter the copies were used in defence. This practice was checked by vigilant Magistrates by scrutinizing such defence with care. For some period reliance was made on statements made before the Oath Commissioners and Notaries Public and thus abuse of the Court of Magistrate was prevented. It appears by passage of time affidavits, copies of complaints and statements under section 200, Cr. P. C. Lost significance and the practice started of filing writs, quashments and habeas corpus petitions in the names of the abductees, containing the defence of the culprits in such like cases. Obviously the proceedings by the High Court on these petitions being, as they are, of summary nature, could not be treated as conclusive on disputed questions of fact involved in the criminal trial ; for example, manner of abduction involving violence or deceit ; consent or otherwise ; age ; violation of the person of the abductee with or without consent ; and the validity, genuineness or otherwise of the Nikahnamas, which are almost always disputed by the complainants (who are either first husbands or parents) as forgeries fraudulent and fake. The incident referred to above was not so enormous when these aspects were alluded to in two cases of this Court Mst. Alfat Bibi and another v. The State (PLD 1972 Lah. 121) and Manzoor Hussain and another v. Manzoor Hussain (PLD 1974 Lah. 202). In some of the very recent cases it appears the matter having been duly noticed and checked by some Benches in the High Court, has again reverted to the lower forums and suits before Family Courts and complaints before Magistrates are filed with almost the same purpose. It is not out of place to note one other relevant circumstance, namely, that in such like cases the so-called petitioner (abductee) when questioned in Court would often, candidly state that she had been brought to the High Court for "obtaining her statement". The technical phrase well known in legal circles is used by the abductee, namely,{Byan qalumband karay ghay} (See W. P. No. 3498/78). 5. There are other cases wherein after filing the writ petition purporting to be on behalf on the abductee, she would not appear on the date of beating and the case gets disposed of for non- prosecution. And in this very case; even in her presence, but without consulting her, the counsel has sought withdrawal of the petition. In Writ Petition No. 2536/78 also similar attempt was made in this behalf. A learned counsel sought withdrawal of a writ petition filed by an alleged abductee at the instance of her paramour. The initial apprehension, after due enquiry was affirmed and due
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prosecution was ordered of the persons concerned. The following observations made in that case are relevant in the present context; "The admissions made it this petition show that the petitioner is a married woman. She has not yet been divorced by her husband. According to the admission made in para. 10(b) of the petition, she is living with her paramour, whom, according to para. 9 she wants to marry. It might be either a case of elopement of a married woman or of her abduction. The petition has been moved by her, amongst others, against her real father, respondent No. 2. I have a serious suspicion that the petitioner might have been brought under undue influence to submit this petition in the High Court so as to advance the cause of someone, who might have committed some crime. The purpose, it appears, was to get her statement included in the petition moved in the High Court and also to get an affidavit allegedly sworn by her, placed on the record of this Court, so that the copies thereof are subsequently obtained and produced before other authorities with a view to achieve, may be, illegal objects with a prima facie showing that the matter even went to the High Court. It also appears that an attempt has been made to misuse the jurisdiction of this Court." A very recent type of institution on the writ side is where an alleged abductee would purportedly seek registration of a criminal case against the police and her husband/father and/or relations for so-called offences allegedly committed during the investigation of the offence of her abduction. There is yet other type of cases in which an alleged paramour would lodge the abductee with his friend or may be an unsuspected accessory in the crime and would then move a petition seeking the recovery from the said friend's place, giving his address and making some story about his having kept her in illegal confinement. Scrutiny though difficult, but not impossible at the limine stage through questioning, might disclose the contrivance and prevent abuse of process of Court. Otherwise the bailiff brings the abductee who makes the tutored statement. The respondents in such like cases invariably do not defend the petition. In some cases they make extraordinary admissions. It cannot be denied that some persons do at times succeed in achieving their objects but not always. The processes of the Courts cannot be closed on one section of Society and kept open for other. What is needed is vigilance by all concerned including the learned Magistrates, when they are called upon to issue warrants of recovery under section 100, Cr. P. C. Here it might be of considerable advantage to state the law laid down by the Supreme Court in cases like the present one. In the often cited case of Sardara v. Khushi Muhammad etc. (1973SCMR189) their Lordships (despite their ruling in the case of Muhammad Rafique v. Muhammad Ghafoor (PLD 1972SC6) while appreciating the ratio in Fateh Sher v. Sarang (PLD 1971 Lah,.128) noted at page 191 of the report : "in that case the High Court found that the detenu was a married woman and that the application under section 491 of the Code of Criminal Procedure was a collusive affair between her and her paramour". In these circumstances, it was held by the Supreme Court that the High Court; "in the exercise of its discretion was correct in directing that the woman although a sui juris be restored to her husband. Any other course would not only have resulted in giving the Court's blessing to the immoral activities of two unscrupulous persons who, "in Islam", were liable to extreme penalty, but also could have deprived her of an opportunity to correct herself." To the same effect is the ruling of the Supreme Court in Shaukat A.I v. Altaf Hussain Qureshi and others (1972 SCMR 398), wherein it was held that: "Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community for which the law is to be administered" Such being the case "the High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of furthering an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question." (Underlining' is mine).
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6. I would not blame any individual lawyer in this behalf. Subject to law in that behalf, all citizens are entitled to legal assistance as of right. The lawyer cannot refuse assistance, subject of course to the necessary conditions and requirements of law including the law of agency/contract. As has been revealed from some of the cases cited above, an extra car ' might be necessary for dealing with a female client who is alleged or suspected to be the victim of crime of violence or deceit and she is made to file proceedings to help the persons who might have committed crimes qua her. This would be more necessary when other persons being available for launching proceedings the lady who is already allegedly a victim of the crime is asked, by the accused in that very crime, to become a petitioner. A further minute and extra ordinary care would be needed when the counsel deals with a female who even might appear to be of tender age, leaving aside the assertion from the other side, which is some times made in the F. I. R. Regarding her age and in some cases even mention is made of birth entry. It might be risky in such a situation for the lawyer to take a decision, when dealing with such a female by merely relying upon a so-called opinion material/evidence and ignoring more direct evidence of age, e.g. Furnished by her next of kin and/or birth entry. In one case (Criminal Original No. 148/ W-78) a female who even from her appearance looked minor and was made to file a writ petition in the High Court, when achieved freedom from the accused persons, made a subsequent complaint which became basis of another case of abduction and a lawyer from mofussil was directly accused by her of fraud. I am not in favour of the lawyer's denying lawful assistance to a citizen even in the worst possible case. But it is in his own interest as also in the interest of justice and fairplay that keeping in view the aforenoted possibilities, he should perform his duty towards the Court as well in such a manner that he should not willingly and consciously in his professional engagement, allow a person, who claim to be his client, to abuse the process of Court and law particularly when such abuse is likely to lead to yet other abuses including those of process of other Courts. 7. The foregoing observations would be incomplete without taking note of another very vital aspect in this behalf. Every accused person is entitled to prove his innocence by production of direct and circumstantial evidence. In an abduction and rape case the accused is entitled to rely on the direct statements of the victim which can be placed in three categories: (i) before the alleged crime: (ii) after the alleged crime but before the trial; and (iii) at the trial. The abductee, if alive and is competent to depose, is the most important witness in such a case. If she deposes against the accused at the trial, she can be confronted with any of her previous statements visualized above; but in order to succeed the accused will have to prove that the previous statement was a voluntary statement. In this behalf it will be extremely important to note whether qua the time when it was made, she was, generally speaking, under the control of the accused because dozens of mechanisms of coercion and deceit can further be applied e on a person who is already victim of violence and/or deceit to obtain a statement favourable to the culprits. For example, a well known once tried method (although then it used to be applied by the police for testing the will and stamina of a confessing accused) cannot be ignored. The person concerned is produced before a fake Court/Magistrate in order to test whether he would abide by the promise. If he resiles, he is again made to realize the consequences. He is further made to pass through similar tests of more subtle type prior to his production before the real Court/Magistrate for recording formal statement. Another example can be of more subtle deceit based on semi-realistic considerations. For example, after rape when an unmarried girl finds herself in a ruined state qua stress and strain as also her future (particularly if she becomes pregnant) she might be brought under control through beguiling her into accepting the changed life notwithstanding the original violence in the crime. In the case dealt in (Writ Petition No. 3498/78), the second F. I. R. Lodged by the abductee, discloses the above visualized methodology. The victim allegedly after the rape and fresh abduction was promised marriage, money and land on the assumption that it would save her future, as her
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person stood already violated. These considerations, however, are for the trial Courts to keep in mind when dealing with such like extremely complex and delicate situations. It used to give hard time to even the most experienced lawyers, through lengthy cross-examination of several witnesses and…
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