This is a petition under section 491, Cr. P. C., for the production of an abductee at the instance of the accused.
2. Learned counsel has produced for my perusal copy of the F. I. R under section 363/366 read with section 34, P. P: C. It was lodged by the father of the detenu, alleged abductee. He produced the copy of birth entry of the abductee and himself gave her age as 13 years. Learned counsel has on the other hand relied on an X-ray report to contend that she is major. I do not agree with him. To say in these proceedings that the father is not a competent witness in so far as the age of his own daughter is concerned would not be fair nor would it be possible to give finding in these proceedings, without subjecting the father to cross-examination, that when giving her age as 13 years he had told a lie. It is, therefore, not possible at this stage to prefer any other opinion evidence with regard to the age of the abductee as against the direct evidence of the father and the birth entry.
3. Learned counsel has relied on the proceedings and orders passed by this Court in Writ Petition No. 264 of 1978, purportedly instituted by the abductee, a minor, out of her free-will. He has also relied on order in Criminal Miscellaneous No. 462-H of 1978 earlier instituted by the brother of the petitioner for the production of the abductee. He argues that the High Court when recording the statement of the abductee and when directing her recovery in the earlier habeas corpus petition made certain assumptions qua her conduct which go in favour of the petitioner. I do' not agree with the learned counsel. The proceedings in the High Court, in this behalf, cannot be treated as of final character-neither qua the age, nor the willingness or otherwise of the abductee at the time of original occurrence, nor with regard to the so-called nikahnamas which ultimately, usually are disputed as fake. That is why, in this very case, in the earlier proceedings, my learned brother Shafi- ur-Rehman, J., was pleased to observe that the said proceedings were subject to the law relating to investigation and punishment of crime. The following remarks are very pertinent in this regard : "It will not grant her protection in regard to the proceedings instituted on a complaint with the police with regard to her having been dealt with in a manner to invite application of sections 363 and 366, P. P. C. . It will be for the Courts or the statutory authorities seized of the case to ensure that she is dealt with in accordance with law, it all being primarily question of fact." .
4. If the trial Court also ultimately finds that the version of the father in the F.
1. R. With regard to age of the abductee is correct or that she was in fact forcibly abducted in the first instance, then all her statements recorded so far, whether under section 164, Cr. P. C., or in this Court in its writ jurisdiction, as also her purported affidavits, complaints against her own parents and other inspired or otherwise proceedings which have become almost the order of the day, in so far, as the offences under section 363/366, P. P. C., are concerned, would have to be put in juxtaposition to the plight of an abductee who is in the hands of her abductors as a tool of further oppression and humiliation.
Proceeding on that basis it would not be proper for this Court to drag the alleged victim of a atrocious crime once again in this Court in exercise of powers under section 491, Cr. P. C., at the instance of her alleged abductor; particularly when an order under the said provision was earlier passed at the instance of his brother and the proceedings were dropped as nobody took interest therein. An, accused person in criminal case cannot be allowed the liberty as is claimed in this case, to deal with tin abductee (who in this case r, prime facie minor) in such a manner as to further humiliate her and ruin her future.
5. Learned counsel states that the parties are very closely related to each other. If that is so, a more humane approach to the entire case might be advisable provided the petitioner, instead of humiliating the abductee any further, asks for forgiveness from the abductee's father and seeks hey hand in an honourable manner from him who is tier guardian. If hi succeeds in such an approach, it is possible then that the law enforcing agencies might take a realistic view of the entire unfortunate occurrence.
6. With the above observations, this petition is, dismissed in limine.