' Falak Sher, an accused in a case of abduction and theft under section 363/380, P. P. C., moved this Court under section 491, Cr. P. C., for recovery of the abductee Mst. Khurshid alias Sheedan from Asadullah, her brother. I dismissed the petition vide my detailed order, dated 25th May, 1973 and in suo motu exercise of jurisdiction under section 497 (5), Cr. P. C., issued the following notice to Falak Sher :- "The petitioner who is on bail in the abduction case according to my finding has tried to misuse the jurisdiction of this Court under section 491, Cr. P. C., which according to my findings in the connected petition 438-H/73, prima facie amounts to an attempt at abuse of process of this Court.
He further appears to have created false evidence in connection with the same case. Prima facie I am of the view that such an accused person has no right to remain on bail. I, therefore, give notice to him as to why the bail granted to him (the petitioner) by the learned Sessions Judge should not be cancelled."
' Mr. K. T. Hussain, who represented Falak Sher accused in the habeas corpus matter and was also representing him before the lower Court, was asked to help his client in defending the suo motu notice. He showed his inability because all the relevant papers relating to bail were not with him.
The case was, therefore, adjourned. On the next hearing, Mr. Hussain pointed out that it would be necessary to ascertain from the State whether they are interested in the cancellation of bail. The case was again adjourned for notice to the State. Today Raja Muhammad Yunas, who represents the State and is assisted by a Police Officer (with records), has supported the suo motu notice.
2. I have perused the relevant record. Mr. K. T. Hussain has produced copies of the orders passed by the learned Sessions Judge one dated 24th January, 1973 allowing interim bail to the petitioner and the other dated 19th February, 1973 whereby the bail was confirmed. These copies now form part of the record of these suo motu proceedings.
3. As the suo mow proceedings for cancellation of bail have arisen out of order passed by me on 25th May, 1973 in Criminal Miscellaneous No, 438/H-73, the same therefore, for sake of reference, is reproduced below :- "This petition under section 491, Cr. P. C. Is by a so-called husband, Falak Sher (petitioner) who is being prosecuted for the abduction of the alleged detenu, Mst. Khurshid alias Sheedan. The main contention of the learned counsel and the reliance of the petitioner, is on a so-called nikahama copy of which has been produced with this petition. Learned counsel contends that the case was registered in December, 1972, after about a year of the alleged nikah of the petitioner with the abductee. On a suspicion having arisen with ragard is figure 71 in entry No, 24 (in the copy filed with the petition) of the so-called nikahnama, I told the learned counsel that the copy is not dependable. He replied that the first copy that was brought to him by the petitioner aroused suspicion in his mind (counsel's mind) with regard to the genuineness of the copy therefore he sent him back for bringing better copy and then the learned counsel obviously produced the better copy with the petition. On my asking, the learned counsel has produced for my perusal the other copy from his brief. Column No, 24 in that copy is absolutely blank except that somebody appears to have attempted to make some entry starting from the right side (of some date and did put figure 1). At this stage learned counsel has placed that copy also on this file. From the copy now produced I have a suspicion that on the first page of the nikahnama the original date had been 1st November, 1970. Figure zero of 70 it appears has been extended by a line to make it 71. I have now noticed that the two documents produced before me are, in fact, not copies. They are the originals, because the thumb-impressions of the persons concerned are visibly seen marked on the documents. Therefore, these above-mentioned discrepancies and supicions are with regard to the original nikahnama and as mentioned earlier not with regard to any copy. In these circumstances, I cannot depend upon these documents. Apart from this there is absolutely nothing on this file to show that the abductee was a consenting party. I have specifically asked the learned counsel whether there is an affidavit of the abductee or another statement made by her during the time that she remained with the petitioner to which he has answered in the negative. Learned counsel has stated that he himself is conducting the case in the lower Court.
2. It has been admitted by the petitioner on my questioning that the Police recovered the alleged detenu as an abductee (under section 366, P. P. C.) and thereafter she was handed over to her brother Asad Ullah respondent No,
1. The assertion made in the petition that this was done against the desire or without the consent of the abductee, is unacceptable because I suspect that the petitioner might not have disclosed true facts in the affidavit filed with this petition. This is apart from the facts about the suspicions about nikahnama which has been produced by him with this petition. There is yet another important circumstance, that handing over of the abductee to her brother respondent No, 1 might be with her consent. She was recovered according to the petitioner soon after the alleged abduction, in December, 1972 and as then handed over to her brother. The petitioner admits that he was released on bail in January, 1973, and it is very strange that after four months it has dawned upon him that his so-called wife was handed over to respondent No, 1 against wishes. Looking at from whatever angle I have come to the conclusion that this is a frivolous petition based on lies. There is no justification to act under section 491, Cr. P. C. The Court has been moved with mala fide intention so as to gain same advantage in the criminal case which is pending against the petitioner. In these circumstances, this petition is dismissed in limine.
4. There is assertion from the accused side that the above order is under challenge in the Supreme Court. After hearing both the learned counsel and going through the record, I find no reason or any other justification for review of the findings/observations made therein. The order of the learned Additional Sessions Judge allowing interim bail to the petitioner was, it appears, in limine stage when, though the learned Public Prosecutor was present before him, the latter was probably unable to assist the Court because of absence of records with him. That is why the order of interim bail is absolutely one-sided. The learned Judge made a mention of some statement made by the abductee as also of the fact she was of twenty-two years of age. In the order confirming the interim bail, the learned Judge repeated that the abductee was twenty-two years of age and had already been recovered, and as there was no allegation of rape, the property "clothes which she was carrying", had also been recovered and the petitioner was not wanted by the Police, therefore, the bail was confirmed. I doubt very much if the learned Judge had even an inkling of what the prosecution case against the accused was. If he would have read the F. I. R. Or the statement made by the abductee before the Police, he would not have mentioned that the abductee was carrying the clothes. Her statement, which is a detailed one, shows that the alleged offence of theft could not be attributed to her. It was a separate and independent action of the accused who, in the absence of the abductee, took away not only the clothes but also ornaments. The age of the abductee is no doubt mentioned but there is no reference to her version how she was allegedly duped by the accused who had earlier always posed himself as a brother to her mother. It is interesting to note that when after having succeeded in the abduction, he wanted to violate her person and she protested that he was her mamun, the accused allegedly replied that she was not the daughter of his real sister, therefore, it did not matter to him. But she, according to her version, saved her chastity by informing his mother about this fact and further asserting that if the accused was bent upon violating her person the same should be done after some formality of a nikah.
Probably, the accused could not muster any support in this behalf in an open nikah therefore, the assertion of the abductee proceeds, he obtained her thumbs mark on a blank paper which (paper) it is further asserted was utilised by the accused in converting it into a complaint against the relations of the accused for alleged apprehended breach of peace. Learned counsel for the accused, after consulting him, has admitted that some such complaint was in fact lodged. Before anything further could be done by the accusedi he was apprehended and the abductee was recovered. The Police has collected considerable evidence in support of the version given by the abductee. No nikahnama was produced before the Police by the accused nor there is any mention in the order of the learned Additional Sessions Judge that any such nikahnama was produced during the proceedings before him or was relied upon. For these proceedings; I have no reason to doubt the statement of the abductee that her presence of mind and putting the accused on condition of nikah saved her chastity and before any nikah could be arranged by him she was recovered by the Police. On merits therefore, there was no justification for release on bail of the accused by the learned Additional Sessions Judge in the manner noted above. I have said enough in my order dated 25th May, 1973 on the question of the authenticity of the so-called nikahnama. I have also found that the petition under section 491, Cr. P. C, was a frivolous one and that the same had been filed with the intention "so as to gain some advantage in the criminal case".
5. The contention of the learned counsel that this Court should not rely on its finding with regard to nikhanaina given in the habeas corpus matter, simply because the petitioner would be entitled still to prove the same and to lead evidence in that behalf in his defence at the trial, has not impressed me. Apart from the fact that the order passed by me on 25th May, 1973 is not shown to be under challenge and is final for all purposes, the findings therein on the nikahnama or for the purpose in these proceedings on sun motu notice for cancellation of bail cannot at all be ignored. The learned counsel is unable to give any reply when he is asked as to whether when the nikahnamas were produced in the earlier proceedings in the High Court, he or his client did not want them to be considered and to be commented upon and, if need be, to be subjected to scrutiny and finding.
While considering the case of the accused (petitioner) in the earlier proceedings was extremely careful and afforded every possible opportunity to the learned counsel and his client with regard to the questions relatable to the nikahnama ; rather it was during my effort to give ample opportunity to them that the learned counsel himself came out with a statement, which I undoubtedly appreciated, namely, that his client had produced a nikahnama before him the contents on which had aroused suspicions in his 'mind, ie., the mind on his own learned counsel. Probably, the suspicions got confirmed, therefore, the learned counsel thought it fit not to produce with the petition the nikahnama which he thought was suspicious. No one can be permitted to blow hot and cold in the proceedings in this Court which no doubt are solemn and cannot be treated with any amount of indifference if the accused wanted a young girl abducte who had already been subjected to abduction to be recovered from her brother and brought before this Court under section 491, Cr. P. C. On the basis of so-called nikahnama, he cannot be allowed to urge that the findings in those proceedings on the nikahnama should not be used in the cancellation of bail proceedings against him in the same Court. This however, does not mean that he would be deprived of producing the same nikahnama as his defence before the trial Court. He would, of course be entitled to support it with other evidence that he might like to produce but that by itself, is no reason for me to set aside my finding in the proceedings under section 491, Cr. P. C., or, without any further material placed before me, to accept the nikahnama as genuine in these suo motu proceedings for cancellation of bail. With these observations, I repel the argument of the learned counsel.
6. Learned counsel tried to argue that the conduct of the abductee during the time that she remained with her alleged abductor would show that she did not support the prosecution. This is far from truth. Her statement, which is a detailed one, gives full explanation for each part of B her so-called conduct. On the face of it, there is nothing unusual or improbable about the explanation and it cannot be said that in all the circumstances the trial Court would reject the same. The mere fact tha the abductee is of twenty-two years of age does not at all raise any presumption in favour of the petitioner because in this case the abductee having been recovered has made a categorical statement against the accused fully implicating him of the offences he is accused of.
7. After hearing the learned counsel for the accused and the learned counsel for the State and after having carefully applied my mind to all the facts and circumstances of the case. I am of the view that firstly the petitioner was not entitled to bail ; secondly, he, after having been released on bail, tried to misuse the same by creating evidence which c prima facie appears to be false ; and thirdly on the basis of that evidence he further made an attempt to misuse the jurisdiction of this Court undre section 49, Cr. P. C., which amounts to an attempt at abuse of process of this Court. For all these reasons, I am of the view that the petitioner is not entitled to remain on bail and in exercise of the jurisdiction of this Court under section 497 (5), Cr. P. C. I cancel his bail and direct that he be arrested and committed to judicial custody.