' This is a petition under section 491, Cr.P.C. By a father seeking assistance of this Court for the recovery of his minor daughter, Mst. Kalsoom, from respondents Nos. 1 to 5 on the main assertion that she was forcibly abducted by them and that her further detention in their custody would amount to prepetuation of serious offence relating to the person of the minor.
2. The F.I.R. (Annexure '8') registered at the instance of the petitioner for offences under section 363/366, P.P.C. Contains the allegation that the petitioner's minor daughter was born out of his wedlock with Mst. La] Khatun in 1964. Thus, basis is laid for the further assertion that at the time of abduction in December, 1978, the detenu was a minor, aged about 14 years. According to the F.I.R.
Her mother died and the petitioner brought up the abductee alongwith her younger brother Mushtaq. Hafiz Ahmad Bakhsh, one of the accused, sought the abductee's hand for his wife's brother Allah Dad accused but the petitioner refused. However, the F.I.R. Proceeds, Hafiz Ahmad Bakhsh started efforts to involve the abductee through some woman. The petitioner sent his daughter away to his relations. 20/25 days prior to the occurrence of abduction, on her return to the petitioner's house the intermediary woman again started contacting her. On this, the petitioner stopped the intermediary women from visiting his house. 10/11 days prior to the registration of the case, when the petitioner was out of his house, (the F.I.R. Contains a direct allegation) and when the abductee was alone in his house, she was taken away by the said woman to her house from where Allah Dad, the alleged suitor and now claiming to be the husband of the abductee, Muhammad Yousaf son of said Ahmad Bakhsh, Ahmad Bakhsh himself, Rab Nawaz and Imam Bakhsh (all the respondents herein) forcibly put the abductee on horseback whereupon she raised hue and cry which attracted Muhammad Aslam, Ghulam Akhtar, Ramzan and Allah Bakhsh eye-witnesses, who saw the accused taking away the abductee who was then raising hue and cry. They attempted to rescue her but did not succeed. When the petitioner received information about the abduction, he came home and took Mushtaq Ahmad, Haji Nazar Muhammad and Syed Muhammad Nawaz Shah, Zamindars, and others to Ahmad Bakhsh entreating him for the return of the abcinetee. Ahmad Bakhsh promised to get the abductee returned {{URDU TEXT}} This shows that she was not then with him the abductee also confirmed this during her examination in this Court.
However, Ahmad Bakhsh kept on promising the return but did not fulfil his word, therefore, the petitioner got the case registered.
3. It appears from a copy of a Nikahnama (alleged) attached with Criminal Miscellaneous No, 36/B of 1979 that immediately after the alleged abduction, the detenu was removed to Shuja Abad in District Multan where, with some local council, a Nikah was registered showing the abductee as aged 17-1/2 years and also as Khud Mukhtar because nobody from her family was with her. The name of Allah Dad's father in column No,6 appears to have been overwritten as Barkhurdar. In column No,21 it is shown that he was not previously married but, now, it is an admitted fact that he was not only married but had three children, his eldest daughter being over ten years of age. The accused were aware of the registration of the case against them. They started making efforts to show one, that the abductee was major; and two, that she was a consenting party. From the documents placed on this file and on Criminal Miscellaneous No,36/B of 1979, it appears that she was produced before a doctor for examination at Ahmadpur East, under a pretext that a certificate of age was needed in connection with some land matter. The endorsement on the medico-legal report, thus obtained from the doctor, shows that it was represented to him that Mushtaq, real brother of Mst. Kalsoom, was with her and that they both wanted to have the certificate. It has now been revealed and admitted that said Mushtaq is a lad of 7/8 years and he was not with the abductee. The certificate shows the following writing on behalf of so-called Mushtaq:-{{URDU TEXT}} ' the certificate gave the opinion age of the abduction as 17/18 years but with reference to the examination by a lady dispenser and the radiologist's report. The certificate, thus obtained, and the aforementioned Nikahnama were not considered enough to protect the accused in the abduction case. She was, therefore, taken to Lahore per what she asserted during her examination in this Court, for getting her statement about marriage recorded in the High Court. Obviously, there is no law under which the High Court records such like statements. Unfortunately, a practice has developed of submission of fake petitions on behalf of abductees in criminal cases. Sometimes, it is under section 491, Cr.P.C. The abductee seeking release of the accused; at others, it is a writ petition challenging the registration of the case; and in yet some other category of cases, she seeks bail for herself. There would hardly be a case in which such petitions could not be lodged by directly concerned persons; and almost invariably when inquiries are made, it is revealed that the abductee is told that her `statement would be recorded'. The typical expression used in vernacular is (0.'1)
4. A learned Advocate, Mr. Najam-ul-Hassan Gill moved a petition for bail before arrest of the abductee herself, making her the petitioner and showing in the heading of the petition as if she was the wife of Allah Dad. Obviously, the abductee herself was not the accused person in accordance with the copy of the F.I.R. For offences under section 363/366, P.P.C. Attached with the petition; therefore, it was mentioned in the petition that the police wanted to arrest her for an offence under section 379, P.P.C. But the learned counsel forgot to make distinction between the two and in the prayer para. Of the petition requested that she should be 'enlarged on bail in case under section 363/366/379, P.P.C. Or for any other offences that might be added by the police in the case'. The contents of the said petition, if the heading of the proceedings is excluded, when read as a comprehensive document, would appear as if the abductee had appeared in defence as a witness to protect the accused persons. It is interesting to note that the petition dated 13-1- 1979 is in English and a detailed affidavit in English purported to have been thumb-marked and sworn by the abductee is attached therewith. The aforementioned certificate of age, which prima facie it appears was obtained through fraudulent means and the copy of the so-called Nikahnama in addition to two other documents showing enmity between Hartz Ahmad Bakhsh accused and one Haji Muhammad Saifullah, a former M.PA., were placed on the bail petition. During proceedings on the said petition, question of age of the abductee again arose. She was got medically examined by Radiologist of B.V. Hospital, according to whose 'opinion', the bony age of the abductee was considered between 16 and 17 years. The said petition was disposed of with the observation that there was 'no offence with which the petitioner is charged' and, thus, there was no case for bail. She was, however, directed to make herself available for the progress of the investigation. From the admission made by the abductee herself in her examination during the present proceedings, I have absolutely no doubt that the bail petition was moved in the High Court in order to get the statement of the abductee in connection with her alleged marriage with Allah Dad accused filed in the High Court somehow or other, so as to utilise it as a piece of defence evidence in the trial for offences under section 363/366, P.P.C. There is no alternative but to deprecate this practice strongly.
5. After getting themselves armed with the aforementioned proceedings in the High Court, the abductee was produced by the accused party before a learned Magistrate at Liaqatpur for getting her statement recorded under section 164, Cr.P.C. Wherein she repeated that she had appeared before the Court for getting her statement recorded " {{URDU TEXT}} She purports to have exonerated Allah Dad of any oficnce in the said statement and tried to own the entire responsibility of the alleged offences of abduction. The order of the Magistrate, dated 13-2-1979 shows that he was considerably influenced by the proceedings conducted in the High Court on the so-called bail petition.
6. It needs to be mentioned that throughout the above-noted and analysed proceedings, nothing was said about the real age of the minor as entered in the birth register. It is not possible to visualize that the alleged abductors did not know that the marriage of the abductor's father with her mother having been solemnized in 1964, her real age at the time of the alleged offence could not be more than 14 years--nature did not permit it. It has also been now established that if they did or would have made honest and genuine efforts to obtain a copy of the birth entry, they would have succeeded. And if, in fact, they did obtain it, the same was not produced anywhere. Instead Ahmad Box made several misleading applications in this behalf.
7. The present petition was moved by the father of the detenu on 17-2-1979, stating therein the circumstances through which the abductee had, by then, passed, most of which are noted above.
It was also complained that instead of the investigation of the case with the help of the abductee, the police did not do anything in the matter (understandably, because they could not interfere in the earlier proceedings in the High Court and on the basis thereof, proceedings in the Court of learned Magistrate). So much so that till 17-2-1979, nearly two months after the abduction, the police had not been able to record the formal statement of the abductee herself. The assertion in the petition is that she was never made available to them. A copy of the birth entry has been produced with the present petition showing the date of birth of the abductee on 28-12-1964, according to which, at the time of the alleged abduction, she was few days more than 14 years of age. Apart from that, a photostat copy of the registration application, submitted by the petitioner in 1975--more than three years prior to the alleged abduction, which contained the year of birth of the abductee as 1964, has also been placed on the record. There is also a certificate of Assistant Director from the District Registration Office, showing that the said application form, for issue of identity cards alongwith form 'B' containing the name of Mst. Kalsoom Mai was submitted in the said office in 1975. During the course of hearing of this petition, the original register containing the birth entry of the abductee was produced by the learned counsel appearing for the State together with an original misleading application/complaint of Ahmad Bakhsh accused submitted before the Administrator, Allahabad Municipal Committee on 1-2-1979, informing him that there was cutting, overwriting and interpolation in the birth entry of the abductee; therefore, he prayed for action against those who did it. This application went before the dealing official, the Chief Officer and the Administrator. None detected any cutting, overwriting or interpolation. It would not be out of place to mention here that when the abductee was produced before the learned Magistrate on 13-2- 1979, he was not informed about the fact that the birth entry of Mst. Kalsoom did exist in the register. Ahmad Bakhsh's aforementioned application shows that the accused party, if not earlier, at least since 1-2-1979, were aware of such an entry. The register was carefully perused in this Court as well. The birth entry of Mst. Kalsoom does not contain any cutting, overwriting or interpolation.
On the Court direction, photostat copies of four pages of the register as also copy of the application of Ahmad Bakhsh were placed on record. There is no tangible reason why the petitioner would have mentioned in the registration form submitted in 1975, the year of abductee's birth as 1964 unless it was correct. There was no dispute about her age at that time, Although Ahmad Bakhsh gave up the stand taken in his earlier complaint that there was cutting, overwriting or interpolation in the entry, when confronted with the register, he took up another position that the relevant pages in the register have been replaced. Innumerable entries before and after the relevant entry, which has by now been signed by a Magistrate, would prima facie negative the assertion of Ahmad Bakhsh. Although there is some discrepancy in the serial numbers, but, it appears from page 48 that the entries were renumbered. The renumbering undoubtedly, is in proper sequence. The writing ink and the paper qua the entry in question prima facie show that they are not new and they gave an impression and feel of oldness.
8. In view of the entire material placed before this Court, there is no alternative but to hold, for the purpose of these proceedings, that Mst. Kalsoom was a few days more than 14 years of age at the time of her alleged abduction as also at the time of her alleged Nikah. The 'opinion,' evidence of the doctors obtained in whatsoever manner cannot be given preference in these proceedings over the aforementioned items of evidence which, it is prima facie found, are genuine and substantiate the petitioner's plea with regard to the age of the abductee.
9. Although the above finding could be considered as enough to decide this petition but two other questions also need to be discussed. What is the effect of (i) the so-called Nikah of the abductee with Allah Dad; and (ii) her statement made in the Court that she wanted to go with him. It is obvious that except for about five days during which the abductee remained in the Dar-ul-Aman prior to the recording of her statement in this Court, she is continuously in the custody of her alleged abductor. It is not certain that their influence did not continue operating either in the Dar- ul-Aman or in the premises of this Court when she was brought from Dar-ul-Aman for the hearings of this petition. It will be unfair to the petitioner as also to the abductee to give a finding in these proceedings that her conduct/statements are of a free person. The petitioner has a right to examine his witnesses mentioned in the F.I.R. Who are said to have seen the original abduction when fly; adult men allegedly forcibly abducted the detenu on horseback and further that at that time she was raising hue and cry. He has also the right to produce other evidence before the Court to show that it was a clear case of forcible abduction. Even if the question of age is excluded for the sake of argument, and even if the abductee would have been 16/17 years of age, it could not have been said that in the circumstances as alleged in the F.I.R. Particularly when the abductee is in custody of the accused for the last nearly two months, she would be making a voluntary statement. It is also impossible to give any final finding in these proceedings that apart from the force, the abductee has not been subjected to fraud and deceit. Time of such acts have already been discussed:- (i)
She was made to understand that she was being produced in the High Court at Lahore for getting her statement recorded when, in fact, a petition was being lodged on her behalf under her thumb- impression on her affidavit for seeking bail in so-called offence of theft which, as found by the High Court, she was never accused of; She was produced before a doctor who was told that her companion at that time was her 'real' brother Mushtaq 'who' also signed the certificate posing himself as Mushtaq. In reality, Musthaq is a boy of 7/8 years. The accused were confronted with this position in the Court; The detenu in her statement, admitted that her younger brother was not with her when she was brought before the doctor. One Mushtaq, a friend of Allah Dad, was then present. She denied having stated before the doctor that the certificate was needed in connection with any land matter. She also denied that in her presence the said Mushtaq posed himself as her brother. The endorsements on the certificate show absolutely otherwise. It cannot be said that she was being dealt with in a straightforward manner;
(iv) The so-called Nikahnama shows that Allah Dad was not married to any other lady earlier. It has not only been admitted in these proceedings that he was married to another woman and had three children but also, during arguments, both the parties admitted that, as a measure of appeasement, Allah Dad was willing to give his daughter, who is still a child of 10/12 years, in marriage to the son of the petitioner who is a boy of about eight years but the petitioner did not accept the offer. The real facts about the Nikah and what happened after the alleged abduction would, no doubt, be revealed when the abductee is questioned on all these matters in regular proceedings relating to the alleged offence; but one short comment can be immediately made that even on their face all the entries in the so-called Nikahnama cannot be considered to be representing truth.
' I intentionally did not permit the parties to cross-examine the detenu in th proceedings. This would have further humiliated her and she might have forced to say many things which she did not want to. Throughout her attendance on various hearings in this Court, she visibly remained agitated. Her demeanour indicated as if she is a tormented girl. It is not necessary to go into the various factual and psychological causes of such a situation.
10. In the light of the above discussion, it is impossible to give a finding, even if the age of the detenu is ignored, that her choice for going with Allah Dad is voluntary and is not tainted by misrepresentation and fraud on the one hand and/or threat or coercion on the other. I am unable to hold that such a choice by the detenu, in the circumstances in which she is placed at present, is intelligent one and for her welfare. It is not possible, therefore, to act upon it.
' There is other aspect of the matter. Allah Dad and his companions including Ahmad Bakhsh (the respondents herein) are accused of having forcibly abducted the detenu. The petitioner's case is that she has been subjected to all kinds of vices. The investigation/trial of the offence is yet to take place. It is impossible in these proceedings to hold that the eye-witnesses of the occurrence of abduction are false and that no offence has been committed. It is also impossible to assume at this stage that the accused, if tried, would not be convicted. If during the trial or any other proceedings--civil or criminal arising out of the entire episode, it is held that the detenu was forcibly abducted and that her so-called consent to the Nikah was no consent, either on account of tender age or coercion or fraud, and that the so-called Nikah was void, the stay of the detenu with the alleged husband Allah Dad and/or sexual intercourse would not only be rendered illegal but also might involve serious consequences of a finding relating to Zina of one or the other type.
Out of the two choices, one, handing over the custody of the minor to the alleged husband, and two, sending her with her father, the proper course is the second one in which there would be no such further risk. Learned counsel for the petitioner rightly observed that her person would no more be violated in her father's house. After careful consideration of the entire case, I have reached the conclusion that the safest course in the entire circumstances and the one which is in the welfare of the minor detenu is to hand her custody over to the father, subject of course to a declaration by a Court of competent jurisdiction that her custody should be handed over to some one else.
11. Before parting with this judgment, it is necessary to deal with two rulings cited by learned counsel for the petitioner, viz. Muhammad Zakir v. Taj Muhammad etc. 1977 P Cr. L J 443 and Muhammad Inayat v. Ch. Muhammad Saleem and others PLD 1973 Lah.
154. In the Division Bench ruling of this Court in the case of Muhammad Zakir, notwithstanding the fact that there was paucity of better evidence of age and only doctor's opinion was to be depended upon according to which the girl in the said case was between 16 and 17 years of age, it was held that 'there is no other authentic evidence. On the present record before us to show that she is a major. In that view of the matter for the purpose of the present proceedings (which were under section 491, Cr.P.C.) we would proceed on the basis that the girl is yet below 18 years of age (i,e, between 16 and 17 years) and is a minor under the Majority Act IX of 1875'. The husband of the girl in that case wanted to have the custody of the minor but his request was declined and she was handed over to the mother. The Court refused to hand her over to her paramour's father. This was so, despite the fact that in that case the girl was held to be between 16 and 17 years of age. A similar apprehension, as expressed in this case, that the detenu might charge her statement in the criminal case, was expressed in the said case. But their Lordships of the Division Bench ignored it and preferred the welfare of the minor over all other considerations even if there was some risk of change of statement involved and observed that 'it is the interest of the minor alone and not any other interest which is to be paramount consideration while determining the place of custody of a minor'. The ruling, in so far as it goes, fully supports the petitioner's case. There are several parallels between the present case and the case of Muhammad Inayat cited at the bar. Almost all the observations made therein in connection with similar cases would apply to this case. The observations made in the last but one para. Of the judgment in the case of Muhammad Inayat, notwithstanding the peculiar features of the present case, can be repeated in this case as well, that 'a more human approach to the entire, case might be available provided the petitioner (the respondents herein), instead of humiliating the abductee any further, asks for forgiveness from the abductee's father and seeks her hand in an honourable manner from him who is her guardian. If he succeeds in such an approach, it is possible then that the law enforcing agencies might taken realistic view of the entire unfortunate occurrence
12. In the light of the foregoing discussion and my findings on the various controversion involved in this case this petition is allowed. The custody of the detenu shall be handed over to the petitioner.
The detenu was sent back to Darul-Aman on 26-2-1979 (when the judgment was reserved), to be lodged there till its announcement. She shall now be escorted forthwith by the police (other than the local investigating police) to the house of the petitioner and her custody would be handed over to him against properly executed receipt. He would, before receiving the custody, execute a personal bond with two sureties in the sum of Rs,5,000 that the detenu would be shown tenderness and consideration and would not be in any way humiliated nor tortured physically or mentally. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.