' Both petitioners Mst. Kaneez Fatima and her daughter Mst. Nafees Fatima were put to trial in case F.I.R. No,183 of 1998, dated 24-5-1998 under section 16 of Ordinance VII of 1979. The complainant Zafar-ul-Haasan reported abduction of his wife by one Amir-ud-Din with the help of both the petitioners who happen to be respectively the mother and young sister of the aforesaid accused.
Both the abductor as well as the alleged abductee are admittedly not traceable since the date of occurrence.
2. On being put to trial, the petitioners made an application under section 265-K of Cr.P.C. For their acquittal. The learned Additional Sessions Judge, Lahore rejected that application by way of the impugned order, dated 11-12-2000 soly on the ground that both of them had been "nominated" in the F.I.R. Further that the charge having been framed after perusing the material available on the record, the probability of conviction of the appellant could not be ruled upon without recording of any evidence.
3. After hearing the learned counsel for the parties, I find it to be a usual case in which the complainant while making a report to the police under the Hudood Ordinance implicated the mother and young sister of the alleged abductor. The role attributed to them is also notoriously knows. It is that both mother and daughter engaged the alleged abductee in chatting and then took her out of the house so that the abductor could abduct her. Unfortunately, this story appears to be quite favourite with both police officers as well as the complainant in Hudood cases. These words are at times put in the mouth of the complainant. A police officer doing so has his own axe to grind. Firstly the nomination of the woman-folk of the family of the abductor makes the job of a police officer very easy. He uses their arrest as a lever for the recovery of the alleged abductee and secondly an increase in number of accused, particularly women, means more lucrative clientile. He would charge handsomely for just not being rude to them. Not only that such accused are sitting ducks, as noted earlier, their arrest and humiliation is used as a lever to arrest the accused. The ordeal is unexplainable.
4. The consistency with which such allegation is attributed to woman-folk of the alleged abductor is clearly understandable. The message is simple. It is that since your son, brother or husband had disgraced our family we will pay in the same coin to discharge yours. Almost invariably, the abduction cases reported to police give only one side of the picture. That story is full of revenue anger and is based upon notions of grace, piety and modesty. The hurting of male pride and ego is the main reason to seek the abductor and abductee. The complainant normally being a relation of the girl is one of the most frustrated souls on the earth at that time.
5. To me mere mentioning of the names of woman-folk in a F.I.R. In such-like cases makes the whole story unbelievable. No one in the Eastern hemisphere may ever have come across a mother or a sister of a young man who will become a party to a relationship which is not seen with approval in society. An F.I.R. Which contains such an allegation loses most of its credibility. The Courts and police officers must not readily accept such an allegation. Mere fact that the complainant had alleged connivance or assistance by a mother and a young sister should not be taken as a gospel truth. In fact it should not be accepted at all. The awe ,of the five words namely "nominated in F.I.R." must not be taken that far to punish woman-folk of an abductor for the only reason that they are related to him. Surprisingly, in cases of already married abductors, the allegation is directed towards his wife. The human mind at times acts diabolic but I will not believe for a second that a married woman will help or assist her husband in enticing away another woman. Our subservience to law and respect for the system must be with open mind and even wider eyes. An allegation of the kind per se is mala fide, sinister and devilish. It is not worthy of a serious consideration. To say that since an allegation has made the accused must undergo the purgation of a criminal trial C is a mockery of whole system. In fact it nullifies the purpose for which provisions of section 265-K were made part of the statute.
6. A police officer who arrests a woman relative of an abductor or the judicial officer who remands them to his custody are in-fact the perpetrators of the ghasthy drama. I will have my reservations if they had grown up in our society. Nobody can deny that almost invariably in such cases girls leave their homes with their free-will and consent. That consent may have been motivated by a number of factors. Unfortunately, before the abductor or abductee are apprehended the sword of disgrace falls on the woman-folk of the abductor who could not by any stretch of imagination be treated as a party to the unfortunate incident.
7. The shameful act of ascribing assistance and connivance to an abductor by his woman-folk is so colourful, that its acceptance will beg a number of questions. The probability of such an arrangement, connivance or participation in the crime must be zero if not below that.
8. The contentions of the learned counsel for the complainant as also that of the learned A.A.-G.
Are mostly based upon the aforesaid two reasons which earlier weighed with the learned Additional Sessions Judge while refusing grant of application. However, both reasons when seen in the perspective of the provisions of section 265-K are irrelevant as far the powers of the Court to acquit the accused at any stage of the case are concerned. The provision allows the Court a discretion which is to be exercised to foster justice. The discretion so vested is not dependent upon recording of evidence. It can be based upon the incriminating material gathered by police. In the present case, the learned Additional District Judge did not crystalize the kind of material on the basis of which, according to him, the charge was framed.
9. Speaking for myself in the case of the kind repetition of the allegation by a number of witnesses will hardly be of any significance. For such an assertion or deposition will run counter to what I have observed, understood and read during more than half a century. The Courts are required to do justice and while discharging that duty, these are not slaves of system. System will flourish only if the Courts go for what is rational and pragmatic. Any piece of evidence or material brought or to be brought before the Court must appeal to reason. An allegation which does not appeal to reason and common sence is mere accusation. In such-like cases, if recording of evidence is held to be a pre-condition, all efforts will be made to prolong the trial and so the women accused will already stand punished before finally their plea is accepted. For a woman facing criminal trial on the kind of allegation is in itself a punishment. Therefore, I am not ready to accept the contention that an application under section 265-K cannot succeed without recording of an evidence.
10. For the aforesaid reasons and also in view of the fact that no incriminating material was pointed out the application under section 265,-K, Cr.P.C. Certainly needed to be accepted. It shall accordingly be accepted and the impugned order shall be set aside. Resultantly, both the accused shall stand acquitted.
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