These four matters (W. P. No. 3498/78 and Crl. Misc. Nos. 2489/8, 2490/8 and 2005/8 of 1978) arise out of the same case of abduction and rape, therefore, they are being disposed of together.
2. The victims in the case are two young girls, Roheela (aged 14/15 years) and Sameena (aged 13/14 years), as given in the F. I. R. Both are present in Court-one (i.e. Roheela), as would be presently seen, produced from the accused side and, the other, produced by Abdul Rahman, the complainant who is the father of the victims. From their appearance, they, undoubtedly, look to be of tender age. Their elder sister, Mst. Robeena, was married in January 1978, to the star accused in the case, namely, R.I Ahmad Khan (petitioner in Crl. Misc. No. 2489/8-78). Through deceitful means, both these minor girls were allegedly fisked away from their father's house by Shahmand accused (who is brother of R.I Ahmad Khan) and his sister Mst. Sardaran (petitioner in Crl. Misc. No. 2005/B- 78). Several persons are alleged to have raped these innocent girls repeatedly. Ultimately, with the effort of their sister and others they were recovered from the accused and consequently, F. I. R. Was lodged by their father wherein specific allegations of abduction (363/366, P. P. C.) and rape (376, P.
P., C.) have been made. Both of them were produced before a Magistrate and their statements were recorded under section 164, Cr. P. C. They fully supported the complainant's version in the F. I.
R. And asserted that rape was committed on them. Sameena, the younger one, stated in her statement under section 164, Cr. P. C., that when this occurrence was taking place, presumably in separate rooms of the same bungalow, at some stage she heard cries of her elder sister, Roheela, from other part of the house. She is present in Court and when questioned in this behalf, has confirmed the same. Same is the position with regard to Roheela's statement before the Magistrate under section 164, Cr. P. C. She confirmed the position taken by Sameena.
3. Yesterday, when the case came up before me, it was thought necessary to enquire as to who escorted Mst. Roheela to this Court and the answer, then offered, was that her real uncle i.e., real brother of her father, had brought her. Today, however, she stated that Mehmand, elder brother of R.I Ahmad Khan, the main accused, has brought her to the Court. When questioned in this behalf, Abdul Rahman complainant has explained that his real brother has been purchased by the accused party who are very rich and that when he was away from his house, the said brother took away Mst. Roheela. This appears to be the background of what, on face, is a petition under Article 199 of the Constitution, purported to have been moved by Mst. Roheela herself described in the petition as wife of R.I Ahmad Khan. But, on scrutiny, it has been found that she has been made only a tool in presenting this writ petition in the High Court. When questioned in this behalf, she candidly stated in presence of the counsel (Mr. Shakir A.I Rizvi, who, I presume, has not been engaged by her and must have been engaged by persons who brought her to the Court) that she filed this petition so that her statement be recorded (Qalamband) in the High Court. This is not the prayer made in the petition. On the other hand, the prayer in the petition is specific that she purported to have desired that respondents. Nos. 2 and 3, i.e., the S. H. O., Police Station and her father, should be restrained from so-called harassm ent of R.I Ahmad Khan "and his friends". Moreover, a prayer is -- purported to have been made in the petition that the F. I. R. Already registered, which has been referred to above, at the instance of her father be declared as illegal. This purpose disclosed in the writ petition is nowhere, even in the imagination of the young innocent looking girl. Her demeanour shows that she is flabbergasted. When questioned as to whether she has any nikahnama which, as asserted in the petition, she should be aware of (because it is claimed in the petition that she is the wife of R.I Ahmad Khan) she answered in the negative although she admitted that she has studied up to 5th Class and can sign and did sign some documents. After hearing her, I am satisfied that this writ petition has been filed on behalf of a minor girl (even from her bare looks, she appears to be minor) with a view to achieve several purposes. Firstly, in a rape case in which she is one of the victims, an attempt has been made to bind her down through an affidavit filed with the writ petition so that at any subsequent stage, she should not be able to appear against the accused as a witness: and, if she appears, she should be, confronted with the contents of the petition as also the affidavit filed with it. It is interesting to note that she is not an accused person in the case. While the accused persons are filing separate petitions for their bail, none. Of them moved such a petition for purpose of restraining the police from so-called harassment of the accused. The accused are the aggrieved persons qua they alleged harassment. And with regard to the F. I. R. Also, the accused are the aggrieved persons. It cannot be said that the learned counsel Is not aware of the well- known provision contained in Article 199 of the Constitution that writ petitions, are filed by 'aggrieved persons'. I am surprised at this move of filing a writ petition on behalf. Of a witness ins a rape case, seeking relief for accused persons against police and they complainant. The second purpose of filing the petition appears to be to confuse the, investigation and make an attempt at contracting what has already been recorded as statement under section 164,, Cr. P. C., and that is why specific mention is made in the petition that the said statement was procured under duress.
The third purpose of the petition is to get commitment from the abductee and prosecutrix with regard to her age. When she visibly looks to be not more than 15 years of age, her age in the petition has been mentioned as 17 years. This obviously could not be the case of the victim and the entire material in the petition appears to be as if it is a statement made under section 342, Cr. P. C., by an accused person in a rape case, as his defence. I am prima facie, convinced that this petition has been moved with ulterior motives to frustrate lawful process commenced for the purpose of bringing culprits to book. It is prima facie, an abuse of process of the Court. Learned counsel for the petitioner, Mr. Shakir A.I Rizvi, should be issued a notice why he should not be proceeded against for professional misconduct and why his licence should not be suspended. With the above directions, I find no merit in the Writ Petition (3498/78) and the same is dismissed.
4. Mr. Shakir A.I Rizvi has been put under notice and has been directed to put in a written reply by tomorrow. He has requested for another day's adjournment. Wants to put, in the reply day after tomorrow. The request is allowed. Let him do so. That case to come up on 11-7-1978.
5. Me. Roheela petitioner, from her, looks, appears to be minor. There is no evidence of Nikah with R.I Ahmad Khan on this record nor there appears to be otherwise any reliable material in this behalf.
The petitioner is a minor. Yesterday, it was stated that she was brought to the Court by her paternal uncle. Today, it is stated that she has been brought to the Court by one Mehmand, brother of R.I Ahmad Khan. I have a suspicion and apprehension that the minor might be subjected to further offences. I, therefore, direct that her father, who is her natural guardian, should escort her out of this Court.
6. The allegation against Mst. Sardaran, petitioner in Criminal Miscellaneous No. 2005/B-78, is that she accompanied Shahmand, her brother (who is also the brother of R.I Ahmad Khan, the main accused) when the two victims were taken away from their house through deceitful means. Neither in the F. I. R. Nor in the statements under section 164, Cr. P. C., there is any mention of any overt act done by Mst. Sardaran in so far as defrauding of the two victims is concerned. Although she allegedly accompanied her brother and, according to the learned Assistant Advocate-General, but for her presence, the innocent girls might not have been defrauded, the fact remains that they have not made any direct allegation] against Mst. Sardaran in so far as their having been taken away from their house is concerned. With regard to the actual occurrence of rape, there is nothing in the aforementioned statements or the statement made by Mst. Robina under section 161, Cr. P. C., which I have perused from the police file, to show that Mst. Sardaran committed any overt act in the entire case. Giving her the benefit of proviso to subsection (1) of section 497 read with section 498, Cr. P. C., I exercise discretion in her, favour. Accordingly, the interim bail already granted to her on 30-5-1978 is confirmed.
7. Ijaz Ahmad Shah, the petitioner in Crl. Misc. No. 2490/11-78, was present yesterday. He wanted to surrender to the custody of this Court and sought interim bail. It was noted that the allegation against him was serious. Surrender of custody was not, then, accepted and as notice was being issued for today, it was directed, in exercise ofpower of this Court under section 561-A, Cr. P. C., that he shall not be arrested till 11 o'clock today. The petitioner is absent. He took undue advantage of the order passed under section 561-A, Cr. P. C., and thus avoided arrest at least for one day, through a Court order. It appears, he had no intention of appearing today because his counsel also states that he is not aware as to why he is absent. He absented without informing his counsel. His bail before arrest petition was dismissed by the learned Additional Sessions Judge on 21-6-1978. He moved this petition on 27-6-1978 and now he has been able to avoid facing the proceedings as also the arrest. It is not known how long he intends to remain fugitive from law. All indications are that by avoiding the Court he wants to remain an absconder. This fact can be taken note of as a relevant circumstance, when considering the question of guilt or otherwise of the petitioner. With these observations, his petition (Criminal Miscellaneous No. 2490/13-78) is dismissed.
8. After having gone through the F. I. R., the two statements made by the minor female victims of this gruesome crime and the statement made by Mst. Robeena, wife of R.I Ahmad Khan, petitioner in Criminal Miscellaneous No. 2489/13 of 1978, prima facie, it appears that just for the sake of lust, R.I Ahmad Khan not only himself violated the person of two innocent girls and ruined their lives but also permitted his friends to enjoy, at their cost. His learned counsel has contended that the statement, made in the F. I. R. As also the statements made under section 164, Cr. P. C., should not be attached any importance because Mst. Roheela has made a statement in favour of the accused, in the writ petition purported to have been filed by her. I have already held that this writ petition has not, in reality, been filed by Mst. Roheela. She has been made to file this writ petition and it is the creation of the accused party. My supposition and analysis of the purposes, for which the writ petition has been filed, gets ample support from the argument raised by the learned counsel. It has been filed by the accused through a minor girl who was still within their influence and under their coercion to file such a petition. I am unable to attach any importance to the so- called affidavit of Mst. Roheela filed with the writ petition even if it was obtained from her through the contrivance of her uncle. Further, she and her sister had made statements before the Magistrate under section 164, Cr. P. C. Their earliest statements are before their father which are contained in the F. I. R. And the next made statements to be considered are their depositions on oath before the Magistrate under section 164, Cr. P. C. The so-called averments made in the writ petition as also in the so-called affidavit attached thereto cann6t be given an iota more preference than what they stated in their depositions under section 164, Cr. P. C. The statement made by Mst. Roheela under section 164, prima facie, gets enough 'support from what Mst.
Sameena stated in her statement under section 164 and repeated in this Court with regard to her having heard cries of Mst, Roheela when she was being raped. If Mst. Roheela was a willing party, there was no occasion for her having raised cries which perturbed her younger sister. The argument of the learned counsel has no basis. The same, therefore, is repelled. R.I Ahmadl Khan petitioner is not entitled to the concession of bail. His case falls within the prohibition contained in subsection (1) of section 497, Cr. P. C. His petition accordingly is dismissed.
9. Observations made in this order are in the context of what has been seen/observed/urged and discussed in these proceedings in this Court. They shall not influence the mind of the learned trial Court when deciding the case after recording the evidence which might be produced before it at the relevant time.
(Mst. Roheela kept sitting with her father and talking to her younger sister. After the dictation of this order, she has walked and gone out of the Court room alongwith her father and sister, willingly and without raising any objection or protest.)