' This constitutional petition has been moved under Article 199 of the Constitution with a view to seek extraordinary reliefs: (i) that Mst. Naziran, an abductee in a case registered under section 366/342, P. P. C. With, and being investigated by, the police, be lodged in Dar-ul-Aman ; (ii) her statement in connection with the said police case be recorded in presence of the Lady Superintendent of Dar-ul-Aman ; and the records relating to that statement be ordered to be made part of the Police investigation.
2. Mst. Naziran is a married woman. Aforenoted case, as admitted in the petition, has been registered against several persons including the son of petitioner No,
1. She claims to be an aunt of the abductee. Leaving aside the other facts stated in the petition, most of which are highly controversial, the two main grounds mentioned in the petition for seeking the afore noted reliefs are ; (i) that Mst. Naziran petitioner No, 2 has not been abducted by the persons alleged by the police and that no offence with regard to the person of petitioner No, 2 has been committed ; and
(ii) that petitioner No, 2 is no more interested in her husband, therefore, he could not set the machinery of law into action. In this connection it is mentioned that a suit for dissolution of marriage has also been lodged. The petition is in English and is purported to have been thumb marked by petitioner No,
2. Similarly the affidavit of Mst. Naziran filed with the Writ Petition is in English and is purported to have been thumb marked by her. It is interesting to note that affidavit of Mst. Naziran has been appended with the petition but no affidavit of the other petitioner, who claims to be the aunt Hof Mst. Naziran, has been filed therewith. As would be presently shown the main purpose in this behalf was to bind down the abductee only with regard to the position taken in the petition and the supporting affidavit. When the writ petition came up for motion hearing on 25-6-1978, learned counsel relying on the orders passed in Writ Petition No, 1509/76 decided on 28- 6-1976, prayed that the statement of the abductee "should be recorded by the S. H.
0. Under section 161, Cr. P. C. In accordance with the procedure laid down by this Court" in the said case. Notice was issued to the S. H.
0., who appeared and produced the police file for perusal of this Court. After I had perused the police file and the learned counsel had addressed the arguments, he wanted to withdraw the petition. As the request in this behalf was made by him without consulting his clients I thought it fit to decide the petition on merits. The following order was accordingly passed : "The S. H. O. Has produced the police file. I have gone through the F. I. R. As also the entire Zimni. The police has been fair to both the parties in recording Zimnis. Whatever was stated by the persons contacted by the police for the recovery of the abductee, it appears, was recorded without any embroidery or embellishment. In one Zimni, it is noted that the accused party were adamant in not producing the abductee. They, however, at another stage, indicated that they would produce her in the High Court. This aspect is mentioned more than once in the Zimni. It appears that the accused are instrumental in filing of the present petition which, obviously, is in pursuance of the undertaking given by them to a Deputy Director, Intelligence, with regard to the production of the abductee. This aspect also is mentioned in the Zimni.
(2) After hearing the learned counsel, I am satisfied that the petition has not been moved with a bona fide intention to secure the ends of justice. It has been filed to frustrate the investigation in a criminal case which is cognizable by police (registered under section 366/342, P. P. C). Learned counsel initially relied on an unreported case-Writ Petition No, 1509/76 decided on 28-6-76 as also my orders passed in Writ Petition No, 2220 of 1978. When called upon to show any legal sanction, learned counsel after some half-hearted arguments, frankly conceded that nothing can be spelled out in this behalf from Article 199 of the Constitution. He, however, repeated the often used phrase that the police is bound "to act in accordance with law". When told that all persons including the police officers are required to act in accordance with law, but there can be no general presumption that the police would not act in accordance with law ; learned counsel without any further comment straightway stated that he should be permitted to withdraw the petition. He made this request without consulting the petitioners who are present in Court.
(3) After hearing the learned counsel as also the S. H.
0., and going through the police file, for reasons to be recorded later I do not consider it a fit case for passing any direction under Article 199 of the Constitution. This petition accordingly is dismissed. The S. H.
0. Is at liberty to join the abductee in the investigation and act in accordance with law. The police file, after perusal, has been returned."
3. As noted above, the reliance placed by the learned counsel for the extraordinary procedure suggested for the conduct of a part of investigation in a case of abduction-366, P. P. C., namely, that the S. H.O. Must record the statement of the abductee under the supervision of the Superintendent, Dar-ul-Aman is, also, on my own orders passed in Writ Petition No, 2220/78. The file of that case reveals that the same learned counsel had appeared before me in that case and had pressed in service the orders passed in the earlier Writ Petition No, 1509/76. It was in motion hearing that without issuing notice to the other party and relying on the said unreported case I directed the abductee petitioner to be lodged in Dar-ul-Aman as was prayed for in the petition. However, even then I had some doubts about correctness of the view taken in the case of Mst. Rasulan v. S. H.
0. W. P. No, 1509/76. It was pointed out in the order dated 3-5-1978 that "there is one glaring distinctive feature between the said petition and the present petition. The main target in this petition is the father of the petitioner while the said petition was moved against the S. H.
0. Of a certain Police Station only". I had further noted in para. 3 of the said order that there is allegation of her having been abducted. It is not yet certain whether she is free agent or has been forced to file this petition. I have questioned her alleged husband, Muhammad Afzal, as also the petitioner. They have tried to support the petition but I am not certain whether the petitioner is, as noted earlier, a free agent". I had also visualized the possibility that the proceedings in the said writ petition might have been launched "in order to frustrate the criminal case by obtaining a certified copy of the petition and the affidavit filed with it and subsequently producing it before the trial Magistrate". The said order which was passed by relying on the earlier precedent order of this Court, on the request of the learned counsel, was not without serious reservations. Subsequent thereto several cases came up before me of similar nature wherein it was clearly found as a fact that attempt had been made to file writ petitions on behalf of the abductees with clear object of binding them down with the commitments in the writ petitions ; which usually are supported by affidavits purported to have been sworn by the petitioners. The further object is to seek quashment of the abduction case at the investigation stage through a further writ petition and, if the challan is submitted, to seek quashment of the prosecution under section 561-A, Cr. P. C. Apart from those, there are innumerable instances where some writ petitions purported to have been filed by the abductees themselves in the High Court, have been made basis for a defence of consent at the trial as also in bail proceedings. In some cases, after due enquiry, this aspect of the case was so obvious (as it was based on certain admissions also) that I had to direct that the copies of the proceedings in particular cases be placed on the files of the learned counsel moving such like petitions. For example, in Writ Petition No, 3024 of 1978, it was found that the abductee, who was present in Court and who had herself purported to file the writ petition, was of a very tender age, although it was represented in the documents that she was major. When everything got exposed the learned counsel made a very candid admission which was recorded in the final order and is reproduced below : "Learned counsel states that he had decided to file this petition on behalf of Munir Ahmed, the alleged husband of the petitioner who had had come to him to give instructions but a learned senior Advocate advised him to file it on behalf of the alleged wife. He further states that he was not then aware that the petitioner was minor. He depended upon the age mentioned in the Nikahnama shown to him by Munir Ahmed. In the circumstances it was proper for the learned counsel to have filed the petition on behalf of Munir Ahmed and not on behalf of Mst. Hafizan Bibi, who had not come to him nor had she given him any instruction."
' Earlier on 14-6-1978 it was noted in the said writ petition, that the learned counsel had not even seen the abductee, who was being made a petitioner in the writ petition. This was given by him as an excuse for not making an independent view with regard to her age. He had merely depended upon the documents shown to him by the alleged abductor which obviously could be forgeries. It was noted that the alleged abductor was almost double the age of the minor girl. It was also noted specifically that "an attempt has been made to bind down the minor abductee with a statement through an affidavit filed in High Court". In yet another similar Writ Petition No, 2773/78, it was noted that although the medico legal report of the abductee, who was made to file a writ petition, showed her age as 16/17 years, yet the age given by her father in the F. I. R. Was 14 years. He had also asserted that his claim regarding age was supported by birth entry. From her appearance also she did not seem to be more than the age stated by the father. The doctor's opinion relied on for filing the writ petition was obviously wrong. As she was of tender age, questions were asked from her in order to find further facts. It was revealed that after the alleged abduction the accused had hurriedly gone through several proceedings with an attempt "to bind the child through an alleged Nikahnama". On the same day medical opinion was obtained. An affidavit of the minor was also obtained from her. The answers given by the so-called petitioner (abductee) created considerable doubt "whether the petitioner could have sworn such a detailed affidavit running into seven fool-scrap pages, all in English". The Oath Commissioner had shown that the learned counsel filing the writ petition had identified the so-called petitioner but the learned counsel made a statement (at the bar about which it was then noted, there was no reason to doubt) that in fact he did not identify her before the Oath Commissioner and that somebody who claimed to be the brother of the abductor had gone in the company of the clerk of the counsel to do the identification. After considering all the aspects of the matter I was constrained to remark that : "an attempt has been made to misuse the process of this Court by getting an affidavit of an abductee filed in the High Court and for getting her statement recorded in the High Court so that it should be subsequently used as a piece of defence evidence when the main accused, Zahoor Ahmed is put to trial for the abduction of the petitioner. The petitioner according to the F. I. R.
Remained with her alleged abductors for the last about 10 days. There is no certainty that she has not been subjected to inducement and/or coercion."
4. This method of filing writ petitions, sometimes quashment applications and sometimes habeas corpus petitions in the name of the abductees in serious cases of abduction and rape, has almost become the order of the day. Innumerable petitions are being filed in the High Court. As to what is the effect of these proceedings on trial and other proceedings before lower Courts can well be imagined. I am aware of an old contrivance when the abductees were made to file criminal complaints mostly under section 107/151, Cr. P. C. Before Illaqa Magistrate against their own parents and first husbands giving therein full defence version of the culprits in the abduction and/or rape cases registered with the police. After recording of the statement of the so-called complainant, the complaints used to be filed for non-prosecution. Thereafter the copies were used in defence. This practice was checked by vigilant Magistrates by scrutinizing such defence with care. For some period reliance was made on statements made before the Oath Commissioners and Notaries Public and thus abuse of the Court of Magistrate was prevented. It appears by passage of time affidavits, copies of complaints and statements under section 200, Cr. P. C. Lost significance and the practice started of filing writs, quashment and habeas corpus petitions in the names of the abductees, containing the defence of the culprits in such like cases. Obviously the proceedings by the High Court on these petitions being, as they are, of summary nature, could not be treated as conclusive on disputed questions of fact involved in the criminal trial ; for example, manner of abduction involving violence or deceit ; consent or otherwise ; age ; violation of the person of the abductee with or without consent ; and the validity, genuineness or otherwise of the Nikahnamas, which are almost always disputed by the complainants (who are either first husbands or parents) as forgeries fraudulent and fake. The incident referred to above was not so enormous when these aspects were alluded to in two cases of this Court Mst. Alfat Bibi and another v. The State (1) and Manzoor Hussain and another v. Manzoor Hussain (2). In some of the very recent cases it appears the matter having been duly noticed and checked by some Benches in the High Court, has again reverted to the lower forums and suits before Family Courts and complaints before Magistrates are filed with almost the same purpose. It is not out of place to note one other relevant circumstance, namely, that in such like cases the so-called petitioner (abductee) when questioned in Court would often, candidly state that she had been brought to the High Court for "obtaining her statement". The technical phrase well known in legal circles is used by the abductee, namely, {{URDU TEXT}}(See W. P. No, 3498/78).
5. There are other cases wherein after filing the writ petition purporting to be on behalf on the abductee, she would not appear on the date of bearing and the case gets disposed of for non- prosecution. And in this very case, even in her presence, but without consulting her, the counsel has sought withdrawal of the petition. In Writ Petition No, 2536/78 also similar attempt was made in this behalf. A learned counsel sought withdrawal of a writ petition filed by an alleged abductee at the instance of her paramour. The initial apprehension, after due enquiry, was affirmed and due prosecution was ordered of the persons concerned. The following observations made in that case are relevant in the present context "The admissions made this petition show that the petitioner is a married woman. She has not yet been divorced by her husband. According to the admission made in para. 10(b) of the petition, she is living with her paramour, whom, according to para. 9 she wants to marry. It might be either a case of elopement of a married woman or of her abduction. The petition has been moved by her, amongst others, against her real father, respondent No,
2. I have a serious suspicion that the petitioner might have been brought under undue influence to submit this petition in the High Court so as to advance the cause of someone, who might have committed some crime. The purpose, it appears, was to get her statement included in the petition moved in the High Court and also to get an affidavit allegedly sworn by her, placed on the record of this Court, so that the copies thereof are subsequently obtained and produced before other authorities with a view to achieve, may be, illegal objects with a prima facie showing that the matter even went to the High Court. It also appears that an attempt has been made to misuse the jurisdiction of this Court."
' A very recent type of institution on the writ side is where an alleged (1) PLD 1972 Lah. 121 (2) PLD 1974 Lah. 202 abductee would purportedly seek registration of a criminal case against the police and her husband/father and/or relations for so-called offences allegedly committed during the investigation of the offence of her abduction. There is yet other type of cases in which an alleged paramour would lodge the abductee with his friend or may be an unsuspected accessory in the crime and would then move a petition seeking the recovery from the said friend's place, giving his address and making some story about his having kept her in illegal confinement. Scrutiny though difficult, but not impossible at the limine stage through questioning, might disclose the contrivance and prevent abuse of process of Court. Otherwise the bailiff brings the abductee who makes the tutored statement. The respondents in such like cases invariably do not defend the petition. In some cases they make extraordinary admissions. It cannot be denied that some persons do at times succeed in achieving their objects but not always. The processes of the Courts cannot be closed on one section of Society and kept open for other. What is needed is vigilance by all concerned including the learned Magistrates, when they are called upon to issue warrants of recovery under section 100, Cr. P. C. Here it might be of considerable advantage to state the law laid down by the, Supreme Court in cases like the present one. In the often cited case of Sardara v.
Khushi Muhammad etc. (1) their Lordships (despite their ruling in the case of Muhammad Rafique v.
Muhammad Ghafoor (2) while appreciating the ratio in Fateh Sher v. Sarang (3) noted at page 191 of the report : "in that case the High Court found that the detenu was a married woman and that the application under section 491 of the Code of Criminal Procedure was a collusive affair between her and her paramour". In these circumstances, it was held by the Supreme Court that the High Court : "in the exercise of its discretion was correct in directing that the woman although a sui juris be restored to her husband. Any other course would not only have resulted in giving the Court's blessing to the immoral activities of two unscrupulous persons who, "in Islam", were liable to extreme penalty, but also could have deprived her of an opportunity to correct herself."
' To the same effect is the ruling of the Supreme Court in Shaukat All v. Altaf Hussain Qureshi and others (4), wherein it was held that: "Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community for which the law is to be administered" Such being the case "the High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of furthering an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question." (Underlining* is mine).
6. I would not blame any individual lawyer in this behalf. Subject to law in that behalf, all citizens are entitled to legal assistance as of right The lawyer cannot refuse assistance, subject of course to the necessary conditions and requirements of law including the law of agency/contract. As has been revealed from some of the cases cited above, an extra can might be necessary for dealing with a female client who is alleged o suspected to be the victim of crime of violence or deceit and she is mad to file proceedings to help the persons who might have committed crime (1) 1973 SCMR 189
(2) P D 1972 SC 6 (3) PLD 1971 Lah 128 (4) 1972 S CMR 398 (Here in italics) qua her. This would be more necessary when other persons being available for launching proceedings the lady who is already allegedly a victim of the crime is asked, by the accused in that very crime, to become a petitioner. A further minute and extra ordinary care would be needed when the counsel deals with a female who even might appeal' to be of tender age, leaving aside the assertion from the other side, which is some times made in the F. I. R. Regarding her age and in some cases even mention is made of birth entry. It might be risky in such a situation for the lawyer to take a decision, when dealing with such a female by merely relying upon a so-called opinion material/evidence and ignoring more direct evidence of age, e.g. Furnished by her next of kin and/or birth entry. In one case (Criminal Original No, 148/W-78) a female who even from her appearance looked minor and was made to file a writ petition in the High Court, when achieved freedom from the accused persons, made a subsequent complaint which became basis of another case of abduction and a lawyer from mofussil was directly accused by her of fraud. I am not in favour of the lawyer's denying lawful assistance to a citizen even in the worst possible case. But it is in his own interest as also in the interest of justice and fairplay that keeping in view the aforenoted possibilities, he should perform his duty towards the Court as well in such a manner that he should not willingly and consciously in his professional engagement, allow a person, who claims to be his client, to abuse the process of Court and law particularly when such abuse is likely to lead to yet other abuses including those of process of other Courts.
7. The foregoing observations would be incomplete without taking note of another very vital aspect in this behalf. Every accused person is entitled to prove his innocence by production of direct and circumstantial evidence. In an abduction and rape case the accused is entitled to rely on the direct statements of the victim which can be placed in three categories (i) before the alleged crime: (II) after the alleged crime but before the trial; and (iii) at the trial. The abductee, if alive and is competent to depose, is the most important witness in such a case. If she deposes against the accused at the trial, she can be confronted with any of her previous statements visualized above; but in order to succeed the accused will have to prove that the previous statement was a voluntary statement. In this behalf it will be extremely important to note whether qua the time when it was made, she was, generally speaking, under the control of the accused because dozens of mechanisms of coercion and deceit can further be applied C on a person who is already victim of violence and/or deceit to obtain a statement favourable to the culprits. For example, a well-known once tried method (although then it used to be applied by the police for testing the will and stamina of a confessing accused) cannot be ignored. The person concerned is produced before a fake Court/Magistrate in order to test whether he would abide by the promise. If he resiles, he is again made to realize the consequences. He is further made to pass through similar tests of more subtle type prior to his production before the real Court/Magistrate for recording formal statement.
Another example can be of more subtle deceit based on semi-realistic considerations. For example, after rape when an unmarried girl finds herself in a ruined state qua stress and strain as also her future (particularly if she becomes pregnant) she might be brought under control through beguiling her into accepting the changed life notwithstanding the original violence in the crime. In the case dealt in (Writ Petition No, 3498/78), the second F. I. R. Lodged by the abductee, discloses the above visualized methodology. The victim allegedly after the rape and fresh abduction was promised marriage, money and land on the assumption that it would save her future, as her person stood already violated. These considerations, however, are for the trial Courts to keep in mind when dealing with such like extremely complex and delicate situations. It used to give hard time to even the most experienced lawyers, through lengthy cross-examination of several witnesses and further independent material, to discover such like contrivances. To say that it would be discoverable in the High Court on original side (say in writ jurisdiction) without going through the same arduous methods of a full-fledged trial, would be asking for a near impossibility. The dangers of injustice inherent in' the situation, can be well visualized. No hard and fast rule can be set for genuinely voluntary previous statements and so-called but fake voluntary statement. The view, however, can be expressed with certainty that no law permits any person to abuse the process of a Court particularly processes of superior Courts so as to obtain a statement for use as a previous statement in a criminal case; nor these processes which are meant to alleviate oppression can be utilized at the bar of technicality for creating suppression of truth and sometime even oppression itself. This aspect would get more highlighted with realization that the jurisdiction of the Court in all such like processes is discretionary.
8. A question at this stage would arise as to how to safeguard the interest of innocent individuals in genuine cases of consent etc. Which might give the appearance otherwise. The answer is not far to seek. It is contained in section 164, Cr. P. C. As already indicated, the alleged victim in such like cases is admittedly a very important witness-whether produced from the prosecution or from the defence side. If she is with the accused and he wants to take advantage of her statement, it can be recorded by a Magistrate under section 164, Cr. P. C. During the investigation and in any case before the commencement of trial; notwithstanding the fact that she is produced by the accused for recording such a statement. In other words if the statement of a prosecution witness can be recorded under section 164, Cr. P. C. Subject of course to the fulfilment of the conditions therein, the said provision can undoubtedly be made applicable to the statement of a defence witness. Hence in genuine cases when the accused feels confident and sanguine about his plea, the victim can be produced before a Magistrate for recording her statement and such statement can be used as a previous statement. Thus, the objection that there is no alternative except to take the risk of possible abuse of process of a superior Court is not only frivolous but also unfounded. It would further be observed that same considerations would apply before taking the risk of abusing the process of lower Courts. For example, when an affidavit of an abductee is put before a Magistrate for attestation and if he attests it, he might be taking grave risk. The affidavit might be the result of exercise of coercion and deceit. In such like proceedings, it would be difficult for the Magistrate to make proper scrutiny during short time at his disposal. The proper method would be to seek recording of statement under section 164, Cr. P. C. Similarly someone might resort to an application under section 100/552, Cr. P. C. Or the filing of a frivolous complaint in order to bind the abductee (complainant) with a commitment; and/or force her to file other proceedings, for example, before a Family Court and/or a civil Court with clear object of creating defence in the criminal case. In all these matters extreme care is needed when a party involved is, or suspected to be, concerned with an offence of abduction, kidnapping, rape etc.
9. In the light of the foregoing discussion it would be safe to conclude that whenever there is the slightest possible risk of jeopardizing the investigation and punishment of crime, this Court would not entertain any proceedings particularly when they fall within the discretionary field. The law has clearly been laid down by the Supreme Court in an already cited ruling, namely, Shaukat Ali v. Altaf Hussain Qureshi and another (1) As regular trial in such like cases is ordinarily yet to take place, the question of embarking upon an exercise for finding truth or otherwise, in the additional assertions regarding Nikah and consent of an alleged victim of crime would not only be hazardous because of very limited scope of enquiry of fact in these extraordinary proceedings, but would also be difficult, without holding full-fledged trial. Whenever there is discretion in such a matte the party would be well-advised to seek more straightforward remedy, namely, as stated above, the recording of a statement under section 164, Cr. P. C. And/or waiting till the trial for proving his case through more honourable means. For these reasons the petitions, in this particular field, would not be entertained at all and would be liable to be dismissed I limine.
10. Learned counsel half-heartedly tried to advance the argument that if the recording of the statement of the abductee under section 161, Cr. P. C. By an Investigating Officer is without lawful authority, this Court would have jurisdiction to stop it and make a direction of its own to achieve the observance of law. It may be observed straightway that such a procedure would be against the law laid down in Emperor v. Kh. Nazir Ahmed (2), which was affirmed in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind & Baluchistan and another (3). It would be presently referred to again but I hurry to add a realism that if this flood gate is opened against the caution of the Supreme Court in the latter case, there would be nothing to prevent similar and other interference in all other types of criminal cases. Investigation and punishment of crime would then become illusory-the1 investigating agencies would come to a grinding -halt. In exercise of its discretionary jurisdiction in cases falling in the category discussed above, it I important to note, this Court would not be bound to act on mere technical considerations. It is now a well-settled law that the discretionary jurisdiction would not be exercised merely to fulfil a technicality; particularly when exercise thereof is likely to result in some injustice or hindrance of due process of law and Courts.
11. This is not all. I do not agree with the learned counsel that the High Court has the jurisdiction to interfere with the investigation by the police of a case relating to abduction and rape (or other crime), simply on the assumption that a Sub-Inspector might not faithfully record the statement of a witness-abductee, under section 161, Cr. P. C. Firstly, the law makers in their own wisdom did not prescribe the signing of such a statement, by the witness; secondly, if it is incorrectly recorded, the witness would have a chance to deny the correctness as and when he is examined in Court; and thirdly, it cannot be said that the situation is without other remedy. Superior police officers can be and are often approached. And in any case, as discussed above, a statement under section 164, Cr.
P. C. (1) 1972 SCMR 398 (2) AIR 1945 P C 18 (3) PLD 1971 SC 677 can be got recorded. Thus, a very important condition for entertaining writ petitions (qua other remedy) would not be fulfilled in such a case.
12. Otherwise too, as has been held in the case of Kh. Nazir Ahmad, M. S. Khawaja v. The State (I), and Shahnaz Begum, it would be unjustified interference with the police investigation which is not permitted by law. In the case of Shahnaz Begum, the Supreme Court referred to the following observations in the case of Kh. Nazir Ahmed, with approval : "In their Lordship's opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in the matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491. Criminal P. C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."
' Thus instead of advancing the purposes of Article 199 of the Constitution or for that matter section 491, and/or section 561-A, Cr. P. C. In the result investigations might be stifled. Whatever scope opened for the first time in the case of Shahnaz Begum for issuance of a writ qua investigation (being extremely limited) it would rather be hazardous to entertain criminal cases in the form of writ petition in the High Court in routine. Their Lordships, after discussing the risks involved and it is important to note, after approving the observations made in the case of Kh. Nazir Ahmad, held that only if an investigation is "launched mala fide" or is clearly beyond the jurisdiction of the investigating agencies "concerned" that it may only be possible for the action of the investigating agencies to be interfered with. This part of the ruling which only postulates a possibility under very stringent conditions does not spell out any additional power to supervise and control the police investigation either as an appellate or supervisory authority. A clear distinction will have to be made between correction of police actions at occasions, as and when arise and investigation as a whole. The registration of a case going through the stages of collection of intelligence information and evidence including recoveries, arrests, asking for remands, getting statements and confessions recorded etc. Etc. Are some of the many processes which the police passes through the entire investigation, up to the submission of the final report. It could not be the intention that each of these processes individually are liable to correction under writ jurisdiction of this Court.
(1) PLD 1965 SC 287 ' It was observed in the same ruling that a High Court has been given the power of judicial review of executive actions in certain specified circumstances only. In this connection it was further held that: "The High Court has also no power of supervision or control over investigating agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of "all other Courts that are subordinate to it."
' He was with this declared law meaning thereby that the High Court had no supervisory jurisdiction as such, over the police investigating agencies, that the mere possibility of an action in writ jurisdiction regarding clear lack of jurisdiction and mala fides was visualized. Thus the ruling does not permit the High Court to start supervision and control of the actions of the police during investigations. It will be against the spirit of the law declared by the Supreme Court. The guidance, in this behalf is found in the ultimate decision of the case of Shahnaz Begum as also in the general observations contained therein regarding "ends of justice" and "judicial process". It was held that "the ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts". Their Lordships also reiterated the observations earlier made in the case of M. S. Khawaja to the effect that the ends of justice qua inherent powers of the Court "have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process". These and similar observations cannot be ignored and have to be put in juxta- position to the reality already taken note of in this judgment that these jurisdictions fall within the discretionary field of the Court. It is important to point out that the law laid down in the case of Shahnaz Begum would not be said to have been followed if this Court, prior to the police reaching conclusions in accordance with its investigation, gives its own finding, even if tentative regarding controversial facts, like use of violence or deceit, age, puberty, marriage, Nikahnamas (their validity and genuineness) etc. Etc. These subjects initially are for the investigating agencies and at the proper stage for the criminal Courts to decide. It would not be possible for this Court to give a finding of fact that a statement made by an abductee in this Court in proceedings, like the present one, is voluntary and is absolutely free from coercion and/or deceit. In best interest of the contesting parties, these matters are to be left for the trial Court to deal with. If this Court converts itself into a trial Court as a substituted forum, in its special jurisdiction, this, in my view, would lead to most unusual results which their Lordships of the Supreme Court in their wisdom in the aforesaid rulings wanted to prevent when declaring law regarding scope of interference with police investigation. The foregoing point can be best demonstrated by making reference to another very recent decision in Cr. Misc. No, 612/H-1978, decided on 1-8-1978, which reads as follows: "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, the 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 a 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 abductees 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 Cr. Misc. No, 462/H-78 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 quo 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 :- ' I 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. I. 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 363/66, 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 serious 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 a criminal case cannot be allowed the liberty as is claimed in this case, to deal with an abductee (who in this case is prima facie minor) - in such a manner as to further humiliate her and ruin her future."
13. At this stage it would be pertinent to point out that subject to the question of crime and its punishment by Courts, competent under the Criminal Procedure Code to hold trials and give finding in this behalf, the only other Court which under the prevalent law has the exclusive jurisdiction to deal with such like questions involving marriage, custody etc. Is the Family Court. It would not be proper for this Court to hazard even prima facie findings, on these subjects when they constitute and/or are likely to constitute /is between vitally interested parties, before Criminal Courts, and may be later on, before Family Courts. The normal procedural laws in this behalf which are elaborate if and when diverted by this Court in its extraordinary jurisdiction might not advance the cause of justice and the result might, in these cases, be quite contrary.
14. The recording of a statement by an Investigating Officer under section 161, Cr. P. C. Of an abductee is most essential act during the investigation. It cannot be lightly dubbed as mala fide and there is no question of lack of authority in this behalf. This Court cannot take upon itself the duties of the police investigator. The modality and intricacies involved therein are beyond its normal machinery of enquiry. There is no warrant for the procedure claimed in this petition, in any law, for a direction that the statement of an abductee must be recorded under the supervision of the Superintendent of Dar-ul-Aman or, for that matter, any G other similar authority. This would amount to interference with normal processes of investigation and might, in given circumstances, be considered as amounting to amendment of section 161, Cr. P. C. What the Police Officer is not bound under the law to do he cannot be required under Article 199, to follow. For all these reasons I regret, it is not possible for me to follow the procedure laid down in the case of Mst. Rasulan and similar other cases. To that extent, with respect I decline to accept it as laying down the correct law.
15, In cases like the present one it is sometimes suggested from the so-called petitioner (abductee) side that no law permits the police to "recover" the abductee from the accused, therefore, this Court can prevent such an action of the police as being without lawful authority. On face (only) this argument would be attractive. On proper scrutiny it is found that there is no real substance in it. The police recovers (using the common language which of course is not a term of art), the abductee for many purposes and not only for depriving the accused of her Company, if he claims to be his wife. Firstly, the investigator has a right to examine her as a witness under section 161, Cr. P. C. Secondly, in order to enable her to make a statement he has to find her wherever she is and normally he would look for her at places connected with the accused and if in that context he takes her along from a place of concealment or offence, for recording her statement it would not be illegal; and thirdly, the offences of this type, as their nature show, are continuing. If the Police Officer is of the view or even if he has a reasonable suspicion that the abductee continues to be the victim of a continuing crime, he has a duty as a Police Officer to save her person from further crime. In that capacity the Police Officer can, so to say, 'recover' her and ensure her further safety.
The Police Officer has also to ensure reasonable protection for the abductee against fresh crime. In such a situation if she is restored to her parents or other close relations who are not likely to outrage her person, he would not be acting illegally. The High Court, in its discretion would not thwart such a process. This practice of ensuring safety for the victim of suspected crime is in vogue for nearly a century and under the valid assumption that the laws and rules under which the police operates, including the Criminal Procedure Code, do not prohibit it. That being so no legitimate grievance can be made in this behalf. All this is ancillary to the police duty and power. However, after the police has taken the vital action it would always remain subject to judicial scrutiny. The Illaqa Magistrate would be competent to deal with the complaints in this behalf. For example, even after the so-called recovery, an application can be made, during the investigation by the accused for the examination of the recovered person under section 164, Cr. P. C.
16. For all the above reasons I am of the firm opinion that this petition is not bona fide. It has been filed with a view to abuse the process of this Court. The request for withdrawal of the case made by the learned counsel, as it is, without consulting his clients, cannot be safely treated as genuine. This petition accordingly, with the short order already passed. Is dismissed. As I am not satisfied that the petition has in fact been moved by the abductee, therefore, I would not burden her with costs.