P L D 1984 Lahore 424 (PLP)

This is an application by Muhammad Ali complainant against Amjad Hussain, his father Fazal Hussain, and brother Arshad Hussain, for cancellation of their bail granted by the learned Additional Sessions Judge, Lahore, by order dated 31‑3‑1984, in a case pertaining to F. I. R. No. 22, dated 14‑3‑1984 under section 11 of Ordinance No. VII of 1979, Police Station, Race Course Road, Lahore. It was alleged in the F. I. R. by Muhammad Ali that Mst. Zahida Parveen aged 16 years was his daughter studying in a school in Misri Shah. Amjad accused used to tease her on her way to school and back home. Zahida complained to her father Muhammad Ali complainant‑petitioner against the attitude of Amjad Hussain accused. Muhammad Ali protested to Fazal Hussain, father of Amjad accused. It had no effect. It is stated that in order to save his honour and any possible mishap he (Muhammad Ali) shifted his residence from the said Mohallah and came over in a rented house at 241‑Race Course Road, Lahore. Amjad Hussain, however, continued pestering them there as well. On 13‑3‑1984, when Muhammad Ali complainant returned home after closing his business, he was informed by his wife that Zahida had not returned home since noon‑time. His son Muhammad Ilyas informed him that he had seen Amjad Hussain accused roaming about the place in a red Toyota Car. This information aroused suspicion that Amjad Hussain in collusion with his father Fazal Hussain has enticed away Mst. Zahida. The complainant Muhammad Ali and his brother Shaukat Ali tried their best to go back Zahida from the accused but failed, whereafter the present case was got registered at 2‑10 p.m. on 14‑3‑1984. After registration of the case the police undertook investigation and raided the house of Fazal Hussain accused. Amjad Hussain accused was arrested on15‑3‑1984, whereas Fazal Hussain and Arshad accused slipped away alongwith Mst. Zahida abductee. It appears that both Fazal Hussain and Arshad Hussain accused respondents approached the learned Additional Sessions Judge, Lahore, who granted them interim pre‑arrest bail on .5‑3‑1984 and adjourned the case for arguments on 22‑3‑1984. It may be stated, here that on 14‑3‑1984, Mst. Zahida Parveen made an application on the Ilaqa Magistrate stating therein that she had married Amjad Hussain of her own freewill and, therefore, feared danger to her life from her parents and prayed that she be sent to Dar‑ul‑Aman. At that time, she was accompanied by Muhammad Sarfraz, Advocate, who also made a similar request to the Court. However, the learned Magistrate proceeded to record her statement and declared her to be free agent with a direction that she can go anywhere she likes. An application for post‑arrest bail on behalf of Amjad Hussain was moved which also was fixed for hearing on 23‑3‑1984, before the same Court. It appears that Mst. Zahida was produced by Afzal Hussain, a brother of Fazal Hussain accused, before Magistrate with the assistance of Mr. S. M. Idrees, Advocate. on 19‑3‑1984 for getting her statement recorded under section 164, Cr. P. C. Her statement was accordingly recorded by Magistrate under section 164, Cr. P. C. in which she stated that she had not been abducted by anyone; that her father wanted her to be married against her wishes to an old person ; that she of her own accord came to Amjad accused and had since married him of her own freewill. It was also stated by her that her father had lodged a false report against her husband and his father. When the two bail applications came up for hearing before the learned Additional Sessions Judge, Lahore, he directed the police to get another statement of Mst. Zahida recorded under section 164, Cr. P. C. and adjourned the case on 31‑3‑1984 for hearing. I have gone through he police diary of this case and find that Mst. Zahida was produced before the Investigating Officer, Bashir Ahmad Bhatti, on 25‑3‑19254 at 11‑30 a.m. in the District Courts, Lahore. The said officer produced her before Amanullah Khan, Magistrate, for getting her statement recorded under section 164, C. P. C. However, the learned Magistrate postponed the recording of her statement under section 164, Cr. P. C. on the ground that he would like to hear arguments from bout sides on the point as to whether a second statement under section 1.64, Cr. P. C. could be recorded or not. The matter was adjourned to 26‑3‑1984. On that date, the abductee was not present and her counsel Mr. S. M. Idrees; Advocate, contended that the date was fixed only for arguments and not for recording of the statement, under section 164, Cr. P. C. Thereafter, it appears from the police diary that the alleged abductee or the parties did not appear ‑before the Magistrate.

3. It appears that meanwhile Mst. Zahida filed W. P. No. 1250 of 1984 in this Court against the order of the learned Additional Sessions fudge, dated 22‑3‑1984 questioning the vires of the direction that she should be re‑examined under section 164, Cr. P. C.. It is stated at the Bar that the said writ is still pending. The learned Judge before whom this writ was placed stayed the order, dated 22‑3‑1984 by which a direction had been, given that she should be re‑examined under section 164,. Cr. P. C. After the stay of the order, dated 22‑3‑1984, the two applications for bail came up for disposal on 31‑3‑1984, The learned Additional Sessions Judge allowed bail before arrest to Fazal Hussain and Arshad Hussain accused and bail after arrest to Amjad Hussain accused. The bail was allowed to the accused respondents on the ground that only a suspicion had been alleged in the F. I. R. against the accused ; that the victim appeared thrice before the Magistrate and in the High Court as well, but she did not incriminate any person for her enticement and, in fact, refuted the allegation of prosecution. Amjad Hussain was allowed bail in view of the statement of Zahida under section 165, Cr. P. C. on 19‑3‑1984.

4. The present petition for cancellation of bail was admitted on 8‑4‑1984, Notice was ordered to be issued to respondents for 24‑4‑1984. On that date. Mr. S. M. Idrees, Advocate, appeared on behalf of the three accused respondents. He had no power of attorney and, as such, undertook to produce the same in Court on the next date of hearing. He submitted that he had been engaged only on that date and, therefore, sought adjournment. The petition for cancellation of bail was, therefore, adjourned to 7‑5‑1984, with a direction that the accused respondents will also appear in Court in person on that day. On that date, Mr. M. S. Idrees, learned counsel for the respondents stated that he had informed the respondents of the date of hearing a in this Court. He filed power‑of‑attorney on behalf of Amjad Hussain and Arshad Hussain only. He further stated that Fazal Hussain respondent No. 2 was duly informed by him of the date of hearing. Fazal Hussain did not care to appear in Court on 7‑5‑1984 nor did he give power‑of‑attorney to any counsel. On 24‑4‑1984,. Mr. S. M. Idrees bad stated in Court at the Bar that he represented all the three respondents accused. I, therefore, passed an interim order that Fazal Hussain is avoiding appearance in this Court for some ulterior motive; that he was fugitive from law and, therefore, not entitled to any hearing though his case will be decided on merits. After recording this interim order, I proceeded to hear the petition on merits.

5. When I was hearing this petition on merits on 7‑5‑1984, I noticed that although Mst. Zahida had been appearing before various Courts and making statement but at no occasion she appeared to be a free agent. She had been appearing all the time from the custody of the accused. In the circumstances, I directed on 7‑5‑1984 that Mst. Zahida be lodged in Dar‑ul‑Aman as it was at one time prayed by her in an application to the Ilaqa Magistrate on 14‑3‑1984. I directed Muhammad Sharif A. S. I; who was then investigating the case, to recover Mst. Zahida from the‑ accused respondents and lodge her in Dar‑ul -Aman on that very date without fail. I further directed that her father and mother would only be permitted to meet and talk to Mst. Zahida in Dar‑ul Aman. It was ordered that she would be produced in the Court on 14‑5‑1984 by Muhammad Sharif A. S. I. for recording of her statement. A. S. I. Muhammad Sharif, as reported by him in his explanation, dated 14‑5‑1984 that he contacted the accused but Mst. Zahida was not made available to him. On 12‑5‑1984, Mst. Zahida filed W. P. No. 2028 of 1984 challenging my order dated 7‑5‑1984. This petition was placed before me on that very day, I dismissed that petition in 11mine holding firstly that the constitutional petition had been filed to frustrate my order dated 7‑5 1984 and secondly, that the same was not maintainable under any law. On that date, Mst. Zahida was note present in Court.

6. This petition for cancellation of bail was heard on merits today. The accused respondents were not present in Court despite my clear orders dated 24‑4‑1984. It has been contended by the learned counsel for the petitioner that the abductee was being detained by the accused respondents illegally; that she was never a free agent while making statement under section 164 Cr. P. C. or while appearing before any other Court; that the accused did not comply with the orders of the Court of the learned Additional Sessions Judge dated 22‑3‑1984 and the orders of this Court dated 7‑5‑1984; that the two writ petitions were filed only to frustrate the orders of Courts and to avoid the recording of statement of Mst. Zahida, and that the offence with which the accused had been charged is punishable with imprisonment for life. It was further argued that the absence of recovery of Mst. Zahida from the custody of the accused had thawarted fair and independent investigation in this case. He placed reliance upon P L D 1984 S C

102. In reply, the learned counsel for accused respondents contended that Mst. Zahida, on 14‑3‑1.984, before registration of the case, had made an application with a request that she should be lodged in Dar‑ul‑Aman but on that very day she was allowed by the Magistrate to proceed to a place of her own choice and she was, therefore, with the accused under orders of the Court and was a free agent. It was contended by the learned counsel that, on 19‑3‑1984, the alleged abductee appeared before a Magistrate alongwith her counsel. She was identified by Ifzal Hussain, brother of Fazal Hussain, and made statement under section 164, Cr. P. C. of her own free‑will. It was next contended that after orders, on 20‑3‑ 984, Mst. Zahida appeared before the Investigating Officer, Bashir Ahmad Bhatti in a bungalow No. 65‑F. C. C. Gulberg‑II, Lahore. She made a statement under section 161, Cr. P. C. and owned her statement under section 164, Cr. P. C. dated 19‑3‑1984. It was, therefore, argued that Mst. Zabida had also joined investigation and, as such, it could not be said she was not a free agent. It was accordingly submitted that there was no ground for cancellation of the bail.

7. I have considered the above arguments of both the learned counsel as well as the learned counsel for the State. I find that the conduct of the accused was highly objectionable, in that, they did not allow Mst. Zabida to be examined by a Magistrate under orders of 22‑3‑1984. It is correct that the said order was suspended in W. P. No. 1250/1984 but on 7‑5‑1984 I directed her to be lodged in Dar‑ul‑Aman so that she could be examined by me on 14‑5‑1984. She was not produced before the police in compliance with my orders. Writ Petition No. 2028 of 1984 was filed obviously with the object to frustrate my order. On 24‑4‑1984, 1 had directed the accused‑respondents to be present in Court in person but they were absent on 7‑5‑1984 as well as today. They had no respect and regard for the orders of this Court. Fazal Hussain accused though served did not care to put appearance in Court. Mst. Zahida, for the first time, appeared in the Court of Ilaqa Magistrate on 14‑3‑1984. She was produced by Mr. Muhammad Sarfraz, Advocate. It is surprising that although she made a request to be lodged in Dar‑ul‑Aman yet the learned Magistrate in spite of the request by her learned counsel proceeded to record her statement and allowed her to go to a place of her choice. This conduct of the Magistrate was exceptionable and unwarranted. He should have directed her to be lodged in Dar‑ul‑Aman for a few days as requested by Mst. Zabida herself. She next appeared before another Magistrate on 19‑3‑1984, who recorded her statement under section 64, Cr. P. C. On that date, she was accompanied by Fazal Hussain, a brother of Fazal Hussain accused, and Mr. S. M. Idrees, Advocate. Her statement under section 164, Cr. P. C. was recorded by following a procedure as if she was an accused person and making a confessional statement. The procedure followed by the Magistrate was wholly unwarranted. At that time, obviously she came from the custody of the accused and after her statement she again went back in the custody of a relative of the accused. She was, therefore, not a free agent. On 22‑3‑1984, the learned Additional Sessions Judge ordered that Alst. Zahida should be re‑examined under section 164, Cr. P. C On that date, she was taken to the Court of Mr. Amanullah Khan, Duty Magistrate, for recording her statement. as per directions of the learned Additional Sessions Judge, but instead of complying with the orders of the learned Additional Sessions Judge, Mr. Amanullah Khan Magistrate decided to hear arguments on the point as to whether a second statement under section 164, Cr. P. C. could be recorded or not. This was a clear contravention of the orders of the learned Additional Sessions Judge. To me, it appears that that was with some ulterior motive.) The result was that the statement of Mst. Zahida could not be recorded. After this she appeared to have filed W. P. No. 1250 of 1954. In this the orders dated 22‑3‑1983 were suspended. At the time of the filing of this very writ she was admittedly in the custody and control of the accused respondents. Thereafter, I had given a direction on 7‑5‑1.984 that she should be lodged in Der‑ul‑Aman and produced in this Curt on 14‑5‑1984 for recording of her statement. As indicated above, instead of producing Mst. Zahida before the police, a Writ Petition No. 2028 of 1984 was filed/got filed in this Court challenging my orders dated 7‑5‑1984. It was filed only to frustrate my orders dated 7‑5‑1984, as already has been held by me in the said petition. Today, I was shown an application dated 6‑5‑1484 by Mst. Zahida said to have been filed before Ch. Muhammad Nawaz, Duty Magistrate, Lahore. In that application it was prayed that she had not been abducted by anyone and that she cannot be re‑examined under section 164, Cr. P. C. and cannot be compelled for that statement for the second time. It was, however stated that if the Court desired, she was prepared to make a statement. The learned Magistrate on that very day ordered that application to be filed as she had been examined under sections 161, Cr.P.C. and 164, Cr.P.C. This applica tion and the order of the Magistrate, dated 6‑5‑1984 was not brought to my notice earlier. It was not placed on the file of this petition for cancellation of bail on 7‑5‑1984 by the accused‑respondents or their counsel Mr. S. M. Idrees, Advocate. It appears that this application has been slipped into this file by under‑hand means through the office. At the time of hearing of W. P. No. 2uz8/1984, Mst. Zahida was not present in Court. From the above narration of facts, it is clear that the accused persons were trying to avoid a second statement of Mst Zahida as a free agent. They were trying to frustrate all orders of the Courts directing her second statement. This fact strengthens my view further that Mst. Zahida was never a free agent at the time of her appearance in Courts, at the time of making her statement under section 164, Cr. P. C. and at the time of her making application on 14‑3‑1984 and even on 6‑5‑1984. It is correct that she was examined by the police on 20‑3‑1984 in bungalow No. 65‑F. C C. Gulberg‑11, Lahore. This bungalow is not owned by the accused. The S. H. O. Bashir Ahmad Bhatti went all the way to that bungalow to record her statement in the presence of Arshad Hussain and Fazal Hussain accused. This conduct of Bashir Ahmad Bbatti S. I.‑S. H. O. was not only objectionable but highly suspicious. On an application by the complainant and for this very reason, the investigation was withdrawn from Bashir Ahmad Bhatti and entrusted to Muhammhd Sharif A. S.

1. At the time of recording of her statement under section 161, Cr. P. C. she was under the clutches of the accused persons two of whom were present in the bungalow. It would have been proper for the Investigating officer to ensure at the time of recording her statement by him or by any other Court that Mst. Zahida was a free‑agent. He took no steps to ensure that. Thus Bashir Ahmad Bbatti S.‑I. failed to perform his duties deligently and hold honest investigation.

8. From the above circumstances, I am clear in my mind that although Mst. Zahida has been appearing in Courts, making statements and filing applications yet at no occasion she was a free agent It was, therefore, necessary to hold proper investigation and lodge her in Dar‑ul‑Aman so that the influence of the accused could be removed and thereafter her statement could be recorded as a free‑agent. The conduct of the accused was not only illegal but also in clear violation of the directions of this Court. They appear to beg influencial people and have so far succeeded to withhold material evidence in the form of independent statement of Mst. Zabida. Unless it could be held ,that Mst. Zahida was a free agent, her statement cannot be recorded. The earlier statements recorded by Courts or her earlier applications are of no avail to the accused who are continuing to tamper with the material evidence in this case. The accused have been charged with an offence under section 11 of the Offence of Zina (Hudood Ordinance No. lI) of 1979, which is punish able with imprisonment for life. In view of the circumstances, I am of the opinion that the accused respondents were not rightly allowed bail before arrest or bail after arrest by the learned Additional Sessions Judge, Lahore. Their conduct does not allow them the concession of bail. In view of the above discussion, this petition is accepted and the bail before arrest allowed to Fazal Hussain and Arsbad Hussain accused and bail after arrest allowed to Amjad Hussain accused is cancelled. M. Z. M. P1etition accepted.