1988 P Cr (PLP)

This is an application under section 435 read with section 561‑A, Cr.P.C. for quashment of proceedings pending against the applicants under sections 406, 420 read with section 34, P.P.C., before the Civil Judge and F.C.M. Tando Adam. The brief facts giving rise to the present application are, that respondent No.2 Kadir Bux filed direct complaint under sections 420, 406 r/w section 34, P.P.C. before the learned Civil Judge and F.C.M. Tondo Adam inter alla alleging therein, that the applicant/ accused Pir Bux is father of accused Mst. Shami, while accused Mst. Kadul was his mother. That about a year ago accused Pir Bux and Mat. Jadul had gone to him alongwith Mat. Jannat and approached him to take hand of Mat. Shami for the purpose of marriage. The complainant agreed to pay Rs.20,000 and certain other articles for the purpose of marriage. The accused took money from him and certain articles but later on refused to give the hand of Mat. Shami to him. That due to intervention of Nekmard Bachu Khan Marri, Mst. Shami was married with him on 5‑12‑1985, and the marriage was consummated. That after some days of the marriage Mst. Shami was taken away by accused Pir Bux, and thereafter she was not allowed to go to the house of the complainant. Therefore, he filed a direct complaint on 14‑5‑1986 in which bailable warrants in the sum of Rs.10,000 were issued against the applicants/ accused. The present application is for the quashment of the above proceedings. I have heard Mr. Mazhar Ali Chohan for the applicants, Mr. Imam Bux Shaikh for the State, while the respondent No.2 Kadir Bux has chosen to remain absent in spite of service of notice. The contention of Mr. Mazhar Ali Chohan is, that Mat. Shami was minor aged 13 years and she was never married with complainant Kadir Bux. That the complainant /respondent No.2 has been pressurising the applicants to marry Mat. Shami with him, and on their refusal he has been dragging them at police stations and other places. He has further contended, that Mat. Shami had filed a suit for jactitation of marriage before Family Judge, Tando Adam on 28th January, 1986 i.e. much before the filing of the above direct complaint, and the complainant had also filed a suit for restitution of conjugal rights at Tando Adam, and the two suits are still pending. In support of his contention he has produced photostat copy of Family Suit No.7 of 1986 filed by Mat. Shami against complainant Kadir Bux. He has also produced photo copy of age certificate showing the age of Mat. Shami to be 14/15 years. Mr. Imam Bux Shaikh, learned counsel appearing for the State has contended, that ‑the case appears to be false on the face of it, and has been filed to pressurise the applicants. No case under section 420/406, P.P.C. was made out, and the process against the applicant was unjustified. I have considered the contentions of the learned counsel and have also gone through the documents produced by the applicants. The medical certificate produced regarding age of Mat. Shami shows, that she was 14/15 years. The copy of plaint in Family Suit No.7 of 1986 shows, that a suit for jactitation was pending between the complainant and Mat. Shami at Tando Adam and this suit was filed by Mat. Shami much earlier than the present complaint. Moreover, even according to the complaint, the marriage had taken place and was consumated and that it was only applicant No.l who had taken away Mat. Shami after some time of the marriage, and had then refused to return her, therefore, no offence under sections 420, 406 r/ w section 34 P . P. C . was made out. Even there were civil cases pending between the parties and this fact was suppressed by the complaint, therefore, it is clear, that the proceedings were mala fide and were an abuse of the process of the Court. In the case of Mst. Hamida v. The State and another (P L D 1973 Kar. 478) late Chief Justice of this Court Mr. Justice Tufail Ali A. Rahman held:‑ "Criminal Procedure Code Section 561‑A Quashment proceedings‑‑Section 651‑A, Cr.P.C. gives inherent powers to the High Court to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Obviously to permit a prosecution to continue upon allegations which do not constitute an offence can only be an abuse of process but it does not I think follow that whenever such an allegation exists, however, filmsy the evidence which supports it, and however, transparently dishonestly the allegation is made, the Court must stand by and allow obviously innocent persons to suffer all the agonies of a trial which often prolong in such matters. I cnot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassing of the accused persons whose acquittal is in any way certain and that this would be an abuse of the process of the Court and that in any event under section 561‑A an order to quash the proceedings would be one which would secure the ends of justice." This was also a case in which husband had filed complaint against wife and others and the proceedings were quashed. In another case State v. Mohsinullah and 5 others (1968 PCr:LJ 1053) H.T. Raymond J., of this Court (as he then was) held that':‑

"From a perusal of complaint filed by Anwar Mirza in the Court of SDM Thatta on 13‑7‑1965 it is apparent that this complainant has omitted to mention the, background of the dispute between him and his wife and in‑laws, and has also refrained from referring to the previous litigation then pending between them. It also appears from a perusal of this complaint that the complainant has given a twist to the actual facts so as to invest the Court at Thatta with jurisdiction in this matter and the proceedings were quashed." In view of the above discussion I am of the considered view, that the proceedings against the applicants were mala fide, and were filed with a view to harass and pressurise them. On facts no case under sections 420 and 406, PPC was made out, and the story on the face of it appears to be absurd and unnatural. There is nothing on record to show, that the applicants Nos.l and 3 had no intention initially to give hand of applicant No.2 Mst. Shami to complainant. Nor there is any evidence to show, that the applicant No.1 committed any offence by taking away his daughter Mst. Shami, as alleged in the complaint. Therefore, no criminal offence was committed by any of the applicants, and as such, it will be an abuse of the process of the Court if the proceedings are allowed to continue. I, therefore, quash the above proceedings pending against the applicants in case Kadir Bux v. Pir Bux and others under sections,420, 406 r/w section 34 P.P.C. before the learned Civil Judge and F.C.M. Tando Adam. S. G. D./P‑39/K Proceedings quashed.