1988 P Cr (PLP)

This is an application under section 561-A, Cr.P.C., praying that the proceedings pending before the Court of A.C. and S.D.M. Harbour, Karachi under sections 506-B and 504, P.P.C. which have been instituted on the complaint of Mst. Iqbalun Nisa, the respondent No.2, against the petitioners, be quashed.

2. The two petitioners, according to them, are real brothers and are permanent residents of District Mansehra, Hazara. The applicant No.1 is a Head Master in a Government High School at Serigoria, District Mansehra and the applicant No.2 is a businessman. A dispute had arisen between the applicant No.2 and the respondent No.2 over custody of a minor female child named Shazia Parveen. The mother of the child had died on 21-10-1981 and since then the minor was living under the custody and care of the respondent No.2 at Gali No.6, Liaquat Ashraf Colony, Karachi.

3. On 9-1-1985, at about 12-15 hours, the respondent No.2 lodged a complaint at Police Station Mehmoodabad, Karachi which read as follows:- "I live alongwith my husband and children in Liaquat Ashraf Colony. My sister Khalid Parveen died on 21-10-1981 and from her a daughter, namely, Shazia Parveen was born. Soon after delivery of the daughter, her mother died and this infant came under my control and that of Bibi Aisha and she is as such being brought under our supervision and control. Her father is Ghulam Mustafa. For custody of the minor, cases are pending in Karachi and Mansehra Courts. Today, 9-1-1985 at about 04-56 hrs. Nighat was playing with minor Shazia Parveen outside the house when there was hue and cry. On this I came out and saw that Ghulam Mustafa, father of baby Shazia Parveen and his uncle Latif were struggling to snatch Shazia Parveen. I raised alarm. On this they both warned not to come near, least I would be killed. A small vegetable cutting knife was in the hands of Mustafa. He used abusive language and belaboured with which I and other Mohallah people, namely, Mohammad Sharif and Ghulam Yaseen received simple injuries. Mohallah people as such caught hold of both the persons. We, with the help of police have brought both of them to Thana. They could not take away Shazia. They have used abusive language and belaboured and threatened to kill me. Action may be taken."

4. After lodging of the above complaint a case under sections 506-B, 323 and 504, P.P.C. was registered against the applicants and after investigation by the police the applicants were first challaned before the learned A.C. and S.D.M. Civil Lines, Karachi, but the case was later transferred to the Court of A.C. and S.D.M. Harbour, Karachi. On 31-7-1985 a charge under sections 506 and 504, P.P.C. was framed by the learned S.D.M. but there since the case has been pending before the learned S.D.M without any further substantial progress.

5. I have heard Mr. Shahenshah Hussain, learned counsel for the applicant and Mr. Niaz Ahmad Khan, learned counsel for the State and Mr. Gul Zaman Khan learned counsel for the respondent No.2.

6. The main ground urged before this Court by Mr. Shahenshah Hussain is that, the case against the applicants is false and has been instituted with a clear motive to harass the applicants although the learned counsel concedes that EX FACIE the F.I.R. and the challan disclose commission of offences mentioned therein, but according to him if the same are read alongwith the attending circumstances, no case against the applicants would be made out. -A grievance has also been made in respect of the slow progress of the trial. As to the question, whether this Court can take the surrounding circumstances of the case into consideration while disposing of an application under section 561-A , Cr. P . C., reliance has been placed by the counsel on the cases earlier decided by this Court and reported as Mst. Hameeda v. The State PLD 1973 Kar. 478 and Abdullah and 14 others v. Ghulam Rasool and another 1985 P Cr. L J 103 respectively. In the first case, a complaint had been lodged by one Yaqoob against his wife, the applicant in the case and others, complaining of her being enticed away with his cash and valuables three years previously. The accused wife in the meantime had filed suit for divorce and also a criminal case against the husband and both the cases were still pending for disposal. The Court after considering all the surrounding circumstances of the case allowed the application and quashed the proceedings pending in the Court of the City Magistrate, Nawabshah against the accused. In the second case, the Court quashed the proceedings in view of the fact that there were civil matters pending between the parties for which civil litigation was going on between them and the criminal proceedings in view of the circumstances of the case tantamounted to abuse of the process of the Court.

7. Turning to the instant case, there is no controversy on the point that the bone of contention between the two parties is the minor child, namely Shazia Parveen. Mr. Shahenshah Hussain has pointed out that there is a civil litigation pending between the parties under the Guardians and Wards Act about which there appears to be no controversy. The learned counsel has further pointed out that there was an agreement executed between the husband of the respondent No.2 and the applicant No.2 in connection with the custody of the minor child but the minor was not sent to the applicant No.2 in pursuance of such agreement. The original agreement has also been filed with the instant application as Annexure 'I'. The matter had also been dealt with by a Jirga at Mansehra where the husband of the complainant had again promised to hand over the custody of the minor to the applicants. Mr. Shahenshah Hussain has also invited my attention to a complaint filed by the husband of the respondent No.2 in March, 1984 wherein similar accusations had been made against the applicants as in the instant case. However, the complainant in that case failed to persue the complaint as a result whereof the same was dismissed for non-prosecution. Thereafter, it appears, that no other complaint was filed. Copies of the complaint and the order of dismissal of the same have also been filed alongwith the instant application.

8. The above circumstances first of all indicate that it was hardly necessary for the applicants to take the law into their own hands by attempting to forcibly take away the minor from the custody of the respondent No.2 or her husband when the decision of the Jirga was already in favour of the applicants and there is nothing to point out that the applicants had ever tried to implement such decision or the implementation of the same was ever obstructed by the respondent No.2. It is not denied that both the applicants are educated persons and such irresponsible behaviour cannot be expected of them. Furthermore, the fact that a similar complaint had been lodged against the applicants in the Court of A.C.M. (South) Karachi which was later dismissed in default can legitimately give rise to an inference that the respondent No.2 and her husband are in the habit of causing harassment to the applicants by filing of frivolous complaints. It has not been controverted that there is an old pending dispute over the custody of the minor between the parties in this application which has resulted in the litigation as pointed out above. No doubt, according to the F.I.R. the incident was committed in presence of the witnesses, but it is not uncommon in this country that false complaints are lodged by the parties to cause harassment to the opposite party. This Court has been invested with wide powers under section 561-A, Cr.P.C. to prevent abuse of the process of the Court and if it is satisfied that litigation is being resorted to for the purpose of causing harassment to any person, relief is invariably granted. The applicants have also filed copies of the case diaries to show that the case before the learned S.D.M. has not made any substantial progress after framing of the charge against them as not even a single witness has been examined by the learned trial Court. No doubt, the case appears to have been adjourned a number of times at the request of the applicants, but the entire blame cannot be placed on their shoulders for the slow progress of the trial. It is always the duty of the prosecution to see that the witnesses are produced before the Court and the trial proceeds. The learned counsel appearing for the State has also very candidly conceded that this is a fit case for quashing the proceedings pending against the applicants.

9. Mr. Gulzaman Khan, learned counsel appearing on behalf of the respondent No.2 has however, opposed the application on the ground that the applicants should have moved the trial Court first under section 249-A of the Code of the Criminal Procedure. Although in a number of cases it has been held by this Court that the applicant before approaching this Court must move the trial Court first, however, no hard and fast rule can be laid down and this Court in appropriate cases has always granted relief under section 561-A, Cr.P.C. In view of the circumstances pointed out above, in my opinion, it is only this Court which can grant effective relief to the applicants as the learned trial Court might find it hard to take notice of the surrounding circumstances under which the applicants are being prosecuted by virtue of its power under section 249-A, Cr.P.C. The argument of Mr. Gul Zaman Khan, therefore, is not tenable. The upshot of the above discussion is that the proceedings pending against the applicants before the learned A.C. and S.D.M. Harbour in Case No.110 of 1986 pending under sections 506-B, 504 and 323, P.PC. are quashed. S.A./A-271/K Proceedings quashed.