2013 PLP 305 (YLR)

MUHAMMAD ALI MAZHAR J.

The applicant has brought this application for quashment of proceedings arising from F.I.R. No.197/2011, Police Station Daharki District Ghotki lodged under section 364 and 380, P.P.C. on the ground that the complainant has lodged a false F.I.R. and no incident of kidnapping or abduction took place.

2. Concisely, the facts of the case are that the applicant was married with the complainant Rasheed Ahmed in the year 2009 and since his behaviour and attitude was not proper, therefore, she had left his house and residing with her parents. The complainant Rasheed Ahmed lodged the F.I.R on 3-7-2011, reporting an incident allegedly took place on 25-6-2011. He narrated in the F.I.R. that on 25-6-2011, at night, he was present in his house along with his wife Mst. Shameem, brother Gulsher Dahar, nephew Rafique Ahmed Dahar. The bulbs were on, they all went to sleep, at about 11-00 hours, he heard cries of his wife Shameem, he and P.Ws. woke up and in the bulbs light saw and identified the accused each Dilshad with pistol, Ishfaq Shaikh with pistol, Jamaluddin Shaikh with pistol, Qadeer Shaikh, Rasool Bux, Shafi Muhammad Shaikh empty-handed. All the accused took away his wife Mst. Shameem with purpose to kill. When complainant went inside the house, he found that lock of box was broken and Rs.35,000, silver ornaments weighing about half kilogram were missing and taken away by the accused.

3. The learned counsel for the applicant argued the whole prosecution story is based on false allegations. Much earlier to the date of alleged incident, the applicant had already filed suit for dissolution of marriage (Family Suit No.75 of 2011) against the complainant Rasheed Ahmed on 2nd June, 2011 and on the day when this F.I.R. was lodged she was already present in the Family Court. In order to support his contention, he has invited my attention to page (17) of the application, which is a certified copy of the suit for dissolution of marriage and also the diary sheet dated 25-6-2011, which shows the presence of the plaintiff/ applicant in the Family Court on 25-6-2011 on the day of alleged incident.

4. The Investigating Office was present in the first round and he was directed to record the statement of applicant. Complainant is also present and statement of complainant was also recorded by I.O., in which he submits that he does not want to proceed further the aforesaid criminal case and has no objection if the proceedings are quashed.

5. The learned A.P.-G. submits that in view of the statement recorded by the I.O. in Court the applicant should approach to the trial Court and I.O. may be directed to submit the statement in the trial Court for passing appropriate orders for culminating the proceedings.

6. The complainant lodged the F.I.R. under sections 364 and 380 P.P.C. which are neither bailable nor compoundable. Section 364, P.P.C. relates to an offence of kidnapping or abducting in order to murder and made punishable for life imprisonment or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. While section 380 relates to the offence of theft in dwelling house and punishable of either description for a term which may extend seven years and shall also be liable to fine. After registration of case and submission of challan the court has to see the merits of the case whether any offence is made out or not in spite of the no objection of the complainant for quashment of F.I.R./proceedings. How-ever, the statements of applicant and complainant recorded by I.O. both have been taken on record.

7. So far as the merits of the case is concerned, the FIR.was lodged on 3-7-2011 for an incident allegedly committed on 25-6-2011 at 11-00 p.m. The complainant tried to demonstrate that on the day of incident, the applicant was present in the house with the complainant but the record shows contrary that much before the date of incident a suit for dissolution of marriage was filed on 2-6-2011 which is at least 23 days prior to lodging of F.I.R. and the suit was admitted by the learned Family Judge on 2-6-2011. The case dairies show that the plaintiff was present in Family Court on 16-6-2011, 21-6-2011 and even on 25-6-2011, which belies the contention of the complainant that she was residing with him as it is not possible that applicant was residing with the complainant in the same house and on the other hand she was simultaneously pursuing, her suit for dissolution of marriage against the complainant. Since the applicant present in court has not only stated categorically that she was never kidnapped or abducted by anyone. The I.O. has also recorded the statement, which shows that no case of abduction is made out and the other allegations levelled are in the same sequence and when the factum of abduction is false, no case for other allegations is made out. The honourable Supreme Court in the case reported in 2012 SCMR 94 (Rizwana Bibi v. The State), under the similar circumstances and on the basis of statement of Rizwana Bibi before the Supreme Court, quashed the proceedings pending before the trial Court.

8. In an exceptional case, in which the abuse of process floating on the surface of record, there is no need to insist the party to first approach to the trial Court and move applications under section 249-A, Cr.P.C. or 265-K, Cr.P.C. The object of 561-A, Cr.P.C. is to do real and substantial justice and to prevent abuse of process of court. To secure ends of justice, powers of this court are very wide. Inherent powers can be invoked where it is established that the proceedings against a person seeking quashment are either mala fide, coram non judice or a clear non-violation of procedure or such proceedings amounts to abuse of process of court. However, the said powers are required to be exercised in exceptional cases where court is satisfied that continuation of proceedings complained of would amount to gross abuse of process of court or it is absolutely necessary to exercise inherent powers to secure the ends of justice. In a case reported in 2011 SCMR 1937, (Rana Shahid Ahmed Khan versus, Tanveer Ahmed and others), it was held that High Court in exercise of powers under section 561-A, Cr.P.C. can quash criminal proceedings even at initial stage, if it is of the view that if the allegations levelled in F.I.R. or complaint if unrebutted, no criminal case is made out. High Court may also take into consideration any special circumstance to arrive at a conclusion as to whether prosecution should be allowed to proceed with the case in the interest of justice or there is no possibility of conviction of the accused or admitted facts make out a case of civil nature or malicious prosecution is floating on the record and no helpful purpose would be served in permitting criminal proceedings to continue. In another case, reported in 2009 SCMR 141 (Muhammad Aslam (Amir Aslam) v. DPO, Rawalpindi), it was held that framing of charge in the case by Trial Court does not debar burying of the proceedings by way of quashment. No invariable rule of law existed in this regard and it depended on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud.

9. The statement of applicant that she was never abducted or kidnapped by any person named in the F.I.R. and in addition thereto, the institution of family suit much earlier than the date of alleged incident and the pendency of family suit and the presence of the applicant in the Family Court on the date of incident show without any shadow of doubt that on the day of incident she was not with the complainant but residing with her parents. Since the allegation of abduction and kidnapping is found false and not supported by the abductee, therefore the other allegations which are linked with and derivative/sequel of the charge of abduction are also come into sight fictitious, conjured and mala fide and the mischief clauses of sections 364 and 380 P.P.C., are also not attracted. Though the complainant was not arrayed party in the present case but he on court notice appeared and did not contest the matter rather from his statement it is clear that he does not want to proceed the criminal case in the trial Court. In view of the above facts and circumstances there is no possibility of conviction of the accused and malicious prosecution is floating on the record. No helpful purpose would be served in permitting criminal proceedings to continue which would be an abuse of process of the court.

10. As a result of the above discussion, this application is allowed, consequently, the F.I.R. No.197 of 2011, Police Station Daharki, District Ghotki is quashed. MWA/S-26/K Application allowed.