P L D 1963 (W (PLP)

This is a criminal revision application filed on behalf of one Saffar, son of Arz Muhammad in which the prayer is that the Criminal Case bearing No. 202/1962, filed against the applicant by one Qadar son of Muhammad under section 498, P. P. C. and now pending in the Court of the Nazim, Lasbella, be quashed. An application to this effect had been filed on behalf of the present applicant in the Court of Sessions, Karachi but the learned A. S. J. Mr. Fazle‑Ellahi Ansari dismissed it holding that‑ "If the learned counsel feels that it is a case for discharge, proper course for him to follow is to present an application to the trial Court under section 253, Cr. P. C. If the argument goes against him he can still come to this Court. At this stage the application is premature. Dismissed." It is as against this order of the learned Additional Sessions Judge that the present application has been filed in this High Court.

2. The facts giving rise to this matter are that on 8‑5‑1962, the complainant Qadar presented a petition before the Deputy Commissioner, Lasbella alleging that Saffar, son of Arz Muhammad had enticed away Mst. Nazi and Mst. Idan to Sind and had sold them there. The petitioner prayed that legal steps may be taken against Saffar and the petitioner's rights restored to him. The Deputy Commissioner, Lasbella that same day forwarded this petition to the Naib‑Tehsildar for his remarks. This officer returned the papers remarking that according to the facts as found by him Mst. Nazi and Idan the wives of Qadar and Sabzoo respectively had left their husbands and had gone to the house of their mother Mst. Booban. Saffar son of Arz is the present husband of Booban and is placing obstructions in the way of the restoration of these two wives to their husbands. A summons had been issued to Saffar but it was found that he had proceeded to Sind and was then residing in Village Giskandi in the District of Nawabshah. On these remarks the Deputy Commissioner directed that a warrant be issued against Saffar and the case should be disposed of at an early date. This warrant was issued and on 10‑5‑1962, the applicant Saffar was arrested by the Karachi Police from the City Court premises. He was subsequently released on bail by the Lasbella Court and the case against him is now pending in the Court at Lasbella.

3. Mr. Muhammad Ibrahim Advocate appearing on behalf of the applicant has argued before me that the present proceed ings against his client in the Court at Lasbella are ultra vires and illegal in so far as the complainant in that case was not examined under section 200, Cr. P. C. before the issue of process against the applicant accused. The learned Advocate also contended that the petition presented to the Deputy Commissioner, Lasbella and treated by him as a complaint under section 498, P. P. C. discloses no offence against his client. The two girls Nazi and Idan had of their own accord left their husbands and returned to the home of their mother Mst. Booban. They had appeared on 25‑3‑1962 and 9‑3‑1962, respectively before the City and A. D. M. Karachi, had made statements before him that they had forcibly been married, that they apprehended danger from their respective husbands and that they wanted to go and live with their mother. The City and A. D. M., Karachi had passed orders allowing them to return to their mother.

4. Mr. Murtaza Hussain Shah appearing on behalf of the A. A.‑G. concedes that the proceedings under section 498 started against the present applicant have no legal foundation as there was no examination of the complainant under section 200, Cr. P. C. He relies upon a case in Zafar Niazi v. Riazuddin (P L D 1958 Lah. 738).

5. I have been taken through the papers in this matter. I find that the petition submitted on the 8th of May 1962, by Qadar to the Deputy Commissioner, Lasbella has been treated by him as a complaint and on the strength of it a bailable warrant was issued against the present applicant without compliance with the provisions of section 200, Cr. P. C. Section 200, Cr. P. C. makes it mandatory for a Magistrate to examine the complainant on oath and for the substance of such examination to be signed by the complainant and also by the Magistrate. This mandatory provision of law has not been complied with and, therefore, I must hold that the present proceedings under section 498, P. P. C. pending against the applicant in the Court at Lasbella are ill- founded and must be quashed.

6. In the course of the argument of the learned Advocate appearing on behalf of the applicant my attention was also invited to two civil cases instituted by these girls in the Courts at Karachi against their respective husbands. Thus, it is said that Mst. Nazi has filed a suit being Suit No. 1403/1961, in the Court of the First Class Sub‑Judge, Karachi, for a declara tion that her marriage to her husband is null and void. With regard to Mst. Idan an application under the Guardian and Wards Act being Application No. 32/1961, is now pending in the Court of Mr. M. A. Siddiqui, the learned Additional District Judge, Karachi.

7. But, I am not concerned with this parallel litigation. I am only concerned with the present criminal proceedings ostensibly under section 498, P. P. C., pending in the Court of either the Nazim or the Naib‑Tehsildar at Lasbella. These proceedings, I have .already held to be ill‑founded and, therefore, illegal. Accordingly, I direct that these proceedings be quashed. R. B. A. Petition accepted.