1980 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)‑

‑‑‑ S. 177‑Jurisdiction‑Alleged offences under Ss. 494 & 498, P. P. C. taking place at place K‑Court at place K alone, held, had jurisdiction to try case.‑[Jurisdiction]. Mohd. Ali Shaikh for Appellants. Banoo Bhai Hudda for State. Date of hearing :13th August, 1979. This is a Misc. Application for quashment of a private complaint filed by respondent No. 1 in the Court of Resident Magistrate, Tando Mohammed Khan, Hyderabad, under sections 494. and 498, P. P. C. against the present applicants. The complainant alleged that .Mohammed Ismail was the husband of Mst. Haseena who had gone away with her father and mother on the false pretext on some ceremony occasion, at Karachi. The complainant stated that thereafter she bad not returned to him at Hyderabad and he had learnt that she has married applicant No. 4 Nazir and that applicants Nos. I to 3 bad fraudulently prepared forged‑ documents in order to solemnize second marriage. F. I. R. was filed on 28th November, 1977 and process was issued to the present applicants. Mr. Mohammad Ali Shaikh has made two submissions (1) that respondent Mohammed Ismail has sworn an affidavit on 31st March. 1976 whereby he had pronounced Talaq upon applicant No. 1 and hence the complaint is mala fide, (2) the offences under sections 494 and 498, if committed at all, were committed at Karachi and not at Hyderabad and Tando Mohammad Khan, and hence only a Criminal Court at Karachi would have jurisdiction to try the same and hence the present proceedings are without jurisdiction. The respondent No. 1 Mohammad Ismail had been served and engaged a counsel to whom notice had been issued, but they have not cared to come in spite of notice. Mr, Bahoo Bhai Hudda counsel for the State has opposed quashment application on the ground that according to the complaint the marriage of the complainant with Mst. Hasina still subsists and the documents of Talaq are forged. I have however seen the affidavit of Mohammad Ismail, a Photostat of which has been filed by the applicants and Mr. Mohammad Ali Shaikh has made a statement at Bar that photostat is true copy of the original which his client had shown to him. The signature on this photo stat copy of the affidavit of Mohammed Ismail Abbasi appears to be similar to the signature of Mohammed Ismail Abbasi on the power of M/s. Gul Mohammed Abro and Ghulam Rasool Abbas Advocates, which is in the file of this application. The absence of the complainant shows that he cannot probably challenge genuineness of the affidavit of Mohammed Ismail Abbasi filed by the applicants in this application. Mr. Hudda was not in a position to controvert this document. He has further agreed with me that these two signatures on the affidavit and Vakalatnama signed as Mohammed Ismail Abbasi, appeared to be similar and of the same person. Mr. Mohammed Ali Shaikh stated that the complainant had also filed a suit for restitution of conjugal rights against Mst. Hasina before the Family Court but the same has also been dismissed. However no copy of the dismissal order has been filed. Since there is. nothing on record to controvert the admission Made in the. affidavit of Mohammed Ismail Abbasi filed by the applicants as photostat copy, of which the complainant had due notice, the same has to be accepted as genuine, and hence the complaint made on 28th September, 1977 was evidently based on false assertion and was therefore. abuse of. process of the Court as the complainant had already pronounced divorce upon Mst. Hasina on 31st March, 1976. There fore, the continuation of this proceedings would be an abuse of the process,' of the Court. Section 177, Cr. P. C. provides that every offence shall ordinarily be enquired into and tried by. a Court within the local limits of whose jurisdiction it was committed. Since the allegation in the complaint was that the applicant No. 1 had married with applicant No. 4 at Karachi and they were living at Karachi during the alleged continuance of marriage between the applicant No. l and respondent No. 1, therefore, the offence if any, could he committed only at Karachi and not at Hyderabad of Tando Mohammed Khan and therefore, the Court at Karachi alone could have the jurisdiction to try the name. The Court of the Resident Magis trate Tando Mohammed Khan had no jurisdiction to try such an offence as there was no allegation in the complaint that the offence had taken place at Tando Mohammed Khan or Hyderabad, In view of this position in law, the proceedings pending before the Resident Magistrate Tando Mohammed Khan under sections 494 and 498, P. P. C. against the applicants are hereby quashed. Proceedings quashed.