1999 P Cr (PLP)

Pervez I. Mir for Petitioner. Riasat Ali Chaudhry for Respondent. No.

1. Instant petition has been filed for initiating proceedings under section 476, Cr.P.C. read with section 561-A, Cr.P.C. against respondent No. 1.

2. Briefly stated the facts are that the petitioner was marries with respondent No.

1. As a result of their marriage a son namely Raheel was born who was snatched from her and she had to file Criminal Miscellaneous No.49/H of 1995 for his recovery. During the proceedings of aforesaid criminal miscellaneous, learned counsel for the parties appeared in the Court and stated that parties have compromised in pursuance of which petitioner would live with respondent No.1 and he (respondent No.1) would deliver the custody of the child. The respondent No. 1 also admitted that he had not contracted any second marriage. In view of said compromise the said Criminal Miscellaneous No.49/H of 1995 was disposed of by this Court vide order, dated 12-2-1995 which reads as follows:-- "Learned counsel for the parties state that they have entered into a compromise, in pursuance of which the petitioner would live with respondent No.1 and he would deliver the custody of the child to her. The respondent admits before the Court that he has not contracted any other marriage. In view of the compromise between the parties, the petition is disposed of." After the disposal of said criminal miscellaneous vide order referred above, it came to the notice of the petitioner that respondent No. 1 had made a false statement in this Court regarding second marriage, as he had already contracted marriage on 16-9-1994. Accordingly the petitioner moved Criminal Original No.49 of 1996 for initiating proceedings under contempt of Court against respondent No.

1. The said application was resisted and was disposed of with the observation that no case of contempt had been made out against respondent No.

1. Anyhow the petitioner was directed to proceed against the respondent under the relevant law. Hence the instant petition.

3. Respondent No. 1 contested the instant petition and denied the assertions of the petitioner and prayed for the dismissal of petition.

4. Arguments have been heard and record perused.

5. It is contended by the learned counsel for the petitioner that Criminal Miscellaneous No.49/H of 1995 was disposed of on 12-2-1995 on the basis of compromise wherein respondent No. 1 made a categorical statement that he had not contracted any marriage, that the said statement of respondent No. 1 is factually incorrect as he had contracted another marriage on 16-9-1994 much prior to making statement, dated 12-2-1995, that as such respondent No.1 is guilty of making a false statement and is liable to prosecution under section 476, Cr.P.C. read with section 561-A, Cr.P.C. and relied upon Mst. Sadiqa Shafi v. Sqr. Ldr. (Rtd.) Naveed Anjum and 2 others 1998 PCr.LJ 1106.

6. Conversely the contentions of the petitioner have been controverted/ repudiated and denied by the other side. It is submitted by the learned counsel for respondent No. 1 that Criminal Miscellaneous No.49/H of 1995 was disposed of mainly on the basis of compromise as is evident from order, dated 12-2-1995. He further submits that respondent No. 1 had made a passing reference that he had not contracted second marriage, as only Nikah ceremony had been performed and no Rukhsati had taken place. He submits that respondent No. 1 was under the impression that as Rukhsati has not taken place so it would not amount to marriage. He further submitted that action under section

476. Cr.P.C. is not to be launched as a matter of course, as such action is to be taken to public interest and not for satisfaction of private grudge or to wreck a private vengeance and in support of his contention relied upon Ch. Feroze Din v. Dr. K.M. Munir and another 1970 SCMR 10.

7. It is evident from the facts stated above that Khalil Ahmad Rabbani/respondent No. 1 is husband of the petitioner. As a result of their marriage a son namely Raheel was born. The said son was snatched by respondent No. 1, which compelled the present petitioner to institute Criminal Miscellaneous No.49/H of 1995 against respondent No.

1. It is fact that the said criminal miscellaneous was disposed of by this Court vide order, dated 12-2-1995 which reveals that the same was disposed of mainly on the basis of compromise and it also contained a passing reference on the part of respondent No. 1 to the effect that he had not contracted am, second marriage, It is admitted that respondent No. 1 only solemnised Nikah on 16-9-1994 and Rukhsati never took place and this assertion of respondent No. 1 is not controverted by the petitioner. Under these circumstances, the admission of respondent No. 1 can in no way be termed as a false statement falling within the ambit of section 476, Cr.P.C, read with section 561-A, Cr.P.C. Action under section 476, Cr.P.C. is not to be launched' in a matter of course for any and every offence alleged to have been committed in the course of judicial proceedings. A necessary requirement for such an action is that it must be taken in public interest and not allowed to be used as a handle in the hand of one party to wreak a private vengeance or satisfy a private grudge against the other party as held in 1970 SCMR 10 (supra). The facts of the instant petition clearly show that instant proceedings have been initiated by the petitioner to satisfy her private grudge against respondent No.

1. So far as the authority relied upon by the learned counsel for the petitioner and reported in 1998 PCr.LJ 1106 is concerned, the facts of the said authority are totally different and not identical to the facts in hand. As such the said authority is not applicable to the facts in hand.

8. The up shot of above discussion is that petition fails and is hereby dismissed. N.H.Q./N-137/L Petition dismissed