1. Dr. Mahmooda Rashid was married with Abdul Jalil Rana who was then working in Canada. She proceeded to Canada to live with her husband where Farhan Jalil was born. All the three, i.e. Abdul Jalil Rana, Farhan Jalil and Dr. Mahmooda Rashid have Canadian passports also.
2. The marriage did not proceed very happily and in the year 1977, Dr. Mahmooda Rashid came to Lahore. After a few months Abdul Jalil Rana also followed her to Lahore and some sort of rec6inciliation took place, which did not last very long and it led to a dispute for the custody of the minor. i.e. Master Farhan Jalil.
3. Dr. Mahmooda Rashid moved a petition under section 12 of the Guardians and Wards Act and during the course of these proceedings warrants under section 100. Cr. P. C. Were issued for the production of Farhan Jalil, Farhan Jalil was recovered and as a stopgap arrangement, by order dated 26th March, 1980 of the Guardian Judge, Dr. Mahmooda Rashid was given the charge of the minor until 29th March, 1980. On 29th March, 1980 instead of producing Farhan Jalil before the Guardian Judge the mother i.e. Dr. Mahmooda Rashid along with her son left for Canada.
4. Aggrieved by that Abdul Jalil Rana made an application under section 45 of the Guardian and Wards Act for action in accordance with law against Dr. Mahmooda Rashid, her mother Mst.
5. Saeeda Begum, her sister Mst. Firdaus Rashid, her brother Zubair Rashid, her maternal uncle Amin Chishti and Riaz Chughtai in whose firm Mst. Firdaus Rashid was employed. The petitioners i.e. Respondents to the application repudiated the allegations pleading their innocence and utter lack of knowledge of the conduct of Dr. Mahmooda Rashid and her son Farhan Jalil. The learned Guardian Judge by his order dated 3April, 1980 withdrew the notice.rd
2. Meanwhile, by order 'dated 2nd April, 1980, the Guardian Judge had directed the registration of a case under section 363/368/34, P. P. C. Against the four petitioners in Cr. M. No. 50/Q of 1981 as well as Dr. Mahmooda Rashid. The Investigating Agency sent up only Dr. Mahmooda Rashid for trial. It appears that the Investigating Agency itself was in doubt regarding the applicability of section 363, P. P. C. And from the application dated 6th April, 1980 it appears that the police itself was conscious of the fact that no case under the above--referred sections was made out even against Dr. Mahmooda Rashid i.e. The mother of Farhan Jalil. A reading of the case diary dated 6th April, 1980 which incorporates the statements of the mother of Dr. Mahmooda Rashid, the sister of Dr. Mahmooda Rashid, the maternal-uncle etc., prima facie, reveals a pathetic story and the statement of Abdul Jalil Rana recorded in the same Zimini brings out his shaken state of mind and thereby the apathy of a family torn apart i.e. Everyone suffering physically and mentally in his own place. However, it is not necessary to go into those aspects for the purposes of deciding the matter and the restricted issue of quashment of the challan for the offence under section 363/34, P. P. C., suffice it to say that the police submitted the challan only against Dr. Mahmooda Rashid and subsequently on the recording of the testimony of witnesses Ch. Abdul Majid Magistrate by his order dated the 24th November, 1980 (impugned order) summoned the petitioners as accused of offences under section 363/109, P. P. C. Riaz Chughtai petitioner filed a revision in the Court of Session impugning the said summoning which has been rejected and he has come up for quashment under section 439 read with section 561-A of the Code of Criminal Procedure (Crl. Rev.
6. No. 83 of 1981). Muhammad Riaz Chughtai has also submitted a Miscellaneous Petition praying for the conversion of his quashment application into a writ petition while the other petitioners have directly come up under section 561-A of the Code of Criminal Procedure (Cr. M. No. 50-Q/81) for the quashment- of the case against them. All the matters are being disposed of together by this order.
7. No doubt the writ jurisdiction is very were, but in a criminal matter for securing the ends of justice or for preventing the abuse of process of any Court the jurisdiction under section 561-A. Cr. P. C. Is were enough to cover the grant of appropriate relief without having resort to the Constitutional jurisdiction. The provisions under section 439 or 561-A of the Code of Criminal Procedure are not exclusive of each other and depending upon the facts of each case, there may be cases in which both may be co-extensive. Similarly, the exercise of jurisdiction by a subordinate Court under section 439-A, Cr. P. C. Would not debar, take away or exhaust the jurisdiction of this Court statutorily conferred under section 561-A, Cr. P. C. In such a case it is only the jurisdiction under section 439, Cr. P, C. Of this Court which will be exhausted, and the jurisdiction under section 561-A, Cr. P. C. Having never been invoked and being distinctive and independent in nature will remain in tact unfettered, as there may be cases, like the one in hand of Riaz Chughtai petitioner, where the continuance of the proceedings of the criminal case against him is manifestly an abuse of the process of law and it is in the interest of justice to quash the same, as he has no other remedy, in routine, available under the Code of Criminal Procedure.
3. The legal proposition under the Mohammedan Law is that a Hanafi or Sunni mother is entitled to the custody of her son until he attains the age of seven years and of her daughter, even against the husband of that daughter, until her puberty. The right continues though she is divorced by the father of the child unless she marries a second husband who is not related to the minor within the prohibited degree, in which case the custody belongs to the father.
8. "The learned counsel for the petitioner has argued that this evidence is not sufficient for conviction, but this argument is not relevant because at present we have only to see as to whether there was sufficient material for summoning the accused and the question whether any conviction can be based on this evidence is not relevant at the present stage."
9. I am afraid I cannot support this view. If a conviction is not possible, even if for the sake of argument the entire case for the prosecution is to be accepted, then further proceedings would be an abuse of the process of law, a mock trial, wastage of public time and energy and unnecessary sufferance and humiliation of the accused. In such a situation, it is in the public interest as well as the legal and moral obligation of the Courts vested with jurisdiction to quash such proceedings. On the particular facts and circumstances of this case, the learned Additional Sessions Judge has erred in law in failing to exercise his jurisdiction. A bare reading of section 361, P. P. C. Which defines the offence of kidnapping would make it clear that the case of the principal accused and that of the petitioners is covered by Exception to section 361, P. P'. C. Which reads as follows;--- "361. Whoever takes or entices any minor under fourteen year of age if a male, ox under sixteen years of are if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
10. Explanation.---The words "lawful guardian' In this section include any person lawfully entrusted with the care or custody of such minor or otter person.
11. Exception.--This section does riot extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful' custody of such child unless such act is committed for an immoral or unlawful purpose."
12. The learned Guardian Judge completely overlooked the Exception to section 361, P. P, C. For a bare perusal of the Exception would have restrained hire from directing the registration of a case under section 363, P. P. W. The chain of authorities beginning with In re: Kannegati Chowdarayya's (AIR 1938 Mad. 656) down to Ahmad Nawaz v, Tire state (PLD 1968 Lah. 97), Asghar Ali v. The Stale (1971 P Cr. L J 982) and Muhammad Ali v, Amir Hasan (1973 P Cr. L J 132) establish the preposition that the case of Dr, Mahmooda Rashid was covered by the Exception to section 361, P. P. C, and as such she was not liable for the offence of kidnapping and, therefore, if the principal accused is not liable for any offence, the petitioners cannot be said to be liable for the offence being abettors or a party to that transaction. In a given set of circumstances it is possible that even the maternal grandmother, maternal aunt, maternal uncle, brother of maternal aunt etc. Could independently be covered by Exception to section 361, P. P. C. As the element of "immoral purpose" is eliminated in their case as well.
13. "It is a fact that the custody of the minor had not at any stage been entrusted by this Court to any of the persons referred to above. There is also no evidence before this Court wherefrom it might be got established that the minor ever remained in the custody of the persons referred to above. It has also been stated that the minor had been entrusted to Doctor. Mahmooda Rashid who was a petitioner. The persons referred to above were not a party to the proceedings and as such no under section 45 of the Guardians and Wards Act, 1890 : an be taken against them. Since an understanding has been given to the Court that the persons referred to above shall assist this Court in procuring the custody of the minor, I do not and any justification to detain them in Civil Jail."
14. The challan was submitted by the police ultimately only against Dr. Mahmooda Rashid and besides the bare statement of Abdul Jalil Rana, an aggrieved person who would probably like each and every family member of his in-laws to be humiliated (a fact which is apparent from his implicating the elderly mother-in-law, sister-in-law as well as brother-in-law), there is nothing else whatsoever on the record of Ch. Abdul Majid Magistrate to justify the summoning of the petitioners which include two ladies. Taking the allegations on their face value even then no case under station 363/34, P. P. C. Is made out against Dr. Mahmooda Rashid i.e. The mother, or the petitioners and as stated earlier in the judgment, for taking this view I would draw support from the chain of authorities beginning with Kennegati Chowdarayya's core down to Ahmad Nawaz's case, Aagar .Ill's case and Muhammad Ali's case.
15. I accordingly quash the case as a whole based on P. I. R. No 156/80 dated 2nd April, 1980.
16. Both Cr. R. No. 83 of 1981 and Cr. M. No. 50/Q of 1981 stand disposed of accordingly.