This application under section 561-A,Cr. P. C., has been preferred for quashment of the proceedings of the case, State v. Dawood and others, under sections 364-A, 109, P. P. C. Pending in the Court of VIth Additional Sessions Judge, Karachi.
2. The facts of the prosecution case are that one Lalbibi widow of Khuda Bux Sangrasi, resident of near Noorani Masjid, Daryabad, Karachi, lodged her F. I. R., on 5th July. 1975 at police station Baghdadi of Karachi which reads as follows "The S. H. O., Baghdadi, P. S., Karachi, submitted that I am widow of Khuda Bux, from whom I have one son Mohammad Soomar and four daughters. My children were and are in my custody and I have given power of attorney to Allah Bachayo son of Loung who is not concerned. Deceased Khuda Bux left landed property in respect of which there is a case in Court against the accused. On 3rd July, 1973, at about 10 a. m. When minor Mohammad Soomar was playing outside the house, Allah Bachayo who had come as a guest in my house, at the instigation of Daud son of Soomar, Mitho son of Soomar, Mohammad Shahan son of Soomar, Allahwarayo son of Haji Budho came to my house with the intention of kidnapping away my minor son. When he took my son I thought he was going to purchase him something but when he did not come back I feared danger when one Achar son of Loons informed me that Allah Bachayo has taken away the boy. He asked Allah Bachayo as to where he was taking the boy and he replied that he would buy him shoes. Sir, I have great fear that child's life is in danger because there is dispute over the property of the de-ceased and the minor is the only son of the deceased and therefore, accused might kill him. I, beseach you to please recover the minor at the earliest as his life is in danger."
3. The police after usual investigation sent up the applicants to stand trial under sections 364- A/109, P. P. C. And the case is pending in the Court.
4. The complainant who is respondent No. 2 after registration of the F. I. R. With police filed her Criminal Miscellaneous No. 937/75 for custody of the minor Mohammad Soomar which was however dismissed on 31st December, 1979. She thereafter filed an application under section 12 of Guardian and Wards Act, 1890 before the Guardian Court at Hyderabad which was allowed and the custody of the minor was handed over to her. The applicant No. 1 however filed the appeal against the order giving custody of the minor to the respondent No. 2 which is pending disposal before the District Court Hyderabad.
5. Mr. G. M. Qureshi, the learned counsel for the applicant con--tends that the F. I. R. Does not disclose any offence against the applicants. The allegation of kidnapping has been made against one Allah Bachayo son of Loung by the complainant who is respondent No. 2 in this apple--cation.
The police did not challan Allah Bachayo in the case. It has also been pointed out by him that the actual dispute between the applicants and the respondent No. 2 is on the property left by late father of the minor Mohammad Soomar. The applicants reside at Hyderabad and they have been falsely implicated only with a view to harass them by dragging them from Hyderabad to Karachi so as to enjoy the property to the exclusion of the applicants. It has been lastly contended by him that in spite of the fact that the applicants have been sent up in 1975 to, stand trial still not a single witness has been examined in the trial Court and the proceedings under the circumstances of the case are abuse of the process of the Court and liable to be quashed. He has placed his reliance on PLD 1973 Kar. 478.
6. Mr. Zaheer Qureshi, the learned counsel appearing for the State is also of the view that the proceedings pending before the trial Court are based on any F. I. R. Which does not disclose any offence. He therefore supports the quashment of the proceedings of the case.
7. I have carefully considered the contentions of the learned counsel for the applicant as well as the state. The F. I. R. Of this case has been lodged on 5th July, 1975 though the alleged kidnapping is said to have taken place on 3rd July, 1975. There is no plausible explanation for delay of two days. A simple reading of the F. I. R. Does not disclose any offence against the applicants: If at all, it discloses any offence it is only against one Allah Bachayo who has not been sent up by the investigating agency to stand trial for such kidnapping. The applicants have been roped in this case when there was no specific allegation of kidnapping against them in the F. I. R. The case has not proceeded till today ever since it was sent up in the trial Court. I find lot of weight in what has been stated by the learned counsel for the applicants as well as State. I feel that the proceedings are abuse of the process of the Court and fit to be quashed under the circumstances of the case. I don't think any purpose in furtherance of justice will be served if the proceedings are allowed to be continued in the trial Court.
8. In the result I allow this application and quash the proceed--ings of the Sessions Case No. 1160/76, State v. Dawood and others, under section 364-A/109, P. P. C. Pending in the Court of VIth Additional Sessions Judge, Karachi.