' This order will dispose of two applications, one by Mst. Shamim Firdaus (Criminal Miscellaneous : No, 149-Q-80) and the other by her brother Muhammad Sarwar (Criminal Miscellaneous 150-Q- 80), for quash-meat of proceedings in two criminal cases pending against them under section 29 of the Telegraph Act and section 500 of the Pakistan Penal Code in the Court of a Magistrate at Lahore. The cases were registered by the police at the instance of Col. Sher Afzal Khan.
2. The cases have a background to which it is necessary to make a brief reference. Mst. Shamim Firdaus claimed that she was the lawfully wedded wife of Col. Sher Afzal Khan. On his part Col. Sher Afzal Khan repudiated her claim. In 1964 she filed a civil suit to assert her status as such. This led to a protracted and bitter litigation between them. Both parties led voluminous documentary and oral evidence in support of their respective claims. After a thorough examination of the evidence at each tier, the trial Court, the Additional District Judge, the High Court and the Supreme Court all concurrently found that Col. Sher Afzal Khan had entered into a contract of marriage with Mst.
Shamim Firdaus on 12th September, 1960. The judgment of the Supreme Court was delivered on 2nd September, 1980 and is reported in PLD 1980 SC 228.
3. In July 1979 Col. Sher Afzal Khan was posted at the Martial Law Headquarter at Lahore. At ,that time his appeal was pending in the Supreme Court. He lodged two F. L Rs, one at Police Station Mozang and the other at Police Station North Cantt. In these F. I. Rs, he stated that a woman by name of Shamim Firdaus was posing as his wife and by misusing his position as army officer she was attempting to reap undue advantages. Thus, she had purchased a car at less than its market value and had got a plot allotted in the Cantonment Co-operative Housing Society at Lahore. On the basis of these F. I. Rs, two cases under sections 419, 420, 468 and 471 of the Pakistan Penal Code were registered against her.
4. During the course of the investigations the police obtained a warrant for the arrest of Mst.
Shamim Firdaus. To execute the warrant two police officers went to her house at Sialkot on 31st July, 1979. She was not present there. Upon this they took away the father of Mst. Shamim Firdaus with them. It is a matter of dispute whether her father accompanied the officers voluntarily in order to assist in her arrest or he was forcible taken away by them in order to put pressure upon her to appear before the police. However that may be, on 5th August, 1979 Muhammad Sarwar, petitioner, filed a Writ Petition (W. P. No, 4261 of 1979) in the High Court for the registration of a case against the two police officers for kidnapping his father. It was alleged in the writ petition that the whereabouts of his father were still unknown. On 27th November, 1979 a learned Single Judge of this Court directed the Station House Officer of Police Station Mozang to record the statement of Muhammad Sarwar and to register a case if the statement disclosed the commission of a cognizable offence. A case was in fact later registered.
5. On 3rd August, 1979 Mst. Shamim Firdaus, sent two telegrams, one addressed to the Martial Law Administrator Zone 'A' at Lahore and the other to the Chief Martial Law Administrator. In the televam sent to the Martial Law Administrator she stated : "Colonel Sher Afzal P. A. No, 5073 Assembly Chambers falsely registered criminal cases against me at Police Station Mozang and Police Station South Cantt. To withdraw appeal in Supreme Court of Pakistan Lahore. AAA Necessary action and interference sought AAA."
' In the telegram sent to the Chief Martial Law Administrator at Rawalpindi she stated : "My father Ghulam Hussain kidnapped from Sialkot by Mr. Jalil Inspector and Malik Zulfiqar S. H. O.
Mozang Lahore at behest of Colonel Sher Afzal AAA Might kill him AAA Intervention sought AAA.
' Similarly Muhammad Sarwar also addressed two telegrams to the Martial Law Administrator Zone 'A', Lahore and the Chief Martial Law Administrator at Rawalpindi. Both these telegrams were identically worded and read as follows : "My father Ghuiam Hussain Butt kidnapped by Mozang Police AAA Sialkot Police not registered case AAA Sought interference AAA".
Somehow, Col. Sher Afzal Khan obtained copies of these telegrams. On 20th September, 1979 he addressed two separate letters to the Deputy Inspector-General of Police. These letters read as follows : {{URDU TEXT}} (Sd.)
Col. Enclosed Circuit House Race Course Road, Annex. 'A'
Lahore 20 Sept. 79 {{URDU TEXT}} (s d .) Enclosed Col. Annex. 'A' and 'II'
Circuit House Race Course Road, Lahore 20 Sept., 79 ' On the basis of these letters two cases one against Mn. Shamim Firdaus and the other against her brother Muhammad Sarwar were registered by the Police for offence falling under section 29 of the Telegraph Act and section 500 of the Pakistan Penal Code. Both these cases are now pending in the Court of a Magistrate at Lahore. No evidence has so far been recorded and the prayers of the petitioners for acquittal under section 249-A of the Code of Criminal Procedure have been turned down by the learned trial Magistrate. The petitioners have now approached this Court for quasfitnent of the proceedings.
6. Before I proceed further 1 may mention that after the decision of the Suptetxte Court Mst.
Shamim Firclaus was acquitted in both the cases registered at the instance of Col. Sher Azal Khan with Police Station Mozang and Police Station North Cantt. Under sections 419, 420, 468 and 471 of the Pakistan Penal Code.
7. Section 29 of the Telegraph Act reads as follows : "If any person transmits or causes to be transmitted by telegraph a message which he knows or has reason to believe to be false or fabricated, or a message which is indecent or obscene, he shall be punished with imprisonment for a term which may extend to three years or with fine, or with both."
' The telegrams in question were clearly not indecent or obscene and since the petitioners have owned their authorship these cannot be said to be fabricated. Thus the only question for consideration is whether the petitioners knew or had reasons to believe when transmitting the telegrams to the different authorities that the messages contained therein were false. Now in the two telegrams sent by Mst. Shamim Firdaus the following averments were made : "(i) Col. Sher Afzal Khan had falsely registered criminal cases against her at Police Station Mozang and Police Station North Cant t.
(ii) These cases had been registered with a view to force her not to contest the appeal pending in the Supreme Court of Pakistan.
(iii) Her father Ghulam Hussain had been kidnapped from Sialkot by Inspector Jalil and S. H.
0. Malik Zulfiqar at the behest of Col. Sher Afzal Khan.
(iv) Her father might be killed."
' In the telegram sent by her brother Muhammad Sarwar the following allegations were made : "(0 His father Ghulam Hussain Butt had been kidnapped by Mozang Police.
(ii) Sialkot Police did not register a case."
8. Now in the two cases which Col. Sher Afzal Khan got registered at Police Station Mozang and Police Station North Cantt. His main grievance was that Mst. Shamim Firdaus was falsely representing herself to be his wife. His assertion that Mst. Shamim Firdaus was not married to him was untrue even to his knowledge for, as already mentioned, all the Courts of Pakistan, even including the Supreme Court, had as a matter of fact found that he entered into a contract of marriage with her in September, 1960. This marriage had not been dissolved either by any talaq or through Court till the day when the F.
1. Rs,, were registered at Police Station Mozang and Police Station North Cantt. In fact, after the decision of the Supreme Court Mst. Shamim Firdaus was acquitted by the trial Court in both the cases. It was not the case of the State that the orders of acquittal have been challenged by it in any superior Court. In the circumstances Mst. Shamim Firdaus could not be said to have knowingly made an untrue statement when she alleged in the telegram that Col. Sher Afzal Khan had falsely got registered criminal cases against her.
9. It is also not in dispute that at the relevant time the appeal of Col. Sher Afzal Khan was pending in the Supreme Court. The registration of criminal cases on the basis of an untrue representation with regard to his relationship with Mst. Shamim Firdaus by Col. Sher Afzal Khan . Could reasonably be interpreted by her as an attempt by him to force her not to contest the appeal before the Supreme Court. Thus her telegram to the Martial Law Administrator Zone 'A' could not possibly be said to contain matter which to her knowledge or belief was false or untrue.
10. It is also not in dispute that during the investigation of the two criminal cases Inspector Jalil and S. H.
0. Malik Zulfiqar raided the house of Mn. Shamim Firdaus at Sialkot. Mst. Shamim Firdaus was at that time not present in her house. The two officers then took away her father with them. Whether her father accompanied the police officers voluntarily or was forcibly taken away by them is shrouded in some mystery. In the memorandum sent by the Inspector-General of Police to the Headquarters of the Martial Law Administrator Zone 'A' it was stated that the father of Mst. Shamim Firdaus had accompanied the police party just to locate her. A copy of this memorandum is on the record as Annex. On the other hand the case of the petitioners was that their father had been kidnapped by the aforementioned police officers. It was stated at the bar that shortly after his release he died.
However that may be, on 5th August, 1979 Muhammad Sarwar filed a writ petition for the issuance of a direction to the S. H. O. Police Station Saddar Sialkot for the registration of a criminal case with regard to the kidnapping of his father. This writ petition was disposed of by Dilawar Mahmood, J, on 27th November, 1979. The material portion of the order reads as follows "Let the petitioner appear before the S. H. 0/respondent and lay information before him about the alleged crime. The said S. H.
0. Would record the statement of the petitioner and if the statement so recorded, prima facie, discloses the commission of a cognizable offence, he would register a formal F. I. R. And proceed in accordance with law."
' There is no material before me to hold whether it was a case of kidnapping or of voluntarily accompanying the Police but there can be little doubt that the family of the petitioners' father must have been under a genuine apprehension that he had been forcibly taken away by the Police at the behest of Col. Sher Afzal Khan who was the complainant in the criminal cases and was working in the Martial Law Headquarter. In the circumstances when the petitioners in the telegrams in question stated that their father had been kidnapped by the Police at the behest of Col. Sher Afzal Khan they could not be said to have transmitted a message which they knew or had reasons to believe to be false. In fact the telegrams were intended to seek the protection of the Chief Martial Law Administrator and the Martial Law Administrator Zone 'A' who were the superior officers of Col. Sher Afzal Khan at the relevant time. Taking into account the background under which the telegrams were sent it cannot possibly be said that the allegations made by them were not in good faith. Thus the messages contained in the telegrams were covered by Exception 8 to Section 499 of the Pakistan Penal Code.
10. For the reasons stated above I have no doubt in my mind that the' petitioners did not contravene the provisions of section 29 of the Telegraph Act or section 500 of the Pakistan Penal Code. To allow the proceeding to continue will be a clear abuse of the process of Court.
Accordingly, I quash the proceedings pending against the petitioners.
Petit ion accepted.