' The present criminal miscellaneous petition under section 561-A of the Code of Criminal Procedure has been filed by the petitioner seeking the quashment of proceedings under sections 406 and 420, P.P.C. Arising out of a complaint filed by the respondent against the petitioner in the Court of Syed Ali Tahir Zaidi, the then M.I.C. Lahore.
2. The petitioners are closely related inter se. Mst. Ayesha petitioner No,3 is mother of Nazir Ahmad petitioner No,2 and sister of Khushi Muhammad petitioner No,1. Her daughter Riaz Begum was married to Mukhtar Ahmad son of Niaz Ali respondent about 11/12 years before the filing of the complaint in question. Niaz Ali respondent is also related to the petitioners inasmuch as he is the husband of the sister of the father of Nazir Ahmad petitioner No,2.
' Mst. Riaz Begum was 9/10 years old at the time of her marriage with Mukhtar Ahmad. Her Rukhsati, therefore, took place about 5 years after their marriage. In the meantime, the relations between the families of Mukhtar Ahmad and Riaz Begum became strained on account of civil litigation over some residential property which ultimately ended in favour of petitioners Nos. 2 and 3 and others.
In the circumstances, even after her Rukhsati Mst. Riaz Begum invariably lived at the house of her parents. The marriage between Mukhtar Ahmad and Riaz Begum ultimately ended in divorce. On the 15th of April, 1970, Mukhtar Ahmad besides executing a deed of divorce, dated 15th April, 1970 (Annexure 'B') sent a notice (Annexure 'C') under section 7 of the Muslim Family Laws Ordinance to the Chairman, Union Council, Sabowal, Tehsil Gujrat. It is alleged that on the first date of hearing connected with conciliation proceedings before the Chairman, the parties fell out and Makhtar Ahmad attempted to attack Nazir Ahmad petitioner No,2 with a knife. The matter was thus adjourned.
3. Niaz Ali respondent, the father of Mukhtar Ahmad, was then employed as Foot Constable at Police Station Chuna Mandi, Lahore. He filed a complaint (Annexure 'A') under sections 406 and 420, P.P.C. Before a local Magistrate Court against the petitioners alleging that 3 petitioners had come to the complainant's house at Lahore on the 12th of April, 1970 and the respondent had given a sum of Rs,500 to them for being paid to his wife in the village as she needed the money for the repairs of the respondent's house. It was further alleged in the complaint that subsequently the respondent learnt from his wife that the amount (Rs,500) was not paid to her by the petitioners and they misappropriated the same.
4. The learned Magistrate after recording the preliminary evidence produced by the respondent summoned the petitioners vide his order, dated 26th June, 1970 through bailable warrants. The petitioners thus filed the present criminal miscellaneous petition seeking the quashment of proceedings relating to the complaint inter alia on the grounds that .The said proceeding were a sheer abuse of the process of the Court and the complaint was filed by the respondent by exploiting an undue advantage of his official position and his employment at Lahore. It was further alleged that the mala fide nature of the proceedings was evident from the circumstances the money was alleged to have been paid to the petitioners on 12th of April, 1970 while Mst. Riaz Begum, the sister of petitioner No,2 and neice of petitioner No,1, was divorced by the respondent's son on 15th April, 1970 and the relations between the two families were already strained.
5. No one on behalf of the complainant appeared to resist the under consideration miscelleneous petition although the learned counsel for the State did appear and opposed it.
6. As already observed, Mst. Riaz Begum, the daughter of petitioner No,3 and sister and neice respectively of petitioners Nos.2 and 1, was divorced by Mukhtar Ahmad, the son of the respondent, on 15th April, 1970. In the circumstance, the alleged visit of the petitioners to the house of the respondent on 12th April, 1970 when he allegedly entrusted an amount of Rs,500 to them is highly improbable rather unblievable. It is true that ordinarily every case should be allowed to proceed according to law and there should be seldom resort to the provisions of section 561-A of the Code of Criminal Procedure to avoid the perpetuity of the due process of law. But each case must be judged on its own facts and circumstances and if the High Court was satisfied that a false complaint had been brought and thus the process of the Court was being abused to subject the accused persons to unnecessary harassment it should quash the criminal proceedings in exercise of its powers under section 561-A, Cr.P.C. In Mahmood Shah and 5 others v. Usman Shah and another 1979 P Cr. L J 294 Kar. After careful consideration of the circumstances of the case, the High Court came to the conclusion that the complaint was filed for ulterior motives and no useful purpose was likely to be served in allowing the proceedings to continue on account of patently inadequate and unbelievable nature of the allegation, quashment of the proceedings was ordered.
In Mst. Hameeda v. The State and another PLD 1973 Kar. 478 the then learned Chief Justice of the Sind High Court (Mr. Justice Tufail Ali A. Rahman) observed:- "Obviously to permit a prosecution to continue upon allegations which do not constitute an offence can only be an abuse of process but it does not I think follow that whenever such an allegation exists, however flimsy the evidence which supports it and however transparently dishonestly the allegation is made, the Court must stand by and allow obviously innocent persons to suffer all the agonies of a trial often prolonged in such matters. I cannot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassment of the accused persons whose aquittal is in any way certain and that this would be an abuse of the process of the Court and that in any event under section 561-A an order to quash the proceedings would be one which would secure the ends of justice. The ends of justice do not I think contemplate the force of a trial which can result in an acquittal only."
7. The learned counsel for the State did not contest the contention that the proceedings arising out of the complaint filed by the respondent were nothing but a measure, rather device to harass the petitioners but maintained that the petitioners should have had re-course to provisions of section 249-A, of the Code of Criminal Procedure in the first instance. This argument does not appear to be of much substance in the circumstances of the under consideration case because provisions of section 249-A, Cr.P.C. Were not available when the present criminal miscellaneous petition was filed in 1970, as section 249-A, Cr.P.C. Was introduced for the first time through Code of Criminal Procedure (Amendment) Ordinance, 1977. Moreover, in this case, the learned Magistrate seized of the matter summoned the petitioners to stand trial under sections 406 and 420, P.P.C. After recording and considering the preliminary evidences produced by the complainant and, therefore, it would be an exercise in futility if the same Court is approached again to proceed under section 249-A, Cr.P.C. In Abdul Wahid v. Muhammad Shafi and another PLD 1978 Quetta 66 it was ruled that when a revision petition has already been admitted and has come for regular hearing before the High Court it should be decided on merits although the practice of direct approach to the High Court is highly unappreciable.
8. The upshot of the above discussion is that the complaint filed by the respondent is found to be false having been filed only for ulterior motives and is thus a sheer abuse of the process of the Court.
9. In this view of the matter, the instant criminal miscellaneous petition is accepted and the proceedings of the criminal complaint filed by the respondent against the petitioners under section 406/420, P.P.C. In the Court of Syed Ali Tahir Zaidi, the then M.I.C. Lahore, as also the order passed by the learned Magistrate issuing process against the petitioners, are ordered to be quashed.