On 24th December, 1981, Navid Raza son of Syed Ibrar Hussain filed a complaint under section 382, P. C. Against Arshad Ali, Asad Ali and Amjad Ali, three real brothers, sons of Inayat All Shah.
Naaid Raza resides with other family members at Mohallah Islampura, Daska, whereas the accused live in Bagh Gul Begum, Lahore.
2. Zawwar Hussain uncle of Navid Raza is married to Mst. Qaisra, real sister of the accused.
According to the complaint, Mst. Qaisra had gone to her parents. She was living with them.
It is alleged that on 20th December, 1981, at 12 noon when the complainant and his brother Ahmad Raza were present in their house and the other family members bad gone to Lahore, the accused party forced their entry into the house. Arshad, on pistol point, threatened the complainant and his brother to keep quiet. The accused then started removing household effects like sewing machine, 3 electric irons, grinder, mincing machine, tape-recorder, heater, toaster, electric kettle, pressure cooker, golden ornaments weighing 10 tolas and silken clothes.
In the meanwhile, Muhammad Rafique Khokhar, Zia-ud-Din and Muhammad Akhtar came there.
They saw the incident. They tried to pursuade the accused not to remove the articles but the accused threatened them. They took away the articles and, while leaving, threatened the complainant that in case he or any one of his family members took any action, they would be involved in number of false cases and would even be killed.
According to the complainant, this incident was reported to the police but they paid no attention.
3. The Magistrate, who took the cognizance, issued process to the accused. Two of the brothers, namely, Arshad Ali and Asad Ali, have filed this petition under section 561-A, Cr. P. C. For quashment.
In the petition, they have given their counter-version.
4. The case of the petitioners is that their sister Mst. Qaisra was married to Zawwar Hussain Kazmi on 8th February, 1970. Out of the wedlock, two sons Mehdi Hassan (8) and lmran (3) were born.
Zawwar Hussain alongwith his family went abroad in search of some employment. He landed up in Sharja, settled there and took fancy to a local woman Shadia. On 5th July, 1979, he sent his wife Qaisra to Pakistan. On 9th September, 1979, he married Shadia.
According to the petitioners, Qaisra's marriage was not dissolved but she was deserted. She took refuge with her parents at Lahore and left her in-laws at Daska. She also brought her two sons with her. Mehdi Hassan, the eldest son left his school at Daska and joined Cathedral School at Lahore on 8th April, 1981. The petitioners and their parents were looking' after Qaisra and her children. They were bearing all the expenses.
Zawwar Hussain Kazmi was displeased with this attitude of his wife. Nevertheless, he was keen to get the custody of his sons.
In the month of December, 1981, Zawwar Hussain Kazmi came to Pakistan. He alongwith his four brothers Iftikhar Hussain, Alamdar Hussain, Azfar Hussain and lbrar, Hussain, conspired to find a wayout to get the children from Qaisra. The device worked out was to pressurise the petitioners by involving them in number of cases. The present complaint was one oc the manoeuvres.
The petitioners further alleged that on 26th December, 1981, 14 persons including four brothers of Zawwar Hussain Kazmi and his nephew came in a car and a van to the house of the petitioners.
They attempted to remove the children by force. They were resisted. The party failed in their attempt to take away the children. Arshad Ali lodged report under section 452/5061363/511/148/149, P. P. C. At Police Station, Lytton Road, Lahore on 26th December, 1981.
Four days after that, Iftikhar Hussain Kazmi as a counterblast got a criminal case registered tinder section 5061148/149, P. P. C. Against the petitioners and others at Police Station Lytton Road, Lahore.
On investigation, the police found the allegations to be false. They accordingly recommended cancellation of the F.I.R. The Police further held that Iftikhar Hussain and others had come to remove the children. The matter was enquired into by an officer of the rank of D. S. P. And finally the F. I. R.
Was cancelled.
Thereafter, on 2nd February, 1982, Iftikhar Hussain Kazmi filed a complaint at Lahore under section 506/325/148/149/427/500, P. P. C. Against the present two petitioners and Syed Amjad Ali, Mat.
Ghazala, Mst. Qaisra Begum, Samina Syed, Begum Inayat Ali Shah, Amjad, Muhammad Azeem and Alaud Din. In this, preliminary evidence was recorded. Nevertheless, on 22nd May, 1982, the aforesaid Mr. Kazmi gave an application for withdrawal of the complaint pending at Lahore. The reason given was that the parties were related and they had compromised. Statement of Mr. Kazmi was recorded and the complaint was consigned to record. This happened on 24th May, 1982.
5. On the other side, Mst. Qaisra filed two separate civil suits at Lahore, one for maintenance and the other for appointment of guardian for the minor children. She won both the suits.
6. Learned counsel on behalf of the petitioners contended that the complaint under section 382, P.
P. C. Against the petitioners was a clear case of abuse of the process of Court. The conduct of the complainant and others on his side show that their modus operandi was to involve the petitioners and their family members in number of criminal cases from different places so that ultimately the custody of the children was given to their father.
Learned counsel submitted that this is factually incorrect that the. So-called incident was reported to the police. According to him, the entire incident was a fabrication.
Another ground urged was that the trial Magistrate without any legal justification issued non- bailable warrants of arrest of the petitioners.
7. I have heard learned counsel for respondent No, 1, the complainant, as well as the learned Assistant Advocate-General, who entered appearance on behalf of the State. Both of them objected to the maintainability of this petition on the ground that it was premature because the petitioners had a remedy by way of an application to the learned Magistrate under section 249-A, Cr. P. C. In this connection, learned counsel for the respondent/complainant showed me one of the cases decided by me and reported as Asif Mahmood v. Muhammad Ismail and others where I had observed that an aggrieved party should first approach the Magistrate.
8. Admittedly, the petitioners did not move the Magistrate under section 249-A, Cr. P. C. It is also correct that at present only process has been issued against them and no evidence has yet been recorded. But this would not stand in the way of the petitioners because I think that they have taken the right step in the right direction. Normally, a party aggrieyed is expected first to move the trial Court. This may be taken as a rule but there is always an exception to the rule. The present case comes within the exception. I do not agree with the objection of the counsel for the respondent/complainant that the petitioners be ordered to approach the Magisttrate in the first instance because there are good grounds not only for entertaining this petition but also for granting the relief prayed for.
This case is also distinguishable from the one referred to in the preceding paragraph inasmuch as that was a police challan whereas the present one is a private complaint.
Even otherwise, I do not think that it was essential for the petitioners to approach the Magistrate because it is clear from the order, dated 17th April, 1982 that the Magistrate had made up his mind to issue process being convinced on examination of the preliminary evidence and the complaint under section 202, Cr. P. C. That a prima facie case was made out against the petitioners under section 382, P. P. C.
9. A perusal of the complaint shows that it was the usual stereo-type sort of a thing, a reading of which in-between the lines shows that it was not genuine. The complainant mentioned number of items which were forcibly removed by the petitioners but strange enough he did not give the particulars of the golden ornaments which were worth thousand of rupees, nor did he give the details of the clothes.
I am not prepared to accept that the complainant ever approached the police and that they turned a deaf ear to him. If the incident did actually take place, then the complainant would not have kept quiet. He would have gone to the higher police authorities and if the police were not listening, to him, he would have come to this Court praying for an order to the police to act accordance with law. It is a common phenomenon now a days that when an aggrieved person approaches the police and no attention is paid to him, he rushes to this Court for necessary direction. Even otherwise, the conduct of the relatives of the complainant is such that it leaves no room for doubt that the present complaint against the petitioners is due to malice and is frivolous.
The petitioners are law-abiding citizens and so is the complainant. The parties fell out due to matrimonial differences. Zawwar Hussain having taken a second wife, could not give the same affection and attention to his first wife, The facts disclose that the first wife has been completely neglected and she was living with her parents who were looking after her. The method adopted by the husband of Qaisra is to pressurize her with a view to reconcile to the second marriage and part with the custody of her children, but this is not a proper way. If at all Zawwar Hussain is sincere to his better halves and to his two sons, then instead of resorting to these coercive methods he should try to settle the issue amicably and in a dignified manner.
Taking all the above aspects into consideration, I am dear in my mind that this is a clear case of the abuse of the process of Court, and it is in the interest of justice to stop these proceedings. I, therefore accept this petition and quash the proceedings pending in the Court of therefore at Daska not only against the two petitioners but also against the third brother who though has not moved for quashment. NLR 1980 Criminal 771 1