1. By this application under section 561-A, Cr.P.C., the applicants have prayed for quashment of proceedings of the case being direct complaint No. 15 of 1982 filed -by the respondent against them under sections 466, 467, 468 read with 120-B, P.P.C. Pending before the Ist Additional Sessions Judge, Sukkur.
2. Briefly stated the complainant's case in the above direct complainant is that Mst. Nasreen alias Zarina daughter of respondent was given in marriage to applicant No.1 Abdul Malik. In return Mst.
2. Hameedan sister of applicant No.1 was married to Abdul Karim son of the respondent. On 10-10- 1980 the Nikah of Mst. Nasreen was solemnized with Abdul Malik by applicant No.2 Kazi Abdul Karim, who was the Nikah Khawan and the Nikah Registrar vide Nikahnama No. 38. In that Nikahnama prompt dower was shown as golden ornaments viz. One golden Banhi, one necklace with seven Larhies and one pair of golden Magars. It was signed by the bride and bridegroom and their respective witnesses and Vakeels. On 11-10-1980 the Nikah of Mst. Hameedan was performed with Abdul Karim son of the respondent vide Nikahnama No.40. The married life of both the couples did not go smoothly. Some notices were exchanged between the parties where from the respondent gathered the information that the Nikahnama of his daughter bearing No. 38 was tampered with', forged or misplaced because the applicants had claimed in their notice that the dower of Mst.
3. Nasreen alias Zarina was Rs.28 and not the golden ornaments mentioned above. Consequently the respondent obtained the copy of Nikahnama of his daughter from the Municipal Committee from which he found that Nikahnama No. 38 was replaced by an other Nikahnama bearing No. 39 which was forged by the applicants in collusion with others. It showed the amount of "Mahar" as Rs.28. It also showed signatures of different persons as Vakeel of the bride and the witnesses of the Vakeel of the bride. The Nikahnama did contain the signature of Mst. Nasreen alias Zarina, who disclosed to the respondent that the same were forcibly obtained from her by applicant No.1 subsequently on the threats of divorce. Hence the respondent filed the above complaint, in the Court of. S.D.M. Which was sent for trial to Sessions Judge, Sukkur who after recording the statement of respondent under section 200, Cr.P.C., ordered that the holding of, a preliminary enquiry. He recorded the statements of respondents witnesses Muhammad Khan, Nazeer Ahmed, Gul Muhammad, Masoom Ali, and Nasreen. The learned Sessions Judge then made over the case to IVth Additional Sessions Judge, Sukkur. On 3-11-1982 the respondent made an application to the IVth Additional Sessions Judge seeking withdrawal of the complaint with permission to file fresh complaint, which was granted.
4. The respondent, however, made an application to this Court alleging that he had withdrawn his earlier complaint under compulsion. The application was heard by the Honourable Mr. Justice Ajmal Mian, who set aside the order of the IVth Additional Sessions Judge, Sukkur and remanded the case for further proceedings, which was made over to the Ist Additional Sessions Judge, Sessions. The Ist Additional Sessions Judge, Sukkur on the basis of the evidence recorded in the P.E.
5. Ordered issuance of process against all the applicants under sections 466, 467, 468 and 120-B, P.P.C. Against the present application under section 561-A, Cr.P.C. Has been made.
6. On behalf of applicants, it has been alleged that both the bridegrooms had divorced their respective brides. It was further alleged that prior to the marriage the parties had agreed to fix the dower of both the bridges at Rs.28. The marriage of Mst. Nasreen alias Zarina with Abdul Malik took place on 10-10-1980 while the marriage of Mst. Hameedan with Abdul Karim took place on 10-10- 1980. Applicant Abdul Malik was not satisfied with the behaviour of Mst. Nasreen alias Zarina towards his old parents, when' reprimanded she left her husband taking away all the clothes and golden ornaments and refused to return. Consequently the parties exchanged notices. Ultimately on 6-12-1981 applicant No.1 divorced his were Mst. Nasreen alias Zarina in writing.
7. It is further alleged by the applicants that Mst. Hameeda also met the same fate and was divorced by Abdul Karim. Thereafter, litigation started between the parties. On 12-1-1982, the opponent filed two direct complaints against the applicants one under sections 506/2, 504, 448, P.P.C., in the Court of S.D.M. Sukkur and another under section 500, P.P.C., in the Court of S.D.M. Rohri. The applicants lost no time in retaliating and on 14-2-1982 filed a direct complaint of theft of ornaments under section 380, P.P.C., etc. Against Mst. Nasreen alias Zarina and others in the Court of D.M. Sukkur.
8. Thereafter, the opponent filed in retaliation the present false complaint which has been assailed in the present petition. In the first two complaints, the applicant No.1 and other were acquitted by the Civil Judge and F.C.M., Sukkur and S.D.M. Rohri on 1-10-1983 and 31-5-1984 respectively. The opponent filed acquittal appeal in this case against the former judgment which was dismissed by Ajmal Mian, J. On 30-8-1983. The applicants, therefore, state that no offence was committed by them, and the present complaint is false and outcome of enmity.
9. I have heard Mr. Ghiasuddin Baloch, Advocate for applicants and Mr. Muhammad Aslam Qureshi, Advocate for respondent. I have also heard Mr. Amanullah Qureshi counsel for the State.
10. It was contended by Mr. Ghiasuddin Baloch Advocate that section 5 of the Family Courts Act 1964 gave the exclusive jurisdiction, subject to the provisions of Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961 to Family Courts, to entertain, hear and adjudicate upon the matters specified in the schedule. Section 5 of the Family Courts Act, 1964 reads as under:- "5. Subject to provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."
11. The schedule thereof reads as under:- (See section 5 supra)
12. 1.Dissolution of marriage.
13. 2.Dower.
14. 3.Maintenance.
15. 4.Restitution of Conjugal rights.
16. 5.Custody of children.
17. 6.Guardianship.
18. 7.Jactitation of marriage.
19. He, therefore, submitted that since the present case related to dower which was a matter specified in the schedule, therefore, the Family Courts had exclusive jurisdiction to entertain this matter and Court of Sessions had no jurisdiction to take cognizance of this case he fortified his argument by a ruling given by Shafi-ur-Rehman's, J. Of Lahore High Court (as he then was) in Khan Asadullah Khan and others v. Sheikh Islamuddin reported in PLD 1978 Lah. 711, where it was held as follows:--- "The matters specified in the Schedule are the subject-matter of the suit or proceeding without any direct reference whatsoever to the party which institutes the proceedings. There is in fact an irresistible indication e.g. In the case of jactitation of marriage that a person who claims to be a stranger or is in fact a stranger can also maintain proceedings in Family Court. If as in this case the subject-matter of the proceedings is one which is specified in the Schedule then the Family Court has the exclusive jurisdiction. It is an undeniable fact that Mst. Akhtar Saeeda Bano sought dower and had approached the appropriate forum for that purpose, and such a forum had the exclusive jurisdiction in the matter."
20. He then cited a ruling given by Karimullah Khan Durrani, J. Of Peshawar High Court in Abdur Rashid and another v. Mst. Shaheen Bibi and 2 others reported in PLD 1980 Pesh. 37, where it was held as follows:-- "The Family Court or the Court sitting in appeal of its decrees have exclusive jurisdiction in the matter of dower and, therefore, these Courts were competent to determine whether any property movable or immovable in nature, formed part of the dower or not. No exception can be taken to the impugned decree on this ground. The delivery of possession by effecting partition of the suit share has rightly been left to the civil Court by the learned appellate Court."
21. The argument of the applicants counsel does not hold any water. It must be remembered that according to preamble of the Family Courts Act, 1964, this act makes provisions for establishment of Family Courts for expeditious disposal of the disputes relating to the marriage and family affairs and for the matters connected therein. Sections 3 and 4 of the Act which provide for establishment of Family Courts and the Qualification of Judge/ Kazi make it clear that these Courts are primary Courts of Civil jurisdiction. The only exception has been made in case of proceedings under section 488, Cr.P.C. For which specific provisions has been made by section 20 whereby it has been provided that the Government may invest any Judge of the Family Court with the powers of a Magistrate First Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898. In other words a judge of the Family Court can exercise the powers of a Magistrate of the Criminal Court for the limited purpose of making order of maintenance under section 488, Cr.P.C. Of the Code of Criminal Procedure, 1898 and for no other purpose. He cannot either entertain a complaint for a criminal offence such as the offences in this case I.e. Under sections 466, 467 etc. And 120-B, P.P.C., nor can he commit such a criminal case to the Sessions Court. A Judge of the Family Court has not been invested with the powers of the Sessions Judge and, therefore, cannot entertain, hear and adjudicate or even taken cognizance of an offence under the above provisions of P.P.C., even if it relates to dower or any other matter specified in the schedule of the Family Courts Act. Both the rulings cited by Mr. Ghiasuddin Baloch, Advocate relate to cases of civil nature.
22. The former ruling related to jactitation of marriage which was clearly a proceeding of civil nature.
23. Similarly the second ruling related to recovery of dower amount and was filed as a civil suit in the Court of Senior Civil Judge while the counter-suit was instituted in the same Court for restitution of conjugal rights. Hence the fact that the above High Court in these rulings held that such suits should have been filed in a Family Court would not by any stretch of argument lead a judicial mind to the conclusion that even criminal offences relating to the matters connected with the dower or jactitation of marriage would be challaned before the Family Court. I am, therefore, of the clear view that a Family Court is primarily a Court of civil jurisdiction except for the purpose of proceedings for recovery of maintenance under section 488, Cr.P.C. And the Judges of the Family Courts have no jurisdiction what to say of an exclusive jurisdiction, to entertain hear and adjudicate or to take cognizance of any offence related with a matter specified in the schedule or section 5 of the Family Courts Act, 1964. Such offences are to be tried by the Courts constituted under the Criminal Procedure Code and not by the Family Courts.
24. The next contention of Mr. Ghiasuddin, Advocate was that the perusal of the complaint filed by the opponent shows that no criminal offence has been made out under the sections for which process has been issued. He has pointed out that there was no dispute about the fact that both the Nikahnamas were signed by genuine persons including the bride and that there was no interpolation or change in any respect in either of the two Nikahnamas. He, therefore, submitted that neither of these two documents would fall within the definition of false documents and consequently process issued against the applicants amounts to abuse of process of law. He further submitted that the continuation or proceedings would not result in conviction in any way and would simply be a cause of protracted harassment and torture for the applicants. Finally he submitted that the parties were at daggers drawn with each other and applicant No.1 and others have been acquitted in two earlier cases filed by the respondent. This 3rd complaint has been filed mala fidely simply to harass the applicants. He cited the case of Mehmood Shah and 8 others v.
25. Usman Shah and another reported in 1979 P Cr. L J 924 given by Zaffar Hussain Mirza, J of our own High Court (as he them was) held as follows:- "On a careful consideration of the circumstances of this case and the arguments of the counsel, I have come to the conclusion that the complaint was filed for ulterior motive and as observed by their Lordships in M.S. Khawaja v. The State PLD 1965 SC 287 reveals a perversion of the purpose of the law such as to cause harassm ent to an innocent party. No useful purpose will be served in allowing the proceeding to continue on account of patently inadequate and unbelievable nature of the allegation. --In Haq Nawaz v. Muhammad Afzal 1971 3 C JM R 698, it was observed by their Lordships of the Supreme Court that each case must be judged on its own special facts and circumstance. It was further observed that the High Court was competent quash the criminal proceedings, if it was satisfied that a false complaint has been brought and the process of the Court was, therefore, being abused not to advance the interests of justice but to subject the accused persons to unnecessary harassment. I am of the confirmed view that the present is a case of such a nature and calls for interference by this Court,"
26. He also, cited the case of Loung Khan and 2 others v. Muhammad Jumman and 2 others reported in 1982 P Cr. L J 1039 where Z.C. Valliani, J has held to the following effect:-- "Therefore, in my opinion, the facts as mentioned in the complaint relate to civil dispute and such facts cannot, in my opinion, result in the conviction of, the present applicants and respondent No. 2, whose name was deleted as respondent on 19th April, 1980 and as such continuance of the said proceedings, before the learned trial Court would amount to abuse of the process of the said Court, in view of the facts and circumstances of the case in question, as herein above mentioned by me."
27. He then cited PLD 1978 Kar. 348, Khatija v. The State where Tufail Ali A. Rehman's, C.J. Has held that the facts stated in the complaint did not constitute any offence, the proceeding could be quashed on such ground. It was further held in the same ruling that the proceedings were not to be quashed merely on improbability of a particular facts. However, the proceedings could be quashed only when a fact was so grossly absurd and fantastic as conviction was not possible to result on such evidence. I have least hesitation in agreeing with the legal propositions propounded in the above three rulings cited by Mr. Ghiasuddin Baloch. The first ruling relates to a case where a false complaint was filed. Ulterior motive and serious enmity, in that case no doubt on the face of it appears to resemble the facts of the present case because serious enmity was existing between the parties and criminal as well as civil litigation was going on between them prior to complaint in dispute but it is distinguishable from the present case because in the case under ruling there was only oral allegation of theft which was made after eight days of the incident whereas in the present case there is documentary evidence of a second Nikahnama having been prepared which even the applicants did not dare to deny though they nave tried to give an explanation for the same.
28. Hence the first ruling would not apply to the present case.
29. The second ruling relates to a complaint on n civil dispute between the parties regarding transfer of immovable properties by the original owner after having been given a general power of attorney to the complaint. The proceedings were quashed because on the facts given in the complaint no criminal charge could be made out. It is not so in the present case. If the facts given in the direct complaint are taken to be true then they do amount to criminal offences for which process has been issued. Hence the second ruling was also not applicable to the present case. The third ruling related to payment of money delivery of ornaments and clothes on the promises d arranging a marriage. The Court was of the opinion that the facts stated in the complaint did not constitute any offence. This ruling made it clear that proceedings were not to be quashed on improbability of a particular fact but could be quashed only when a fact was grossly absurd and fantastic. To say the least, this ruling is also not applicable to the present case because whatever has been stated in the direct complaint is not grossly absurd and fantastic.
30. The original Nikahnama at page 38 as well as the true copy of the subsequent Nikahnama at page 39 obtained from Municipal Committee, Rohri have been produced. The perusal of these two Nikahnamas in juxtaposition would reveal that there is a change in these two Nikahnamas so far as the amount of dower is concerned. There are also other changes in the Nikah second Nikahnama.
31. Muhammad Khan had signed as Vakeel for the bride in the first Nikahnama while in the second Nikahnama Ashfaq Ahmed has signed as Vakeel for the bride. Similarly there are signatures of different persons as witnesses for appointment of Vakeel of bride and of witnesses of marriage from the side of bride.
32. Under these circumstances it cannot be said that the facts given in the complaint if taken to be true would not constitute the offence for which the process has been issued. Similarly the contention of applicants counsel that the document cannot be called to be a false document even if the facts given in the complaint are taken to be true is not correct at all.
33. Mr. Muhammad Aslam Kureshi, Advocate rightly placed reliance upon the case of Din Muhammad v. Muhammad Sharif and another reported in 1979 P Cr. L J 59, where Rustam S. Sidhwa, J. Observed that the powers to free accused from groundless charge was co-existent, both with trial Court as well as High Court, and it was held that litigant must first resort to remedy in Court of lower jurisdiction except in exceptional circumstances. Reliance was also rightly placed) by the counsel for the respondent in the case of Sheikh Muhammad Yamin v. The State reported in 1973 SCMR 622, where it was held:- "We are not impressed by the argument. The mere fact that the petitioner has been formally charged under certain penal provisions of law does not necessarily mean that he stands convicted or condemned. He has merely been put on notice of the allegations against him to help him to prepare his defence. If, as it is argued on his behalf, there is no credible evidence to connect the petitioner with despatch of the offending consignment from Karachi to London, then he has nothing to be afraid of and then there is no reason why the trial Magistrate should not record a judgment of acquittal in his favour. However, that may be, it is not denied that some evidence has been produced which intends to connect the petitioner with the incident. Therefore, it is not a case of total want of evidence. This precludes interference by this Court at this stage. Accordingly we dismiss this petition."
34. It is quite clear that each case has to be judged on its own facts and circumstances. In the present case there does not appear to be anything patently inadequate or of unbelievable nature in the allegations made by the complainant such as to satisfy the Court that false complaint has been brought and the process of the Court was being abused. The facts stated in the complaint were not of civil nature nor so improbable or grossly absurd or fantastic that they were incapable of being believed. The allegations made in the complaint are based on second document of Nikahnama. The execution of whiff 'is not denied by the applicants. However, it is for the trial Court to decide whether the same would amount to forgery or such other allied offences as has been alleged in the direct complaint or not and it will not be proper for this Court to express any opinion on this aspect of the case, lest it may prejudice the trial. The provisions of section 561-A, Cr.P.C., cannot be attracted to the facts and circumstances of this case because there is complete absence of the factors mentioned above therein.
35. As a result of the above discussion, I am of the clear view that the request for quashment made by the applicants does not merit consideration. Hence the petition is dismissed.