KHUDA BAKHSH MARRI, J.-This application under section 561-A, Cr. P. C. Is directed against the Impugned order of Mr. Nayar Bari, A. C. M. Court No. XYIII, Karachi, dated 15-12-1971, whereby he ordered registration of a case against Faiz Gul Agha and Mst. Sakina wife of Faiz Gul Agha under section 420, P. P. C. And ordered issuance of bailable warrants in the sum of Rs. 1,000 and they were directed to attend the Court on 3-3-1971. This order was passed on the complaint filed by respondent A. R. Sadiq under section 420/34, P. P. C. Dated 15-2-1971, after recording the statement of complainant under section 200, Cr. P. C. And his witness under section 202, Cr. P. C.
2. Briefly the facts as revealed from the lengthy complaint filed by A. R. Sadiq comprising of six typed pages, are, that he was introduced in 1968 by one Mrs. Qureshi to the applicants and after a few meetings the applicants dishonestly induced him to marry their daughter one Mst. Nadira Agha to which he agreed after some persuations. As a result of inducement and good offices of Mrs. Qureshi, he persuaded his mother and uncle Mr. Zahoor Ahmed to agree to the proposal of the marriage and the respondent was formally engaged to Mst. Nadira on 24-8-1968, when costly gold ring was presented by the respondent to the accused persons by way of engagement ring.' It is also alleged that a reception at Beach Luxury Hotel to celebrate the engagement was arranged by the respondent, attended by the applicants and their daughter. The respondent continued to visit the applicants' family and according to him he was forced to buy costly presents including golden ornaments, sarees, cosmetics and apart from the above presents, valuable presents were extorted from him by applicant No. 2 for her daughter, his fiance on different occasions. He also complained that he used to take the applicants and their family to pictures, picnics and spent lot of money on different items on the request of s in-laws, ultimately he alleged to have got fed up with these unending demands and demanded for performance of Nikah which was delayed on various excuses but ultimately applicant No. 1 agreed to a date being fixed during his next visit to Karachi from Nairobi, where he also had business. The applicants volunteered to purchase Jehaiz articles such as ornaments, clothes etc. From abroad to which the respondent agreed and a list of articles was prepared approximately for about Rs. 30,000. The respondent -did not agree to this amount which was after consideration cut down to Rs. 12,000 and the respondent paid the above amount to applicant No. 1 who after counting the same handed over the amount to respondent No. 2 his wife for safe keeping in presence of one Mr. Mahboob Ahmad Faizi. The goods as per list were to be brought to Pakistan partly through Sabir Gul and some by applicant No. 1 himself. It is alleged that thereafter applicant No. 1 left for Nairobi and the process of fleecing of the respondent continued unabated, he had no choice but to bear the brunt. After sometime Sabir Gul son of applicant No. 1 came to Karachi from Nairobi without bringing the goods and made an excuse that as he had to come to Pakistan through India, it was therefore, feasible for him not to bring anything, but assured the respondent that applicant No. 1 has bought almost everything and he will bring it shortly. For about 8-9 months; applicant No. 1 did not come and the respondent found the attitude of the applicant No. 2 little luke warm. In June 1970, he found in the press a photograph of his finance Mst.
Nadira having been engaged with singer Masud Rana. He protested which was readily contradicted by the fiance and the family. Applicant No. 1 came to Karachi in January 1971 but did not bring anything for the respondent by stating that his son Sabir Gul would bring the required articles later on from Nairobi when he will come to attend the marriage of his sister Mst. Nadira.
3. The respondent however, insisted for the return of money and fixation of date of marriage, but the applicants tried to put it out on one or the other pretext and ultimately in the words of the complainant/respondent "when the complainant grew impatient due to promises of the accused, they flatly and brazen-facidly refused to acknowledge receipt of money and the fact of engagement of complainant with their daughter and told the complainant off".
4. On enquiry it was found by the respondent that the applicants have similarly behaved is respect of their two elder daughters. In so far as, their eldest daughter Mst. Suraiya was fist engaged and married to an officer of P. I. A. And thereafter with one Manazir. Their second daughter Mst. Sabira was first engaged to Tariq Rahim and then to Sarmat Khawaja and there--after to Saeed, and even in the case of his fiance Mst. Nadira there appeared news of engagement in press referred above.
5. In para. 25 of the complaint it is stated by the respondent that- "the complainant has so far paid in kind and cash at least a sum of Rs. 35,000 to the accused persons on the promise of getting their daughter Mst. Nadira married to the complainant, and the accused persons have now refused to ,acknowledge the fact of receipt of money or engagement although the complainant has positive proof thereof and have made Mst. Nadira to escape to Nairobi."
It is complained in para. 27 that-- "the accused persons have thus in furtherance of common intention deceived the complainant by fraudulently and dis--honestly inducing him to deliver the aforesaid property to them on the false promise of getting their daughter married to the com--plainant and have thereby committed an offence punishable under 'section 420/34; P. P. C. and a payer- was made to the Court for issuance of coercive process against 'them who were likely to escape to Nairobi and deal with them according to law. A list of 8 witnesses was also cited.
The 'impugned order referred earlier was passed in, view of this complaint.
6. The applicants denied the allegations of the respondent contained in the above stated complaint supported by affidavit, by stating that they have large scale business in Nairobi (Kenya)
East Africa, where he is carrying on Carpet business under the name and style of "Turkoman Carpet Emporium", that he com--mands high credit in business circles both in Pakistan and outside Pakistan, and he has three different businesses in Pakistan worth one lac of rupees namely, M/s. Joseph Carpets, Central Hotel Building, Karachi, M/s. Dean Carpets, 4, Forbes Building, Dun--nolay Road, Karachi and M/s. Fasaca Industries, Korangi Indus--trial Area, Karachi. He owns two bungalows in PECH. Society, Karachi worth Rs. 3,75,000, he filed photostat copies of the title deeds.
He further claimed to have immovable, property in Nairobi and London to the tune of Rs. 32,400 details of which is given in the schedule annexed to this application. 'He claims to pay about Rs.
1,200 yearly, as income-tax in Pakistan. He has three daughters including Miss Nadira who is still unmarried, has gone for Haj and is in Nairobi with her four brothers.
7. Respondent No. 1 approached the applicants for the band of their - daughter Miss Naidra which resulted in the "Mangni" in August 1968, after "Mangni" the applicants were not satisfied with the behaviour of the respondent No. 1 and his mother and the Mangni ultimately broke, up in the second week of May 1969. - Applicant No. 1 thereafter, left Pakistan remained outside for 9 months, came back to Pakistan in February, 1970 and he denied that he was in Pakistan in January 1973 as alleged by the complainant. It is stated that after breaking of the en--gagement, respondent No. 1 started nursing a grudge against him and started harassing the applicants in various ways, including filing of false and frivolous criminal proceedings against them, as a result to cause mental anguish and torture. He got a false complaint filed against applicant No. 1 in January 1971 under section 420, P. P. C. In the Court of Mr. Nayyar Bari, Additional City Magistrate Court No. XVIII, Karachi through one Syed Ashiq Hussain on the allegation that applicant No. 1 had received four carpets from the said Syed Ashiq Hussain fraudulently and did not pay the price of it, obtained bailable warrants against applicant No. 1 on 21-1-1971. It is stated that marriage of the applicants' daughter Mst. Sabira took place on 23-1-1971 and the respondent No. 1 with ulterior motives got the warrants served on the applicant No. 1 on the next day I.e. 24-1-1971 at about 10-00 a.m. When the applicant No. 1 was entertaining friends and guests at his residence in P.E.C.H. Society, Karachi. On 22-1-1971 respondent No. 1 also moved an application under no section praying that the Deputy Superintendent of Police Immig--ration Airport, Karachi, be directed not to allow the applicant No. 1 to leave Pakistan without prior permission and the learned Additional City Magistrate granted the said application ex ports, a copy of the order Annexure "E" is filed. The above case was fixed on 30- 1-1971 -but the complainant remained absent and an application was moved on his behalf that the personal attendance of the complainant be dispensed with on medical ground by Mr. Mir 'Muhammad Sheikh, Advocate, and the case was adjourned accordingly to 4-2-1971. These orders are filed as Annexure "E-2". On 4-2-1971 the complainant was absent, an application for adjournment was again moved by the counsel for the complainant Mr. Mir Mohammad Sheikh under his signature, the matter was adjourned' to 13-2-1971, and then to 17-2-1971. Copies of orders are filed as Annexure ",E-3". . The case came up for hearing on 18-2-1971, the complainant again did not appear and it was ultimately dismissed and the applicant No. 1 was discharged under section 253, Cr. P. C. Vide order Annexure "E-4" and it was stated that the complainant Syed Ashiq Hussain never appeared even once before the Court from 31-1-1971 to 18-2-1971.
8. Not being satisfied it is stated by the applicant No. 1 with the above, respondent No. 1 on 15-2-1971, filed another direct complaint under section 420/34, P. P. C. In the Court of Additional City Magistrate praying that case may be transferred to some other Court as the concerned Magistrate having jurisdiction was dealing with the Martial Law cases and the complaint was accord--ingly sent to the same Court i.e. Of Mr. Nayyar Bari, Additional City Magistrate Court No. XVIII, Karachi.
Annexure "F" is a copy of the application and on the same date i.e. 15-2-1971, the Magistrate recorded the statement and passed the impugned order.
9. Another application it is stated under no section was filed under signature of Mr. Mir Muhammad Sheikh, Advocate, for the respondent No. 1 on 24-2-1971, praying that S.P. Special Branch be ordered to direct all sections of Immigration Police not to allow accused persons to leave Pakistan without prior permis--sion of the Court and the learned Magistrate granted the said application ex parte vide order Annexure "G-6" which is as under: "A letter be written to the S. P. Accordingly."
As referred earlier all the allegations made in the complaint with regard to the payment of money are denied by the applicants and have challenged the impugned order on the following ground.
"That the complaint does not constitute any offence under section 420,'P. P. C. And at the worst discloses a civil liability and the facts and circumstances of the case ate such that if the case is allowed to proceed it would be a mock trial. Criminal proceedings against the applicants are an abuse of the process of the Court being mala fide, frivolous, vexatious and oppressive, and that the allegations in the complaint are multifarious and of sweeping nature. No dates have been mentioned of the various incidents alleged and no specific particulars and details have been mentioned regarding the gifts etc. And the amounts spent by the respondent and the story on the face of it is bogus and Of suspicious nature, and that the learned Magistrate without applying his, mind to the facts of the can ordered issue of process which prima fads indicates that the Magistrate has not scrutinized the complaint to see whether it constitutes a Criminal offence of not or whether it reveals a civil liability. The proceedings are only brought for the purposes of harassm ent of the applicants, and that the gold ring and two pairs of clothes only which were given at the time of Mangni were returned to the respondent in May 1969, when the Mangni was broken and in fact the presents given by the applicants to the respondent No. 1 have not been returned by him. In any case it was urged that in the alternative from the facts on record it can be a breach of promise to marry and under Muhammadan Law the respondent would be entitled to return of articles if any which has been returned already. The payment of Rs. 12,000 for Jehaiz as alleged by the respondent was denied and it was stated that the criminal proceedings lodged by the respondent were abuse of the process of the Court.
10. I have heard at length Mr. Haji Mohammad A. Memon, Advocate, for the applicants, Mr. Mir Mohammed Shaikh, Advocate, for respondent No. 1 and Mr. Manzoor Hussain. Advocate for the State. Counsel for the applicant referred to various cases, a few of them may be mentioned. J. S. Daver v. Iqbal Qadir (PLD 1962 Pesh. 167) wherein only summons have been issued and it was held that the complaint discloses civil liability and not criminal offence. Sole purpose of complaint to enforce by coercion civil claim against accused. Proceedings quashed not only against petitioner under section 561-A but also against another co-accused not before Court. M. M. S. T.
Chidambaram Chettiar v. Shammugham Pillai (AIR 1938 Mad. 129) wherein it was held that criminal Court is not the proper forum in cases of civil liability and the proceedings were ultimately quashed. Raja Haq Nawaz v. Muhammad Afzal (1968 P Cr. L J 1867). It was held that High Court was competent to quash proceedings if satisfied that false complaint has been lodged and process of Court was being abused to subject accused persons to unnecessary harassment and the proceedings were quashed. Hukmat Khan v. The State (PL D 1969 Pesh, 137) wherein it was held that proceedings can be quashed before recording the prosecution evidence and it was observed, that "if in the circumstances, the case against the accused in the trial Court is allowed to proceed, it would be a mock trial," and lastly he referred me to an unreported judgment of the learned Chief Justice in Criminal Misc. Application No. 453 of 1971 (Haji Mohammad Usman and another v. Haji Jan Mohammed). The relevant portion may be cited with benefit: "In my view the argument is not tenable since the complaint trust be read as a whole and, so reading it, it is clear that the complainant is really complaining of a failure on the part of the accused persons to render accounts. This view is strengthen--ed by the fact that even prior to this complaint a suit had already been filed. In a somewhat similar matter in which one partner complained of non-rendition of accounts their Lordships of the Supreme Court disagreeing with the view of the High Court, held that the dispute was revealed to be one of civil nature and ought not to be allowed to drag on in the criminal Courts to the harassment of the appellants (Cr. Appeal No. K-17/69 Julian Dinshaw and another v. Ahmed All and another). The present case, I think, is even stronger as upon the face of the complaint itself a clear allegation in regard to the conversion has not been made. In these circumstances I think that to permit this case to proceed would be a clear abuse of the process of the Court and I accordingly quash the proceedings."
11. Looking to the complaint and the statement of the complainant-respondent and his witness Faizi before the Magistrate it appears that all he alleges against toe applicant No. 1 is that he has received Rs. 12,000 couple of days before the Bid for the purposes of purchasing articles for Jahez for the respon--dent and also that the applicants induced him. And that his mother gave gifts and presents worth Its. 22,000 to Rs. 23,000 in view of the pending marriage with Mst. Nadirs which has not been returned. As I have noted earlier the applicants have denied all the allegations in detail and in fact it is stated that a gold ring and two pairs of clothes given by .The respondent were returned after break up of the Mangni. The respondent and his witness Faizi are not sure with regard to the date on which the alleged amount of Rs. 12,000 was paid to them. All they say is that the payment was made couple of days before Eid. He also fails to give the details of the alleged presents worth Rs. 22,000 to Rs. 23,000 supposedly given to the applicants before the break up of Mangni. It cannot be believed that he has not kept the details of the articles and their value had he given such presents or otherwise he could not normally be expected to forget the date on which he paid the alleged amount of Rs. 12,000 to the applicant No. 1, particularly so when according to his own statement he is a businessm an and educated person. It also cannot escape my attention that the dispute between the parties is a long drawn one, the respondent remained engaged for about two years with the daughter of the applicants and according to his own statement he used to go on picnics with her and was on visiting terms with the applicants' family and used to give them gifts on different occasions, the respondent being major it cannot be believed that for the last two years he allowed himself to be cheated continuously by the applicants' party. Exchange of gift between the engaged couples of a family is nothing new to be society. In case a Mangni is broken, the exchange of gift not being returned by either party cannot be said to attract the provisions of Criminal law. At the most it can be said in the circumstances of this case that there is possibility of breach o promise of marriage on the part of the applicants but their according to Muhammadan Law no damages for breach of promise to marry is permissible. All the respondent in such a case entitled is not damages for breach of marriage as in English La but he is entitled only to return of money, ornaments, clothes and other things as per Article 283 of Muhammadan Law by Mulla.
Therefore, I am of the opinion that the proper remedy for the respondent is to approach a civil Court and not the proceedings under the Criminal law because no such offence under section 420, P. P. C. Is revealed.
12. I therefore, respectfully agreeing with the ratio in the cases cited above hold that this is a fit case where criminal proceedings may be quashed and I order accordingly. The respondent however, can pursue his remedy if any in a civil Court, if so advised.