This is a petition by one Mst. Hameeda daughter of Imamuddin under section 561-A, Cr. P. C.
Praying that the proceedings arising out of a complaint filed by one Yaqoob, who is respondent No. 2, In this case against Imamuddin and four others amongst whom the petitioner is one, and pending in the Court of the City Magistrate, Nawabshah be quashed.
2. The admitted facts of the case are that the petitioner was married to Yaqoob on the 21st of January 1969 and thereafter went to live with him at Nawabshah where he was employed. Neither the complainant nor the petitioner before me states the place at which the marriage took place but admittedly Mst. Hameeda is a resident of Hyderabad and in the context of the facts admitted on both sides It is clear enough that it took place at Hyderabad. According to the complaint itself the parties lived together at Nawabshah happily for only about two months after the marriage and, at the end of that period, the four persons cited as accused in the complaint came to Nawabshah and stayed with Yaqoob as his guests. Again neither the complaint nor the petition states the relationship or other connection of these four persons with the petitioner but reference to the name of the first namely, Imamdin and his address makes it fairly obvious that he is the father of the petitioner. The other three, namely, Muhammad Sharif, Ghafoor and Lelo would appear to be at least friendly to the petitioner and her father inasmuch as it is stated in paragraph 8 of the petition before me that the respondent has Implicated, in the complaint, persons who are the witnesses of the petitioner in some other complaint which she has filed in the meantime against respondent No. 2 in this case. Reverting to the facts, as alleged in the complaint, it is then stated that the accused other than the petitioner requested respondent No. 2 to permit the petitioner to go with them apparently for a visit to her parents' house ; this request respondent No. 2 did not expressly refuse but asked that they wait one or two days as he himself was not feeling very well. Nevertheless on the next day, after the respondent No. 2 returned from the duties of his employment as usual in the evening, he saw that the door of his house was open and that the petitioner as well as the guests were missing. On search he found that his trunks containing clothes had been opened and that a sum of Rs. 6C0 in cash and jewellery worth Rs. 1,000 was also missing. He learnt from his neighbours that ail the five accused persons had been seen at about 3-00 p. m. That day leaving the house with certain articles in their hands and had alleged that they bad obtained the permission of respondent No. 2 for going to Hyderabad. Respondent No. 2 then went to Hyderabad and found that his wife and the other accused were present in the house of her father, that is, accused No. 1 who totally refused to allow his daughter to go back to her husband. He com--plained to his Nekmard at Nawabshah but the latter's efforts to settle the matter were not fruitful. It is next alleged in the complaint that in the year 1970 petitioner filed a suit against respondent No. 2 for dissolution of marriage which "is also over and they have filed other false cases to harass the complainant".
The complaint winds up by alleging that last. Hameeda has been wrongfully detained by accused Nos. 1 and 2 who have also misappropriated a sum of Rs. 1,300 and jewellery of Rs. 1,000. The discrepancy between the figure of Rs. 600 which I have earlier mentioned and Rs. 1,300 which is now stated is apparently due to the addition of a sum of Rs. 700 of which, according to the complainant, he was deprived, when he went to Hyderabad, forcibly by all the accused. Although in this paragraph accused Nos. 1 and 2 alone are mentioned the next paragraph of the complaint, which is the last, alleges that the accused have without information of the complainant enticed his wife, committed theft of Rs. 600 and jewellery of Rs. 1,000 and further deprived him of Rs. 700. The body of the complaint does not refer to any section of the Penal Code or other law under which it is alleged that offences have been committed but is headed by the expression "complaint under sections 380, 386, 365, 342, 344, 498, 34,. P. P. C."
3. The complaint itself does not bear a date nor does the petition state when it was filed but inasmuch as there is, an endorsement of the Magistrate upon the complaint itself in the following words "record the statement of the complainant" dated the 17 of June 1972 it was clearly instituted upon that date or perhaps one or two days earlier. This is also borne out by the fact that the case is given a No. 507/72 and that after a preliminary enquiry was held process was issued upon the 8th of August 1972. Indeed it is common ground between parties before me that the complaint was not instituted until June 1972, that is, well over three years after the alleged offence took place. In the course of these three years, as is admitted in the complaint itself, a suit for divorce had beers filed by the petitioner and although that is stated in the complaint to have been over petitioner states that it was in fact withdrawn and a subsequent suit has been filed which is still pending. Neither this fact nor the allegation that the petitioner has filed a criminal case against the respondent which is also pending is denied by the other side. It would certainly have been far more satisfactory if parties on both sides had filed certified copies of these proceedings instead of merely relying upon oral allegations to that effect. In the course of the arguments, it is true, when I pointed out to the learned counsel for the petitioner that if he wished to rely upon the, pendency of such proceedings he ought to have produced', certified copies, he offered, if given time, to produce them. Learned counsel who appear in such matters as indeed in a:i matters should, however, understand that it is their duty t4 produce before the Court whatever papers they need for the purpose of establishing their case and that it is not for the Court to request that certain papers be produced before it or to give time for that purpose particularly when counsel have not realised the necessity of producing them and have made no request for adjournment in time for the purpose. If the decision of this case depended upon questions which could not be established except by the production of such papers I should have unhesitatingly held against the petitioner and refused to, grant any indulgence in this respect. As it is, however, the fact of a suit for divorce having been filed, eventh though it had already been disposed of, is admitted in the complaint which does not, however, state the manner in which it had ended. The other criminal case, whatever its nature, is also admitted in the complaint. The fact that a subsequent divorce suit has also been tiled is alleged in the petition and the allegation supported on affidavit has not been denied in any counter-affidavit nor does learned counsel for the respondent, now before me, dispute the fact. In this state of affairs I think it is established that petitioner has already sued respondent No. 2 for divorce and that there is other litigation pending between the parties though of course I cannot say, nor is it necessary for me to find, whether the stand that she has taken in these matters is justified.
4. It seems clear enough from a recital of these facts that, whatever the cause, the marriage between the parties has broken up in the sense that they are no longer living with each other and that the wife is, whether on the instigation of her father or not, desirous of putting an end to the union between the two. The husband on the other hand is resisting her attempt and again that may be due to a genuine desire to keep the marriage going or for some other extraneous reasons; it is unnecessary again to say which of the motives prevails with him. Unfortunately, however, a complaint of the kind which is now under consideration before me is of a character only too common in disputes of this kind particularly in the moffasil. The allegation that the wife has been enticed or kidnapped or taken away by her relations clandestinely or by deceiving the husband after committing theft of valuables is too often made for the purpose of bringing pressure upon the wife. I am not to be understood to mean that such facts, if proved, would not constitute an offence or that they are inevit--ably false. In the large majority of cases, however, the very draft of the complaint is of a stereotyped character which invariably makes allegations of offences of cheating, theft or misappropriation. It is difficult to believe that, three years after a wife has left her husband in the course of which she; has twice filed a suit for divorce against him, the husband suddenly wakes up to the fact that others have enticed her away from his house or that in leaving the house she took away with herself cash and other valuables. Of necessity, therefore, evidence of these allegations would have to be scrutinized with severe care and could be accepted only if established by unimpeachable testimony. In the present case that testimony would consist of the word only of the complainant. The other witnesses whom he has cited, even according to the complaint, can say no more than that they saw the wife and the other accused persons leaving his house with some articles in their bands. There can be no question of identifying these articles. On the face of it, therefore, these proceedings so far from disclosing a case the worth of which can be assessed only after full evidence bear all the characteristic hallmarks of a concocted case. The question then arises whether in these circumstances I ought to allow these proceedings to continue or to quash them as an abuse of the process of the Court.
5. It was argued before me by learned counsel for respondent No. 2 Mr. Muhammad Sulaiman Qureshi and the Assistant Advocate-General who appeared for the State that so long as there is an allegation which, if believed, could constitute an offence, I ought not to quash such proceedings at this premature stage but allow them to go to trial the result depending upon the appreciation of the evidence that is recorded at the trial. Now while I agree that the most usual case which would call for quashment under section 561-A of the Cr. P. C. Would be a case whether the allegations themselves made constitute no offence at all, that section in its own terms does not state anything of the kind. Indeed as I understand that section it purports to give no new powers to the High Court but re-affirms an inherent power already existing "to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". 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 cannotpossibly succeed is allowed to continue this must result in harassment of the accused persons whose acquittal 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.
6. In an effort to pursuade me of the validity of the argument put forward reliance was placed upon a decision of the Supreme Court reported as M. S. Khawaja v. State (PLD 1965 SC 287). Now in this case the prayer for quashment was based primarily uponthe ground of inordinate delay and was refused by the High Court against the decision of which the petitioner asked the Supreme Court for Special Leave to Appeal. This ground the Supreme Court held was not sufficient for an order of quash--ment under section 561-A and, wile their Lordships of the Supreme Court held that the circumstances of each case must be examined in order to determine whether the judicial proceed--ings is really intended to secure the ends of justice or is an abuse of the process of the Court, they put the essence of the matter in the following passage on page 291 "To quash a judicial proceeding in order to 'secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an 'abuse', it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
7. It will be seen that the Supreme Court did not limit the application of section 56 t-A only to those cases in which -the facts as alleged upon their face did not make out an offence. That other cases would be rare is of course, as I have already stated, true and in an earlier passage at page 290 the same judgment emphasises this: "It can only be in a very rare case that a superior Court acting under its inherent power 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law."
8. Instances indeed are not lacking where allegations have been found to be so obviously false that even, though If believed they would constitute an offence, proceedings based upon them have been quashed and it should suffice to refer to one case of the Supreme Court for that purpose: Haq Nawaz v. Muhammad Afzal (1968 P Cr. L J 1867). The High Court in this case quashed the proceedings in question upon the ground that the complaint was merely a counter-blast to an earlier complaint and that the allegation was entirely unbelievable. Clearly in this case the High Court had held certain allegations to be entirely incredible although evidence as to these allegations and evidence which would have displaced them had not yet been recorded or evaluated at a trial. Indeed the Supreme Court went so far as to question the complainant themselves and took his answers into consideration for the purpose of agreeing with the High Court. In the penultimate paragraph of the judgment, having stated their reasons for thinking the allegations false, their Lordships observed:- "The allegations made by the appellant in his two complaints contained intrinsic indications of their falsity and the charges made were in all probability groundless."
"Normally of course, every case should be allowed to proceed according to law, and resort to the provisions of section 561-A of the Code of Criminal Procedure should not be lightly made, as this would circumvent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muzammal Khan on which Mr. Saeed Hassan Malik relies. The reported case is, however, distinguishable on the facts from the instant case. Each case must be judged on its own special facts and circumstances. The learned counsel for the appellant conceded that there was power vested In the High Court to quash criminal proceedings, if ft was satisfied that a false complaint had been brought and the process of Court was, therefore, being abused, not to advance the Interests of justice but to subject the accused persons to un--necessary harassment.
We are convinced that the present cases are of that nature and, consequently, the order passed by the learned Chief Justice requires no interference by this Court. Both the appeals are hereby dismissed."
9. Even upon the test, however, which learned counsel for the respondents invite me to apply it is by no means clear that the present prosecution is sustainable. Although the com--plaint is headed, as I have already stated, by a reference to as many as six of the penal sections of the Pakistan Penal Code apart from section 34 which provides for constructive liability the allegation as far as the detention of the petitioner Is concerned is made in paragraph 9 and is directed only against accused Nos. 1 and 2, that is to say, not the petitioner. In the next paragraph there is, no doubt, an allegation of enticement made generally in reference to all the accused including the petitioner but clearly the petitioner, being the wife, would not be guilty. Neither under section 344 under which section the learned Magistrate has issued process nor under sections 365, 342 and 498 of the P. P.
C. Would the petitioner have been liable. In regard to the allegation relating B to jewellery and the sum of Rs. 600 the allegation is one of theft and it is at least doubtful if the wife would be liable for this offence. This allegation that the complainant was deprived of a further sum of Rs. 700 is couched in vague language though this would perhaps, if believed, constitute an offence for which the wife would also be liable. The learned Magistrate, ho-.;,ever, after having held a preliminary enquiry issued process under section 344 and section 380 only. In the view that I have taken of the merits of the case I do not think it necessary to pursue this point any further and 9t suffices to say that, even on the basis of allegations made as against those which can be considered at all credible, the complainant has a very weak case indeed.
10. I have, therefore, come to the conclusion that the case' against the petitioner must be quashed.
The other co-accused, however, are not parties in this case and I have given my most anxious consideration to the question whether the case should be quashed generally or in respect only of the petitioner. In the entire circumstances of the case, however, I think, that the cases are really inseparable and it would be anomalous to permit the prosecution to continue against the co- accused while it is quashed as against the petitioner. The power under section 561-A is not dependent upon the application of any particular person. The fact that the other co-accused have not been impleaded nor have any notice of these proceedings also does not in my view matter inasmuch as an order of quashment can hardly be to their prejudice.
11. I accordingly quash the entire proceedings arising out of the complaint filed by respondent No. 2 against petitioner and four others which is numbered 507/72 in the Court of the City Magistrate, Nawabshah and direct that they be terminated forthwith.