This is an application under section 561-A, Cr. P. C. By the four applicants, Mohammad Ali, Shafiqullah, Shafiq and Mst. Rabia Begum for quashing a criminal direct complaint against them filed by opponent No. 1 Amir Hassan Siddiqi in the Court of A. C. M. No. 18, Karachi.
2. The facts necessary to decide this application briefly are these. The opponent No. 1 filed the criminal complaint above--mentioned against the applicants in the said .Court in which he stated that he was married to applicant No. 4 Mst. Rabia Begum in India and after migration he started living with her at Manghopir Road in the area of Police Station Kala Kot, Karachi. They had a daughter Mst. Nilofar born at Manghopir Road. Karachi whose age at this time was about 10 years.
Applicant No. 1 was the, brother-in-law of applicant No. 4, that is, the wife of the complainant and applicant No. 2 is the father of applicant No. 4. The complaint further shows that the complainant had divorced the applicant No. 4 after which the applicant No. 4 started living in Mahmoodabad at Karachi. At the time of divorce there was art agreement entered into between the complainant- opponent No. 1 and applicant No. 4 relevant terms of which were as follows: - That during the subsistence of marriage a child Nilofar Sultana was born from Amir Hasan Siddiqi, at Karachi whose age at this time was about 7 years. That after the girl attains the age of 12 years or the applicant No. 4 marries a second time which--ever occurs earlier the applicant No. 4 shall separate the girl from her right and handover her to opponent No. I, her father, and the applicant No. 4 shall have no right over her and she shall not dispute her return. That till Nilofar remains in the Hizanat on the applicant No, 4, the opponent No. 1 Amir Hassan Siddiqi shall pay apart from clothes a sum of Rs. 20 per month by way of charges for her food. That the opponent No. 1 and other rela-- tions shall have the right to meet Nilofar Sultana. The opponent No. 1 also showed in the agreement that sometimes he would pay Rs. 20 in cash and sometimes by money-order, and that he had paid Rs. 100 to the applicant No. 4 through money-order.
4. The complaint further shows that the applicant No. 4 was married a second time about three years back and the opponent No. 1 was not made aware of this but the applicant No. 4 had been receiving money in the name of Nilofar keeping the com--plainant under deception. The case of the complainant is that instead of sending his daughter to him she was kidnapped by applicant No. 4 to Lahore where applicants Nos. 2 and 4 at the instance, consent and instigation of applicant No. 4 had wrong--fully detained his daughter Nilofar in the house of applicants Nos.3 and 4. The complainant tried to meet his daughter on 11th and 12th October 1970 but the applicants did not allow him to do so and concealed the girl somewhere. The applicant No. 3 was the husband of applicant No. 4 with whom she was living. The complaint further shows that on 12th October 1970 the complainant handed over Rs. 100 for Razai, Gadda warm coat etc. For his daughter for winter season under deception to applicant No. 2 as applicants Nos. 1 and 2 insisted and forced him under a premeditated scheme to do so. The complainant gave that amount to applicant No. 3, After this the complainant was told to meet his daughter but subsequent to receiving the amount they did not show his daughter to him. Thus, according to the complainant in the complaint he prayed that an offence of kidnapping in respect of his daughter had been committed andthat he was also cheated of Rs. 100 by the applicants.
5. After the direct complaint was filed in the Court of A. C. M. No. 18, Karachi, a preliminary enquiry was held in which statements of two more witnesses besides the complainant were recorded. The complainant in his statement under section 200, Cr. P. C. Clearly stated, inter alia, that he had paid a sum of Rs. 100 to Shafiqullah at Lahore.
6. On the above facts the learned counsel for the applicants has argued that on facts as contained in the complaint itself and, shown by the statement of the complainant no criminal offence is made out. Elaborating his argument he contended that the girl Nilofar was already in the custody of her mother applicant No. 4, who took her away from Karachi to Lahore and, therefore, no offence under section 363, P. P. C. Could be said to have been mad out as the father of the girl i.e., the opponent No. 1, did not have', the custody of his minor child. This contention appears correct and on these facts no offence of kidnapping is made out at all. As regards the second contention of cheating the learned counsel for the applicant stated that admittedly the amount of Rs. 100 was given by the complainant at Lahore to applicant No. 3, therefore the Courts here have no jurisdiction to try that case under section 420, P. P. C., even if it was an offence of cheating, as such both the offences said to be made out in the complaint were no substantiated by it at all. I agree with the contentions raised b the learned counsel for the applicants as no offence either under section 363 or section 420, P. P. C. Can be said to be made out on the facts as disclosed above. 1, therefore, find that this is a fit case for quashing the criminal proceedings started on the complaint under consideration and accordingly quash these proceedings.
Quashment ordered.