This is an amended petition under section 561-A and section 439 of the Code of Criminal Procedure which has been moved by the four petitioners, namely, (1) Noor Samand son of Amir Khan, (2)
Shaukat son of Noor Samand, (3) Mst. Saddan daughter of Nawab wife of Saleem, and (4) Mst.
Fatima wife of Noor Samand for quashing a criminal case that is pending against all of them and one person by name of Saleem who has been shown as respondent No. 2 in the petition, in the Court of City Magistrate, Nawabshah, under section 498, P. P. C.
2. The relevant facts giving rise to this application briefly stated are these. The respondent Bashir filed a direct complaint under sections 380 and 498/ 109, P. P. C. Against five persons who are the present four petitioners and the respondent Saleem in the Court of the learned Sub-Divisional Magistrate, Nawabshah on 17-7-1969. The learned S. D. M. Transferred the case for disposal, according to law, to the Mukhtiarkar and F. C. M., Sakrand. The learned Mukhtiarkar and F. C. M. On the complaint ordered a preliminary enquiry which he held in due course of time. In the course of this P. E. He examined three witnesses, namely; the complainant Bashir, who is respondent No. 1 now, Nizamuddin and Khan. The learned Magistrate had at the time of ordering P. E. Also issued notice to the opponents who were accused in the complaint but none of them appeared during the course of the proceedings of the Preliminary Enquiry as such the three witnesses examined during the course of the P. E. Were not cross-examined at all by After the P. E. Was over the learned F. C. M. Recorded a short order which is as under:-- "From the enquiry held the offence transpires to be under section 498 against accused Saleem, Shaukat and Noor Mohammad. Issue B. Ws. In the sum of Rs. 1,000 (one thousands, against three male accused. Hearing fixed for 16-8-1969. Complainant informed. P. F. To be paid within will show that the learned Mukhtiarkar and F. C. M. Took cognizance on the direct complaint of the respon-- dent No. 2 under section 498, P. P. C. Only and against the male accused persons i.e. Petitioners Nos. 1 and 2 and respondent No. 3 but did not say anything with reference to the women who were also involved as accused persons. Thereafter the learned District Magistrate, Nawabshah transferred the case to the City Magistrate, Nawabshah for trial. The R & P of the case was received by the learned Magistrate on 11-11-1971 and his order of this date in the case diary reads as under:- "R & P received by transfer from Mukhtiarkar & F. C. M., Sakrand. None else present. Put of to 30-11- 1971. Issue B. Ws. Against the accused."
It appears that by his Court clerks bailable warrants were issued not only against the three male accused against whom the Mukhtiarkar and F. C. M. Had issued process under section 498, P. P. C.
But bailable warrants were also issued against the two women accused, namely, Mst. Saddan and Mst. Fatima, peti--tioners Nos. 3 and 4 respectively. Thus, all the four petitioners, which includes the two women accused, and respondent No. 2 Saleem are facing a trial before the learned City Magistrate, Nawabshah. The case diary also shows that until 10-2-1972 the accused in the case were not present as such the order of this (late in the diary by the City Magistrate is as follows:- "Accused not present. Process not received, served or unserv--ed. Case put of to 28-2-72. Issue bailable warrants against the accused. Complainant present."
This order also shows that the learned City Magistrate by it actually meant to issue bailable warrants against the accused i.e. The male accused persons who are petitioners Nos. 1, 2 and respon--dent No. 1 in this petition, but it appears that by the mistake of his Court clerks the bailable warrants were also issued against the two women accused shown in the complaint. The case has not proceeded against the petitioners and the respondent No. 2 so far and evidence in it has not yet been recorded against them by the trial Court where it is pending. So that the material on which the present petition is to be decided is the direct complaint itself and the statements of three witnesses recorded in the P. E: who were not cross-examined at all and the relevant orders of issue of bailable warrants against the two women accused---petitioners Nos. 3 and 4 by the learned City Magistrate, Nawabshah after the case was transferred to him.
4. I will first take up the case of the women accused i.e. Mst. Saddan and Mst. Fatima, petitioners Nos. 3 and 4 respec--tively. Regarding them the learned counsel for the petitioners has argued that when the learned Mukhtiarkar and F. C. M., Sakrand after completing the preliminary enquiry took cognizance of the offence under the direct complaint which he entertained, he issued process under section 498, P. P. C. Only and against three accused persons, namely, the two petitioners Noor Samand and Shaukat as well as respondent No. 2 Saleem and did not take cognizance of any offence against the two women accused, whose case is under consideration, as such it should be deemed that the comp--laint against the two women accused was dismissed by the learned F. C.
M. Under section 203, Cr. P. C. And this order of such dismissal of complaint unless it was revised by a revisional Court the learned City Magistrate to whom the case was transferred could not take cognizance of any offence against these women accused and issue bailable warrants against them. In fact it appears that this mistake of issuing bailable warrants has been made by the clerks of the Court of the learned City Magistrate as his order is "issue bailable warrants against accused", meaning thereby only those persons against whom process had been issued by the Mukhtiarkar and F. C. M. Already as a person involved in a criminal proceedings becomes an accused person only when process is issued against him by the Court. In any case the position is that the two women accused respondents Nos. 3 and 4 now stand charged as an accused person as warrants against them under section 498, P. P. C, have been issued against them. I agree with the learned counsel for the petitioners that unless the order by the learned Mukhtiarkar and F, C. M., Sak--rand issuing process under section 498, P. P. C. Only against the male accused persons was revised by a revisional Court, as by this order he had not issued any process against the women accused, until then no fresh cognizance could be taken by the transferee Court and warrants issued against them and also supported in this view by the provisions of section 4366 of the Code of Criminal Procedure which provide for revisional power in the High Court or Sessions Judge and under this section these Courts can direct any subordinate Magistrate to make further enquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204, or into the case of an accused of an offence who has been discharged. This provision under section 436 also shows that when a complaint is dismissed under section 203, Cr. P. C. a revision lies to the Court of Sessions or the High Court which Courts can order further enquiry as stated above in the matter. I, therefore, find that the learned City Magistrate could not take cognizance of the offence under section 498, P. P. C. Against the two women accused, namely, Mst. Saddan and Mst. Fatima, petitioners Not. 3 and 4 respectively as such proceedings against these women are without any legal authority, consequently the case against them is quashed as otherwise it will be an abuse of the process of the Court to continue the same. The complainant i.e. The respondent No. 1, can move a revision application if he so likes against the order of the learned Mukhtiarkar and F. C. M., Sakrand who had taken cognizance of the case in the first instance, and then only by the order of the revisions! Court be can have the women accused joined as accused persons at the trial.
5. Coming to the case of the two petitioners Noor Samand and his son Shaukat and respondent No. 2 Saleem the direct complaint against them reads as under:-- "Complaint under sections 380, 498, 109, P. P. C. The comp--lainant submits as under:-
(1) The accused Mst. Saddan is legally wedded wife of the complainant. The Nikah was performed about 9 years back in Chak No. 406, Ihata Imam Shah, Tehsil Samandri, District Lyallpur.
(2) That after the Nikah Mst. Saddan was living with the complainant as his wife.
(3) That after a year or so of marriage, the complainant shifted to Sind in search of lands. Two years thereafter, all the accused also came over in Sind to purchase or to take land on lease. As the parties were known to each other, the accused came to the complainant for help and guidance, in his village and settled-in the same village.
(4) That accused Saleem started courtship with the wife of the complainant and they became very much intimate. He afterwards with the help of his mother, father and brothers, enticed her away to Punjab side but on the intervention of good people Mst. Saddan was restored to the complainant, with whom she started living thereafter. A compromise had been brought about between the parties by nekmards. But, it appears, the accused had no mind to live up to it, of which the complainant was not aware.
(5) That about 3 months back, again the accused except Mst. Saddan came to Sind and took oral lease in the vicinity of the village of the complainant and started visiting his village.
(6) That about a month back, the complainant had gone to attend his field work. It was evening time, when Nizamuddin Khichi came to inform him that he had gone to the house of the complainant to take grass from his house when he found accused Salim and his mother, father and brother present in the house of the complainant and were asking Mst. Saddan to accompany them to their house as they told her that they had a ceremony to perform in their house. On that pretext Mst. Saddan accompanied the other accused. The complainant was alarmed. He came to his house and found that Mst. Saddan was not here and his cash of Rs. 453 lying in the tin box had been stolen and so also all the ornaments viz. Nose ring, ear rings, pazeb and choories, which he had given to Mst. Sadan his wife on marriage, had also been stolen.
(7) That the complainant came out of his house where Khan and Abdul met him. On enquiry they also told him that Mst. Saddan was seen by them going with the accused Saleem and others with bundle in her hands.
(8) That they accompanied him to the village of the accused but found them absent. The witnesses and the complainant then followed foot-prints of the accused but the prints were lost and as it had grown dark, the complainant party abandoned the search.
(9) That the complainant party then went to the village of the accused in Punjab and asked them to restore Mst. Saddan but they kept on promises and ultimately two days before they have refused. Hence this case.
(10) That the accused have committed offences under section 498, 380 and 109, P. P. C. As they have stolen the property shown above and accused Saleem with the help of his mother father and brother enticed away Mst. Saddan with intention to have sexual intercourse with Mst. Saddan and to marry her during the lifetime of her husband, the complainant: The Hon'ble Court may take legal action against the accused.
L. T. I. Bashir complainant.
List of witnesses
1. Nizamdin son of Kanda Kichi.
2 Khan son of Kanda Kichi.
3. Adul son of Ramzan Kichi, residents of Deh 21 Dadh Taluka Sakrand, District Nawabshah.
L. T. I. Of 17-7-69. Complainant."
6. The complainant was also examined in the P. E. And his statement is in line with his direct complaint which has been reproduced above. His witness Nizamdin and Khan also support him to a great extent about his case. All this material by way of statements of the complainant and his witnesses as well as the complaint has got to be taken as it is because no evidence in rebuttal has been led so far. On this material it will appear that the statement of the complainant itself shows that it makes out at least a prima facie case under section 498, P. P. C. Against the main accused against whom process had been issued by the learned Mukhtiarkar and F. C. M., Sakrand. The learned counsel for the petitioners urged only one ground in support of his petition for quashment which is that according to him there was no material or evidence on record to show that the alleged woman, namely, Mst. Sadan was the wife of the complainant Bashir, respondent No. 1 herein, therefore, no offence under section 498, P. P. C. Could be said to have been committed by the accused. I am afraid this argument of counsel does not impress me at all because there is sufficient material in the direct complaint itself and the statement of the complainant as well as the two other witnesses of the complainant examined in P. E. To justify the conclusion that Mst.
Sadan was the wife of the complainant, Bashir respondent No. 1. In any case this fact has been prima facie proved and the contention of the learned counsel for the petitioners, therefore, fails.
The learned counsel has is support of his contention relied upon the case of Raja Haq Nawaz v.
Muhammad Afzal and others and Raja Haq Nawaz v. Subedar Sakhi Muhammad and others (1) wherein at page 1259 there Lordships of the Supreme Court have observed as under:-- "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 PLD 1967 SC 317 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 .It was satisfied that a false complaint had been brought and the process of Court was, therefore, being abused, not to advance the interest of justice but to subject the accused persons to unnecessary harassm ent. 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."
From the above observations it will be noticed that the High Court had quashed the criminal proceedings as it was satisfied that a false complaint had been brought and the process of the Court was, therefore, being abused as such the quashment order passed by the High Court was upheld in this decision. But this is the very question involved for decision in the instant case and my opinion, as already expressed, is that prima facie case under section 498, P. P. C. Has been made out against the accused i.e, the two petitioners and respondent No. 2. It is noteworthy to mention that the learned counsel for the petitioners challenges the legality of the case against the said two petitioners and respondent No. 2 only on the question that the marriage of the complainant with Mst. Sadan has not been proved which as I have found above is not correct and there is sufficient prima facie evidence regarding that matter. It is a different question whether when this issue comes up at the time of trial what would be the position of evidence on record then when the case is decided finally and with that I am not concerned at this stage.
7. Furthermore, the Supreme Court has laid down by two of its decisions that criminal case at a stage of the complaint ought not to be quashed as that would amount to stifling the case of the prosecution. These two cases are M. S. Khawaja v. The State (PLD 1965 SC 287) and Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354).
8. In the first mentioned of these cases it has been observed by their Lordships of the Supreme Court as under:- "The view that time is of the essence for the competency of a criminal prosecution cannot be accepted as of universal application. Limitation does not apply to criminal prosecu--tions, and it is also inappropriate to examine question of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. 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 other--wise 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 ques--tion whether the allegation is sufficient to constitute an accusa--tion of an offence in law.
Abuse, as attracting the inherent power of the Court must be 'abuse of the process of any Court', and the investigation' is generally speaking, outside the purview of the Court and rarely involves employment of any Court process. Further 'the ends of justice' to secure which the inherent power may be invoked, have reference to the purposes which the judicial process is intended to secure, and it is difficult to include the actions of investigating agencies within the scope of judicial process. On the other hand, it is possible to agree with the observation that the circumstances of the each case, in which the inherent power is invoked, must be examined with care to determine whether the judicial proceedings is really intended to 'secure the ends of justice' or is really 'an abuse of the process of the Court'. 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 harassm ent 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 ofjustice can accrue, and similar perverse results."
In the second mentioned case their Lordships observed with reference to the case under consideration, which was at the stage of complaint, as under:- "Quashment of proceedings at so early a stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. It is necessary that these cases should be examined further to ensure that the course of even handed justice has not been prejudiced."
9. The above two decisions of the Supreme Court also show that it will be, inexpedient and not in the interest of justice to quash the present case which is also at the stage of complains having been filed, on which only cognizance has yet been taken and no further proceedings have taken place.
10. There is an element of very slight delay in filing the direct complaint but it will be seen from the observations of their Lordships of the Supreme Court in the first reported case above that merely delay by itself would not be a sufficient ground to throw out a criminal case as such any slight delay that there is in lodging the direct complaint in the instant case should riot: by itself adversely affect the prosecution case. Of course, this question of delay would be considered by the learned trying Magistrate at the time he finally decides the whole case.
11. The learned counsel for the respondent No. 1 i.e. The complainant in the case has also relied upon the arguments which are in line with what has been discussed above.
12. The learned counsel for Saleem, respondent No. 2, who is one of the accused in this case also only adopted the arguments of the learned counsel for the petitioners and he too put forward the sole ground for quashment that there was not sufficient evidence on the question of marriage between the complainant Bashir, respondent No. 1 and Mst. Sadan, petitioner No. 3, the alleged bone of contention, as such the proceedings ought to be quashed. But I have already found, as discussed above, that this ground does not appear to be correct and in fact there is sufficient material and evidence on record to show and prove a prima facie case of marriage between the said parties. As such the grounds so advanced are not good grounds on which quashment can be ordered. The learned counsel appearing on behalf of the State also is of the same opinion and has not supported the quashment application.
13. For the foregoing reasons I do not see any ground or merit in this quashment application except for the case of petition--ers Nos. 3 and 4 and as such it is accordingly dismissed. The learned trying Magistrate should dispose of this as expeditiously as possible.