' This application under section 561-A, C:. P. C. Is directed against order of Additional City Magistrate No, III, Hyderabad dated 16-7-1973, whereby he issued process against applicants on a complaint t under section 420/406 P. P. C. Filed by respondent No, 1 Muhammad Aslam. From the complaint it appears that the dispute between the parties is of matrimonial nature. Applicants 1 to 4 are relations inter se. Abdul Ghani applicant No, 1 is stated to have a daughter one Mst. Hamida of about 13 years of age. He is alleged to have shown his desire to marry this girl to one Rarnzan, a son of respondent Muhammad Aslam and it was agreed by respondent as per complaint that the marriage will take place in the periods one to two years. Later on it is stated that on insisting of applicant party that the marriage should take place and the "Jhala" be given to her the respondent has shown `Jhala` to the applicant party consisting on certain articles, golden ornaments and some clothes valued at Rs, 3,03'), in presence of certain witnesses and the respondent, therefore, it is alleged, gave "Jhala" articles as!`Amanat' to the applicant party who went to Karachi alongwith the articles. It is alleged that later on applicant No, 1 refused to give his daughter in marriage to son of respondent No, 1, therefore, a criminal complaint was filed for breach of trust for not returning the property which was given as `Amanat and trust'. Are learned Magistrate after examining a few witnesses issued process.
2. 1 have heard Mr. Abdul Razak Siddiqi Advocate for the applicants, Mr. Muhammad Ali Shaikh Advocate for the respondent No, 1 and Mr. Usman Ghani Rashid Assistant Advocate-General for the State. Counsel for the applicants submitted that from the facts as narrated in the complaint on the face of it no offence has been committed under section 420/406, P. P. C. And issue of process by the learned Magistrate was not called for because essentially the dispute is of matrimonial nature and even otherwise proper remedy for the respondent, if any, is before civil Court and not by using the process of the criminal Court as a short cut, therefore, the issuance of summons in the present circumstances amounts to abuse of process of law which may be quashed. He relied on Allah Bux and 3 others v. The State and another (1), wherein my learned brother Ghulam 4 Rasool K. Shaikh J, in similar circumstances held that "the mere fact that subsequently the applicants changed their mind and declined to give the gir in marriage does not necessarily mean they had dishonest intention at the time when the agreement of (marriage) was entered into". He quashed the pro ceedings. He next relied on R. C. P. Guignard v. The State and another (2), wherein it was held that a criminal law entirely based on contractual liability, best forum for setting such disputes is the civil Court. Mr. Usman Ghani Rashid, Assistant Advocate-General very frankly conceded that in view of the facts stated in the complaint he is not in a position to support the order of the Magistrate therefore, he did not oppose this application.
3. Mr. Muhammad Ali Shaikh has not cited any judgment to the contrary he only submitted that this Court should not interfere at this early stage because the articles were given as "Amanat" and prima facie a case has been made out. I see no force in this argument. On the face of it the complaint lacks the necessary ingredients of cheating and dishonesty because the respondent in the very complaint states that he has given the alleged articles to the applicants of his free will and allowed them to go to Karachi, which later on, however he failed to recover. Had the learned Magistrate read carefully the complaint and the relevant laws, in all probability he would not have issued the process which in the circumstances of this case is an abuse of process of Law. 1, therefore, accept this application and quash the proceedings. {{FOOT NOTE}}
(1) 1973 P Cr. L J 104(2) PLD 1963 Kar. 868 {{FOOT NOTE}}