This is an application under section 561-A, Cr. P. C. And has been filed by Abdul Qadir and Ahmad and the prayer in the application is that the proceedings in a case filed by Muhammad Raza against the present petitioners by way of a complaint under section 406, P. P. C. In the Court of Additional City Magistrate Court No. XII, Karachi, may be quashed.
2. Upto the filing of the aforesaid complaint by respondent Muhammad Raza against the present petitioners, the Additional City Magistrate Court No. XII, issued process against the petitioners under section 406, P. P. C. And after the evidence of respondent/complainant Muhammad Raza was recorded the petitioners/accused made an application before the Magistrate under section 253, Cr. P. C. Praying that they may be discharged. The learned Magistrate granted such application and discharged the present petitioners/accused. The respondent thereafter filed a revision application which was heard by the Additional Sessions Judge, Karachi who has set aside the order of discharge that bad earlier been passed by the Magistrate; and directed further enquiry into the case. Since the earlier order of discharge passed in favour of the present petitioner by the Magistrate was displaced by the Additional Sessions Judge; Karachi; the present application has been filed in this Court. Although the present application is one entitled under section 561-A, Cr. P.
C. I am of the view that it would have been satisfactory if the application would have been one on the revisional side of this Court. However, since the certified copy of the complaint and the evidence of the complainant together with the certified copies are before me, the application could be treated as one of revision and is treated accordingly.
3. The facts briefly are that Mst. Mariam, the daughter of respondent Muhammad Raza was married to petitioner Abdul Qadir. The petitioner Ahmad is again the father of petitioner Abdul Qadir. The marriage took place on 29-12-1968, and it is a case of the complainant that at the time g of marriage golden ornaments valued at Rs. 840; 12 pairs of clothes valued at Rs. 900; utensils and other articles valued at Rs. 100 were "entrusted" to the two petitioners in presence of witnesses with directions that the said property was to be given to his daughter as amanat, but it would appear that no specific trust was created and this word has been used for the purposes of bringing the case within the ambit of section 406, P. P. C. Thereafter, it is the admitted case of the complainant that his daughter Mst. Mariam left with the two petitioners for Dubai and lived there for two years. It is not even alleged that during these two years that Mst. Mariam lived with the two petitioners, she was deprived of the said articles or restrained from using the same. However, after a lapse of two years Mst. Mariam returned to Karachi and started living with her father, the complainant.
Circumstances obviously show that the relations between the parties had drifted from congeniality. It is thereafter stated that the complainant demanded the articles of dowery from the two petitioners who having refused to deliver the same the present complaint had been filed.
4. This complaint was filed under section 4G6, P. P. C. And the com--plaint itself gave no better description of the articles entrusted by the complainant to the two petitioners; and only stated that some ornaments, clothes and utensils were given. It is further admitted that the spouses continued to live at Dubai for a period of two years. The complainant, who is present before me in person has stated that during this period of two years his daughter Mst. Mariam was neither deprived of the property nor the use of it. It, therefore, clearly appears that as long as Mst. Mariam lived with the two petitioners, she was enjoying possession of the property which is the subject-matter of this case. Under such circumstances it would seem that no criminal case of breach of trust was made out on the premises of facts that are alleged.
5. Mr. Nisar A.I the learned advocate for the petitioners has addition--ally relied on the provisions of sections 4 and 5 of West Pakistan Dowry (Prohibition on Display) Act, 1967. Under section 4 of the said Act the dowry or presents which are received by any person on behalf of the woman in connection with the marriage of such woman have to be returned by such person to the married woman; and a period of one year is specified as a period within which such person must return the dowry or presents to the married woman. Again under section 5 of the said Act a Court is precluded from taking cognizance of an offence under section 4 of the said Act after a lapse of one month from the date of the commission of the offence. On a reading of sections 4 and 5 of the said Act it becomes clear that this Act is designed to protect women against deprivation of their articles of dowry or presents received by them at the time of marriage. It is no doubt a special Act and lays down a special procedure together with a limit in regard to time for bringing an action in a Criminal Court on the basis of deprivation of articles of dowry or presents. It is next contended by the learned advocate that since special provisions of law co-existed with the general provisions of the Penal Code within the sphere of the Legislature the provisions of the general law must yield position to the provisions of the special law. The learned advocate relies on section 5 of the Criminal Procedure Code in that regard. Section 5, Cr. P. C. Reads as follows:- ---5.-(1) All offences, under the Pakistan Penal Code, shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences, under any other law, shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.--- ---In all the foregoing cases, the general Act seemed intended to apply to gene-, al cases only and there was nothing to rebut that presumption. But if there be in the Act or in its history something showing that the attention of the Legislature had been turned to the earlier special Act and that it intended to include the special cases within the general Act, or something in the nature of either Act to render it unlikely that any exception was intended in favour of the special Act, the maxim under consideration ceases to be applicable.--- The above passage from the Book by Maxwell has been relied on by the advocate for the petitioners for the purposes of resting the argument that if within the same legislative field general as well as special law simultaneously operate the general law to the extent of repugnancy must yield to the special law. On such premises the argument developed by the learned advocate was that section 5 of the West Pakistan Dowry (Prohibition on Display) Act, 1967, provided a limitation of one year for filing an application. To that extent the learned advocate for the applicants is correct but since the present complaint has been filed under section 406, P. P. C. It is, not necessary in the context of circumstances of this case to enter into that question. Suffice to say that the complaint filed by respondent Muhammad Raza clearly stated that after the marriage Mst. Mariam went and stayed with the two petitioners for a long period of two years and there is not even an allegation that during this period of two years she had been deprived either of possession or use of the articles given to her at the time of marriage. What is more that Mst. Mariam on account of some quarrel with her husband Abdul Qadir has left his house and come to the house of complainant Muhammad Raza. The description of the articles is also not stated m the complaint nor is it alleged that the petitioners/accused had refused to deliver the articles to Mst. Mariam, at the time when she left the house of her husband. In fact the evidence of Muhammad Raza in such context reads as follows:- ---So they brought my daughter with her issues to my house. The gold and other articles which I had given to my daughter remained-- with Qadir. Abdul Qadir did not come to my house to take my daughter.--- Again in cross-examination he stated that he had not given any notice to the accused for return of the articles of dowry. This would show that Mst. Mariam had left the house of her husband and come to stay with her father. Such circumstance does not make out a case of mis-appropriation or breach of trust. No conversion is either alleged or established.
6. On a consideration of all the facts of the case I am of the view that on account of strained relations between the spouses the complainant has resorted to criminal proceedings in this case solely with a view to enforce a demand of articles which could be done only by process of the civil Court. It appears that he is using the process of the criminal Court for the purpose of vindication of his rights which would appropriately be the subject-matter of a civil suit. He had such remedy available to him and he should have availed of it. The present complaint is, however, an abuse of the process of the Court and appears to have been filed solely for the purpose of coercing the petitioners to come to - some settlement with him. Under such circumstances this application is allowed and the proceedings in the case of Muhammad Raza v. Abdul Qadir and another under sec--petition 406, P. P. C. Which are presently pending in the Court of Additional City Magistrate Court No. XIX, Karachi, are hereby quashed.
7. Application allowed.