This is an application under section 561-A by one Aurangzeb asking that proceedings now pending against him in the Court of the Joint Civil Judge and First Class Magistrate under sections 366 and 346 of the Pakistan Penal Code as a result of the complaint of respondent No. 2 be quashed.
2. On the facts that have given rise to this application can be really very little dispute; indeed respondent No. 2 although served has not even appeared in this case. The applicant claims to be a married man having a wife and five children and was formerly residing at Samara Road in taluka Umerkot where respondent No. 2 was a neighbour of his and between the wives of the applicant and respondent No. 2 there existed a state of fairly cordial social relations. The wife of respondent No. 2 whose name is, or at least was Smt. Lachmi, is like the respondent No. 2 himself, of course, a Hindu but it is said that somehow she felt attracted to the religion of Islam and of her own free will on the 6th December, 1972 having come to Karachi became a Muslim and adopted the Muslim name of Taslim Fatima. She was then produced before the City & A. D. M., Karachi who took her statement on oath and passed the order that, being a grown-up woman, she might go where she pleased. That she is in fact about 25 years of age is not disputed.
3. At about the same time the applicant also shifted to Karachi and, in view of the fact that she is now admittedly living with the petitioner, while I hesitate to question the sincerity of any person's belief in the religion of Islam, I must confess that I view with some scepticism the coincidence between the shifting of the petitioner to Karachi and the journey of the lady to Karachi for the purpose of accepting the religion of Islam. However, be that as it may, after the statement that she made before the City Magistrate, claiming that she was afraid of her life, at the hands of her Hindu relations, at her own request she was sent to Darul Aman, and this, it is stated, was within the knowledge of her husband, that is respondent No. 2. It seems that she was examined again on the 8th May, 1973 before the City & A. D. M. Karachi when she said that she had been converted to Islam of her own wish and did not desire to go to her Hindu relations but wished to live "with the Muslim" whether this expression refers to the applicant or not is somewhat ambiguous but in the circumstances of the case I am rather inclined to think that it does.
4. Anyhow as a result of the order which the City Magistrate then made, namely, that she may go where she likes, she came and lived, according to the applicant, with his wife and I cannot but think that this is rather a naive way of concealing the fact that she is living with him. It is his case, whether true or not it does not matter, that she in fact asked the husband to take her away, but that the lady was unwilling and purely out of a sympathy with a fellow-Muslim the petitioner has been giving her shelter. This may be so but I am relieved indeed that it is not necessary for me in this case to arrive at an actual finding whether that is a real reason why she was living in the house of the applicant.
5. Respondent No. 2 then filed a complaint in the Court of District Magistrate, Tharparkar which way forwarded to the Joint Civil Judge & F. C. M. For disposal. This is a complaint under sections 366, 395, 450, 346/34 of the Pakistan Penal Code but the learned Magistrate after record--ing the statement of the complainant and some of the witnesses whom he named issued process under section 356 and 346 against the applicant he also, on the application of respondent No. 2, issued a search warrant.
6. Now in these circumstances it is perfectly plain that the lady has come with her own free will to Karachi and that she is a major. Whatever the nature of her relation with the petitioner and whatever the degree of sincerity with which her claim to be a genuine Muslim may be regarded clearly no offence under section 356 or 346 can be made out. In these circumstances to allow these proceedings to continue would clearly amount to an abuse of the process of the Court.
7. I have considered, however, very carefully the question that since the marriage between the lady and respondent No. 2 is admitted, whether an offence under sections 497 and 498 of the Penal Code is not made out. Indeed learned counsel for the State while conceding that the proceedings under sections 356 and 346 were not maintainable argued that the case had after all been initiated upon a complaint and that nothing prevented the Magistrate even now from issuing process under these sections or at any rate, ultimately framed a charge under them. But no Court can take cognizance of an offence under section 497 or 498 except upon a complaint made by the husband. There is indeed in this case a complaint by the husband. But the word `complaint' itself must be understood to be "an allegation made orally or in writing to a Magistrate with a view of taking action under this Code that some person whether known or unknown has committed an offence" and I think, therefore, that the complaint under which section of Criminal Procedure Code contemplates is a complaint which specifically mentions the offence under section 497 or 498 or at any rats the facts which constitute those offences. I cannot, therefore, think that the present complaint suffices for that purpose. Whether a complaint made hereafter will succeed or not in an entirely different matter and upon that I prefer to state no view.
8, In these circumstances, therefore, I quash the proceedings now pending against the applicant in the Court of the Joint Civil Judge & First Class Magistrate, Mirpurkhas under sections 366 and 346, Pakistan Penal Code at the complaint of respondent No. 2 that is Arjan son of Gama. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.