M.HUSSAIN ADIL KHATRI, J.- Applicant No.1 is divorced wife of one Umar who is brother of Respondent No.1.A title suit filed by Applicant No.1 against the said Umer in respect of a bungalow is pending in this Court. Applicant No.2 is brother of applicant No.1.
2. On 23-8-1990 Respondent No.1 filed a complaint under Section 504/506-B PPC against applicant No.1 alleging that on 19.8.1990 at 7.00 p.m. Complainant/respondent No.1 had gone to see his brother Abdul Haque at House No. A-28, which is just opposite to the house occupied by applicant No.1 When respondent No.1 and his brother Abdul Haque came out of the said house to meet prosecution witness, then all of a sudden, applicant No.1 came out of her house and started calling bad names to respondent No.1 and threatened to kill him if he took side of his brother Umar. The Magistrate passed an order for recording the statement of respondent No.1 under Section 200 Cr.P.C, which was recorded. Respondent No.1 deposed that on 19-8-1990 he went to meet his parents at the house of his brother. No sooner he entered the House. Applicant No.1 who lived in the house just opposite to the house of his brother, came out of her house and started abusing him and also threatened to kill him and warned him that he should sever and break off his relations with his brother. In the meanwhile many people collected there, among them was his brother Abdul Haque also. Respondent No.1 also stated that he went to Police Station Civil Lines to lodge report but though he waited at the Police Station for two hours, the report was not recorded. In the end of his statement he also stated that action be taken against applicant No.1 and so also applicant No.2.
3. The learned Magistrate on the same day ordered issuance of process against both the applicants.
The applicants have filed this application under Section 561-A Cr.P C for quashment of the proceedings as the same are farsical and malafide and have been initiated to coerce applicant No.1 to surrender her rights in the immovable property, in respect whereof Suit No.60/90 filed by the applicant No.1 is pending in this Court.
4. I have heard Mr. Khawaja Naveed Ahmed, the learned advocate for the applicants and Mr. Jalaluddin Baloch for the State. The learned advocate for respondent No.1 has remained absent.
It is contended by the learned advocate for the applicants that the proceedings have been commenced by respondent No.1 with malafide intentions and the learned Magistrate has ordered issuance of process without applying his mind to the facts of the case. Under such circumstances, the learned counsel has urged for quashment of the proceedings ending before the trial Court. He has relied on the case of Ghulam Nabi Shah .Vs. The State (PLD 1977 Kar.41) wherein the proceedings were quashed for the reason that the Magistrate had acted unscrupulously by taking action on information laid before him without proper application of mind. He has also referred to the case of Mureeds Vs. Abdul Karim (PLD 1975 Cr.C (Lah.415). In the said case during pendency of the civil litigation three complaints were filed under different Sections of Pakistan Penal Code with malafide intentions and the High Court held that the continuance of such proceeding amounted to abuse of the process of Court and accordingly ordered quashment of the said proceedings. He has also referred to the case of Mst. Zubeda and six others vs. Ghulam Ahmed 1978 P.Cr.LJ. 123) wherein the proceedings had been quashed as the same were found to have been filed to cause harassm ent to the petitioner and compel him for a compromise in a case under section 307 PPC.
5. Respondent No.1 in the complaint had alleged that Applicant No.1 had appeared on the scene and the incident had taken place at the point of time when he and his brother Abdul Haque had come out from the house of his brother to meet prosecution witnesses. But while deposing in court respondent No.1 stated that no sooner than he had entered in the house of his brother, Applicant No.1 came out from her house and further deposed that on hearing the abuses and threats hurled by Applicant No.1 people collected and his brother Abdul Haque was , amongst them. In the complaint there is no reference whatsoever to applicant No.2, but while deposing in Court Respondent No.1 roped in Applicant No.2 also. Respondent No.1 has thus made two conflicting and contradictory statements which are not capable of reconciliation and the learned Magistrate without applying his mind to the facts of the case, acted mechanically in passing the order for issuance of process.
In the present case the Applicants have challenged the proceedings before the trial court being malafide and having been embarked on with an intention to coerce applicant No.1 to surrender her rights in the immovable property. It can be said without fear of contradiction that the charge made against the applicant is baseless, and the case of respondent No.1 as set up in the complaint, stands belied by his statement in Court. In view of the observation made in the case of Syed Manzoor Hussain Shah vs. S Agha Hussain Naqvi & State (NLR 1983 Cr.226) this Court can exercise powers under Section 561-A Cr.P.C, to quash the proceedings initiated with malafide intentions and when the orders are passed by the Magistrate without application of mind and in a mechanical manner. The application is therefore allowed and the proceedings pending before the Additional City Magistrate-I South Karachi are hereby quashed.