1. ' This application under section 561-A, Cr.P.C. Is moved on behalf of applicant Muhammad Adam son of Yaqoob, Farooq son of Muhammad Adam and Yousuf son of Muhammad Adam who are accused in direct complaint Case No,594 of 1990 pending in the Court of Additional City Magistrate No,III, Central Karachi for offences under sections 452, 454, and 506, P.P.C.
2. ' The facts giving rise to this application are that on 21-104990 the complainant Mst. Khurshid Begum lodged a direct complaint in the Court of Additional City Magistrate No, III, Central, Karachi.
3. It was alleged by the complainant that the relations between the complainant and the accused were cordial. The accused Muhammad Adam with his own free will handed over his son Muhammad Zahid, aged 3/4 months to the complainant and thereafter the complainant looked after the said Muhammad Zahid treating him as his son. Under the motherly care, control and supervision of the complainant the said Muhammad Zahid grew up and is now a student of class six in Gulshan Cambridge School, Karachi. It is alleged that on 9-10-1990 when the complainant, her daughter Mst. Hameeda and son Muhammad Rafiq were at home at that time the accused alongwith five other unknown persons duly armed with fire-arms forcibly entered the house of the complainant and extended threats of dire consequences to the complainant party, kept them in wrongful restraint and also assaulted them. At about 10 p.m. When Muhammad Zahid came home the accused persons forcibly took him away and threatened to kill the complainant party if they caused any interference. The complainant reported the matter to the police but no action was taken. Thereafter, an application was moved before the S.D.M. Liaqatabad who issued search- warrants for the recovery of Muhammad 7ahid but the same was returned unexecuted. The complainant also sent telegram to I.-G. Police, Sindh and S.S.P., Karachi Central, but no action was taken, and therefore, the complainant instituted the present complaint.
4. ' The said complaint was entertained by the learned A.C.M. III, Central Karachi, who after recording the statement of the complainant under section 2Q0, Cr.P.C. And statements of the witnesses recorded under section 202, Cr.P.C., was pleased to take cognizance and registered the case for offences under sections 452, 454 and 506, P.P.C. And accordingly summoned the accused and postponed the trial for 6-11-1990.
5. ' The applicants appeared before the trial Court to face the charges and as there was no progress in the case/trial, therefore, an application under section 249-A, Cr.P.C. On behalf of the accused/applicants was moved before the trial Court praying for the acquittal of the accused. This application was heard by the learned trial Magistrate who by his order, dated 12th May, 1991, was pleased to dismiss the same. It is in these circumstances that the present application for quashment of the said proceedings has been filed by the applicants.
6. ' I have heard Mr. A.Q. Halepota, learned counsel for the applicants and Mr. Muhammad Zubair Qureshi, AA.-G. For State. The latter does not oppose this application.
7. ' Messrs Ashraf Ali Butt and Sardar M. Ishaq, Advocates for the complainant are both called absent.
8. ' This matter had come up before me on 15th June, 1992 and again on 23rd August, 1992 and on both the dates adjournment was sought by the counsel for the complainant/respondent No,2.
9. ' It has been contended by Mr. Halepota that the complaint lodged by respondent No,2 against the applicants is false and the same has been instituted only for the purpose of harassing the applicants and pressurising them to hand over Muhammad Zahid. He has submitted that the complainant and the accused are not related to each other but as the complainant had developed love and affection for the said Muhammad Zahid who is the real son of applicant No,1 the said complainant wanted the accused Muhammad Adam to give up the custody of the said Muhammad Zahid to which the accused Muhammad Adam did not agree. It is further submitted by Mr. Halepota that the complainant was claiming the said Muhammad Zahid to be her adopted son therefore the accused filed a suit in this Court bearing No, 376 of 1991. This was a suit for permanent injunction and recovery of Rs,15,00,000. One of the prayers of the said suit was to permanently restrain the defendant No,1 Khurshid Begum from claiming Muhammad Zahid the youngest son of the complainant /accused Muhammad Adam as her adopted son and also to restrain the defendants from holding out all sorts of illegal threats. This suit was filed on 25th March, 1991. The learned counsel has submitted that the above circumstances will go to show that there were strained relations between the complainant party and the accused over the custody of said Muhammad Zahid. The learned counsel has further pointed out that the falsity of the complaint can be determined from the fact that in respect of the same incident of 9-10-1990 the complainant had submitted a written report to S.H.O. Gulberg Police Station on 11-10-1990. In this written report for the same incident of 9-10-1990 none of the three applicants were shown as accused. In fact the complainant stated therein that it was accused Mst. Rahima Bai alongwith 10/12 Goondas who came into her house and forcibly took away Muhammad Zahid. This will go to show that at the time of lodging the direct complaint, the complainant, Mst. Khursheed Bcgum, has conveniently substituted Mst. Rahima Bai and instead of her the three applicants herein have been included as the accused.
10. ' In these circumstances the learned counsel for the applicants has submitted that the present proceedings have been instituted by the complainant only for the purpose of harassing the accused otherwise there is no likelihood of the applicants being convicted of this offence.
11. ' I have carefully applied my mind to the facts and circumstances of the case and I have also gone through the entire material available on record. In the present case it is quite apparent that the rift between the complainant and the accused has occurred due to the custody of minor Muhammad Zahid. The said Muhammad Zahid is the real son of applicant Muhammad Adam. Whether or not the complainant was given the custody of the said minor by the applicant No,1 Muhammad Adam this question cannot be determined at this stage in these proceedings. However, the most important question in this application is whether the proceedings against the applicants amount to an abuse of the process of Court or not. It is the case of the complainant that on 9-10-1990 when the complainant was at her house alongwith her daughter Mst. Hameeda and son Muhammad Rafiq it is alleged at that time the accused persons alongwith five other unknown persons had forcibly entered her house, threatened them with dire consequence's, assaulted them and forcibly took away Muhammad Zahid. It is pertinent to note that on 11th October, 1990 the complainant lodged a written report with Police Station Gulberg, Karachi. In this written report she had alleged that it was Mst. Raheema Bai who alongwith 10/12 Goondas came into her house and forcibly took away Muhammad Zahid. In this report there was no allegation whatsoever of any threats, assault or force by the accused. So much so that none of the names of the present three applicants was at all mentioned in the said report. To put it more 'clearly in the said report the complainant has neither named any of the applicants nor has shown their presence at the time of alleged incident.
12. It may further be noted that the said written report was lodged on 11th October, 1990 that is two days after the alleged incident. In the said report the primary concern of the complainant was apprehension to the life of Muhammad Zahid and restoration of his custody to the complainant.
13. ' It is surprising to note that in respect of the same incident of 9th October, 1990 for which the complainant had lodged report at Police Station Gulberg showing Mst. Raheema alongwith 10/12 Goondas as accused persons, for the same incident the complainant has lodged a direct complaint in the Court of A.C.M. III Central Karachi on 21-10-1990. In this direct complaint the complainant let off Mst. Raheema with 10/12 Goondas and in their place subtituted the names of the present three applicants as the accused persons. It goes without saying that if this incident had really taken place the complainant would not have substituted the accused. This goes to show that the complainant has resorted to pick and choose the accused at will. If the incident had really taken place and the applicants were the accused, in that event it would have been natural for the complainant to name the applicants in the report lodged with Police Station Gulberg. Not having named the applicants as accused in the written report to Police Station Gulberg, clearly indicates that the complainant, as an afterthought has implicated the applicants in the direct complaint lodged on 21-104990.
14. ' I may also observe that the above discussed facts are not the only circumstance to indicate that the complainant had been changing the names of the accused at will. There is yet another circumstances also which cannot be ignored. It may be noted that .The complainant had also moved an application before the learned S.D.M. Liaquatabad for issuance of search-warrants. The learned S.D.M. In proceedings under section 100, Cr.P.C recorded the statement of the complainant on oath on 12th October, 1990. It is to be noted that the said statement of the complainant has been recorded one day after the complainant lodged the report with Police Station Gulberg. Surprisingly in her statement bt.Ore the learned S.D.M. Liaquatabad she has shifted the date of Wardat from 9th October, 1990 to 8th October, 1990 and this time she has named two persons as accused and they are Farooq and Akram who are alleged to have forcibly entered her house and taken away Muhammad Zahid.
15. ' From my above discussion it will appear that the complainant has named three different sets of accused on three occasions and has changed the date of incident in her statement before the S.D.M. Liaquatabad. All these circumstances are not reconcilable and one already gets the impression that the complainant has resorted to criminal proceedings against the applicants only to harass them and perhaps to force the applicants to hand over the custody of Muhammad Zahid.
16. ' Taking into consideration the above circumstances, it is quite obvious that in the peculiar circumstances of this case there is no possibility of the accused being convicted of this offence.
17. These proceedings pending against the applicants cannot be allowed to continue as the same will amount to harassm ent of the accused. In view of the various statements made by the complainant I am satisfied in my mind that a false complaint has been brought against the accused and the process of the was, therefore, being abused. The said proceedings will not advance the interest of justice but it amounts to unnecessary harassment of the applicants. In these A circumstances I am of the considered view that the proceedings pending against the applicants are an abuse of the process of Court. Accordingly the proceedings arisen out of the direct complaint filed by respondent No,2 against the applicants which is registered as Case No,594 of 1990 pending in the Court of A.C.M. III Central, Karachi is hereby quashed. The said proceedings stand terminated forthwith.