' On the conclusion of hearing of this case on the 18th of January 1974, I had by a short order allowed this application and quashed the proceedings of a criminal case that had been instituted by respondent Muhammad Younis against the petitioners Mst. Nasreen Begum and others in the Court of Additional City Magistrate Court No, XIX, Karachi, and I now proceed to record my reasons for the said order.
2. Briefly stated the facts of the case are that respondent Muhammad Youths was married to petitioner Ms:. Nasreen Begum who again is the daughter of the petitioners Ghulam Muhammad and Mst. Rasoola Bibi (petitioners Nos. 2 and 3). The respondent Muhammad Younis filed a complaint in the Court of Additional City Magistrate Court No, XIX, Karachi, against petitioners Nasreen Begum, Ghulam Muhammad, Rasoola Bibi and also one Muhammad Ashraf in regard to a charge under section, 420/34 P. P. C. This complaint which was filed on or about the 1st of September 1973, stated that the petitioners Ghulam Muhammad and Rasoola Bibi knowing that Nasreen Begum was pregnant on account of her illicit intimacy with petitioner Muhammad Ashraf (petitioner No, 4) got Nasreen Begum married to respondent Muhammad Younis. It was further alleged that after the marriage petitioner Nasreen Begum came to live with respondent Muhammad Younis and thereafter made a confession that she had been forcibly married by the petitioners Ghulam Muhammad and Rasoola Bibi, respectively, her father and her mother, and further that she in fact wanted to marry petitioner Muhammad Ashraf with whom she had clandestine relations prior to her marriage and further that she was pregnant, carrying a foetus of three months in the abdomen. It is then stated in the complaint that respondent Muhammad Younis went up to the petitioners Ghulam Muhammad and Rasoola Bibi and reprimanded them on which he was threatened and thereafter respondent Muhammad Youths came back to his house only to find that Nasreen Begum had left the house of respondent Muhammad Younis in company of the brother of petitioner Muhammad Ashraf for ,,,lirpur Khas for the purpose of causing an abortion. It was, however, stated that this attempt at abortion did not succeed and the petitioner Nasreen Begum thereafter returned and continued to stay with Ghulam Muhammad and Rasoola Bibi, her father and mother. It was further alleged that petitioner Nasreen Begum had taken away ornaments weighing ten toles from the box of respondent Muhammad Younis. However, the description of these ornaments is not stated in the complaint nor is it stated whether the ornaments were made of gold or silver_ In the concluchng paras. Of the complaint, it was stated that the four petitioners have committed an offence under section 420/3,i0 P. P. C. Inasmuch as they had induced respondent Muhammad Younis to marry with petitioner Nasreen Begum in spite of the latter not being a virgin.
' The Additional City Magistrate held a preliminary enquiry and the complainant thereafter gave a statement under section 200, Cr. P. C. And also examined witnesses Muhammad Iqbal and Abdul Sattar under section 202 of the said Code. After recording the statement of the complainant/respondent Muhammad Younis and his witnesses the Magistrate issued bailable warrants against the four petitioners in the sum of Rs, 2,000 under section 420/34, P. P. C.
' The four petitioners who are accused in the complaint, have filed this application for quashment of the proceedings against Vaem through Mr. Aftab Ahmed Alvi, Advocate. The respondent Muhammad Younis has been represented before me by Mr. Nizamuddin Memon, Advocate, whereas the State was represented before me by Mr. Nooruddin Sarki, Advocate.
3. Mr. Aftab Ahmad Alvi, the learned Advocate has contended before me that on the allegations made in the complaint and the statements of the complainant and his witnesses before the issuance of process, no offence under section 420, P. P. C. Was indicated. On that premises he argued that the four petitioners have been dragged to the Court solely for the purpose of harassm ent. The learned State counsel has supported this application and has expressed that the proceedings against the petitioners should be quashed. On the other hand Mr. Nizamuddin Memon, the learned Advocate for respondent Muhammad Younis has argued that since no evidence has been recorded after the issuance of process, it is premature to quash the proceedings in this case.
4. On a reading of the complaint and the statements of the respondent/ complainant Muhammad Younis and his witnesses I find that no case under section 420, P. P. C. Has been made out. First of all there is no evidence showing that petitioner Nasreen Begum was at all pregnant. All that the complainant/respondent stated was that Nasreen Begum had confessed before him that she was pregnant on account of sexual relations with petitioner Muhammad Ashraf. Surely better evidence could have been available on that point and that evidence is not available on the record. On the other hand there is nothing to indicate that the petitioner Nasreen Begum made any misrepresentation to the respondent/complainant Muhammad Younis, in regard to tier being virgin, if indeed she was not virgin. All that is stated in the complaint is that the petitioners Ghulam Muhammad and Rasoola Bibi knowing that petitioner Nasreen Begum was pregnant induced the respondent/complainant Muhammad Younis to marry her. There was no evidence absolutely besides the word of the complainant. What is more that the fact of Nasreen Begum being a virgin was known to Nasreen Begum only and that being so, the absence of any misrepresentation by Nasreen Begum clinches the issue in this case. There is nothing to indicate that the petitioners (ihulam Muhammad and Rasoola Bihi knew that Nasreen Begum was not a virgin. In any case, all this is stated by me besides the main point ; that there is no evidence to show that Nasreen Begum was not virgin or was indeed pregnant at the time of marriage with respondent/complainant Muhammad Younis.
' Section 420, P. P. C. Reads as follows :- "Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
' It would appear that under section 420, P. P. C. The prosecution has to show that a misrepresentation was made and such misrepresentation induced the complainant to part with any property. In the present case there is not even an allegation in the complaint that any property of the complainant was parted with by him as a consequence of any inducement. First of all, the evidence with regard to inducement appears to be very scanty and unreliable, but even if such evidence is believed, there is nothing in the complaint to show that the complainant/respondent parted with any property on account of such misrepresentation or inducement.
' On a reading of the complaint and the statements of the witnesses it clearly appears that the elements of misrepresentation, inducement and parting with property are completely lacking and absent in this case.
5. The complainant/respondent has also made an allegation that at the time Nasreen Begum left his house she also took away ornaments weigh-ing about 10 toles. Ordinarily the ornaments would belong to the wife, and there is nothing in the complaint or in the statement of the complainant to show that the ornaments that petitioner Nasreen Begum, if at all she took away any ornaments, did not belong to her. What is more that no description of the ornaments is given and it is not even stated whether the ornaments were wade of gold or silver. However, on the point of petitioner Nasreen Begum taking away ornaments, the Magistrate in the order of issuance of process has expressed that witness Abdul Sattar has not supported the complainant on that aspect of the case and the Magistrate for such reason refrained from issuing process in regard to the offence of theft.
This would show that the Magistrate did not believe the story of the complainant at least in such vital part of the same.
6. The learned Advocate for the respondent Muhammad Younis has however, argued that since only process had been issued and evidence has not yet been recorded, it was too premature a stage for quashment of the proceedings. I am afraid 1 cannot agree with him. First of all the record discloses that the statements of the complainant as well as two of his witnesses namely Muhammad Younis and Muhammad Iqbal have been recorded before issuing process.
Muhammad Younis had not been cited as a witness by the complainant in the complaint whereas Muhammad Iqbal had been cited as a witness. On a reading of the evidence of these two witnesses I find that the entire case of the complainant has been disclosed so that there are no circumstances besides what is being stated by the witnesses and the respondent/complainant Muhammad Younis which might be proved at any later stage of the case ; but, on a perusal of the statements of the complainant and his witness I am of the view that the most essential ingredients of an offence under section 420, P. P. C. Namely, misrepresentation and deprivation of property as a consequence of misrepresentation have not been made out. In cases under section 420, P. P. C.
The prosecution has got to show that the accused has made a material misrepresentation and such misrepresentation had been made for the purposes of inducing the complainant to part with some property. Both these ingredients have to be affirmatively established by the prosecution. In the present case I find that no affirmative representation on the part of Mst. Nasreen Begum has been established. What is more that the complainant has not stated that he was deprived of any property as a consequence of such misrepresentation. Surprisingly process was issued even against petitioner Mohd. Ashraf, the alleged paramour of petitioner Nasreen Begum, but there is nothing on the record to indicate that he had made any misrepresentation or obtained property or was in any L,,manner concerned with the marriage of petitioner Nasreen Begum with respondent Muhammad Younis. It appears to me that this complaint has been filed solely for the purpose of harassing the petitioners who are members of the same family. Indeed, I must say that the allegations that have been made in this case are of most vile nature and there was absolutely no evidence to indicate that Mst. Nasreen Begum was either pregnant or any of the petitioners had made any misrepresentation. In this context the petitioners have stated in the quashrnent application itself that the parties belong to the same Biradri and there were some matrimonial disputes. That being so I am left in no doubt that the pendency of the present proceeding does not advance the interest of justice and the proceedings have been initiated solely for the purpose of harassm ent of the petitioners.
7. In the result I accept this application and quash the proceedings against the four petitioners which are pending in the Court of Additional City Magistrate Court No, XIX, Karachi.