ORDER OF REFERENCE The facts of this case are as follows:
1. Mst. Zahida Parveen and Mst. Ghulam Fatima have filed the instant revision petition against the respondents under section 435, Cr. P. C. Questioning the order dated 4-3-1974 passed by Mr. Javaid Dastgir Magistrate 1st Class, Lahore.
2. The respondent Mahmood Javaid instituted a complaint under section 465/411/109/34, P. I. C.
Against the two petitioners and respondent, namely Abdul Qadir. Mian AbdulQadir has been impleaded as respondent in the revision petition. He was, however, summoned as co-accused of the petitioners before tact ewer Court. There was apparently no necessity under the Criminal Procedure Code to implead him as respondent. It may be pointed out hero that Mst. Zahida Parveen is the wife of Mahmood Javaid respondent and Ghulam Fatima is the mother-in-law of Mahmood Javaid respondent. The marriage between the petitioner No.1 and respondentNo. 1 was solemnized on 30-4-1972 the respondent No. 2 Mian Abdul Qadir is allegedly the Registrar of the Nikahnama prepared by him at the time when the aforesaid marriage was solemnized. It is alleged by the respondent No. I that the crossed line appearing against Serial Nos. 17 and IS in the Nikahnama were erased very cleverly by the respondent No. 2 in connivance with the two petitioners. It is further alleged that new entries with the following descrip--tions against the above-said Serial Number respectively are entered.
It is alleged by the respondent No. 1 that the petitioner No. 2 had actually committed the offence of forgery in respect of the aforesaid entries and the petitioners abetted the commission of offence by respondent No. 2.
3. The complaint was presented before the learned Magistrate on 18-1-1974. Tire complainant .Vas examined in respect of the contents of his complaint on 23-i-1974. He has supported the contents of his aforesaid complaint in his statement dated 23-1-1971. The complainant produced only on witness namely Ismat A.I, who was examined on 24-1-1974. On the basis of preliminary evidence led by the complainant, the learned Magistrate ordered for the summoning of the two petitioners and also the respondent No. 2 under section 109/34, P. P. C.
4. The petitioners have come up in revision before this Court under section 435, Cr. P. C. My learned predecessor called for the record of the lower Court which has been perused by me. Without going into the details of the facts of the case, I find that the impugned order dated 4-3-1974 is illegal on the face of it. Section 34, P. P. C. Is not a penal offence and is meant for vicarious liability of the accused Section 109, P. P. C. Can come into play if the substantive offence is committed. The provisions of section 109, P. P. C. Reveals that "whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence."
5. In this case no finding his bean given with respect to the substantive offences or having been committed by Vie petitioners and the respondent No. 2 in consequences of the abetment made.
The two petitioners and the respondent No. 2 have not been summoned for an offence having been committed in consequence of the abetment. I find that the order of the learned Magistrate is manifestly illegal. The petitioners have prayed before this Court that tire impugned order tray tae set aside. I have no jurisdiction to act aside the impugned order myself. But I fined that the order in question is illegal on the face of it and such is liable to be set aside.
6. In view of the observations made above, I am perforced to resort to section 438, Cr. P. C. And accept the revision petition and report the matter to the honourable High Court for passing an appropriate order.
Abdul Qayyum Bhatti for the State.
ORDER OF THE HIGH COURT This order shall dispose of Criminal Revision No. 818 of 1974 and Criminal Revision No. 31 of 1975.
2. The cases have been called twice since this morning but no one appears for the petitioners i.e. Mst. Zahida Parveen and Mst. Ghulam Fatima. Nor does anybody appear for Mahmood Javaid, respondent, who has also filed a separate Criminal Revision in this Court, namely, No. 31 of 1975.
3. Mahmood Javaid was married to Mst. Zahida Perveen but later on differences arose between them and Mst. Zahida Parveen filed a suit for recovery of Rs. 2000 as her dower. The complainant suspecting that the Nikahnama might have been tampered with applied for a copy of the same which after some efforts was provided to him. His allegation is that the lines against columns Nos.
17 and 18 were erased and instead thereof, it was noted against the column for maintenance that the husband will pay Rs. 100 as maintenance and as against column No. 18, it was noted that the wife shall have a right of khula.
4. Before the process was issued, the complainant himself appeared as a witness. He also produced one Ismat Ail who said that entries in the Nikahnama had been tampered with. From the photostate copy placed on record there is no indication that these entries were tampered with. The Magistrate, however, on the basis of the evidence led before him issued process against the petitioners and Maulvi Abdul Qadir under section 109/34, P. P. C. The petitioners took a revision petition to the Sessions Court and Mr. Inayatuliah Cheema, Additional Sessions Judge, Lahore, said that the order summoning the petitioner was illegal as session 34 deals with vicarious liability and section 109 could not have been applied if the substantive offence had not been committed.
5. The complainant, Mahmood Javaid, filed a revision petition saying that the learned Additional Sessions Judge should not have forwarded the case to the High Court. He further prayed that the Magistrate be now asked is amend tare order summoning the accused and add sections 465 and 471, P. P. C. In its original order dated 4th of March, 1974.
6. I agree that the order dated 4th of March, 1974, issued for summon--ing the accused under section 109/34, P. P. C. Is entirely illegal and cannot be sustained. The prayer made in Criminal Revision No. 3111975 cannot be acceded to because it is for the Magistrate concerned to consider whether on such allegations he can come to tire conclusion that offence under section 465/471 read with section 109 have been prima facie made out.
7. The result is brat the recommendation of the learned Additional Sessions Judge is accepted and the order dated with of March, 1974, summon--ing the petitioners and Maulvi Qadir under sections i09/ A, P. P. C. Is set B aside. The learned Magistrate shah after reconsidering tale evidence find out whether on these allegations any offence is made out. If no, he shall then act according to law. The Revision Petition No. 31 of 1915 is dismissed.