' This petition is moved under section 561-A, Cr.P.C. By the petitioners against the respondents on the ground that the institution of a complaint under section 379/380, P.P.C. Read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 amounted to abuse of the process of Court. In this regard it was contended that in the aforesaid complaint the learned Illaqa Magistrate, Sheikhupura after recording preliminary evidence summoned the petitioners under the aforesaid sections to face trial.
2. Brief facts are that Mst. Zarina Bibi, petitioner No,1 was married to Muhammad Ashfaque respondent No, 1 . She filed a suit for dissolution of marriage against the aforesaid respondent, which was decreed on 29-7-1992 by the learned Judge, Family Court, Lahore. The aforesaid order was challenged by the respondent Muhammad Ashfaque in Writ Petition No,8255 of 1992, which was dismissed by my learned brother Mian Saeed-ur-Rehman Farrukh, J. On 8-11-1992. Thereafter, respondent Muhammad Ashfaque instituted a complaint on 16-12-1992 in the Court of Illaqa Magistrate, Police Station Bhikhi Tehsil and District Sheikhupura, in which he contended that the petitioners/respondents visited his house on 1-12-1992 in order to meet Nabila, a minor daughter from his wedlock with Mst. Zarina Bibi and also demanded for the return of dowery although no dowery was given at the time of marriage. The complainant went out of his house to bring Allah Ditta son of Taj Din, Hadayat Ullah son of Muhammad Sharif and Muhammad Siddique son of Muhammad Sharif, his neighbours while leaving behind his mother Bashiran Bibi and sister Shehnaz Akhtar in the house. The aforesaid Allah Ditta etc. Had allegedly prevailed upon the respondents not to prolong the dispute as Mst. Zarina Bibi had already been divorced. The respondents were, therefore, allowed to pass the night at the house of complainant/respondent No,1. During the night respondents/petitioners allegedly slipped away after breaking the lock of a box and taking away golden ornaments consisting of a pair of Gani, a ring weighing 3-1/2 Tolas, a cash of Rs,15,000 and 10 pair of silk clothes. The complainant, Muhammad Ashfaque Khan thereupon allegedly made a petition to S.P., who forwarded the same to S.H.O., but the latter did not take any action. Whereupon the present complaint was instituted.
3. The learned counsel for the petitioners has submitted that the complaint was without any merit and was tainted with mala fide. In this connection it was urged that Mst.Zarina Bibi was divorced by respondent No,1 and she remarried the brother of complainant namely Muhammad Abbas and started living at Lahore with him. Remarriage of the petitioner Mst. Zarina Bibi was in a bad taste to Muhammad Ashfaque Khan, who out of malice and spite instituted the complaint showing his address of village Karianwala, Tehsil and District Sheikhupura although he originally resided in the village Mirza Virkan, Tehsil and District Sheikhupura. The aforesaid address of Village Mirza Virkan was given by the complainant/respondent No,1 in the writ petition filed by him to challenge his dissolution of marriage with Mst. Zarina. However, to harass the petitioners, false address of village Kharianwala, was given in order to bring the matter within the jurisdiction of Illaqa Magistrate Police Station Bhikhi, District Sheikhupura, as his mother was allegedly working as maid servant with the aforesaid Magistrate. Lastly it was alleged that the false witnesses were set up with a false story in the complaint, only to harass the petitioner by misusing the provisions of section 202, Cr.P.C.
4. The learned counsel for the respondent/complainant and the State have opposed the petition on the ground that the order, dated 20-3-1993 was made by the learned Illaqa Magistrate after considering the preliminary evidence and coming to the conclusion that a prima facie case existed against the petitioners/accused. It was, therefore, urged that there was no misuse of legal process by the respondent/complainant nor there was any illegality in the proceedings conducted by the learned Magistrate. Lastly, it was submitted that the petitioners had also a remedy under section 249-A, Cr.P.C. To move an application before the learned Trial Magistrate for acquittal, if it was a case of no evidence. Without availing the aforesaid provisions of law, the petitioners allegedly could not invoke the inherent jurisdiction of the High Court vested in it under section 561-A, Cr.P.C.
5. I have heard the learned counsel for the parties and have also gone through the material on record. It is an admitted fact that the marriage of Mst. Zarina with Muhammad Ashfaque Khan was dissolved by the learned Judge, Family Court, Lahore on 29-7-1992. The respondent, Muhammad Ashfaque Khan filed a writ petition as stated above in the High Court challenging the aforesaid order, but his petition was dismissed in limine. He had shown his address in the writ petition being resident of village Mirza Virkan. The said writ petition was dismissed on 8-11-1992, whereas the present complaint was filed before the Illaqa Magistrate on 16-12-1992 showing the address of.
Muhammad Ashfaque as resident of Khurianwala, Police Station Bhiki, District Sheikhupura. It had not been explained in the complaint as to what was the reason of change of address or whether Muhammad Ashfaque Khan had actually shifted from the previous address to the present address.
This fact alone shows that respondent No,1 did not approach Illaqa Magistrate Police Station Bhiki with clean hand as his previous address was shown in the previous litigation as village Mirza Virkan, District Sheikhupura. It is also strange that he did not mention whether Mst. Zarina Bibi was still a free woman or she remarried Muhammad Abbas although the latter was cited as respondent No,6 in the complaint. Likewise no role was assigned to Muhammad Inayat in the complaint nor it was shown as to how and in what connection he was present over there. Corollary of these facts clearly indicates mala fide on the part of the complainant, Muhammad Ashfaque Khan because after the dismissal of his writ petition on 8-11-1992 he invented a new story presumably to harass his ex-wife, her present husband and other kith and kin. The story given in the complaint also seems to be unnatural because nobody would allow a divorced wife and her kith and kin to spend a night and give them a free hand to commit theft etc. Without watching them properly. The process was issued in this petition to respondent No,1 at his present address but that was returned with the report that the respondent was not traceable at that address. The office had, therefore, directed the District Magistrate, Sheikhupura to get the service effected upon respondent No,1 at his old as well as his present address. The summon showing his address as village Mirza Virkan issued by the office can be seen on record, which bears a thumb-impression on its back and for convenience and identification sake, it is marked as "A" and the thumb-impression as Mark "A/1". The report of service by Superintendent Police, Sheikhupura in respect of aforesaid process may be seen as Mark "B" for identification sake. It, therefore, shows that in fact the complainant/respondent No,1 was still residing at village Mirza Virkan, District Sheikhupura, but for some ulterior motive he had shown this address in the complaint as village Khurianwala, Police Station Bhiki, District Sheikhupura. The allegation of the petitioners given in para. 5(d) of this petition needs attention, wherein it is alleged that the learned Magistrate exercised his powers under the influence of the mother of respondent No,1, who happened to be his maid servant. There may be some force in such an allegation because there was no other palpable reason for changing of the address by respondent No,1 i,e, complainant.
6. In view of foregoing discussion, I come to an irresistible conclusion that shifting of address by the complainant and the story given in the complaint is not only frivolous, but shows his malice and spite against his ex-wife and her kith and kin. This is clearly an example of misuse of legal process to harass the opponent.
7. Now question would arise whether this Court can exercise its inherent jurisdiction under section 561-A, Cr.P.C. Instead of directing the petitioners to approach the trial Court as required by section 249-A, Cr.P.C. In this respect a reference to 1984 PCr.LJ 585 and 1985 SCM R 257 can be made with advantage.
Since in this case I have come to the conclusion that there is abuse of the process of Court, therefore, proceeding under section 561-A, Cr.P.C. The petition for quashment is accepted. The complaint pending before the learned Illaqa Magistrate Police Station Bhiki, District Sheikhupura is quashed.
8. Before finally parting with the judgment I would like to call a report from Mr. Muhammad Akram Javed, learned Magistrate, on the allegation that he had acted under the influence of mother of respondent No,1, who was allegedly working as his maid servant at the time of hearing of the complaint under reference. The report of the learned Magistrate shall be forwarded to this Court through the learned District and Sessions Judge, Sheikhupura with his own remarks on the subject within one month.