' For a proper appreciation of the points involved in this application filed under section 561-A, Cr.P.C., which are to be disposed of by this judgment it is necessary to refer to the relevant facts in some detail.
2. The respondent No,2 is the husband of applicant No,3 and out of this wedlock they have got one daughter by name Bismah aged about three years. The applicant No,2 is brother of applicant No,3, while the applicant No,1 is husband of her elder sister. The applicant No,1 owned agricultural lands situated in the Province of Baluchistan which were managed by respondent No,2. It is alleged that applicant No,1 had agreed to pay a sum of Rs,2,00,000 (Rupees two lacs) to respondent No,2, if the lands were sold for valuable consideration. He, however, resiled from his commitment after the lands were sold on attractive price due to the efforts of respondent No,2, which resulted into strained relations between the parties. It is the case of respondent No,2, that the applicant No,1 then took away applicant No,3 alongwith her minor daughter with him and in this way the first round of civil litigation started. It is alleged that the applicants called respondent No,2 for the purpose of settlement and after taking him to Super Highway on a false pretext forced him to divorce his wife, the applicant No,3 and also to forgo the right of custody of his daughter Bismah and on his refusal to do so, he was threatened with dire consequences. On 18-4-1990 the respondent No,2 filed a direct complaint against applicants Nos.1 to 3 in the Court of A.C.M. No,X (East), Karachi, for the offence under section 506/341/ 385/109/34, P.P.C. The learned Magistrate recorded the statement of respondent No,2, under section 200, Cr.P.C. And after holding preliminary enquiry under section 202, Cr.P.C. Issued bailable warrants against the applicants for the offence under section 506/341/34, P.P.C. Vide order, dated 24-4-1990. The applicants appeared before the trial Court and made an application under section 249-A, Cr.P.C., seeking their acquittal, but without success. They have now invoked the inherent jurisdiction of this Court with a prayer that the proceedings instituted against them at the instance of respondent No,2, pending in the Court of A.C.M. No,X
(East) Karachi, be quashed.
3. I have heard Mr. S.M.W. Hazratji, learned counsel for the applicants and Mr. Jalaluddin Baluch, learned counsel for the State. The respondent No,2, . Has preferred to remain absent despite notice.
4. The provisions of section 249-A, Cr.P.C. Were examined by this Court in the case of Muhammad Taqi v. The State reported in 1991 PCr.LJ 963, wherein it was held:-- "Section 249-A, Cr.P.C. Relieves the Magistrate from the necessity of going on with the trial, if from the evidence available on record, he is convinced that a criminal charge cannot be sustained and there is no probability of the accused being convicted of any offence. The language in which this section is couched makes it clear that the Magistrate has got powers to acquit the accused even before any witness is examined, if from the material placed on record he is satisfied that the charge is groundless. If acting judiciously the Magistrate comes to the conclusion that the allegations, even if admitted to be true, do not constitute an offence or the allegations disclose a case of civil nature which is deliberately turned into a criminal offence as a handy means to put pressure for recovering dues without making payment of court-fee, or for any other reason, there is nothing to prevent the Magistrate to acquit the accused at any stage of case, to save him from unnecessary harassm ent."
5. The perusal of the record shows that the parties are closely related to each other. The respondent No,2 is the husband of applicant No,3 and there was civil litigation between them.
Admittedly the respondent No,2 had also a dispute with applicant No,1 over the management of lands prior to this incident. It was, therefore, contended that the respondent No,2 had taken criminal proceedings in the hope that the applicant No,3 would return to his house and applicant No,1 would pay the amount to him rather than face a criminal charge.
6. Admittedly there is no witness who could testify about the alleged' incident. The respondent No,2 did not approach the concerned police immediately after the incident. The date, month, year and the time of incident are not disclosed in the complaint which is sketchy and vague, but still the learned Magistrate took cognizance against the applicants without applying his mind to the facts of the case. I may usefully borrow the weighty observations made in the case of J.S. Daver v. Iqbal Qadir and another reported in PLD 1962 Pesh. 167, which are as follows:-- "Before I part with the case I would like to make some observations for the benefit to the Magistrates while dealing with private complaints not to allow their judicial conscience to be so easily moved as in the instant case by automatically issuing summons against the accused without carefully scrutinising the complaint as to whether on the facts stated in the complaint any criminal offence is made out. The Magistrate before issuing processes to the accused in private complaints are under statutory obligation as contemplated by section 202 of the Criminal Procedure Code to satisfy themselves 'for the purpose of ascertaining the truth or falsehood of the complaint' and they should never permit civil litigation to be converted into criminal litigation."
7. The cases reported as Raghunath Puri v. Emperor AIR 1932 Pat. 72, Heywood v. Emperor AIR 1942 Lah. 134, Zafar Niazi v. Riazuddin PLD 1958 Lah. 738, R.C.P. Guignard v. The State and another PLD 1963 Kar. 889, Hafiz Abdul Khaliq Rahmani v. Abdul Ghani and another PLD 1970 Kar. 446, Aba Umar Shaikh v. Abdul Rehman Shah and another 1981 PCr.LJ 455, Loung Khan and 2 others v. Muhammad Jumman and 2 others 1982 PCr.LJ 1039, Mst. Hasina Bano and another v. The State and another 1983 PCr.LJ 132, Zamir Ahmad v. Muhammad Zulfiqar and 4 others 1987 PCr.LJ 53, Shaukat Ali v. The State PLD 1987 Lah. 116 and Muhammad Ali and another v. Assistant Commissioner, Narowal and another 1987 SCMR 795, are also relevant in the present situation. The ratio of the above authorities is that where a civil dispute is brought before a criminal Court, the proceedings before it are illegal and should be quashed by the High Court.
8. Mr. S.M.W. Hazratji, learned counsel for the applicants has further contended that under section 222, Cr.P.C. It is necessary that the charge should contain particulars as to time and place of the alleged offence and since in the present case the record is silent about the date, month, year and time, a proper charge cannot be framed. In the case of Makkhan and others v. Emperor reported in AIR 1945 All. 81, it was observed:-- "The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet."
9. As observed in the case of Almas Ali Khan v. The State reported in PLD 1959 Dacca 711, the validity of a charge is to be judged on the basis of accusation made and not upon evidence ultimately led in the case.
PCr.L.1
10. Mr. Jalaluddin Baluch, learned counsel for the State finding himself on the horn of dilemma, conceded and I think rightly, that in view of factual and legal position, he could not support the complaint (sic) respondent No,2 against the applicants by which a civil right was turned into a criminal liability.
11. Having regard to the above factual and legal position, I am of the view that the continuation of the criminal proceedings against the applicants is an abuse of process of law and consequently the proceedings pending against them in the Court of A.C.M. No,X (East), Karachi, (Case No,99 of 1991) under section 506/341/34, P.P.C. Are quashed. In the result the application filed by applicant under section 561-A, Cr.P.C. Is allowed.