' Criminal Revision Application No, 158/75, Criminal Reference No, 136/75 and Criminal Miscellaneous Application No, 178/76, being interconnected, in that the parties in these three matters are the same and all these 3 matters arise out of a common dispute, have been heard together and are being decided together by this judgment.
2. Criminal Revision Application No, 158/75 has been filed by one Gaspar Periera against his wife Mrs. Jannifer Periera, impugning the order of a learned Additional Sessions Judge, Karachi, dismissing his revision application against the order of a learned Sub-Divisional Magistrate Karachi, taking cognizance of a case against the said Gasper Periera under section 403, Cr. P. C.
Criminal Reference No, 136/75 has been made by a learned Additional Sessions Judge, Karachi, recommending the quashment of the proceedings instituted against Periera, by his wife, Jennifer Periera, for maintenance. Criminal Miscellaneous Application No, 178/76 seeks to impugn an order passed by a learned Sub-Divisional Magistrate, Karachi under section 516-A, Cr. P. C., refusing to entrust custody of certain articles secured from the house of Gasper Periera to his wife and directing that the same remain in possession of the police until the case proceeds.
3. The circumstances in which these 3 matters have arisen, briefly stated are as follows :- ' On 27-5-1972, Gasper Periera married Jennifer Periera according to the Christian rites. After the marriage they started residing at a house bearing No, A/3, P. E. C. H. S. Napier Street, Karachi. A child was born out of this wedlock on 12-2-1973. Even before the child was born, differences arose between the parties. These differences arose in the month of August 1972, and onwards. According to the complaint filed by Mrs. Jennifer Periera, due to the misconduct and misbehaviour of her husband, Gasper Periera, she had a nervous breakdown and had to be removed to Hospital as an emergency case. It is further alleged in her complaint that on her discharge from the Hospital she was taken to the house of her husband, Gasper Periera, who, however, asked her parents to take her to their house so that she could be properly looked after and that since then she had been residing with her parents and her husband has neither been looking after her nor providing maintenance for herself and her child. In view of this position, Mrs. Jennifer Periera filed a case under section 488, Cr. P. C. Against her husband before a Sub-Divisional Magistrate, who after holding a preliminary enquiry, took cognizance of the case and issued process against the husband, Gasper Periera. Against this order, Gasper Periera went up in revision to the Sessions Court, on the ground that the Family Courts have exclusive jurisdiction to decide matters of maintenance and the ordinary Magistrates have no jurisdiction to entertain such matters. The learned Additional Sessions Judge, Karachi, who heard this application, agreed with the submission of Gasper Periera and has accordingly recommended that the proceedings taken by the learned Sub-Divisional Magistrate in the matter of maintenance be quashed.
4. Some 22 days after Mrs. Jannifer Periera had filed the maintenance matter against her husband, she filed a criminal complaint against him under section 403/406/420, P. P. C. Alleging therein that after her marriage to Gasper Periera she had moved to his flat with all her belongings, of which she furnished a list, and that further she had entrusted for a safe keeping to her husband some jewellery which she had borrowed from her aunt, M. D'Souza, for wearing at a marriage ceremony, and which articles, according to Mrs. Jennifer Periera, her husband had either disposed of or wrongfully converted the same. The learned Magistrate, after holding a preliminary enquiry, in which he examined four witnesses, ordered process to issue against Gasper Periera under section 403, P. P. C. Against this order, Gasper Periera filed a revision petition to the Sessions Court, which however, was dismissed. He has accordingly filed a revision petition under section 439 read with section 561-A, Cr. P. C. In this Court praying for the quashment of the proceedings taken against him by the learned Magistrate. It may be mentioned here that the learned Magistrate had issued notice under section 94, Cr. P. C. To Gasper Periera to produce in Court the articles which according to his wife she had left at the house of her husband or in his charge. Since Gasper Periera failed to produce any of these articles or even appear in Court in response to the notice, a search warrant was issued for the search of the house in which be was then residing, as well as the house of his brother-in-law, E. D. Rocha. Nothing, however, was secured from the house of E. D. Rocha, but some 19 items were secured from the house of Gasper Periera, who had by then moved to house bearing No, 10, Paryal Manzil, Somerest Street, Karachi. These articles included an Electric Hair Dryer, Knitting Needles, some ladies garments and a Passport in the name of Mrs. Jennifer Periera. An application was moved by Mrs. Jennifer Periera before the learned Sub-Divisional Magistrate that these articles may be entrusted to her pending the disposal of her complaint, but the learned Magistrate was of the view that any such order could be construed as implying that Mrs. Jennifer Periera had established her ownership and right over these articles, which issue, however, had still to be determined. He was of the view that since these articles was non-perishable, they could easily remain at the police station till the disposal of the case. This order of the learned Magistrate has been impugned by Mrs. Jennifer Periera through Criminal Miscellaneous Application No, 178/76.
5. So far as Criminal Reference 136/75 is concerned, which recommends the quashment of the proceedings for maintenance instituted by Mrs. Jennifer Periera in the Court of the learned Sub- Divisional Magistrate, Karachi. Mr. Jamaluddin K. Sheikh, the learned counsel for Gasper Periera, has supported the same and contends that section 5 of the Sind Family Courts Act, 1964 gives Family Courts exclusive jurisdiction to entertain, hear and adjudicate all maintenance matters and the other matters specified in the Schedule to the said Act. On the other hand, Mr. M. M. Pirzada, who appears for Mrs. Jennifer Periera contended that since section 5 is expressly made subject to the provisions of the Muslim Family Laws Ordinance, 1961, which Ordinance is applicable only to Muslims, the jurisdiction of the Family Courts under the Sind Family Courts Act, 1964, extends to matters specified in the Schedule to the Act only in those cases where the parties are Muslims, and since in the instant case the parties profess the christian faith, the provisions of the aforesaid Act would not be applicable to them and the ordinary Criminal Courts would have the jurisdiction to entertain matters regarding maintenance under section 488, Cr. P. C. The point that the Family Courts have exclusive jurisdiction to decide matters of maintenance stands concluded by the decision of the Supreme Court reported in PLD 1969 SC 187, where it has been held that since the Family Courts Act, 1964, has brought about only procedural changes and not affected any substantive right, therefore, the Act affected also pending maintenance proceedings and such proceedings could no longer be entertained by Magistrates but only had to be disposed of by Family Courts.
6. I am also unable to see any substance in the contention of Mr. M. M. Pirzada that because section 5 of the Family Courts Act is expressly made subject to the provisions of the Muslims Family Laws Ordinance, 1961, therefore, the jurisdiction of the Family Courts extends only to Muslims, in view of the fact that the aforesaid Ordinance is limited to its application to Muslims. It may be noted that section 5 of the Family Courts Act has not only been made subject to the provisions of the aforesaid Ordinance, but also to the provisions of the Conciliation Courts Ordinance, 1961. The reason for making the provisions of the said Act subject to the provisions of the aforesaid two Ordinances apparently was that the said two Ordinances were protected under the 1962 Constitution and, therefore, it was considered that the provisions of the said Act should be made conditional to the operation of the aforesaid two Ordinances. In other words, the Act did not affect the provisions of these two protected Ordinances and in whatever cases the provisions of these two Ordinances applied, they would continue to apply, despite the provisions of the Family Courts Act. If the intention had been to limit the application of the Act or the jurisdiction of the Family Courts only to Muslims, then the Act would have expressly said so, as in the case of Muslim Family Laws Ordinance, 1961. The identical point raised by A Mr. M. M. Pirzada was considered by a Division Bench of this Court in the case of Mrs. Daphne Joseph v. Eric Roshan Khan (1), where the contention that the Family Courts Act or the jurisdiction of the Family Courts constituted thereunder was limited to Muslims only was repelled.
7. I next proceed to consider Criminal Revision Petition No, 158 of 1975, which as stated earlier, has been filed by Gasper Periera for quashment of the proceedings being taken by the learned S. D. M., New Town, Karachi, on the complaint filed by Mrs. Jennifer Periera, alleging misappropriation {{FOOT NOTE}}
(1) PLD 1971 Kar. 887 {{FOOT NOTE}} ' of her belongings by her husband. Now quashment of criminal proceedings under section 561-A, Cr. P. C. Can be ordered by the High Court only where it is satisfied that such proceedings amount to abuse of the process of of the Court, as for instance where the proceedings have been instituted with a mala fide motive or an ulterior purpose or there is no possibility of establishing the guilt of the person complained against or the complaint, taken together with such evidence as has come on record, even if unrebutted, does not disclose any criminal offence, or there has been such delay in the proceedings that the Court, under the circumstances, reasonably comes to the conclusion that they have been taken merely to harass the person complained against. Where the question of the guilt or innocence of an accused person is dependent upon the determination of certain facts and these facts have still to be determined by the trial Court, there can be no question of quashment of the proceedings and the petition for quashment is liable to be dismissed on that ground alone. This view finds support from the rule enunciated by the Supreme Court in the case reported in Gianchand v. State (1) that determination of guilt or innocence of accused depends on the totality of facts and circumstances revealed in the course of trial and when such stage is not reached there is no question of quashing the proceedings. Reference may also he made to the decision of this Court reported in PLD 1975 Kar. 231, where it has been held that powers under section 561-A must be sparingly used and only where their exercise is clearly called for. It has further observed in that case that the High Court can quash criminal proceedings only when it is able to come to a clear conclusion that the accused is innocent or that conviction is impossible.
8. It has, therefore, to be seen whether the proceedings taken by the learned S. D. M. Amount to abuse of the process of the Court or the complaint and the evidence led in the case do not disclose the commission of any offence. Now the complaint filed by Mrs. Jennifer Periera very definitely states that she had moved with all her belongings to the house then occupied by her husband, Gasper Periera, at No, A/3, P. E. C. H. S., Karachi; that she had also entrusted to him certain pieces of jewellery which she had borrowed from her aunt, Miss M. D. D'Souza, for the purposes of wearing at a wedding; that she has not taken away any of these belongings or pieces of jewellery; that on the other hand her husband Gasper Periera, while she was recovering from illness at the house of her parents, shifted from the said house in P. E. C. H. S. And appears to have misappropriated her belongings, including the above pieces of jewellery. The learned S. S. M., before he ordered process to issue against Gasper Periera under section 403, P. P. C., ordered a Preliminary Enquiry, in which he examined three witnesses, namely Mrs. Attila Gomes (mother of Jennifer Periera), Naves Periera and Miss Marshal D'Sourza, all of whom have supported the complainant, Mrs. Jennifer Periera. The mere fact that these witnesses have not been cited in the complaint does not by itself make them false witnesses or their evidence of no effect. Furthermore, there is still time for the complainant to examine the four other witnesses who have been cited by her in her complaint. The non-examination during the Preliminary Enquiry of any of the witnesses cited in the complaint does not necessarily arise the inference that the complaint must be or is false.
9. I am also unable to accept the contention of the learned counsel for Gasper Periera that this is at best a civil dispute between the parties and {{FOOT NOTE}}
(1) 1968 SCMR 380 {{FOOT NOTE}} ' Mrs. Jennafer Periera has mala fide or on wrong advice filed criminal proceedings to enforce a civil claim. If Gasper Periera had admitted that the belongings and the jewellary of his wife and his wife's aunt, Miss M. D'Souza, were with him or had produced the same before the Court when notice under section 94, Cr. P. C. For their production was issued against him and had given a plausible explanation for the retention of these goods, the case may have been different. However, not only did he fail to produce these goods when served with a notice by the Court under section 94, Cr. P.
C., but in the search of his house, which was conducted on the basis of a search warrant under section 96, Cr. P. C., a number of articles were secured, which Mrs. Jennifer Periera has identified as being her personal property and which are detailed in the list annexed to the complaint filed by her against her husband. The articles seized include her passport, ladies garments, a hair dryer, knitting needles, etc. However, no jewellery, fridgidaire and several other articles, which have also seen mentioned in the list annexed to her complaint, have not so far been recovered nor has Gasper Periera given any explanation in regard to them. In his revision application, Gasper Periera has stated "that the articles secured include some crokery, cutlery, an almirah and a dressing table and nothing else, which in fact belong to the petitioner himself". He has, however, said nothing about the passport, knitting needles, ladies clothes, hair dryer. Etc., which also were secured from his house, nor about the other articles which Mr. Jepnifer Periera has alleged that she entrusted to him or left in his house.
10. In support of his contention that proceedings against his client amount to abuse of the process of the Court, Mr. Jamaluddin Sheikh, the learned counsel for Gasper Periera, has relied upon two decisions of this Court reported as Riyazuddin v. State (1) and Ghulam Muhammad v. State (2). The facts in Ghulam Muhammad's case are that counter complaints were filed by the husband and wife, each accusing the other of misappropriation of jewellery and household goods belonging to them. On process being issued under section 403, P. P. C. By the Magistrate in both the cases, applications were filed by each party in the High Court for quashment of the proceedings against it. The learned Single Judge who heard the two applications came to the conclusion that the proceedings appeared to have been initiated with a view to compel the other side to come to terms and that the allegations in the complaints appeared to be of a nature which constitute a civil liability for the return of the property and not a criminal offence. He accordingly quashed the proceedings in the two complaints. The facts in the present case are, however, quite different where it does not appear that the complainant, Mrs. Jennifer Periera, is motivated by a desire to compel her husband to come to terms. On the other hand, she has made a definite allegation that her husband has misappropriated her belongings, and out of the list of such belongings annexed to her complaint, only a few have been recovered on search of the house of Gasper Periera.
11. The facts in Ghulam Muhammad's case are also totally different from those in the present case.
In that case, it was alleged that the accused had received from the complainant a sum of Rs, 3,000 for the supply of fish but no fish was actually supplied. It was rightly held that this was simply a case of breach of contract and as no criminal offence was indicated, the proceedings were quashed. {{FOOT NOTE}}
(1) PLD 1971 Kar. 937 (2) 1971 P Cr. L J 1053 {{FOOT NOTE}}
12. The mere fact that the parties in the instant case stand in the relationship of husband and wife does not mean that neither of them under any circumstances can misappropriate property exclusively belonging to the other. It was held by Tufail Ali Rehman, C. J. In Khatija v. State (1) that the power to quash the proceedings is not to be exercised merely upon the basis that some particular fact is improbable but can only be exercised when a fact is so grossly absurd and fantastic that it would be impossible to hold that such evidence would result in. Conviction. In the instant case it cannot be said that the allegations of Mrs. Jennifer Periera are grossly absurd or fantastic. Of course, it is for her to establish that she had left in the house of her husband any property which exclusively belongs to her and further to prove, by direct or circumstantial evidence, the fact that any items of this property have been misappropriated by the husband. I do not wish to comment on the effect of any piece of evidence or material which has come before the learned S. D. M., as this is the function of the trial Court and the trial is yet to proceed. I would only like to state that as the guilt or innocence of Gasper Periera will depend on the totality of the facts and circumstances brought out during the course of trial, there can be no question at the present stage of quashing the proceedings against Gasper Periera. I would accordingly dismiss Revision Petition No, 158 of 1976.
13. There remains for consideration Criminal Misc. Application No, 178/76, which has been filed say Mrs. Jennifer Periera against the order of the learned S. D. M. Refusing to entrust to her on supardari the articles recovered on search of the house of her husband and directing that they may remain in the custody of the police for the time being as neither party has been able to establish its claim to them. Mr. M. M. Pirzada, the learned counsel for Mrs. Jennifer Periera, has contended that as these articles prima facie belong to his client and further as they are likely to be severely damaged at the police station, the same could appropriately be given on supardari to his client. The learned counsel for Gasper Periera has, on the other hand, vehemently opposed this prayer. According to him the rule is that under section 516-A, Cr. P. C. Any property which has been recovered or seized must be given on superdari to the person from whose possession it was recovered or seized. In support of his contention he has relied upon the decisions reported as Zahiruddin v. Mohamed Inayatullah (2) and Ghulam Hussain v. State (3).
14. The authorities cited by Mr. Jamaluddin Sheikh do not lay down the proposition that in all cases the custody of property under section 516-A, Cr. P. C. Must be given on supardari to the person from whom it has been recovered. No doubt in all these cases, it was ordered that the property recovered should be given on supardari to the person from whom it was seized, but in Ghulam Hussain's case, where the complainant alleged that the accused (respondent No, 2) had cheated him of a truck which was recovered from the possession of the accused, the Supreme Court observed as follows :-- "The truck was in possession of respondent No, 2 and unless a strong case of cheating is made out against him, it should not have been recovered from his possession."
' Reference may also be made to the case reported in Abdul Hamid v. Slier Alain (4) where the dispute was in respect of a car. The Supreme Court {{FOOT NOTE}}
(1) PLD 1973 Kar. 279 (2) 1973 P Cr. L J 363
(3) (1971 P Cr. L J 353 (4) 1968 SCM R 1143 {{FOOT NOTE}} ' held that in the circumstances of the case it was better to give the car on supardari to the automobile dealer so that the car can be properly maintained and not put to use during the pendency of the complaint.
15. In the instant case, the property recovered from the house of Gasper Periera may be divided into two categories. In the first category would fall those items to which he has laid claim in his criminal revision Petition No, 158/75, namely crockery, an almirah, a dressing table and cutlery?
These articles, until and unless Mrs. Jennifer Periera is able to establish to the satisfaction of the trial Court that they belong to her, could appropriately be given to him on supardari, as their retention by the police is likely to result in damage' to them. I, therefore, direct that said articles be given on supardari to Gasper Periera on his furnishing security for their production, as and when required by the trial Court, in the sum of Rs, 5,000 to the satisfaction of the trial Court. The remaining articles, which have not been claimed by Gasper Periera and which prima facie would appear to belong to a lady, are directed to be given on supardari to Mrs. Jennifer Periera on her furnishing security in the sum of Rs, 5,000 to the satisfaction of the trial Court. In case, either party is unable to furnish the required security, the property ordered to be given to such party should be retained by the trial Court in its custody and not kept at the police station. Criminal Miscellaneous Application No, 178/76 accordingly stands disposed of in the light of the above observations.