1. ' This Misc. Application under section 561-A of the Cr. P. Code has been filed seeking quashment of a complaint instituted by respondent No, 2 against the applicants in the Court of the S. D. M.
2. Liaquatabad under section 4 of the West Pakistan Dowry (Prohibition on Display) Act, 1967, hereinafter referred to as the Act.
3. ' The facts stated in the complaint are that respondent No, 2 married applicant No, 1, Gharibul Hassan, on 8-8-1971, wherein a dower amount of Rs, 107 was fixed. But at the time of marriage a handsome dowry was given to her which according to her statement on oath included golden ornaments, clothes and other miscellaneous articles. It is alleged that the applicants took possession of all these items which was the dowry of the respondent No, 2, with the intention to usurp the same. Respondent No, 2 got her marriage with Gharibul Hassan dissolved by filing a family suit which was decreed on 15-12-1973. However, the applicants did not give the dowry articles to her and kept the same, and in spite of repeated demands made for the same, they avoided, by making false pretexts, and finally, refused to return the dowry articles. According to respondent do. 1, the applicant Gharibul Hassan, his brother applicant No, 2 and his mother applicant No, 2 had misappropriated the said articles and had converted the same to their own use.
4. ' The Magistrate on receiving this complaint took cognizance for an offence under section 4 of the Act and ordered issuance of summons against the applicants on 17-2-1976, and the learned counsel for the applicants has assailed this order on the main ground of the same being in violation of section 5 of the Act.
5. ' Now the offence for which the cognizance was taken by the Magistrate under section 4 of the Act is defined as under : "4. Dowry to be for the benefit of wife or her heirs.-(1) The dowry given, and all presents made before, at or after the marriage, to the woman in connection with whose marriage they are given or made shall vest in such woman and she shall be deemed to be the absolute owner thereof.
(2) where dowry or such presents are received by any person other than the woman in connection with whose marriage they are given or made that person shall transfer the same to such woman-
(a) if the dowry or the presents were received before marriage, within one year after the date of marriage ; or
(b) if the dowry or the presents were received at the time of or after the marriage, within one year of the date of their receipt.
(3) If any person fails to transfer any property as required by subsection (2), and within the time provided therefor, he shall be punished with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both; but such punishment shall not absolve the person from his obligation as required by subsection (2).
(4) Where the woman entitled to any property under subsection (2), dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being."
6. ' It is contended that upon the facts stated in the complaint the liability to transfer the articles of dowry to the respondent No, 2 was as described in clause (2) (b) of the above section. Since the date of the marriage disclosed in the complaint was 8-8-1971, the applicant No, 1 was required to transfer the dowry within one year of that date which would be 8-8-1972. The failure to so return by 8-8-1972 would constitute an offence within sub-clause (3) of section 4 described above.
7. ' So far as the cognizance of offence by the Courts is concerned, the provision has been made in section 5 of the Act, which is as under: "5. Cognizance of offence.-Notwithstanding anything contained in the Code of Criminal Procedure, 1898-
(a) no Court inferior to that of a Magistrate of the First Class shall try any offence under this Act ; and
(b) no Court shall take cognizance of any such offence, except on a complaint made in writing within one month from the date of the offence."
8. ' Obviously, there is a bar against taking cognizance of an offence upon a complaint which is not made within one month from the date of the offence as contemplated in clause (b) of section 5 of the Act. As in the present case the offence under section 4 of the Act was committed on 8-8-1972 and not before, the Court that took cognizance of the offence was empowered to do so only within a. Period of one month of the said date which would be 8-9-1972. A complaint filed after that date would be time-barred and the Court was not competent to take cognizance of the same on a plain reading of section 5 of the Act.
9. ' The present complaint having been filed on 30-1-1976, upon which process was issued on 17-2- 1976, was obviously beyond the period specified in section 5(b) of the Act. The action of the Magistrate in thus taking cognizance in total disregard of the bar provided in section 5 of the Act was therefore, not warranted by law.
10. ' Mr. Nooruddin Sirki, the learned counsel appearing for the State also supports the applicants and has stated that the proceedings initiated by the Magistrate and the process issued by him against the applicants may be quashed.
11. ' Mr. Anis Ahmad, Advocate appearing for respondent No, 2 attempted to raise an argument that the offence under section 4 of the Act was a continuing offence, but was not able to advance his case on that basis. He did not even show as to how this offence was a continuing offence or that the limitation provided in section 5(b) was not attracted to the facts of this case.
12. ' The language used in the sections of the Act quoted above is very plain and admits of no other interpretation than the one as is contended by the counsel for the applicants. The cognizance taken by the Magistrate in this case being an act beyond the scope as permitted by section 5(b) of the Act, is liable to be set aside.
13. ' This application is, therefore, allowed, and the proceedings as well as the process issued by the Magistrate are quashed.