' Mansab Ali, Allah Ditta, Muhammad Ashraf and Khadim Hussain filed this petition under section 561-A, Cr. P. C. For quashing the proceedings in case titled State v. Mansab Ali etc. Under sections 363 462/34, P. P. C., pending in the Court of Magistrate 1st Class, Lahore.
2. The learned counsel for the petitioners contended that after the death of the parents of the three minors, Faqir Ali, Wazir All and Mst. Seeman, the three minors lived with their mother's mother named Mst. Chiragh Bibi and are living with her even till today and a false case had been registered against the petitioners at the instance of Barkat Ali, an uncle of the three minor children ; that above-mentioned Barkat Ali was only appointed as the guardian of the property of the three minors ; that Mst. Chiragh Bibi (mother's mother of the three minor children) moved an application on 31st March, 1972, before the Guardian Judge, Lahore, for the removal of Barkat Ali, who had been appointed as guardian of the property of the minors ; that Mst. Chiragh Bibi clearly mentioned in para. No, 3 of the petition that the minors were not in the custody of the guardian, but were living with her and this application supported the version of the petitioners that the three minors lived with their maternal grandmother; that the prosecution failed to produce the evidence in a period of more than two years and it was clearly a case of abuse of process of Court.
3. Allah Ditta petitioner No, 2 is mother's father of the three minor children. Mansab All petitioner No, 1 is mother's sister's husband of the three minor children while Khadim Hussain petitioner No, 4 is son of petitioner No,
1. Under the Mohammadan Law, matter mother, mother's mother comes in the list of priority to retain the custody of the minor children. Mst. Chiragh Bibi wife of Allah Ditta petitioner No, 2 is admittedly mother's mother of the three minor children. I have been informed by the learned counsel for the petitioners that Barkat Ali, an uncle of the three minor children, who lodged the F. I. It of this case has died. The case was registered on 25th May, 1972. Challan was submitted in Court in July, 1912. The learned Magistrate discharged the accused petitioners on 9th October, 1972. A revision petition was filed against the order of discharge and was accepted by the learned District Magistrate, Lahore, on 27th February, 1973. The petitioners appeared before the learned trial Court, on 21st August, 1973. The evidence was summoned for 7th September, 1973. The prosecution was granted more than twenty adjournments to produce the evidence. On 28th November, 1973, three witnesses turned up, but their statements were not recorded on account of the objection from the defence side. They were bound down for 14th December, 1973, but they did not appear on the said date and their bailable warrants issued. They appeared on 26th December, 1973, but the learned Presiding Officer was on leave and their statements were not recorded. Two witnesses turned u on '7th August, 1974. But due to the leave of the Presiding Officer, no statement was recorded. The above history would show that the prosecution did not produce evidence on at least sixteen hearings. Taking all the circumstances into consideration, I hold that it is a case of abuse of process of Court. I accept this petition and quash the proceedings pending against the petitioners.