' This is an application under section 561-A, Cr. P. C. For quashment of proceedings in case titled State through Mst. Amtul Haye v. Nisar Ahmad under section 500/501, P. P. C. Pending in the Court of the Dacia Magistrate, Chunian, District Kasur.
2. On the application of Mst. Amtul Haye addressed to the Additional Superintendent, Police, Kasur a case under section 500/501, P. P. C. Was registered at the Police Station, Chunian on 14-1-1976 at 2- 10 p.m. In respect of an occurrence which had taken place on 30-9-1975. The allegation against Nisar Ahmad accused (petitioner before this Court) was that in his divorce deed, copy of which was sent to the first informant and another copy to the Chairman, Union Council, on 30-9-1975, the petitioner had accused the first informant of being of bad character and had further stated therein that the first informant was pregnant although she had not lived with the petitioner as his wife during the period she conceived and to that extent by false accusation had defamed the first informant who was a noble lady and whose character had been lowered in estimation of the society. A copy of the F. I. R. And a copy of the divorce deed were filed alongwith the present application for quashment and are on record of this Court the contents of which have not been disputed by the parties.
3. The learned counsel for the petitioner argued that the divorce deed was not per se defamatory.
According to him although no reason is required to be given for divorcing a wife the petitioner was, however, obliged to do so because he did not wish to take up the responsibility of maintaining a child who was not conceived from him as during the relevant period Mst. Amtul Haye respondent had not lived with the petitioner. A copy of the divorce deed, he maintained, was sent by the petitioner to the concerned quarter including the respondent to fulfil the requirement of law under the Muslim Family Laws Ordinance, 1961 and there was no intention to impute any defamation to her. Learned counsel for Mst. Amtul Haye, first informant, as also the learned counsel for the State respondents controverted the arguments of learned counsel for the petitioner and vehemently argued that the petitioner had acted mala fide in giving a false reason for no other purpose except to defame the lady he was divorcing and it was a parting kick of a most reckless and unwarranted manner especially when it is conceded by learned counsel for the petitioner that no reason was required by law to be written In a deed of divorce and that the Muslim Family Laws Ordinance, 1961 only enjoined an information o' divorce to be conveyed to all quarters and not the basis for the same a hick obviously would invariably be controversial.
4. Learned counsel for the petitioner referred to Khan Umar Khan v. Market Committee, Jhelum and another (I), Shamas-ud-Din v. The State and 2 others (2) and Arm Saeed Hashrni and another v.
The State and 2 others (3) for the general proposition that a citizen can invoke jurisdiction of this Court under section 561-A, Cr. P. C. For seeking quashment of baseless proceedings or where intimations sent to the official quarters about a matter without any intention to harm or disrepute were not defamatory and where no criminal offence was disclosed, quashment could be applied for.
' There is no quarrel with the general proposition highlighted in the cases referred to by learned counsel for the petitioner. However, the facts and
(1) PLD 1972 Lab. 497 (2) 1975 P Cr. L 1 1448
(3) PLD 1976 Kar. 706 circumstances of the present case are altogether different. In the case in hard the law did not require that the Chairman of a Union Council is also to be provided with reasons as to why the husband was divorcing his wife. However, if a person chooses to overdo in this respect and gives reasons4 in a deed of divorce, copy of which is sent by him to the Chairman, Union Council, he runs a great risk because if the reasons given by him per se are defamatory the law will not hesitate to take its course. Even otherwise a perusal of section 2 (ix) of the Dissolution of Muslim Marriages Mt (VIII of 1939) will show that it authorises a woman to obtain divorce apart from the ground mentioned in the relevant section "on any other ground which is recognised as valid for the dissolution of marriages under the Muslim Law." Section 333 of Mulla's Muhammadan Law under the heading Li'an or imprecation lays down that a wife is (rather) entitled to sue for a divorce on the ground that her husband has falsely charged her with adultery. If false charge of adultery can constitute a ground for seeking dissolution of marriage it is not understandable as to why it shall not constitute an offence if there is no extenuating reason to hold otherwise. As the case is still at a preliminary stage and the evidence from the side of the accused petitioner has not yet gone on record, nor even his statement or defence, it is too early to find that the accusations levelled by him against his wife were true or that he' was protected under any exception on the subject. The accusations per se being defamatory it was for the petitioner to prove as to under what circumstances or for what reasons and why it did not constitute an offence. It is evident that this is a matter of evidence and obviously a High Court is not to record evidence in quashment proceedings under section 561-A, Cr. P. C. Because that is essentially the job of the trial Court.
5. For the aforementioned reasons, I am of the view that the criminal proceedings against the petitioner do not amount to abuse of the process of Court and in the circumstances of this case do not warrant quashment. The petition, therefore, is dismissed. The result is that order of this Court for stay of proceedings before the learned trial Magistrate stands vacated.