' This is an application under section 561-A of the Criminal Procedure Code on behalf of five persons who are amongst the seventeen named as accused in a complaint filed by respondent No, 1, in the Court of the IV Extra Joint Civil Judge & F. C. M., Hyderabad under sections 494 and 109 of the Pakistan Penal Code in which, after a preliminary enquiry, the learned Magistrate issued process against serveral of the named persons including the petitioners before me. There is a background to the case and it is necessary to state the salient facts as these are relied upon before me for the purpose of this quashment application. According to the petitioners the respondent was on visiting terms with the petitioners' family and had demanded the hand of petitioner No, 1 in marriage which had been declined. On the 28th June 1972, the petitioner No, 1 was kidnapped by respondent No, 1 along with some relations of his and, upon a report being made by petitioner No, 2, father of petitioner No, 1, she was secured by the police from Hyderabad and handed over to her father. Thereafter respondent No, 1, filed an application under section 491, Cr. P.
C. In this Court in the course of which petitioner No, 1 made a statement to the effect that she had been kidnapped And accordingly the application was dismissed and she was allowed to go with her father. On the 9th of September 1972, she filed a suit for jactitation of the marriage and this is still pending. On the 27th April 1974, respondent No, I filed the present complaint claiming that he had been married to applicant No, 1 on 29-6-1972.
2. The scope of interference under section 561-A of the Criminal Procedure Code with pending cases had been argued by learned Counsel on both sides with reference to reported cases and the first of these on which reliance was placed by learned counsel for the petitioners is the Supreme Court case reported as M. S. Khawaja v. The State (1). Now in this case quashment was sought primarily on the ground that there had been long delay in the case but this ground was rejected by the Supreme Court. In the course of the judgment, however, explaining the true scope of interference their Lordships observed : "With reference to the last-quoted observation, we should point out that abuse, as attracting the inherent power of the Court, must be "abuse of the process of any Court", and "the investigation stage" is, generally speaking, outside the purview of the Court, and rarely involves employment of any Court process. Further, "the ends of justice" to secure which the inherent power may be invoked, have reference to the purposes which the judicial process is intended to secure and it is difficult to include the actions of investigating agencies within the scope of judicial observation that the circumstances of each case, in which the inherent power is invoked, must be examined with care to determine whether the judicial proceeding is really intended to "secure the ends of justice" or is really "an abuse of the process of the Court." To quash a judicial proceeding in order to "secure the ends of justice" would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice.
To find an "abuse", it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassm ent to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
3. It was emphasised by learned counsel for the petitioners that where this Court finds a proceeding which if permitted to continue would defeat the ends of justice it would interfere and that where, as is claimed is the case in the present matter, there was "a perversion of the purpose of the law such as to cause harassment to an innocent party" the proceedings ought to be quashed.
4. I am of course in entire and respectful agreement with this observation of the Supreme Court which I have followed in the second case which was cited to me, namely, that of Hamida v. The State (2) in which I said at page 482 :- "It was argued before me by learned counsel for respondent No,
2. Mr. Muhammad Suliaman Kureshi and the Assistant Advocate-General who appeared for the State that so long as there is an allegation which if believed, could constitute an offence, I ought not to quash such proceedings at this premature stage but allow them to go to trial the result depending upon the appreciation of the evidence that is recorded at the trial.
' Now while I agree that the most usual case which would call for quashment under section 561-A of the Cr. P. C. Would be a case {{FOOT NOTE}}
(1) PLD 1965 SC 287 (2) PLD 1973 Kar. 478 {{FOOT NOTE}} ' where the allegations themselves made constitute no offence at all, that section in its own terms does not state anything of the kind. Indeed as I understand that section it purports to give no new powers to the High Court but re-affirms an inherent power already existing "to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". Obviously to permit a prosecution to continue upon allegations which do not constitute an offence can only be an abuse of process but it does not I think follow that whenever such an allegation exists, however, flimsy the evidence which supports it and however transparently dishonestly the allegation is made, the Court must stand by and allow obviously innocent persons to suffer all the agonies of a trial often prolonged in such matters. 'I cannot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassm ent of the accused persons whose acquittal is in any way certain and that this would be an abuse of the process of the Court and that in any event under section 561-A an order to quash the proceedings would be one which would secure the ends of justice. The ends of justice do not I think contemplate the force of a trial which can result in an acquittal only."
5. It would be seen that I agreed that even if the allegations are such as constitute an offence if the evidence is of such character that a conviction cannot possibly result then the proceedings cannot be allowed to continue. After quoting M. S. Khawaja's case I also referred to another case of the Supreme Court, namely, that of Haq Nawaz v. Muhammad Afzal (1) in which their Lordships had held that there were "intrinsic indications of their falsity and the charges made were in all probability groundless". Nevertheless, again quoting from the same case, I said that the ordinary rule was that cases ought to proceed in accordance with the procedure laid down in law and that section 561-A of the Code ought to be used in the rarest of cases.
6. Mr. Junejo appearing for respondent No, 1 has relied first on Muhammad Razi v. Shabihul Hasnain
(2) in which it was observed : "Proceedings can be quashed if there is something on the record to show that the accusations in the complaint do not disclose an offence at all, or that the evidence adduced discloses no offence.
In that event, the process of the Court can be said to have been abused. The Court below has done nothing besides summoning the accused to hear the evidence. The allegations in the complaint on the face of them disclosed a prima facie case under section 420, P. P. Code. These allegations require to be tested in the light of evidence, and that stage has not yet been reached. It will be an abuse of the process of this Court if the complaints, which on their face show a case, are thrown out without allowing the complainant to produce evidence. This application is premature for action under section 561-A, Criminal Procedure Code, and is rejected."
7. He then referred me to Haq Nawaz v. Muhammad Afzal (3) which is in fact the report of the order of the Supreme Court granting leave in the same case as the one to which I referred in my earlier judgment, and he relied upon this passage : "Quashment of proceedings at so early a stage gives an unfortunate {{FOOT NOTE}}
(1) 1968 P Cr. L J 1867 (2) PLD 1961 Kar. 220
(3) PLD 1967 SC 354 {{FOOT NOTE}} ' impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. It is necessary that these cases should be examined further to ensure that the course of even-handed justice has not been prejudiced."
8. I think these cases settle the position quite clearly which is that ordinarily cases ought to be allowed to proceed to their proper conclusion in accordance with the law. But in rare and exceptional cases where to permit them to continue would amount to an abuse of process because there would be a prosecution and a harassment of the innocent the High Court may properly quash the proceedings. For the purpose of ascertaining whether there is such harassment the fact that there is no allegation of a criminal offence would obviously suffice but it might also suffice to show that, plainly and without controversy, the evidence is not such as could possibly result in a conviction. The task before me really, therefore, is one of applying these accepted principles to the facts of the present case.
9. It was argued by Mr. Akhund appearing for all the petitioners except petitioner No, 5 that in a prosecution under section 494 of the Pakistan Penal Code both the earlier marriage and the subsequent one which is stated to be an offence must be strictly proved. He pointed out that no such evidence has been given in the course of a preliminary enquiry or referred to in the complaint.
This argument does not bear examination. In the first place it is not even factually correct to say that there were no witnesses of the `nikahnama' produced inasmuch as the person who claimed to have performed the nikah in the first marriage was in fact examined. He mentioned also the names of witnesses and that of the Vakil. The nikahnamas, it is true, were not produced, Assuming however that no evidence of the requisite kind was produced at all it is to be observed that the case has not yet proceeded to a trial, cognizance has been taken and after a preliminary enquiry process has been issued where after no witness has yet been examined. The rule that such marriages must be strictly proved applies to the trial of the case and not to the allegations made in the complaint or the evidence in the preliminary enquiry. The validity of the complaint in such cases as in all cases depends upon the question whether it fulfils the definition of a complaint given in the Code.
Section. 4(1)(h) of the Criminal Procedure Code defines a complaint as meaning "the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but it does not include the report of a Police Officer." Clearly if the facts which constitute the offence are mentioned in the complaint then there is a complaint of an offence. A conviction cannot be obtained without the kind of evidence to which learned counsel has referred but it can hardly be said that such evidence would not be forthcoming when the case goes for trial. Of course the question whether that evidence would be believed or not is an entirely different matter.
10. It was then argued that it is evident from certain previous statements of petitioner No, 1 that a nikah between her and the respondent could not have taken place at Hyderabad on the 29th June 1972, as alleged. The basis of the argument is an affidavit sworn by petitioner No, 1 and produced before me by the respondent dated the 29th June 1972 and sworn at Karachi. It is argued that this affidavit which was sworn obviously when she was with respondent No,
1. Must have been sworn during Court hours on the 29th and that there was, therefore, no enough time within which she could have reached Hyderabad and married the respondent on the same day. This obviously does not follow as Hyderabad is only a little more than one hundred miles from Karachi and can be reached by bus or a car in about 2 hours. But it was further claimed that in this affidavit all that she said with regard to marriage was that she wanted to marry a man of her own choice but she did not say that she intended to marry that day or that she intended to marry respondent N.
1. From this too I do not think that it can be inferred that the marriage did not take place. Affidavits of this kind are usually, almost invariably, obtained from a girl in these circumstances with a view to obtaining a previous statement from her should litigation arise of her having left parental custody of her own free will and not as a result of kidnapping. In any case it is hardly such a matter as would so conclusively establish that the marriage did not take place as would justify me in quashing the present proceedings.
11. It is then pointed out that in a medical certificate which was obtained to show that she was an adult even after her alleged marriage she described herself as the daughter of Muhammad Shafi and not as the wife of the respondent. It is true of course that customarily married woman describe themselves in formal documents as the wife of so and so rather than as the daughter of so and so in which latter fashion unmarried women would ordinarily describe themselves. It is to be remembered, however, that a certificate obtained in these circumstances would be sought to show that a person who was the daughter of a particular person was of age rather than a lady who was the wife of another. In any case married women do not cease to become daughters of their fathers because of their marriage.
12. It was finally argued that the nikahnama relating to the alleged marriage between petitioner No, 1 and respondent No, 1 was registered on the 8th August 1972, a date on which she was admittedly with her parents and not with respondent No, 1 Since this document bears or at least purports to bear the signature both of petitioner No, 1 and respondent NQ. 1 it is claimed that the document is An obvious forgery. The argument is based upon one of two suppositions, namely, (1) that the wife must be present at the time when the nikahnama is being registered or (2) that the nikah must be registered at the time when it is performed. Indeed learned counsel for petitioner No, 5, arguing this point, expressly argued that the law requires that registration should take place at the time of marriage and he referred to rules 10 and 11 of the West Pakistan Muslim Family Laws Rules framed under the Muslim Family Laws Ordinance, 1961. These read as under : "10.-(1) The Nikah Registrar shall, in the case of marriage solemnized by him, fill in Form II, in quadruplicate, in the register, the persons whose signatures are required in the Form shall then sign and the Nikah Registrar shall then affix his signature and seal thereto, and keep the original intact in the register.
(2) The duplicate and triplicate of the nikahnama filled in as aforesaid, shall be supplied to the bride and the bridegroom, respectively, on payment of fifty paisa each, and the quadruplicate shall be forwarded to the Union Council.
(3) If any person required by this rule to sign the register refuses so to sign, he shall be punishable with simple imprisonment for a term which may extend to two hundred rupees, or with both.
21.-(1) Where a marriage is solemnized in Pakistan by a person other than the Nikah Registrar, such person shall fill in Form II, to be had loose on payment of such price as may be determined by the Provincial Government, the persons whose signatures are required in the Form shall then sign, and the person solemnizing the marriage shall then affix his signature to the Form and ensure delivery, as expeditiously as possible, of the same together with the registration fee to the Nikah Registrar of the Ward where the marriage is solemnized.
(2) If any person required by this rule to sign the form refuses to sign, he shall be punishable with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both."
13. I am quite unable to see how these two rules support learned counsel. On the contrary rule 11 provides that where the marriage is solemnized by a person other than the Nikah Registrar he shall "ensure delivery as expeditiously as possible of the same together with the registration fee to the Nikah Registrar" Clearly, therefore, the law contemplates that an interval of time would elapse between the nikah and its registration and that at the time of the registration neither the wife nor the husband need be present. Certainly it is not the intention of the Rules that registration must take place at the time of the nikah, for, again expressly, rule 11 provides for loose sheets being obtained for the purpose of recording the nikah and these sheets are then to be used for the purpose of registration under rule 13 by the Nikah Registrar in the same fashion as he would have proceeded under rule 10 if he himself had solemnized the marriage. I am entirely unable to see then how the date of the registration can be the basis of holding that the nikahnama is a forged document.
14. In these circumstances I am quite unable to say either that there are no facts alleged which would constitute an offence or that the evidence is of such a character that the case cannot result in conviction. I must, therefore, I think allow the case to proceed in accordance with the law. I, therefore, dismiss this application but wish to make it plain that in so doing I have by no means come to the conclusion that the evidence will justify conviction: the only purpose of such examination of the evidence as I have made is to see whether the case falls in that exceptional category where interference under section 561-A of the Criminal Procedure Code would be justified and no expression of opinion that I have made must be regarded as intended to decide any of the facts which of course the trial Court will decide in accordance with the evidence before it. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.