Fayyaz Amin respondent No,1/complainant was married to Mst. Aasia Sultana petition No,1 on 22-3- 1996. Unfortunately the marital bond stands unfolded as Mst. Aasia Sultana instituted a suit to obtain a decree for dissolution of marriage which was decreed ex parte on 3-3-1998. The application filed by Fayyaz Amin for setting aside the ex parte judgment and decree was dismissed.
2. On 27-8-1999 Fayyaz Amin filed his complaint against Mst. Aasia Sultana and her father Ch. Abdul Sattar petitioners for their prosecution under section 406/420/494/496/506, Pakistan Penal Code. He alleged that he was married to Mst. Aasia Sultana on 22-3-1996 whom he gave the ,gold ornaments, wrist watch, four precious wearing suits, 780 U.S. Dollars and an amount of Rs,1,35,000.
According to him Mst. Aasia Sultana lived with him for one night and later on left for her parents house who did not return. Fayyaz Amin claimed that he was an American National who went back and later on he came to know about the ex parte judgment and decree for dissolution of marriage.
He alleged that he has been deprived of the amount, ornaments and articles which have also been misappropriated. The learned trial Court recorded the preliminary statement of the complainant on 21-9-1999 and referred the matter to the S.H.O. Police Station Mustafabad, Lahore for preliminary inquiry under section 202 of the Code of Criminal Procedure.
3. Feeling aggrieved Mst. Aasia Sultana and her father Abdul Sattar petitioners have filed this petition for the quashment of the proceedings initiated and conducted in the criminal complainant on the ground that about the recovery of ornaments weighing 9 Tolas of gold, 780 U.S. Dollars and cash amount of Rs,1,35,000, the suit was instituted before the learned Civil Court/Judge, Family Court at Lahore by Fayyaz Amin, that the criminal complaint has been filed to put the pressure upon them with mala fides and that the matter has been reported to the S.H.O. For the same purpose. This petition has been admitted for regular hearing.
4. I have heard the learned counsel for the parties as well as the learned State Counsel. Learned State Counsel has supported the version of the petitioners. Learned counsel for the petitioners argued that to put the pressure upon the petitioners for the recovery of the amount etc., regarding which the parallel suit was pending before the Civil Court/Family Court, the complaint has been filed. It has been argued by the learned counsel for Fayyaz Amin respondent No,1 that with respect to the same matter containing the same cause of action and the same allegation the civil suit can be instituted and criminal case can be initiated and that there is no ground for the quashment of the proceedings. I hold the view that to keep the balance in the social set-up such matters are to be disposed of with utmost care. The dispute is between the parties who remained as the spouses and it can well be expressed that the gifts are given to the wife by the husband. Such gifts are not to be termed under the trust of the wife bringing the same within the purview of misappropriation of the same. Fraud and misappropriation have a long distance in-between. The presentation of gifts in such state of affairs cannot be said to be the acquisition of the same through fraud. This being the position I am in full agreement with the learned counsel for the petitioners who canvassed that criminal remedy has been invoked by the respondent-complainant with mala fide intention to put the pressure upon the petitioners for the recovery of the amounts and ornaments.
The learned trial Court has provided the opportunity to Fayyaz Amin to obtain-the help of the S.H.O.
Police Station, Mustafabad, Lahore by reporting the matter to him for preliminary inquiry under section 202 of the Code of Criminal Procedure. It cannot be said to be within the fitness of things to have referred the matter to the police which has made me to hold that the matter has been taken on the criminal side to place Fayyaz Amin in a better position. No doubt simultaneous civil and criminal liabilities can be agitated and obtained, but in a family matter the same cannot be allowed and approved. Mst. Aasia Sultana has got her fate and thereafter, the continuation of the criminal proceedings cannot be taken in good taste and the same can be termed to be devoid of judicial propriety. Consequently I hold that the criminal proceedings initiated and being conducted against the petitioners at the instance of Fayyaz Amin respondent No,1 are liable to be quashed who can proceed in the other matter pending before the learned Civil Court/Family Court for the recovery of amounts and the ornaments which shall be disposed of by the relevant learned Court in accordance with law after hearing the parties without feeling prejudiced by any of the observations contained in this judgment.
5. For what has been said above, I accept this criminal miscellaneous petition and quash the criminal proceedings initiated and conducted in the criminal complaint titled as Fayyaz Amin v.
Mst. Aasia Sultana and another pending before the learned trial Court.