Javed Alam, applicant has filed this application under section 561-A, Cr.P.C. For quashment of the proceedings of the direct Complaint No, 14 of 1994 tiled by one Hafiz Ahmed Zakaria (Respondent No,1 Complainant) in the Court of Civil Judge and FCM Khipro, on 13-10-1994 under sections 344/506, P.P.C. The brief facts as stated in this application and available from the R&P of Complaint No,I4 of 1994 are as follows:--
2. On 28-5-1994 Hafiz Ahmed Zakaria (Complainant) filed a F.I.R. No,52 of 1994 with Police Station "A"
Section, District Nawabshah, sating therein that one Javed, Technician, T&T Nawabshah, Idrees Shaikh, SDO, T&T, Nawabshah and Molvi Nooruddin Brohi, resident of Shandadpur, had forcibly kidnapped his daughter Iram aged about 17 years on 26-5-1994 at 19-15 hours from his house in Kamora Colony, Nawabshah. After receiving the information of kidnapping from his nephew Muhammad Saleem and other witnesses of the incident, the complainant went in search of his daughter and came to know that Technician Javed with the help of his Department Officers had kidnapped and taken his daughter to one Captain Javed of Rangers in Sakrand. He also stated in the F.I.R. That Javed had lived in his house on rent about two years earlier and his family members used to visit the complainant and had asked for the hand of his daughter Iram in marriage and that she had been forcibly kidnapped for the purpose of marriage. It transpires that when Javed and Iram came to know about the filing of the aforesaid F.I.R. They voluntarily appeared before "A"
Section Police Station, Nawabshah, produced their Nikahnama and other relevant documents to show that the contents of the F.I.R. Were false, that Javed had not kidnapped Iram and that the latter had married Javed of her free-will and choice at Bahawalpur (Punjab) and consequently she was the legally wedded wife of Javed. On 29-5-1994 the Police produced Mst. Iram before SDM, Nawabshah who recorded her statement under section 164, Cr.P.C., wherein she stated that she had not been kidnapped or enticed away by any one, that she was not under any duress or in wrongful confinement, that she had left her house of her own free-will and had married Javed.
After recording her statement the learned SDM passed the following order:-- "I have explained the contents to Mst. Iram Zakaria that she is not bound to make a statement and that, if she does so any statement she may make may be used as evidence against her and I believe that this statement was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by her to be correct and it contain a full account of the statement made by her since she has produced a valid Nikahnama and affidavit and she desires to live with her husband, so accordingly she is at her liberty according to her statement and Police should make her disposal, after observing all legal formalities."
3. It appears that no further proceedings were taken by any one thereafter until 13-10-1994 when Hafiz Zakaria, the father of Iram filed the above referred Complaint No,14 of 1994 in the Court of Civil Judge and FCM, Khipro, under sections 344 and 506, P.P.C. In the complaint, Hafiz Ahmed Zakaria stated that he was resident of "near Madarsa Taleem-ul-Quran, near Jamia Masjid Khipro, Taluka Khipro. District Sanghar" and alleged that his daughter Iram, aged about 17 years, was residing with him at Kamora Colony, Nawabshah, that Javed who was a very cunning and mischievous person had managed to secure a Nikahanama from Bahawalpur (Punjab) showing that Iram had married him some time back and by exercising illegal pressure on her daughter he had managed to take her with him to Shandadpur. Thereafter, Javed started exerting official and other pressure on the complainant to accept the fact of marriage but the complainant did not accept the situation. He also stated in the complaint that various persons had received telephone calls from his daughter Iram wherein she had attempted to convey her wretched condition and apprehension of danger to her life. The complainant added that two days earlier he had come for some work to Madarsa Taleemul-Quran near Jamia Masjid Khipro, and when he came out of the Madarsa, he found Javed outside with his two unknown companions, that Javed used foul language and threatened that if he tried to contact his daughter Javed would himself kill the complainant or get him killed and that he would even go to the extent of killing Iram if he could not achieve his object otherwise. After recording the statement of the complainant under section 200, Cr.P.C., the FCM, Khipro adjourned the case to 20-10-1994 for holding a preliminary inquiry into the matter and directed the complainant to produce his witnesses on the said date. Meanwhile, the F.C.M. Also ordered notice to Javed of the application under section 100, Cr.P.C. Filed by Hafiz Zakaria for issue of warrant for production of Iram from Javed's house. The notice to Javed was returned unserved. On 20-10-1994, the Complainant filed an application requesting the Court to immediately issue a warrant for search and production of his daughter Iram from the house of Javed as her life was in danger.
After hearing the counsel, the learned FCM Khipro, issued a warrant for the search and production of Iram through S.P. Sanghar with the direction that he may himself execute the same or get it executed through any Police Official subordinate to him and produce her in Court on 26-10-1994.
The warrant could not be executed and the matter was adjourned to 26-10-1994, 13-11-1994 and 29-11-1994 for further proceedings. In the meantime, on 23-11-1994 Javed (Applicant herein) filed the present application under section 561-A, Cr.P.C. For quashment of the proceedings before FCM, Khipro. On 24-11-1994 the application was admitted for regular hearing and the proceedings before FCM, Khipro were stayed.
4. Mr. Syed Madadally Shah, learned counsel for the applicant submitted the following arguments in support of quashment of the proceedings:--
(i) That FCM Khipro did not have jurisdiction to issue a warrant for search and production of Iram as admittedly she was resident of Kamora Colony, Nawabshah, from where she was kidnapped and was thereafter being wrongfully confined in the house of accused Javed in Shandadpur as alleged in F.I.R. No,52 of 1994 filed with Police Station "A" Section, Nawabshah and Direct Complainant No,14 of 1994.
(ii) The complainant had made a false statement in his direct complaint that he was resident near Madrsa Taleemur-Quran near Jamia Masjid, Khipro, Taluka Khipro, District Sanghar and had twisted the facts to make it appear that the abduction had taken place in Khipro. However, if one reads the direct complaint in light of the facts stated above, it would be evident that the complaint was false, no abduction had taken place within the territorial jurisdiction of FCM, Khipro and therefore, the warrant issued by him was mala fide, void ab initio and liable to be set aside.
(iii) Iram, who was more than 17 years of age at the relevant time, had unequivocally stated before SDM, Nawabshah on 29-5-1994 that she had left her father's house voluntarily, married Javed and was residing with him as his lawfully weded wife. The private complaint was, therefore, prima facie, mala fide and should not to be allowed to proceed.
5. Mr. Mushtaq Ahmed Arain, Advocate who had filed Vakaltanama on 4-4-1995 on behalf of complianant Hafiz A. Zakria, appeared in Court upto 24-8-1998 when the application was fixed in Court for Regular hearing but was adjourned to a date in office with the consent of all counsels.
Thereafter, he did not appear in Court on several occasions when the matter was fixed for Regular hearing and was adjourned for one reason or the other. He also did not appear on 11-8-2000 and 18-8-2000 when the matter was fixed for Regular hearing.
6. Mr. Agha Khuda Bux, learned Assistant Advocate-General, Sindh, appearing on behalf of the State submitted the following in reply:-
(i) The proceedings before FCM, Khipro were still at the stage of preliminary inquiry and the falsehood or truth of the complaint could not be determined without recording evidence. He added that no process had been issued against Javed as an accused and, therefore, the High Court should allow the FCM to record the statement of Iram about her marriage whereafter the former would obviously dismiss the complaint if he was satisfied with her statement and cited PLD 1997 SC 275 in support of his argument.
(ii) A direct complaint before issue of process to the accused is like an F.I.R. Which cannot be quashed. As no process had been issued to Javed, the inquiry proceedings could not be quashed and the application under section 561-A, Cr.P.C. Should accordingly' be dismissed. He referred to the case of (i) Ahmed Saeed v. The State (1996 SCM R 186), (ii) Mian Munir Ahmed v. The State 1985 SCM R 257 and (iii) Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 in support of his contention.
7. I have considered the arguments of both learned counsels for and against the quashment of the proceedings before the FCM, Khipro.
8. The arguments of Mr. Agha Khuda Bux, learned A.A.G., that a direct complaint before issue of process to the accused is like an F.I.R. Is misconceived because FCM, Khipro on 13-10-1994 after recording the statement of the complainant under section 200, Cr.P.C. Issued process to Javed and thereafter on 20-10-1994 issued a search warrant for production of Iram from the house of Javed in Shandadpur. It is well-settled that a High Court under section 561-A, Cr.P.C. Has the power, in suitable case, to quash the proceedings even at the investigation stage (Yaqoob Khan and another v. The State and others 1971 PCLU 266). Further, a learned Division Bench of this Court while exercising powers under Article 199 of the Constitution has held that the High Court has the power to quash the proceedings even at the investigation stage where the proceedings are found to be mala fide or without jurisdiction. (Muhammad Haroon and another v. Federation of Pakistan and others (1991 M LD 397).
9. No doubt in the case of Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan (PLD 1971 SC 677), cited by the learned A. A.G., the Honourable Supreme Court of Pakistan observed that the High Court does not have power under section 561-A, . Cr. P.0 . To interrupt or divert the ordinary course of criminal procedure laid dpwn in the procedural statute but it must be remembered that the principle question before the Honourable Supreme Court was whether an Honourable Judge of the High Court of Sindh and Baluchistan after reading newspaper reports could take suo motu action in what is described to be "the exercise of the supervisory jurisdiction vested in the Court under the Constitution, Letters Patent and otherwise", to call upon the Inspector-General of Police to produce before him all the "investigation papers" relating to the case so that he may examine "if the conduct of the investigation had been fair or impartial or the ends of justice required that further investigation of the case be entrusted to another officer or a Court of law". The facts of the present case are different and distinguishable from the case of Shahnaz Begum and the High Court in the present case is not taking suo motu action to examine if the conduct of the investigation is fair or impartial.
10. The case of Mian Munir Ahmed v. The State (1985 SCM R 257), also does not help the learned A.- A.G. In his arguments. The said case related to the prosecution under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1964 where the Honourable Supreme Court held that the provisions of section 561-A, Cr.P.C., would be applicable to a criminal case being tried by the Labour Court notwithstanding the fact that the said Court was not subordinate to the High Court and an appeal from its decision did not lie to the High Court.
I I . In the present case Hafiz Zakaria had filed a complaint under sections 344 and 506, P.P.C.
Alleging therein that his daughter Iram, who was residing with him at Kamoro Colony, Nawabshah, had some time back been taken away by Javed to Shadadpur where she had been allegedly kept in wrongful confinment and that on 11-10-1994 Javed alongwith his two companions had used foul language towards him and had threatened to kill him while he was residing near Jamia Masjid Khipro. Now, under section 343, P.P.C. Any person who wrongfully confines any person for ten days or more is liable to be punished with imprisonment to either description for a term which may extend to three years and shall also be liable to fine. The term wrongful confinement is defined under section 340, P.P.C. Is as follows:-- "Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said 'wrongfully to confine' that person."
' Further, section 506, P.P.C. Provides that whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description which may extend to seven years, for threat to cause death or grievous hurt or with fine or with both. According to the statements made in the direct complaint filed in the Court of Civil Judge and FCM, Khipro, Javed was alleged to have committed wrongful confinement of the complainant's daughter Iram in Shandadpur while the threat to cause death was extended in Jamia Masjid Khipro. Under section 177, Cr.P.C., every offence is to be ordinarily inquired in and tried by the Court within the local limits of whose jurisdiction it was committed. Admittedly the alleged offence of wrongful confinement of complainant's daughter was committed within the local territorial limits of Shandadpur and the Court which has jurisdiction over the place where the act of wrongful confinement was committed by Javed would have jurisdiction to try him for the said offence. In the circumstances the FCM, Khipro, would have jurisdiction to try Javed only for the alleged offence under section 506 which was alleged to have been committed within his territorial jurisdiction but he would not have jurisdiction to try Javed for the alleged offence of wrongful confinement which was committed by Javed in Shandadpur prior to the arrival of the Complainant in Khipro. Any action by FCM, Khipro in respect of the alleged wrongful confinement of Iram would therefore, be, prima facie, mala fide and without jurisdiction. In the present case after recording the statement of the complainant FCM, Khipro on 13-10-1994 initially issued to Javed a notice of the application under section 100, Cr.P.C. Filed by the complainant and on 20-10-1994 issued a warrant for the search and production of Iram from the house of Javed who was residing in House No,C-688/13, Kifayatullah Colony, Shandadpur. This action of the Magistrate was, prima facie, mala fide and without jurisdiction.
12. Section 561-A, Cr.P.C. Reads as follows:- 561-A. Saving of inherent power of High Court.---Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary 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."
' There are numerous judgments elaborating the powers of the High Court under section 561-A, Cr.P.C. The gist of which is that the High Court in exercise of its inherent powers is competent to quash the proceedings if it is of the view that the proceedings amount to an abuse of the process of the Court or to secure the ends of justice. In the present case, the FCM, Shandadpur, issued warrant for search and production of Iram who was allegedly wrongfully confined beyond the territorial jurisdiction of FCM, Khipro which was an abuse of the process of the Court as the act of wrongful confinement, if any, had not been committed within his territorial jurisdiction and the alleged act of intimidation (section 506, P.P.C.), which took place within his territorial jurisdiction, could not be made the basis of a warrant for recovery of a person who was admittedly alleged to have been wrongfully confined beyond the territorial limtis of his jurisdiction. It is, therefore, apparent that the proceedings taken by FCM, Khipro are without lawful authority and an abuse of the process of the Court.
13. From a perusal of the documents placed on record and especially the certified copy of the Statement of !Ram under section 164, Cr.P.C., recorded by SDM, Nawabshah on 29-5-1994 and his order thereon, I am satisfied that Iram, who was 17 years old and an adult, was not enticed and wrongfully confined in Shandadpur by Javed and that she was living with him willingly as his lawfully wedded wife and that the private complaint filed by Hafiz Zakaria before Civil Judge and FCM, Ithipro is prima facie false and mala fide.
14. In view of the above discussion, I am of the opinion that the proceedings of the direct Complaint No,14 of 1994 filed by Hafiz Ahmed Zakaria in the Court of Civil Judge and FCM, Khipro against the applicant Javed Alam are mala fide and without jurisdiction. Allowing the proceedings to continue would be an abuse of the process of the Court which must be prevented to meet the ends of justice; they are, therefore, quashed.