1. ' The applicants were accused in Criminal Case No,73 of 2000 and are seeking quashment of the proceedings pending trial in the Court of Civil Judge and F.C.M., Khipro, under section 344/34, P.P.C.
2. In Criminal Case No,73 of 2000.
3. ' Brief facts of the case are that respondent No,1, being complainant filed direct complaint on or about 17-6-2000 against the aforenamed applicants in the Court of Civil Judge and F.C.M., Khipro, stating therein that he is respectable Zamindar, peace-loving and law-abiding citizen of Pakistan.
4. He had married with Mst. Meenhan Bai daughter of Khanan Rajer on 22-4-1998; such Nikah of the complainant with Mst. Menhan Bai took place in Village Kirir Rajar, Deh Kak U/C Doulatpur, Tehsil and District Mirpur Khas and the same was registered there. In support of Nikah, the complainant has filed a copy of Nikahnama. After Nikah/Rukhsati, Mst. Meenhan Bai started living in the house of the complainant/respondent No,1 as a wife. That the houses of Mubarak and Misri brothers of Mst.
5. Menhen Bai wife of the complainant were quite adjacent to the houses of all the accused persons; they were on visiting and friendly terms with each other.
6. ' During the last week of February, 2000, all accused persons including Mubarak, who is brother of the wife of the complainant, came to the village of the complainant and stayed for few days in the house of the complainant. All the accused persons showed their intention to go back to their village hence they insisted and requested complainant/respondent No,1 to allow his wife Mst. Meenhan Bai to see her relative Mst. Qurban, who according to accused persons was on bed due to illness. On such assurance all the accused persons went alongwith the wife of complainant, who allowed her to go with the accused persons. During March, 2000 complainant went to the village of his brother- in-law and found that his wife is not present in their house. On inquiry, complainant was told that she was staying in the house of the accused persons. Complainant also contacted his wife Mst.
7. Meenhan Bai who was present in the house of the accused persons, who assured the complainant to come again and thereafter she will accompany with him. He was further told by all the accused persons that Mst. Qurban was still ill and after recovery the complainant might take away his wife.
8. As such, the complainant returned to his village. In the month of April, 2000 again complainant went back to the house of accused persons, where all the accused were found to have wrongfully and illegally detained and confined Mst. Meenhan Bai in their house, against her wishes and for some illegal purpose. Thereafter, the complainant took his father Sobdar son of Bhai Khan and Hashim son of Jamal, alongwith him. After meeting with Mubarak and Misri, brother-inlaws of the complainant, wen to the accused persons and requested them for ,return of Mst. Meenhan Bai, legally-wedded wife of complainant and he was kept on hopes and that the accused are not prepared to allow Mst. Meenhan Bai wife of complainant to go with him. Complainant also made efforts through Nekmard but without success. The complainant also went to police station for registration of a case against accused persons but the concerned police station refused to register the case against accused persons, thereafter he filed a direct complaint.
9. ' Mr. Syed Madad Ali Shah, learned counsel for the applicant/accused has argued that there are two claimants of Mst. Meenhan Bai as her husbands and such issue is to be decided by the Family Court and not by the Criminal Court. He has drawn my attention at page 63 which is available with the case file, wherein the aforenamed Mst. Meenhan Bai has stated that she is staying with Ali Nawaz Shah on her own accord and consent. She has consummated marriage with Ali Nawaz Shah and thereafter she is staying with him. She has further stated that 'has no concern whatsoever with complainant/respondent No,1 Akram and he is not known to her. Neither she has consummated marriage with him nor she is the wife of complainant/respondent No, 1 . Neither she has been abducted by any one nor induced. Claim of complainant/respondent No, 1 . Akram with regard to marriage with Mst. Meenhan Bai based on false claim; she has further stated that she is staying with Ali Nawaz Shah, who is her husband, with her own sweet-will; she is not prepared to go with her mother as she apprehends danger of her life at their hands. Mr. Madad Ali Shah has further contended that Civil Judge and F.C.M., Khipro, after such statement, remanded the aforenamed lady to Darul Aman and becatfie parity in the proceedings. According to him, there was no justification to move any application under section 249-A, Cr.P.C. Before such a Court, who illegally handed over the custody of Mst. Meenhan Bai to Darul Aman, despite she refused to go with her mother and complainant/respondent No, 1 . On the contrary, she desired to go with Ali Nawaz Shah accused. He has further contended that no offence is made out under section 344, P.P.C.; the proceedings initiated against the applicants/accused are illegal, void, ab initio without jurisdiction, which amounts to harassm ent. Finally, learned counsel for the applicants has prayed for the quashment of the proceedings. In support of his contention, he has placed reliance on 2000 SCM R 122; 1998 SCM R 873; 1994 PCr.LJ 354; 1986 PCr.LJ 2749; 1992 PCr.LJ 58 and NLR 1991 Criminal 181.
10. ' On the other hand, Mr. Salahuddin Panhwar, learned counsel for the complainant/respondent No,1 has argued that no application under section 249-A, Cr.P.C. Has been moved by the appellants/accused before the trial Court and since alternative remedy is available to the applicants and they have not availed the same, on this score the application is liable to be dismissed. In support of his contentions, he has placed reliance on PLD 1967 SC 317, 2000 SCM R 1245, PLD 1988 Kara 230, 1996 PCr.LJ 1335, 2000 PCr.LJ 1180.
11. ' On the other hand, Mr. Anwar Ansari, learned Advocate for A.A.-G. For State has not controverted the contentions raised by Mr. Syed Madad Ali Shah, learned counsel for the applicants/accused. He has given his no objection to the quashment of the proceedings bearing Criminal Case No,73 of 2000.
12. ' I have heard Mr. Syed Madad Ali Shah, learned counsel for the applicant/accused, Mr. Salahuddin Panhwar, learned counsel for the complainant/respondent No,1 and Mr. Anwar Ansari, learned Advocate for A.A.-G. For State at length; have gone through the material available on record; with their assistance also gone through the contents of direct complaint and have examined the statement of Mst. Meenhan Bai, who has deposed before the Civil Judge and F.C.M., Khipro.
13. Admittedly, there are two claimants as husbands of Mst. Meenhan Bai, which question is to be decided by the Family Court and not by Civil Court, such criminal proceedings amounts to harassm ent to the applicants/accused. Admittedly, the Civil Judge and F.C.M., Khipro after recording statement of Mst. Meenhan Bai remanded her to Darul Aman although she desired to go with her husband, namely Ali Nawaz Shah, and thus, he became party in the proceeding and it would have been futile to move application under section 249-A, Cr.P.C. Before the trial Court. The law cited by Mr. Salahuddin Panhwar, learned counsel for the complainant/respondent No,1 is distinguishable from the facts of the present case. There is no hard and fast rule to move an application under section 249-A, Cr.P.C. Before the trial Court, in view of the fact when the Court becomes itself a party to the proceedings. Superior Courts have held that when it is a fit case for quashment, the accused would not be party to straighaway move for quashment of the proceedings before the High Court. The authorities cited by Mr. Syed Madad Ali Shah, learned counsel for the applicants/accused are quite applicable in the present case. Mr. Anwar Ansari, learned Advocate for A.A.-G. For State has also supported the contentions of Mr. Syed Madad Ali Shah for quashment of the proceedings, as the proceedings are not only illegal and without jurisdiction but amount to harassm ent.
14. In view of the no objection given by Mr. Anwar Ansari, learned Advocate for A.A.-G. For State and laws cited by Mr. Syed Madad Ali Shah, learned counsel for the applicant/accused I am inclined to quash the proceeding; as such Criminal Case No,70 of 2000 (Akram v. Syed Ali Nawaz Shah and others) pending in the Court of Civil Judge and F.C.M., Khipro, under section 344/34, P.P.C. Is quashed. Accordingly, Criminal Miscellaneous Application No,772 of 2001 stands allowed .
15. ' Above are the reasons of my short order, dated 6-7-2001.