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Criminal Reference No. 28 of 1966, decided on 12th May 1967.

, S. 439-Complainant a omitting to mention background of dispute between him and accused and refraining from referring to pending litigation between them-Actual facts also given a twist to invest jurisdiction to a Court located at place far off from residence of accused-Proceedings quashed.

Moulana Syed Muhammad Razi v. Moulana Shabihul Husnain and another P L D 1961 Kar. 220 and Maulvi Muhammad Jamil v. Noor Khan P L D 1965 Lab. 54 distinguished:

Osman Ghani for A. A: G. for the State.

Rafique Ahmad for Respondents Nos. 1 to 5.

Ibrahim Memon for Respondent No. 6.

Date of hearing: 12th May 1967.

This is a reference by the learned 1st Additional Sessions Judge, Hyderabad (Mr. Ghulam Muhammad M. Kourejo) recommending that the proceedings in a private complaint filed by respondent No. 6 against the respondents Nos. 1 to 5 before the S. D. M. Thatta in respect of offences under sections 347, 387/109, P. P. C. be quashed for the reasons mentioned in the referring ord6r. In addition to the 6 respondents one Sardar son of unknown has also been added as an accused in the private complaint filed by respondent No. 6, but apparently he was not a party to the criminal revision petition carried before the Sessions Court at Hyderabad resulting in the present reference.

2. The fact giving rise to this matter are that respondent No. 6 Anwar Mirza was married to a girl called Qamar Sultana daughter of Mohsinullah respondent No. 1 and Mst. Sarwar Jehan Begum respondent No. 2 at Hyderabad on 4-5-65. Prior to that a pre-nuptial agreement dated 27-4-64 had been entered into whereby the would be husband had promised to pay Re. 5,000 as prompt dower to his wife. The marriage turned out unhappy and disputes arose between the husband and the wife over the husband Anwar Mirza demanding the return of this pre nuptial agreement. Mst. Qamar Sultana declined to return this document to him and on that he began beating and maltreating her so much so that on 8-3-65 her mother Mst. Sarwar Jehan Begum filed a complaint in the Court of the A. D. M., Hyderabad under section 342, Cr. P. C. complaining that her son-in-law was wrongfully confining her daughter Mst. Qamar Sultana. She also applied for a search warrant under section 100, Cr. P. C. which was granted and on Qamar Sultana coming to Court she made a statement declaring that she wished to return to her parents upon which she was allowed to go to her parents. On 10-4-65 respondent Anwar Mirza filed a suit for restitution of conjugal rights against his wife Qamar Sultana adding respondents Nos. 1 to 3 as parties thereto. Meanwhile Mst. Qamar Sultana gave birth to a child and on 3-6-65 she filed an application for maintenance under section 488, Cr. P. C. against her husband Anwar Mirza in the Court of the S. M. D., Hyderabad. It may be mentioned here that on the birth of this child Anwar Mirza filed an application under the Guardian and Wards Act in the District Court Hyderabad on 28-5-65 for the guardianship of his newly-born child. In spite of all this previous litigation between the parties, respondent Anwar Mirza on 13-7-65 presented the present complaint under sections 3*7 and 387/109, P. P. C. against the 5 other respondent's, in this matter and one Sardar son of unknown, in the Court of the S. D. M., Thatta. That same day the learned S. D. M. directed the holding of a preliminary inquiry in the first instance and after doing so he was pleased to pass an order dated 13-7-65 directing the issue of non-bailable warrants against the male accused and bailable warrants against the female accused in this case and adjourned the case from 13.7-65 to 17-7-65. Along with this complainant Anwar Mirza had also filed an application under section 100, Cr. P. C. on which his wife Qamar Sultana was secured and brought to the Court of the S. D. M. at Thatta where she made a statement on the strength of which she was released and allowed to return to her parents. The other accused in the complaint filed by Anwar Mirza were arrested and brought to Thatta where they were forced to spend a night in police custody before they could be released on bail the next day.

Thereafter on 2-8-65 the accused in this case presented a Criminal Revision Application before the Sessions Court, Hyderabad which was heard by the First Additional Sessions Judge, Hyderabad (Ghulam Muhammad M. Kourejo) and which has resulted in the present reference.

3. I have beard Mr. Usman Ghani on behalf of the State, Mr. Rafique Ahmed Advocate on behalf of the respondents Nos. 1 to 5 and Mr. Ibrahim Memon Advocate appearing on behalf of Anwar Mirza respondent No. 6.

4. The learned counsel appearing on behalf of the State supports this reference as also does Mr. Rafique Ahmed appearing on behalf of respondents Nos. 1 to 5. It has been pointed out by them that the complaint filed by Anwar Mirza is not a truthful or a bona fide complaint in that by suppressing the previous litigation that was then existing between the parties, respondent Anwar Mirza had painted a picture before the S. D. M., Thatta which is not strictly accurate. The jurisdiction of the S. D. M: to entertain this complaint has also been questioned.

5. On the other hand Mr. Ibrahim Memon appearing on behalf of complainant Anwar Mirza has argued that the revision petition carried by the accused/respondents before the Sessions Court, Hyderabad was hasty and premature. He has shown that the S. D. M. was careful enough to hold a P. E. before directing the issue of process, and tie has submitted that before a line of evidence could be recorded the accused have rushed up to the Sessions Court with their Criminal Revision Petition praying for a reference to be made for quashment of these proceedings to the High Court. Mr. Ibrahim Memon bas relied upon two case reported in P L D 1961 Kar. 220 and P L D 1965 Lah. 54.

6. I have applied my mind to the submissions and the arguments advanced before me by the learned advocates appearing in this matter. From a perusal of the complaint filed by Anwar Mirza in the Court of S. D. M. Thatta on 13-7-65 it is apparent that this complainant has omitted to mention the background of this dispute between him and his wife and in-laws and has also refrained from referring to the previous litigation then pending between them. It also appears from a perusal of this complain that the complainant has given a twist to the actual facts so as to invest the - Court at Thatta with jurisdiction in this matter Besides the conduct of the learned S. D. M., Thatta in directing a P. E. on the same day that this complaint was filed in his Court namely, 13-7-65, conducting this P. E. that same day and thereafter passing an order directing the issue of non-bailable warrants against the male accused and bailable warrants against the female accused is such as to call for comment. There is also the question as to whether the S. D. M., Thatta has in fact jurisdiction to entertain this complaint. The learned A. S. J. in his order of reference has said: -

"It appears that he (complainant) has put up such a claim only in order to give jurisdiction to the Court at Thatta in order to drag the petitioners there from Hyderabad where they admittedly reside."

I find myself in agreement with these remarks of the learned referring A. S. J.

7. I have also considered the two cases relied upon by Mr. Ibrahim Memon the learned advocate appearing on behalf of respondent No. 6 complainant Anwar Mirza. The first of these is the well-known case of Moulana Syed Muhammad Razi v. Moulana Shabihul Husnain and another P L D 1961 Kar: 220 where Abdul Hamid, J. has held that proceedings cannot be quashed when the case has not proceeded beyond the summoning of the accused. In that reported case no evidence had been recorded so that it was not possible to determine which of the two assertions made by the rival parties was correct. But in the instant case there has beep previous litigation between the parties and in fact some of these cases were pending at the time when this complaint was filed by respondent Anwar Mirza in the Court of the S. D. M., Thatta. In view of the previous litigation between the parties the stand taken by each of them was well-known so that the fact that not a single witness had been examined before the accused rushed up to the Sessions Court at Hyderabad with their revision petition is of no significance or consequence. In the second case relied upon by Mr. Memon reported in P L D 1965 Lah. 54, Anwarul Haq, J. remarked obiter dicta that criminal proceedings cannot be quashed simply because the accused considers allegations levelled against him false and fantastic. Here again in the instant case on account of the previous litigation that has existed and was then existing between the parties the accused were in a position to state as to the genuineness of the allegations made against them in the present complaint.

8. It seems to me, then, that this reference must be accepted and while doing so I would quash the proceedings in the private complaint filed by respondent No. 6 Anwar Mirza against the other 5 respondents and one Sardar now pending in the Court of the S. D. M., Thatta.

Reference accepted.

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