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Criminal Reference No. 61 of 1975; decided on 17th September 1976.

‑‑ S. 561‑A read with Penal Code (XLV of 1860), S. 406‑Quashment of proceedings‑Complaint under S. 406, P. P. C. based on allegations of complainant being driven out of house, eventually divorced and her dowry articles dishonestly retained by ex‑husband and father‑in- law‑Contention that disputed articles already having been recovered under a search warrant issued by trial Court and returned to com plainant proceedings under S. 406, P. P. C. may not be allowed to continue‑Repelled‑Question whether dowry articles retained with intention to misappropriate, held, yet to be decided by trial Court on merits‑Quashment of proceedings declined, in circumstances.

Nooruddin Sarki for the State.

Mohd. Ahsan Sheikh for Respondents Nos. 1 and 2.

I. A. Hashmi for Respondent No. 3 (absent).

Date of hearing: 17th September 1976.

This is a reference by IIIrd Addl. Sessions Judge, Karachi for quashment of proceedings of a criminal case filed by respondent No. 3. Mst. Surriya Sultana against respondents Nos. 1 and 2 i.e. her husband and father‑in‑law for misappropriation of her dowry articles‑offence under section 406, P. P. C.

2. It was the case of complainant Mst. Surriya Sultana that she had married Mohiuddin Haider on 15‑3‑1914 but due to disagreement she was divorced by her husband and the said divorce was confirmed by the Chairman, Union Committee by his order dated 11‑4‑1974. The dowry articles given to her by her own parents and also by her husband were kept by her with her father‑in‑law who failed to return them to her and misappropriated the same. This complaint was filed by Mst. Surriya on 10‑8‑1974 in the Court of S. D. M. City, Karachi. The list of the articles filed with the complainant showed that the articles were worth Rs. 21,575.

3. Mr. Muhammad Ahsan Shaikh, who has filed this petition on behalf of the husband and father‑in‑law against the order of issue of process on' this complaint, bas pointed out that under the West Pakistan Dowry Act, 1967 the offence in question will fall under section 4(3) of the said Act. Now section 4 defines an offence where dowry articles are received by any person other than the woman at the time of marriage. It is only then that such person is required to give them to the woman or the bride within one year of the marriage and if he fails to do so then an offence under section 4(3) is committed. There is no such allegation in the present case. Here Mst. Surriya Sultana was a grown‑up woman and she had received the dowry articles from her parent's side and also from the husband's side. According to her these articles were entrusted by her in the house for safety to her father‑in‑law. She was then driven out from the house and a written divorce was sent to her. Even after the divorce was confirmed she did not get back the articles, which she had entrusted to the father‑in‑law. She accord ingly filed complaint for criminal breach of trust. The facts as stated in the complaint do not make out an offence under section 4 of the West Pakistan Dowry Act, 1967. That Act has, therefore, no application to the present case. The learned Advocate on behalf of respondents Nos. 1 and 2 ultimately concede that no offence is made out under the Divorce Act and those provi sions have no application to the facts of the present case. Mr. Mohammad Ahsan Shaikh has then argued that the said articles were recovered from the house of respondents 1 and 2 by the police when a search warrant was issued by the Magistrate after taking cognizance on the complaint of the woman. That since the articles have been returned the proceedings may not be allowed to continue. It is, however, for the trial Court to come to a decision on merits whether there was any intention to misappropriate the articles or not. These are proceedings under section, 561‑A, Cr. P. C. and merits of the case or the evidence cannot be discussed in the course of these proceedings.

4. For the reasons stated above the reference is rejected.

Reference not accepted.

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