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Criminal Appeal No. 1155 of 1980, decided on 2nd November, 1981.

---S. 561-A--Penal Code (XLV of 1860), S. 380--Quashing of proceedings--Accused and wife of complainant committing theft of household things from house of complainant--One of accused being father-in-law of complainant and other relatives of said accused--No date or month of theft given in complaint--No report for theft lodged at police station--Detail of stolen property found to be vague--Complaint filed after filing of a suit for dissolution of marriage filed by daughter of one of accused against complainant--Presence of wife of complainant in his house during days of occurrence prima facie found to be doubtful--Complaint filed with delay of 3/4 months and found to be filed in order to harass and pressurise accused--Stolen property not recovered despite arrest of accused/ applicants in pursuance of warrants--Allegations made in complaint found to be vague and general in nature--Trial Court not having jurisdiction to try matter--State counsel supporting quashing petition--Lodging of complaint and getting process issued, held, amounted to abuse of process of Court--Proceedings quashed in circumstances.

---S. 561-A--Penal Code (XLV of 1860), S. 380--Jurisdiction of Trial Court--Private complaint regarding theft--Jurisdiction to entertain complaints, in respect of thefts, on promulgation of enforcement of Hudood Ordinance, 1979, held, did not vest in Court of Magistrate.

Muhammad Ali Sheikh for Appellant.

Gharib Nawaz for Respondent.

Ghulam Ally Agha for the State.

The applicants abovenamed have moved above application for quashing proceedings against them in the Court of Resident Magistrate, Kandiaro under section 380, P.P.C., on the following facts and ground:-

2. Respondent No. 1 filed a private complaint in the Court of Resident Magistrate Kandiaro, under section 380, P.P.C. against the applicants, alleging therein that applicant No.3 Abdur Rehman is his father-in-law and rest of the applicants are his relations. According to said complaint, applicant Abdur Rehman accompanied by other applicants had come to live with respondent No.1, about 3/4 months ago and in the absence of respondent No.1 from his house, applicants as well as respondent No. l's wife committed theft of the household goods and this fact :vas brought to the notice of respondent No.1, by one Nazir Ahmad, who has seen the applicants Railway Station. It was further alleged in the said complaint, that the applicants confessed their guilts at their village in Punjab and promised to restore the wife of respondent No.1 as well as his property, but therefter they have failed to keep their promise.

3. The learned Resident Magistrate, after recording the evidence of respondent No.1, registered a case under section 380, P.P.C. and issued non-bailable warrants against all applicants and in persuance of the said warrants, applicant Abdul Aziz and Abdur Rehman were arrested and were released on bail by Sessions Judge, Gurjanwala, for appearance before the trial Court on 22-12-1980 and coersive processes have been issued against all the applicants, by the Resident Magistrate and consequently the applicants abovenamed have filed the above application for quashment of the said proceedings pending against them, in the Court of Resident Magistrate, Kandiaro, on the grounds mentioned in the above application.

4. The learned Advocate for the applicants, in support of the above application, submitted that no police report was lodged in respect of the alleged theft and further there was inordinate delay in filing of the private complaint in question. He also pointed out that no date or month of the alleged theft has been given in the complaint. The learned Advocate for the applicants further submitted, that full details of alleged stolen property have also not been given in the complaint or attached with it. The learned Advocate for the applicants further submitted, that respondent No. 1 has filed this false private complaint against the applicants as a counter-blast to the suit for dissolution of marriage filed by Mst. Abide daughter of Abdur Rehman, the applicant No.3, against respondent No.1 the complainant, in the Family Court Gujranwala on 17-11-1979, in order to harass and pressurise the applicants. The learned Advocate for the applicants has submitted that on account of promulgation of enforcement of Hadood Ordinance, 1979, the learned Resident Magistrate, Kandiaro, had no jurisdiction to entertain the complaint in question. In view of these facts the learned Advocate for the applicants submitted, that the finding of the complaint in question and getting the process issued against the applicants, amounts to abuse of the process of the trial Court.

5. The learned Advocate for the respondent No.1, on the other hand submitted, that the complaint filed by respondent No.1, is true complaint and respondent No.1 has cited witnesses in support of his complaint and as such without recording of the evidence, before the trial Court, the contentions of the learned Advocate for the applicants, that the complaint in question is false and amounts to abuse of the process of the Court cannot be considered, as respondent No.1 has attached list of stolen property with his complaint and delay in filing the complaint in question has been explained in the complaint.

6. I have gone through the copy of the complaint as well as copy of family suit filed by respondent No. l's wife for dissolution of marriage which are on record. The complaint is completely silent about the date and the month of the alleged theft, but mentions that it was 3/4 months ago. It is an admitted position that no report for the alleges theft was lodged at any police station. The details of the property, alleged to have been stolen, which are attached with the complaint are also vague and admittedly the complaint in question was filed on 25th May, 1980, according to the Advocate of both the parties i.e. after filing of suit for desolution of marriage by the daughter of applicant No.3, against respondent No.1. The perusal of the copy of the plaint in respect of the suit for dissolution of marriage, which was filed by the wife of respondent No.1 on 17th November, 1979, shows that the respondent No. 1's wife had left the house of respondent No.1, 2 months prior to filing of the said suit for dissolution of marriage and had gone to Gujranwala, where she staying since then and as such prima facies her presence in the house of respondent No.1, 3/4 months prior to filing of complaint in question on 25th, May, 1980 becomes very doubtful.' Coupled with this fact, it is to be noted, that no report of the alleged theft was lodged at any police station. Admittedly there was a delay of 3/4 months in filing of the private complaint in question. All these facts support the contentions raised by the learned Advocate for the applicants that the complaint has been filed in order to harass and pressurised the applicants, on account of suit for dissolution of marriage filed by the daughter of applicant No.3, against No.1. Further, no alleged stolen property has been recovered from applicant Abdul Rehman and Abdul Aziz, although they were arrested at Gujranwala, in persuance of the non-bailable warrants issued by the trial Court. The allegations made in the complaint are also vague and general nature. It may further be noted, that according to the complaint, the suitcase in which the stolen property was alleged to have been taken away, according to one Nazir Ahmad, was in the hand of applicant Abdur Rehman, but in spite of this beside Abdur Rehman four other relations of his have been involved in this complaint, though no specific part in respect of the alleged theft has been assigned to these four other applicants. It may further be noted that on promulgation of enforcement of Hudood Ordinance, 1979, the jurisdiction to entertain complaints, in respect of theft, did vest in the Resident Magistrate in question.

7. Taking into consideration the above facts, which are borne out from the record before me, in my opinion lodging of complaint in question and getting the processes issued in consequence thereof against the applicants, amounted to abuse of the said Court of Resident Magistrate.

8. The learned Advocate appearing for the State submitted, that he supports the above application, in view of the above-mentioned view, of facts and documents, on record.

9. Therefore, I allow the above application and hereby quash the proceedings pending against the applicants, in the Court of learned Resident Magistrate, Kandiaro under section 280, P. P. C . , in respect of complaint filed by respondent No.1.

H.A.K./3692/K Proceedings quashed.

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