Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
GHULAM MUHAMMAD SADRUDDEEN and 4 others--Applicants
versus
THE STATE and another--Respondents
Criminal Miscellaneous Application No. 79 of 1987, decided on 5th May, 1987.
---S. 561-A--Penal Code (XLV of 1860), Ss. 406, 420, 506 & 34- Quashing of proceedings--Complaint--Ingredients of sections 406 420, Penal Code, for which accused was charged not proved from complaint--Neither it was a case of entrustment and breach of trust nor there was any evidence of cheating--Trial Court erred in issuing process for same--Proceedings filed mala fide and with a view to harass and humiliate accused--Even case diary showing that trial Court itself was doubtful about maintainability of complaint- Respondents instead of seeking remedy before civil Court moved criminal Court with ulterior motives--No case, held, was made out under S. 406/420, Penal Code, against accused-and proceedings being abuse of process of Court, were quashed.
Akhlaq Ahmed Siddiqui for Applicants.
Mahjabeen Farzana for Respondent No. 2.
Imdad Hussain Kazi for the State.
Date of hearing: 19th April, 1987.
This is an application under Section 561-A Cr. P.C. for quashment of proceedings pending against the applicants under sections 406, 420, 506, 34 PPC, before the IVth Senior & Assistant Sessions Judge (WEST) Karachi.
The brief facts of the case are that complainant (hereinafter called as respondent No.2) was married with applicant No.2 on 20-2-1986 at Karachi, and the dower was fixed at Rs.21,000. The applicant No.l is father of applicant No.2, applicant No.3 is mother of the applicant No.2; while applicants Nos.4 and 5 are his sister and brother.
That according to the respondent No.2, she was married with the applicant No.2 A.M. Moozam with the consent of rest of the applicants /accused, and after marriage she started living with the applicants, and they lived together happily for some time. The applicant No. 2 was serving in U . A . E. and few weeks after the marriage he left Pakistan to attend to his Job. It appears from the complaint that after some time of the marriage the remaining applicants started maltreating the respondent No.2 and ultimately she was sent to her parents in the month of April 1986 with few clothes, saying that she should live with her parents till the applicant No.2 returns from U . A .E. She was also not allowed to take/use her dowry articles. That on 29-4-1986, she received a divorce deed from her husband. It was further alleged that the dowry articles given to the respondent No.2 by her parents, and the gifts which she received at the time of marriage were entrusted to the accused applicants, which they have mis-appropriated. That after receipt of divorce, the parents of respondent No.2 tried for compromise, but the applicants/ accused picked up dandas and iron bars, and threatened them of dire consequences. This complaint was filed on 28-7-1986, side by side an application for search warrant for the search and recovery of dowry articles mentioned in the list was also moved. The statement of respondent No.2 was recorded, and it was ordered that P.E. be held at the first instance, and search warrant was also issued as prayed. It appears from the record that P.Ws.Noor Ahmad Siddiqui and Muhammad Safi-ullah were examined on 31-7-1986, and thereafter the case was transferred to the trial court. The diary dated 24-9-1986 shows:- ----
" R & P received from the Court of D.J. Karachi West. The perusal of record shows maintainability of the complaint doubtful issue summons to the accused put-off to 18-10-1986" .
After the above order the summons were issued but they could not be served due to curfew and some other reasons, and therefore bailable warrants were issued against the applicants on 5-2-1987.
The present application has been filed for the quashment of the above proceedings pending against the applicants.
I have heard Mr. Akhlaq Ahmad Siddiqui, learned counsel for the applicants, Mr. Imdad Hussain Kazi, learned counsel for the State, and have also gone through the papers.
The contention of Mr. Ikhlaq Ahmad Siddiqui is that it is a family dispute and the criminal complaint has been filed mala fide with a view to harass the applicants, and on the face of it no criminal case was made out.
Mr. Imdad Hussain Kazi appearing for the State contended that the complaint, as well as the statements recorded in P.E. do not show that any criminal offence was committed by the applicants, and he has no objection if the proceedings are quashed.
I have considered the contentions of the learned counsel and have also gone through the documents produced with the application.
Admittedly, the applicant No.2 was husband of the complainant respondent No. 2, Applicant No. l and 3 were her-in-law, while applicant No.4 & 5 are sister and brother of applicant No.2. From the complaint as well as the statements of complainant, and P.Ws. Noor Ahmad and A Muhammad Safi-ullah, the ingredients of section 406 and 420 P.P.C. have not been proved. The Criminal breach of trust is defined in Section 405 PPC which reads as under:-
"Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly mis-appropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'."
The words cheating is defined under section 415 P.P.C. which reads as under:-
"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do any thing which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to 'Cheat'."
Neither it is a case of entrustment and breach of trust, nor there is any evidence of cheating, and therefore, the trial Judge was in error in issuing process under section 406/420 P.P.C. The offence under Section 506 (2) P.P.C. was distinct offence, and was committed on a different occasion as alleged in the complaint, and as such it could not be tried alongwith offence under section 406/420 P.P.C. The fact that entire family has been dragged including two B ladies, goes a long way to show that the proceedings were mala fide, and were filed only with a view to harass and humiliate the applicants. Even the diary dated 24-9-1986 shows that the learned Judge himself was doubtful about the maintainability of the complaint. It is clear that the respondent No.2 instead of seeking remedy before Civil Court, has moved the criminal Court with ulterior motives.
In view of the above discussion, I am of the considered view that no case under section 406/420 and 506 (2) P.P.C. was made out against the applicants, and the proceedings were an abuse of the process of the Court, and consequently the same are hereby quashed.
I had decided the above application by a short order dated 19-4-1987, and these are the reasons for the same.
M.Y.H/G-26/K Proceedings quashed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer