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Criminal Transfer Application No. 436 of 1962 and Criminal Revision Application No. 463 of 1962, decided on 20th November 1962.
‑Residence Question of fact‑To be decided on facts of each case.
Charan Das v. Mst. Surasti Bai 42 Cr. L J 105 ; Srimati Indubala Devi v. Satchid Prasad 40 Cr. L J 117 ref.
Gangabai v. Pamanmal Lachman 40 Cr. L J 598 and Mrs. Jolly v. Mr. Jolly 18 Cr. L J 706 rel.
1M. A. Rahim for Applicant.
Syed Hamid Ali for Respondents.
Imam Bux Sheikh for the State.
Date of hearing : 20th November 1962.
This judgment will dispose of Criminal Transfer Application No. 436 of 1962 and Criminal Revision Application No. 463 of 1962.
2. The facts giving rise to this matter are not quite clear specially as the version of the applicant Ramzani differs from that of his wife the opponent Bano. So far as these facts are relevant for the purpose of disposing of the above two applica tions it may be stated that the applicant and the opponent were married in India some time before the Partition of this sub continent and that they migrated to Pakistan in 1950. It is disputed between them as to whether they first took up their residence and abode in Pakistan, in Hyderabad or in Karachi. The applicant's version is that they resided continuously at Hyderabad (Sind) whereas the opponent's version is that they lived together near Gandhi Garden, in Karachi. From the papers produced before me in this matter it appears that the applicant Ramzani on 16‑3‑1960 kidnapped one Fatima daughter of Noor Muhammad from her father's residence in Karachi and on 30‑5‑1960 the said Noor Muhammad filed a complaint against the applicant under section 363, P. P. C. in the Court of Mr. M. M. H. Siddique, Additional City Magistrate, Illaqa New Town Police Station, Karachi. This complaint was sent to the police for enquiry under section 202, Cr. P. C. by Mr. Siddiqui and it was later dismissed on 6‑9‑1960 under section 203, Cr. P. C. Then on 8‑7‑1961 the applicant Ramzani filed a complaint under sections 34/4t,8/506, P. P. C. in the Court of Mr. Aftab Hussain, Additional City Magistrate Karachi, against six accused in which he stated that he is a washerman by profession residing within the jurisdiction of the Court of this A.C.M. in Karachi and that on 4‑6‑1961 the six accused enticed away his wife along with his three children and ornaments, clothes and cash amounting to Rs. 2,500. Bailable warrants were issued by this Magistrate against the accused but this complaint was dismissed under section 253 (2) Cr. P. C. on 26‑8‑1961 after recording the state ment of the complainant/applicant. Next on 17‑7‑1961 the opponent Bano filed an application under section 488 Cr. P. C. in the Court of Mrs. Suraiya Ahmad Pai, A. C. M., Karachi, against the present applicant and the same was admitted and issue of notice directed against the present Applicant. In this application the opponent, Mst. Bano stated in paragraph 2 that she had migrated along with the present applicant Ramzani to Pakistan in 1950 and lived together in Gandhi Garden, Karachi.
3. On 4‑9‑1961 the present applicant filed a written statement in which he admitted the contents of this paragraph 2 of the application under section 488 Cr. P. C. filed by Mst. Bano. In this written statement the applicant also objected to the hearing of this maintenance, application at Karachi on the ground that the parties are residents of Hyderabad and the applicant's wife had left his home at Hyderabad thereby giving jurisdiction in respect of this maintenance application only to the Courts at Hyderabad. This point of jurisdiction was rejected by Mrs. Suraiya Ahmad Pai on 4‑10‑1961 and the applicant went in revision against this order of Mrs. Pai to the City and A. D. M., Karachi who by his order dated 22‑11‑1961 upheld the order of Mrs. Pai, A.C.M., Karachi. Against this order of the City and A. D. M., Karachi the applicant presented a second revision application in the Court of Sessions, Karachi which application was rejected by that Court on 24‑2‑1962. The papers in this matter were then returned by the Sessions Court, Karachi to the Court of the A. C. M., Mrs. Pai through the office of the District Magistrate, Karachi: On account of this devious route there was some delay in these papers reaching the Court of Mrs. Pai and they were received back in her Court in late June 1960. On 28‑8‑1962 the applicant filed his transfer application in this High Court and on 17‑9‑1962 he filed the present criminal revision application in This High Court against the order of the City and A. D. M., Karachi dated 22‑11‑1961 but making no mention of the order of the Sessions Court, Karachi dated 24‑2‑1962. It is this criminal transfer application and criminal revision application that have been heard by me today.
4. Appearing on behalf of the applicant Mr. M. A. Rahim's principal contention was that the Courts at Karachi had no jurisdiction to hear the opponent's application under section 488 Cr. P. C. because of the bar contained in section 488 in clause (8) Cr. P. C. which is in these words :‑
"Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife. or, as the case may be, the mother of the illegitimate child."
Mr. Rahim relied upon Charan Das v. Mst. Surasti Bai (42 Cr. L J 105) in support of his contention that a casual visit to another place cannot confer jurisdiction under this sub‑section upon the Courts of that place.
5. Appearing on behalf of the opponent Mst. Bano, Syed Hamid Ali advocate contended that the applicant's residence has been at Karachi and that in the complaint filed by him against the six accused on 8‑7‑1961 as well as in the written statement filed by him on 4‑9‑1961 in the Court of Mrs. Pai he has admitted this position. Also in his statement recorded by Mr. Aftab Hussain, A. C. M., Karachi before dismissing his complaint on 26‑8‑1961 he has said that he resides at Gandhi Garden, Karachi. Syed Hamid Ali, Advocate relies upon the cases of Gangabai v. Pamanmal Lachman (40 Cr. L. J 117) and Srimati Indubala Devi v. Satchid Prosad (40 Cr. L J 598) respectively and also on the case of Jolly v. Jolly (18 Cr. L J 706).
6. I have carefully considered the arguments of the learned advocates. I am of opinion that it would lie ill in the mouth of the applicant for him to contend that he has not beets residing at Karachi so as to confer jurisdiction on the Court of and A. C. M. here in respect of the maintenance application. I am impressed by the facts that the applicant both in his private complaint filed in the Court of Mr. Aftab Hussain, A. C. M., Karachi and in his statement on oath to this Magistrate has admitted that he is a resident of Karachi. Moreover in his written statement filed in the Court of Mrs. Pai he has admitted the contents of paragraph 2 of the maintenance application which stated :‑
"that the applicant migrated with the opponent to Pakistan in 1950 and lived together in Gandhi Garden, Karachi."
Mst. Bano has examined two witnesses Muhammad Khan P. W. 2 and Rahman P. W. 3 who also say that Ramzani is a resident of Karachi. I am, therefore, clearly of opinion that the present applicant Ramzani has been residing in Karachi.
7. The point for determination, however, is whether his stay in Karachi is sufficient for the purpose of complying with sub section (8) of section 488, Cr. P. C. In the case reported in 42 Criminal Law Journal at page 105 a Bench of the Lahore High Court composed of Young, ‑C. J. and Ram Lal, J. held that .‑
"the sole test on the question of residence is whether a party has animus manendi, or an intention to stay for an indefinite period, at one place ; and if he has such an intention, then alone can he be said to reside' there."
But, it seems to me, that this question of residence is ultimately a question of fact and one to be decided upon the facts of each case. This view was taken by a Bench of Davis, J. C. and Lobo, J. in the case of Gangabai v. Pamanmal. In this case their Lordships held that :‑
"each case, however, must be dealt with on its merits, the distinction between a mere visit and residence being borne in mind." and again‑
"where there is something more than a flying visit, where a man leaves his house and resides for some time in the house of his parents‑in‑law with his wife, that is a sufficient residence within the meaning of subsection (8) of section 488, Criminal Procedure Code."
In the case of Mrs. Jolly v. Mr. Jolly a Bench of Calcutta High Court held in an application by Mrs. Jolly against her husband under section 488 Cr. P. C. that‑
"the residence of the husband in Calcutta from the 16th to the 23rd January when the application under section 488, Criminal Procedure Code, was made, was sufficient to give the Presidency Magistrate's Court in Calcutta jurisdiction, having regard to subsection (8) of section 488, Criminal Procedure Code."
8. In view; therefore, of my findings on the facts of this case that the applicant Ramzani was residing in Karachi and that the Courts at Karachi have jurisdiction in respect of the application under section 488 Cr. P. C. filed by the opponent against the applicant and now pending in the Court of Mrs. Pai, A. C, M., Karachi, I see no force in these two applications i.e. the Transfer and the Revision Applications and they are, therefore,
dismissed.
K. B. A.
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