Mst. GUL BANO and 2 another vs ALLAH BACHAYO and others
This criminal miscellaneous application was filed under Section 561-A, Code of Criminal Procedure 1898, challenging a Judicial Magistrate's order that rejected a police report submitted in 'C' Class and directed the submission of a challan under Section 173, Code of Criminal Procedure 1898. The complainant had alleged theft and abduction against the applicants, who claimed the allegations were fabricated due to the complainant's disapproval of their marriage. The High Court reviewed the evidence, noting that the complainant had concealed the fact of the marriage in the FIR, no recovery of stolen items was made despite police custody, and no witnesses observed the alleged theft. The Court held that the allegations were false and concocted. Consequently, the High Court set aside the Magistrate's order, emphasizing that a Magistrate must judiciously consider the material and facts presented in a police report before rejecting a 'C' Class recommendation. The principle established is that where an FIR is demonstrably false and motivated by personal vendetta regarding a marriage, the continuation of criminal proceedings constitutes an abuse of the court's process.
- Can a High Court quash criminal proceedings under Section 561-A, Code of Criminal Procedure 1898, where the allegations in an FIR are found to be false and motivated?
- Is a Magistrate required to apply judicial mind to the facts and material presented in a police report before rejecting a 'C' Class recommendation?
- Does the concealment of material facts, such as a marriage, by a complainant in an FIR justify the quashment of criminal proceedings?
- Section 561-A, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
- Section 380, Pakistan Penal Code 1860
- Section 14, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 22-A, Code of Criminal Procedure 1898
ORDER
1. ' MAQBOOL BAQAR, J.---Statement has been filed by respondent No,2, which is taken on record.
2. ' Through this application under section 561-A, Cr.P.C. The applicants have impugned the order dated 15-7-2009, whereby the learned Judicial Magistrate Matli has rejected the report submitted by the police under section 173, Cr.P.C.
3. ' Brief facts of the case are that complainant Allah Bachayo lodged an F.I.R. Bearing Crime No,36 of 2009, under section 380, P.P.C. r/w section 14 Hudood Ordinance, alleging that on 7-2-2009 Yar Muhammad Shah, Photal Shah and Qasim Shah visited the Complainant with their family and stayed with him overnight. However, in the morning all the above named persons slipped away along with Mst. Gul Bano, the daughter of the complainant. The complainant also noticed that some gold ,jewellry and Rs,5500 were missing from his house. It is further alleged that Mashooque Ali and Muhammad Ali Notkani informed the Complainant that at about 3-00 p.m. When they were coming back from their lands they saw Nazim Shah and Yar Muhammad Shah with three ladies going in the other direction.
4. ' The Investigating Officer after conducting investigation and recording statements of the witnesses submitted report before the Magistrate for the disposal of the case in "C" Class. However, the learned Magistrate did not accept the same and directed the Investigating Officer to submit report under section 173, Cr.P.C. Against the accused persons within 14 days.
5. ' Learned counsel for the applicants submits that the applicant No,1 the daughter of respondent No,1 (Complainant), has on 19-7-2008 married the applicant No,2, who is one of the accused. He has referred to the Nikahnama and the affidavit of free will (Annexures P/11 and P/13 to the Applicant) to substantiate his claim. He further submits that the father of the applicant No,1 being annoyed with the marriage started harassing and threatening the applicants and thus the applicants were constrained to file an application under section 22-A, Cr.P.C. Before the Ex-Officio Justice of Peace seeking protection, whereupon the learned Ilnd Additional Sessions Judge, Shaheed Benezirabad, through his order dated 11-2-2009 directed the concerned police to provide legal protection to the applicants according to law and disposed of the application accordingly.
6. The learned counsel also referred to the news clipping from the Daily Newspaper "SHA.AM" which carries, the statement of the applicants to the effect that the complainant party being annoyed and displeased with their marriage is threatening the couple. The learned counsel also submits that since the applicants were under life threat and the prosecution was not even recording their statement, the applicants filed C.P. No,S-207 of 2009 before this Court. However, after filing the petition, the Investigating Officer recorded statement of the applicant, learned single Bench was pleased to dispose of the same vide order dated 26-6-2009 on the undertaking of the Investigating Officer that he will submit his report before the concerned Magistrate within a week from such date.
7. ' I have perused the statements of the applicants with the assistance of the learned Additional Prosecutor-General Sindh, the same are to the effect that the applicants have married against the wishes of the respondent No,1 (the complainant), further that the applicant No,1, the daughter of respondent No,1, after the marriage has not ever visited the respondent No,1 and that neither the applicant No,1 nor applicant No,2 and or his relatives ever visited the residence of the respondent No,1 (Complainant) after the marriage of the applicants and also that the allegations in the F.I.R.
8. Are mere concoction.
9. ' In view of the above statement and more crucially in view of the fact that although the applicants have married in the year, 2008 and as would be evident from the fact of filing of the petitions and the news clipping, the complainant was aware of such marriage, however in the F.I.R. He has concealed the above fact, and further, though two of the accused in the case remained in police custody for three days; no recovery of the alleged stolen items has been made. None of the witnesses has seen the accused stealing the articles are alleged and/or leaving the complainant's house.
10. ' The above clearly shows that the allegations levelled in the F.I.R. Are incorrect, rather false. The learned Magistrate ought to have considered all these facts before passing any order on the police report, which he has failed to do so I would therefore, allow this Criminal Miscellaneous Application and set aside the impugned order. The listed application is also disposed of.