MUHAMMAD ANWER Versus STATE

This an application for quashment of complaint. On 19th February , 1975 Mst. Niamat Bibi respondent No. 2 had filed a complaint in the Court of 1st Class Magistrate, Ghotki under sections 366, 376, 342, 452, 363 and 395, P. P. C. alleging that her daughter Mst. Nasreen, who was aged 13 years was kidnapped on 21st January, 1975 by present applicant, as well as several others from Dehrki and she was taken away m a Jeep after the complainant had been tied. She had stated that accused were armed with hatchet, lathis and gun. It was stated that Tamachi and Allah Rakhi had come running on the cries of the complainant. Complainant continue to say that she has gone to Dehrki Police Station, but her complaint was not recorded by Police. She further alleged that' on 1st February, 19? father and mother of applicant had gone .to the complainant at .Dehrhi and told her to accompany them and that they will return Mst. Nasreen and requested her not to take any further action. The complainant took Sahib Dino, Allah Rakhio, Sher Khan, Shaukat Ali, Mohammad Bux and Abdul Haleem with her to Chak No. 96 a village of the applicant. Com plainant stated that she saw Mst. Nasreen Bibi and they demanded their articles from the accused Anwar and others upon which they became annoyed and took away Mst. Nasreen and confined her illegally. There after, accused persons beat the complainant and her party and snatched their wristwatches, gold ring, gold forks and cash and they also tied the complainant party. The complainant was taken into the house of one Mohammad Saleem, where accused Hashmat and Latif committed illicit intercourse with complainant. The complainant party were, thereafter, involved in a false case and arrested and were released on 13th February. 1975. The applicant Mohammad Anwar has alleged that the complainant Mst. Niamat Bibi has filed complaint on 19th February, 1975 which was in retaliation to the F.

1. R. which he had filed on 2nd February, 1975 at Sabzal Police Station, Rahimyar Khan under section 366/452; where h: had alleged that Mst. Niamat Bibi and her son Shaukat with 5 othc persons had entered in his house and tried to abduct his wife Mst. Nasreen but he and his brother had resisted their attempt and rescued Mst. Nasreen from them. In consequence of F. I. R. of Mohammad Anwar Mst. Niamat Bibi and her co‑accused were arrested.

Mr. Abdul Aziz argued that the complaint was mala fide and it had been filed about one month after the incident. Incident of kidnapping is alleged to have taken place on 21st January 1975 while the complaint was fled by Mst. Niamat Bibi on 19th February 1975. I find this criticism justi fied on the face of it. The explanation of delay mentioned by Mst. Niamat Bibi is that she had gone to Dherki Police Station and wanted to file her report, but the police did not take down her report at the instance of the present applicant. It is difficult to believe that a mother, who had been deprived of her young daughter would remain content without a report for such a long time after the kidnapping of her young daughter. If the police had failed to record ~he F.I.R. she could have moved a direct complaint in the Court as she dirt on 19th February, 1975 or she could have sent some protest in writing by telegram or under Regd. A. D. to the higher auho rities of the police against the failure of local police to record the F. I. R. but nothing of that sort was done from 21st January, 1975 till 1st February, 075 and therefore, it is difficult to believe that long delay in lodging the F. I. R. was justified and such delay raises a great deal of doubt and suspension in respect of the event of abduction as alleged. The applicant had pro duced Nikah Nama of 16th May, 1974 as Annexure to his petition, where carriage between the petitioner and Mst. Nasreen is shown to have been solemnised on 16th May, 1974. And may be this Nikah Nama created the relationship between the parties, but later on the relations deteriorated, and allegations and therefore, allegations were made. There is no denial from respondent of this Nikah Nama particularly.

The most significant aspect of the case, however, is that the complain ant of Mst. Niamat Bibi was filed on 19th February, 1.975 after Niamat Bibi and others had been arrested by the police of Sadiqabad on 2 nd February, 1975 on the basis of the F.

1. R. lodged against them by the applicant Mohammad Anwar. In these circumstances it has been correctly argued by Mr. Abdul Aziz that the complaint on 19th February, 1975 in respect of an offence on 21st January, 1975 was merely a counter blast and retaliation to the F. I. R. of applicant Mohammad Anwar, and therefore, completely false and mala fide and amounted to an abuse of the process of the Court. I am quite sure that if the allegation of abduction of Mst. Nasreen Bibi on 21st January, 1975 had any substance then Mst. Niamat Bibi would not have waited for about one month to file the complaint. Mr. Aziz relied upon 1978 P Cr. L J 707 where a case of false report of theft had been filed in retaliation of proceedings under section 107/117, Cr. P. C. and the story mentioned was highly improbable and the F. I. R. had been lodged after 8 days the proceedings were quashed by the High Court. Mr. Aziz has submitted that the bare reading of the complaint would show that it gives a highly exaggerated and unbelievable account of events and the learned Magistrate has himself not believed the entire story of Mst. Niamat Bibi as he has issued process only under section 366, P. P. C. but did not issue any processes under section 376 or 395, P. P. C., although Mst. Niamat Bibi had made definite allegation that she had been raped by two accused and cash and. valuable articles had been snatched from the complainant and her associates by the accused. The contention of Mr. Aziz is correct and F. L R. does appear to be rather a fanciful story and even the offences which are alleged to have been committed by the accused on 1st February, 1975 and are of a such serious nature as amount ing to rape and robbery have only been reported against on 19th February, 1975 directly to the Court at Dharki without any report having been made either to the police at Sadiqabad or to the Court at Sadiqabad in spite of the fact that the complainant according to her own statement had been released on bail on 13th February, 1975. It is inconceivable that a party, which has been the victim of rape and robbery would not report to the police or the Court about the same for such a long time as 18 days from 1st February, 1975 to 19th February, 1975 or even if we consider the date of their release viz. 13th February, 1975 as the relevant starting time even then the report on 19th February, 1975 of such serious matters is too much belated. Further surprise is that Mst. Niamat Bibi felt satisfied on the issue of process under section 366/34, P. P. C. and did not agitate about the offences of rape and robbery. She has therefore admitted to have exaggerated her story.

Mr. A. K. Lakhan has however submitted that section 249‑A of Cr. P. C. should have been made use of by the applicant before coming to this Court. He has relied upon Khushi Mohammad's case (1979 S C M R 79) where Supreme Court observed that in view of section 249‑A of Cr. P. C. resort to the provisions of section 561‑A, Cr. P. C. was not justified. He also relied upon Ghulam Mohammad v. Muzammal Khan (P L D 1967 S C 317) where it was held that when there is an alternate remedy available then section 561‑A of Cr. P. C. should not be resorted too. However, it was held in Haq Nawaz v. Muhammad Afzal (1971 S C M R 698) that if the purpose of the case be not to advance the cause of justice, but it was designed to harass the accused then it should be quashed.

I am of the view that section 249‑A of Cr. P. C. is not designed for the quashment of the proceedings where the challenge is made on the basis of mala fides but it is designed to secure an acquittal for the accused where the charge is groundless on merits. But, in the case, before me, the com plaint is being challenged, as being malicious, filed about 29 days after the offence without any reasonable explanation of delay and also designed as retaliation to the F. I. R. filed by the applicant Mohammad Anwar on 1st February, 1975 and therefore, the same is as an abuse of the process of the Court, and hence, this challenge is not directed merely on merits as being groundless. Even in respect of merits an allegation is made that the story given in the complaint is fantastic and I agree that the story is hardly believable. I am, therefore, of the view that section 249‑A, Cr. P. C. has been properly utilized.

In view of the above discussion, the proceedings pending in the Court of Civil Judge and Ist Class Magistrate Dherki against the applicant under section 366, P. P. C. are quashed as they are found to be an abuse of the process of the Court.

Proceedings quashed.