Constitution Petition No.D-4218 of 2011

 

Date                                                 Order with signature of the Judge

1. For order on office objection No.2.

2. For order on Misc. No.19672/2011 (Exemption).

3. For Katcha Peshi.

4. For order on Misc. No.19673/2011 (Stay).

(Copy of order has been communicated through fax)

(Comments/statement has been filed by Respondent No.4)

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21st November 2012

Mr. Nasir Ahmed, Advocate for Petitioner.

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                        Through this petition, the petitioner seeks quashment of Crime No.235/2011 under Sections 380, 324, PPC of Police Station B-Section, Latifabad, Hyderabad.

                        Briefly, the petitioner was married to the complainant/respondent No.5 at Karachi somewhere in 1997 and thereafter left for Hyderabad to live with the complainant, out of such wedlock petitioner has three children. However, due to matrimonial disputes petitioner in July 2010 separated and came back to Karachi to join her parents and filed a suit for khulla. Complainant/respondent No.5 also filed guardianship application to claim the custody of children. The record reflects that on 27.10.2010 petitioner was granted khulla by the Family Judge at Karachi Central and on 26.11.2010 complainant lodged said FIR against the petitioner and her brothers. The interesting feature of this FIR is that it records an incident which allegedly had taken place in June, 2010. Complainant in the said FIR asserted that on 6.6.2010 complainant left her wife and children at his in-laws place for summer vacation and on 28.6.2010 when he was in duty, his wife, his sister-in-law, his brother-in-law and husband of his sister-in-law came to his house and took away some golden ornaments, cash and paper of motorcycle. It was stated that on 4.7.2010 when the complainant went at his in-law’s house to bring his wife and children back they refused to accompany and on 18.7.2010 his brother-in-law and husband of sister-in-law along with two people came to his house and the husband of her sister-in-law kept the TT pistol at his temple and forced him to sign a stamp paper on which divorce deed between complainant and petitioner was drafted, but he escaped and Murtaza Hussain made straight fires, but the complainant fled.

                        We have asked the counsel that in case such incident had really taken place on 18.7.2010 why the FIR was lodged on 26.11.2010. Initially he tried to argue that since the police was not lodging FIR, therefore, he had to resort to the Justice of Peace for lodging the FIR. When he asked as to when an application before Justice of Peace was moved. Counsel stated that it was moved on 26.11.2010 the day on which the FIR was lodged.

                        The record further reflects that though FIR clearly states that petitioner had left his children at the place of his in-laws, then after a month came to take the family back still the challan was filed by declaring the petitioner and her brothers as absconders under section 512, Cr.P.C. When asked about this anomaly, the Investigating Officer states that no address was provided by the complainant. Consequently, on the last date of hearing, we directed SSP Investigation to scrutinize the investigation and the SSP Investigation Hyderabad after overviewing the investigation made by the Investigating Officer though refrained make any adverse remarks on the ground that the matter is subjudiced but his report reflects that no crime could be made out as matrimonial dispute was between the parties and even otherwise when the complainant himself states that the pistol was kept at his temple  and fires were made, how could he was not hit, further neither any empty was recovered nor any circumstantial evidence was collected, even no attempt was made to take point of view of the petitioner side. Looking at the strained relation between the parties, we are convinced that the complainant has made a false case against the petitioner just to cause harassment and to overawe and be effective on the guardian and ward proceedings. We are, therefore, of the view that the proceedings are abuse of the process malafide and there is no likelihood of conviction of the petitioner or other accused in the stated crime.

                        We in the circumstances while allowing this petition quash the proceedings emanating from Crime No.235/2011 under Sections 380, 324, PPC of Police Station B-Section, Latifabad, Hyderabad. 

 

JUDGE

 

 

 

 

                                                                                JUDGE