P L D 1968 Karachi 34 (PLP)

B. A. Siddiqi for Respondent No.

1. Nooruddin Sarki for the State. Date of hearing: 27th April 1967. This criminal revision application arises in the following circumstances: The, parties are husband and wife and owing to certain personal considerations the applicant‑husband during the life time of the opponent, his wife, married a second wife with her permission while the opponent continued living with him for sometime until the 7th July 1962, when she left his house without his consent or permission. This state of affairs' continued until July 1964, when the opponent No. 1 under section 488, Cr. P. C. applied against the applicant for her maintenance and on the 16th of September 1964, the applicant was ordered to pay Rs. 150 per month as maintenance to this opponent from the date of her application namely the 27th April 1964, with Rs. 150 as costs. On 1‑10‑1964 opponent No. 1 applied under section 488, sub section (3), Cr. P. C. seeking enforcement of the order of maintenance dated the .16th September 1964 and on the same day the learned A. C. M. ordered issuance of a warrant of attachment. On the 4th November 1964, another application was filed by the opponent No, Von the same grounds praying for the issue of a warrant of attachment. The learned A. C. M. instead issued a bailable warrant for the arrest of the applicant in the sum of Rs. 2,

000. The diary of the proceedings before the learned A. C. M. of which a certified copy has been produced here, shows that on the 19th April 1965, a bailable warrant in the sum of Ra. 2,000 was again ordered against the applicant and that on the 14th May 1965, in the presence of the opponent No. 1 the car of the applicant which had been already attached was ordered to be stored in the Nazarat Office. It is admitted that later the car was auctioned, according to the applicant for Rs. 1,020 and in his absence while he was allegedly out of the country on the pilgrimage. The applicant did not file an appeal or revision against the order of the attachment or the auction or sale of the car. Warrants issued against the applicant from time to time were returned unexecuted, until the 30th June 1966, when the learned A. C. M. issued a non-bailable warrant of, arrest against the applicant. This non‑bailable warrant also could not be served on the applicant. However, on the 25th of July 1966, this revision application was filed in this Court and was admitted to a regular hearing with stay of the proceedings in the lower Court.

2. I have now heard Mr. Riazul Hassan for the applicant, Mr. B. A. Siddiqi, for the opponent No. 1 and Mr. Nooruddin Sarki for the State.

3. The only point that requires consideration is what has been urged by the learned counsel for the applicant in that the learned A. C. M. who passed the order of maintenance and the subsequent orders for he issue of bailable and non‑bailable warrants and the attachment of car of the applicant, fell into error fundamentally in not issuing a notice to the applicant to show cause before issuing these orders. It is contended that under subsection (3) of section 488, Cr. P. C., if a person who has been ordered to pay maintenance "fails without sufficient cause" to comply with the order, the Magistrate may for the breach of the order, issue a warrant for levying the amounts due in the manner hereinbefore. " It is therefore urged that the Legislature contemplated the issue of a notice before any action could be taken for the enforcement of an order of maintenance. Reliance has been placed on Laxmi Narain v. State (A I R 1959 All. 556), which deals with a ease in th6 similar circumstances, the learned single Judge observing that:‑

"The provision in section 488(3) that the Magistrate may issue a warrant notwithstanding the husband's offer to maintain his wife, itself contemplates that the offer has been made before the issue of warrant. The surest way of ensuring that the husband has been afforded an opportunity of making such an offer before a warrant is issued is by issuing a notice to him to show cause why a warrant should not be issued. The provision in subsection (6) to section 488, also indicates that a notice should be given to the husband and an enquiry should be made in his presence before issuing a warrant. The Magistrate must hate evidence to satisfy himself that a warrant should be issued. An order passed by a Magistrate without issuing a notice and holding an enquiry is illegal. A single Judge of the Patna High Court in Robbin Richard v. Mercy Richard (A I R 1959 Pat. 489), was of the view that the words "without sufficient cause" obviously refer to whether the explanations for not carrying out the orders of the Court are satisfactory or not. If they are not satisfactory, the Court will hold that the person so ordered has failed to carry out the order of the Court without sufficient cause. It could at that stage neither be challenged nor considered whether the order passed in the proceedings under section 488, Cr. P. C. was proper or not. The proper remedy in that case is to go to the superior Court. It was admitted during the course of arguments today before me by the learned counsel that the applicant did apply in revision against the order of maintenance dated the 16th September 1964 and that revision application has been decided against him on 18th June 1966. The learned counsel for the opponents agrues that as the applicant had knowledge of the order of maintenance dated the 16th September 1964, which was passed after hearing the parties, he should be prepared for any further orders that were passed in consequence of that order and no notice in the circumstance was necessary particularly as the applicant was all along in Karachi and that the contention with regard to applicant being out of the country on Haj is untenable. The point really is whether a notice was necessary before further proceedings could be taker; in continuation of the order of maintenance. I have earlier referred to the relevant law on this point. The necessity of the Legislature for substituting the words "fails without sufficient cause" for the earlier words "wilfully neglects" in subsection (3) of section 488, Cr. P. C., supports the contention that a notice under the circumstances was a condition precedent) for the issue of any further orders.

4. For these reasons I allow the revision application and ail the orders issued by the learned A. C. M. after 16th September 1964, are set aside. K. M. A. Revision accepted.