2000 PLP 1324 (YLR)

Instant petition under section 417(2), Cr.P.C. for Special Leave to Appeal is Directed against the judgment, dated 13‑10‑1998 passed by Syed Tahir Abbas Bukhari, Magistrate 1st Class, Rawalpindi, Whereby he acquitted Muhammad Arif accused/respondent No. 1 in a complaint filed by the complainant/petitioner under section 6(5) of Muslim Family Laws Ordinance, 1961.

2. Briefly stated the facts are that complainant/petitioner contracted marriage with Muhammad Arif/respondent No. l on 31‑8‑1984. Later on Muhammad Arif contracted second marriage on 18‑11‑1993 with Mst. Shagufta Yasmeen without obtaining permission to contract second marriage from the petitioner. Hence she instituted a complaint under section 6(5) of Muslim Family Laws Ordinance, 1961 against her husband Muhammad Arif/respondent. The trial Court recorded preliminary evidence and summoned the accused/respondent No.1 to face trial. A charge under section 6(5) of Muslim Family Laws Ordinance, 1961 was framed to which he pleaded not guilty and claimed trial.

3. To bring home guilt to the accused, the complainant/petitioner examined herself as P. W.1, Munir Ahmad Butt P. W.2 and Nasir Javed Butt P.W.3. Her learned counsel brought on record certain documents Exhs.P.A. to P.Y. and thereafter, closed her evidence vide statement dated 7‑3‑1998.

4. When examined under section 342, Cr.P.C., the accused/respondent No.1 denied the complainant's version and stated that he had been implicated in this case falsely and that he had contracted marriage after obtaining permission from the Arbitration Council. He also examined Amir Hameed Awan D.W.1, recorded his own statement under section 340(2), Cr.P.C. as D.W.2 and thereafter, closed defence evidence.

5. After going through the evidence produced by the parties, the trial Court acquitted the accused/respondent No. 1 Muhammad Arif vide judgment, dated 3‑10‑1998. Hence the petition.

6. Arguments have been heard and record perused.

7. The only point which requires determination is, if Muhammad Arif respondent No.1 had contracted second marriage without the permission of the Arbitration Council as contemplated by section 6(5) of Muslim Family Laws Ordinance, 1961.

8. Stand of the complainant/petitioner is that Muhammad Arif respondent No.1 contracted second marriage without obtaining her permission and the said fact stands proved from columns Nos. 21 and 22 of Nikahnama Exh. P.C. of second marriage dated 18‑11‑1993 which are blank. His contention is that if said permission had been obtained by Muhammad Arif accused/respondent No. l for contracting second marriage, he must have referred to said permission in the relevant columns of Nikahnama Exh. P.C. He argued that as the said columns Nos. 21 and 22 are blank, so it is presumed that Muhammad Arif accused/respondent No.1 had not obtained any such permission as required by section 6(5) of Muslim Family Laws Ordinance, 1961. He, thus, submitted that this fact alone is sufficient to prove that Muhammad Arif accused/respondent No.1 had contracted second marriage without permission and the learned trial Court was not justified in passing order of acquittal dated 13‑10‑1998.

9. Conversely, stand of learned counsel for the accused/respondent No.1 Muhammad Arif is that permission for contracting second marriage is to be obtained from the Arbitration Council as contemplated by section 6(5) of Muslim Family Laws Ordinance, 1961 and the said permission was obtained by the accused/respondent No.1 on 13‑1‑1993. He submits that this permission dated 13‑1‑1993 was challenged by the petitioner by filing a revision petition before the Deputy Commissioner, Rawalpindi which was dismissed on 14‑1‑1998. He further argued that the complainant/petitioner thereafter filed Writ Petition No. 1201 of 1998 whereby she again challenged the orders, dated 13‑1‑1993 and 14‑1‑1998 and the said writ petition was also dismissed as withdrawn by the complainant/petitioner on 30‑6‑1998. He submitted that even during the trial, Ex‑Chairman Union Council, Morgah was summoned by the Court and he appeared on 11‑6‑1995 and stated that he had granted permission to the accused to contract second marriage. He convassed that the trial Court thereafter summoned the Secretary, Union Council, Morgah who also appeared in Court and corroborated the statement of Chairman. His contention is that as permission of Arbitration Council was necessary to contract second marriage and the same had been obtained by the accused/respondent No.1 on 13‑1‑1993, so he had not committed any offence as contemplated by section 6(5) of Muslim Family Laws Ordinance, 1961.

10. As discussed above, the pivotal point which requires determination is, if the second marriage had been contracted by the accused in violation of the provisions contained in section 6(5) of Muslim Family Laws Ordinance, 1961. The stand of complainant/petitioner is that necessary permission is to be obtained from her acid as she had not granted such permission, so the accused has committed the offence as contemplated by section 6(5) of the Ordinance (supra). A perusal of section 6(5) of the said Ordinance reveals that requisite permission is to be obtained from the Arbitration Council and not from the ex‑wife. As observed earlier, said permission was obtained by the accused on 13‑1‑1993. This order was challenged by filing a revision petition before the Deputy Commissioner, Rawalpindi who was pleased to dismiss the same vide, order dated 14‑1‑1998. Again both these orders, dated 13‑1‑1993 and 14‑1‑1998 were challenged vide Writ Petition No. 1201 of 1998 which was also got dismissed as withdrawn on 30‑6‑1998. All these facts prove that permission of Arbitration Council, dated 13‑1‑1993 stands proved. This being the factual position, it stands proved that Muhammad. Arif accused/respondent No.1 had obtained permission as required by section 6(5) of the Muslim Family Laws Ordinance, 1961 from the Arbitration A Council prior to contracting second marriage on 18‑11‑1993. The mere fact that the accused/respondent No.l Muhammad Arif had not mentioned this fact in columns Nos.21 and 22 of Nikahnama Exh. P.G. does not afford a ground to recall the order of acquittal.

11. In the light of facts stated above, there is no force in this petition for Special B Leave to Appeal and the same is hereby dismissed. N.H.Q 107/1