2018 PLP 2548 (YLR)

FAHIM AHMED SIDDIQUI, J.

The petitioner is seeking directions to respondent No. 2 for lodging private complaint about offence of bigamy under the Muslim Family Laws Ordinance, 1961 (hereinafter referred as MFLO) on behalf of the petitioner against respondent No. 3 (Rehan Anjum) before the competent Court of law.

2. The background story of the instant petition is that the petitioner married with the respondent No. 3 (Rehan Anjum son of Inam-ul-Haq Ansari). Nikah was solemnized against the prompt dower amount of Rs. 200,000/- (claimed to be still unpaid). From the wedlock, a daughter namely Zoreena was born to spouses who is in custody of the petitioner. The marriage between the spouses could not flourish, and under compelling circumstances, the petitioner with her daughter left the marital abode in August 2009 and started living with her parents. The petitioner filed a family suit for recovery of dower amount and maintenance. Through the written statement of the said family suit, it has come to the knowledge of petitioner that the respondent No. 3 has allegedly sent a divorce deed along with notice under Section 7 of the MFLO for confirmation of divorce. It is also mentioned in the written statement that a pay order of Rs. 200,000/-being dower amount was also sent to petitioner. The petitioner, however, denied the service of divorce deed, the notice under Section 7 of MFLO and receiving of pay order amounting to Rs. 200,000/-. It is the contention of the petitioner that her address is wrongly mentioned in divorce deed and notice under Section 7 of MFLO. Subsequently, the petitioner withdrew the family suit. Meanwhile, the respondent No. 3 contracted the second marriage with one Ms. Benish without getting consent from the petitioner and permission from the Union Council as well as confirmation of alleged divorce deed. The petitioner, therefore, initiated criminal proceedings against the respondent No. 3 by preferring criminal complaint before the Judicial Magistrate-XI, Karachi Central on account of the offence of bigamy by him. The respondent No. 3 was acquitted by the learned Judicial Magistrate under section 249-A of Cr.P.C. on the ground that she had directly approached to the Court without adopting the due course of law.

3. After the verdict of the learned Judicial Magistrate, the petitioner approached the respondent No. 2 (Secretary Union Council) with a request to take action against the respondent No. 3, but he did not attend the application of the petitioner. After exhausting her remedy before the concerned Secretary, Union Council the petitioner approached this Court under the writ jurisdiction through the instant petition.

4. I heard the arguments advanced and had gone through the relevant record minutely. The learned advocates for both the parties assisted this Court from the funds of their knowledge by making submissions at considerable length.

5. The learned counsel for the petitioner after describing the entire facts of the case submits that the respondent No. 3 was well aware of the correct and proper address of the petitioner's parents and intentionally he had given a false address in the divorce notice as well as other correspondence so that the same could not be served upon her properly. According to him, the interpolation of the address of petitioner's parents is established from looking at the address of Nikahnama and notices. He submitted that due to lack of proper advice, the petitioner has filed a private complaint directly which was dismissed and then she had approached the respondent No. 2 for lodging complaint against the respondent No. 3 through Arbitration Council for the offence of bigamy. According to him, the previous complaint was dismissed due to the wrong jurisdiction as such under Article 199 of the Constitution; this court can reopen the criminal case by issuing proper directions to the respondent No.

2. In support of his contention, he took reliance from 1989 CLC 1062, 1994 SCMR 2098 and a judgment of the honourable Supreme Court in Criminal Petition No. 1252/2016.

6. As against the above, the learned counsel for the respondent No.3 submitted that the relief claimed in the instant petition cannot be granted. He pointed out that the criminal complaint filed by the petitioner was not dismissed, but it was finally decided under the provision of Section 249-A of the Code of Criminal Procedure (hereinafter referred as Code), and the said order is not challenged which attained finality. Regarding address of the petitioner's parents, his contention is that in Nikahnama complete address is not mentioned and from the circumstances, it is established that the petitioner was well aware of divorce. He pointed out that the petitioner did not demand maintenance for herself in her family suit because she knew that she was no more wife of the respondent No.3. He took reliance from PLD 1972 Lahore 694, NLR 1980 Lahore 205, PLD 1.985 Lahore 319, 1985 MLD 1175, PLD 1988 FSC 42, PLD 1988 Karachi 169, 1992 SCMR 1273 and 1994 SCMR 2098.

7. The petitioner's contention is that her husband (respondent No. 3) has contracted another marriage when the marital bond between them was in existence. No doubt, marrying to another wife without the permission of the previous wife is a 'malum prohabitum' under the law. In this respect, Section 6(5)(b) of the MFLO is relevant which provides as follows:-- "any man who contracts another marriage without the permission of the Arbitration Council shall (b) conviction upon complaint be punishable with simple imprisonment. On which may extend to one year, or with fine which may extend to five thousand rupees, or with both:" For putting the law into motion in respect of above-mentioned penal section of the MFLO, the mechanism is provided under Rule 21 of the Muslim Family Laws Rules, 1961, which is reproduced as under:-- "

21. No Court shall take cognizance of any offence, under the Ordinance or these Rides, save on a complaint in writing "by the Union Council stating the facts constituting the offence." From the above provision, it is clear that the cognizance of an offence under MFLO can only be taken on a written complaint by the Union Council in which the narration of full facts in respect of bigamy should be given.

8. In the instant matter, the petitioner had initiated a criminal case by filing a private complaint herself before the concerned judicial magistrate. The said complaint was certainly not competent according to Rule mentioned above. In the said criminal complaint, an application under Section 249-A, Cr.P.C. was filed on the same ground and after hearing, the said application was allowed by the learned Judicial Magistrate, and the respondent No.3 was acquitted from the charge. The acquittal order was not challenged, and the same now attains finality.

9. Now the petitioner is seeking a direction of this Court to respondent No. 2 for initiating another criminal case by filing a direct complaint before the concerned court regarding the same offence. It is worth mentioning that the instant constitutional petition cannot be a substitute for an acquittal appeal as such the acquittal order passed by the learned Judicial Magistrate cannot be reviewed under this proceeding. Besides, it is the legal position that no complaint can be entertained except one filed by the concerned Union Council.

10. The learned counsel for the petitioner during his arguments pointed out that the complaint was to be filed by respondent No. 2 through Arbitration Council. I am of the view that after confirmation of divorce, there is no role of Arbitration Council and a complaint is to be filed by the Union Council through its Chairman or Secretary (if office of chairman is vacant). In this respect, I fortify my view from the case law relied by the learned counsel for the petitioner and reported as Zakir Hussain Siddiqui v. Mst. Nasim Bano and others (1989 CLC 1062), wherein Muhammad Zahoorul Haq, J. (as he then was) after examining this point made the following observations:-- "It is, therefore, apparent that the complaint in respect of bigamy is to be made by the Union Council and by none else. The Arbitration Council has nothing to do with such a complaint."

11. It is a settled principle of jurisprudence that what has been provided under the law, the same should be followed accordingly. As it has been laid down in Rule 21 of the Muslim Family Laws Rules, 1961 that the criminal law, regarding the offences of MFLO, can only be put in motion by the Union Council and a private person have no authority to initiate an action in this respect. I am of the view that in case of bigamy without the permission of first wife, not the first wife but only the Union Council may have a grievance against the husband for lodging a complaint in respect of the offence. First wife may apply to Union Council for filing a complaint but again after going through the entire material, the Union Council has to decide whether a criminal complaint is justified or not. A criminal complaint on behalf of the Union Council can only be filed through its Chairman or Secretary and the Union Council cannot delegate this power to anyone else including first wife. A similar view has already been taken by this Court in the case reported as Atiq-ur-Rehman v. Mst Sadia and another (2010 MLD 470).

12. The learned counsel for the petitioner also relied on an unreported judgment of Ishtiaq Ahmed v. The State (Criminal Petition No. 1252 of 2016) in which it is held by the honorable Supreme Court that the wife is 'aggrieved person. In this respect with profound respect to the honorable Apex Court, my observation is that the case of Ishtiaq Ahmed (supra) pertains to an incident of the province of Punjab where Rule 21 has been amended and instead of word 'Union Council' the word 'aggrieved person' has been inserted by the legislature but this rule stands in its original position in Sindh, hence only Union Council will competent to file complaint in the province of Sindh.

13. However, in the instant matter, another aspect requires consideration. The private complaint filed by the petitioner was not dismissed in liminie by holding that the complaint was not maintainable but after taking cognizance, on an application filed under Section 249-A of the Code, the trial Court acquitted the respondent. According to Article 13 of the Constitution of Pakistan and Section 403 of the Code, no one can be vexed twice for the same cause. If the petitioner has filed a complaint and the same was dismissed in liminie, then there may be a case in favour of the petitioner. But after the acquittal of the respondent by a competent court, the bar under the above-mentioned provision will come in the way for a direction of the retrial of the respondent in this petition. In a similar situation, a division bench of this Court in a case reported as Abdul Hafeez v. Additional District Judge-VII, South Karachi and 2 others (PLD 2009 Karachi 350) held as under:-- "The concept of double jeopardy is attracted where the accused has been tried for the offence charged in the competent Court and there is judgment or order of conviction or acquittal. Merely lodging of FIR and filing of complaint under the Act will not attract the rule of double jeopardy."

14. In view of the above discussion, it is held that after the proceeding initiated by the petitioner against the respondent by filing a private complaint in which he is acquitted, no other criminal proceeding for the same cause is possible. It is again observed that only the Union Council concerned is competent to file the complaint in respect of the offence of bigamy/ polygamy, and the petitioner herself has no locus standi regarding the same. The instant petition is dismissed in above terms. MH/F-1/Sindh Petition dismissed.