2014 PLP 1809 (MLD)

ATIR MAHMOOD, J.

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the impugned order dated 28-11-2012 passed by the learned Judge Family Court, Faisalabad whereby review application filed by the petitioner against the order dated 19-11-2012 was dismissed.

2. The brief facts of the case as narrated in this writ petition are that the respondent No.2, Mst. Najma Kanwal (the respondent) filed suits for recovery of dowry articles and for the recovery of maintenance allowance of the minors which were decreed by the learned Judge Family Court Faisalabad vide judgment and decree dated 10-2-2009. There-after the respondent filed an execution petition against the petitioner-judgment-debtor. In the execution petition the petitioner surrendered himself before the mercy of the court and refused to pay amount of dowry articles and maintenance allowance whereupon he was sent to civil imprisonment for one year vide orders dated 25-2-2011 and 5-3-2012 in each case. After the lapse of one year i.e. 5-3-2012, the petitioner requested the executing court to release him as he has already undergone one year civil imprisonment. There-after on 19-11-2012 the learned Judge Family Court again issued non-bailable warrants of arrest of the petitioner, consequences of it the petitioner was arrested. When the petitioner was presented before the court, he requested that he has already undergone a civil imprisonment of more than one year and further detention is illegal and unlawful but the learned Judge Family Court refused his request. The petitioner then filed a revision petition before the learned executing court which was dismissed by the learned Judge Family Court on 28-11-2012. The petitioner feeling aggrieved from the said order filed an appeal before the learned District Judge, Faisalabd which was later on withdrawn by the petitioner on 8-12-2012.

3. Learned counsel for the petitioner has contended that the impugned orders dated 19-11-2012 and 28-11-2012 passed by the learned Judge Family Court, Faisalabaad are against the law and facts of the case; that under section 55 of C.P.C. no person/judgment-debtor is liable to be re-arrested under the decree in execution petition when he has once completed the sentence of one year; that it is a settled principle of law that no person can be punished twice to the same offence; that the impugned orders are against the fundamental rights of the petitioner.

4. On the other hand, learned counsel for the respondent No.2 has supported the impugned orders passed by the learned Judge Family Court, Faisalabad by submitting that the said orders are well reasoned and the learned court below has committed no illegality while passing the same.

5. The perusal of the record reflects that the respondent No.2 filed an execution petition for recovery of maintenance allowance from the petitioner on 15-9-2006. Then another execution petition was filed on 7-12-2009 for satisfaction of the decree dated 10-2-2009 passed in the suit for recovery of dowry articles. In the subsequent execution petition for recovery of dowry articles, the petitioner was arrested by the order of the executing court and was sent to civil prison vide order dated 25-2-2011. At that relevant time, the other execution petition for recovery of maintenance allowance was also pending before the court. In the earlier execution petition (out of which this writ petition has arisen), the petitioner was summoned from jail and he was produced before the executing court on 5-3-2011 in police custody where he categorically denied to pay the decretal amount. The case was adjourned for 19-3-2011 and on the said date he repeated his stance and refused to pay the decretal amount. There-after, he used to appear before the executing court under police custody and on 5-3-2012 he was ordered to be released from the prison. The said order is reproduced as under:-- "Perusal of the record reveals that judgment-debtor was produced from jail on 5-3-2011. He was sent to civil prison in connected execution petition titled "Najma Kanwal v. Shafqat Ibrar" by the court of Shahzad Aslam, Civil Judge Ist. Class, Faisalabad. In instant execution petition he has served a period of one year on 2-2-2012. However, he was produced before the court on 5-3-2011. Now a period of one year has lapsed. According to section 55 of C.P.C. he could not be further detained in civil prison as a period of one year has been lapsed. Therefore he be released forthwith if not required in any other case. However, his release from civil prison will not absolve him from his liability to pay decretal amount to the decree-holder. Hence, he is directed to appear before the court on 5-4-2012." (Emphasis provided)

6. The execution petition remained pending and again the notices were issued to the judgment-debtor i.e. the petitioner. Thereafter, the warrants of arrest were issued and he was again arrested. He was produced before the court on 19-11-2012 and it was submitted that since he has served imprisonment for more than one year, therefore, he cannot be sent to civil prison again but the executing court while disagreeing with the contention of the petitioner sent him behind the bars while observing that he was sent to the civil prison in another execution petition and has not served the sentence for the satisfaction of the decree in the subsequent execution petition. The impugned order dated 19-11-2012 reads as under:-- Then an application for review of the order was filed by the petitioner which was dismissed vide order dated 28-11-2012. The relevant paragraph of the said order is reproduced as under:-- "From perusal of the record it is transpired that judgment debtor/petitioner admittedly remained behind the bars for almost one year but the same imprisonment was with regard to some other execution petition titled "Mst. Najma Kanwal v. Shafqat Ibrar" regarding recovery of dowry articles. Although, the presence of judgment debtor/petitioner was marked before the court and he was summoned by the Court from jail but it is very much clear from the order sheet that judgment debtor was not ordered to be kept in jail in present execution petition. Admittedly, judgment debtor/petitioner has to pay an amount of Rs.1,19,534 being decretal amount to his minor children and he is liable to pay the same. Thus, order dated 19-11-2012 passed in accordance with law and application for review of the same is dismissed being baseless. The instant application along with order be appended with main petition". (Emphasis provided)

7. Undeniably, the petitioner was brought before the court from the prison on 5-3-2011 while he was already under arrest and he categorically refused to satisfy the decree by making any payment, therefore, it was incumbent upon the executing court to pass an order regarding his detention in the said execution petition. There was no justification for the executing court at that relevant time, not to pass any speaking order in this regard. Since the proceedings of the execution petition were under progress simultaneously and the petitioner was brought before the court in both the execution petitions, therefore, his period of detention is to be construed in both the execution petition. Act of the court whereby no speaking order was passed by the executing court cannot prejudice the rights of the petitioner. He cannot be vexed twice and cannot be sent to civil prison more than one year which he has already served. The order dated 5-3-2012 passed by the learned predecessor of the executing court was just in accordance with law. The decree-holder may adopt other modes for satisfaction of the decree in accordance with law.

8. With these observations, this petition is accepted and the impugned orders dated 19-11-2012 and 28-11-2012 passed by the learned Judge Family Court/executing court are hereby set aside. ARK/S-103/L Petition accepted.