2009 P Cr (PLP)

MUHAMMAD AHSAN BHOON, J.

Mst. Robina, Abu Sufian, Muhammad Akram son of Muhammad Bashir, Muhammad Akram son of Muhammad Bodi, Muhammad Mushtaq and Muhammad Afzal, petitioners seek quashing of impugned order, dated 25-7-2007 passed by learned Judicial Magistrate/respondent No.3, whereby they were summoned to face trial in complaint filed by Mst. Shagufta Fardaous/respondent No.1, under section 6(5)(b) of Muslim Family Law Ordinance, 1961.

2. Briefly the facts of the case are that' Mst. Shagufta Fardous/ respondent No.1 filed a complaint under section 6(5)(b) of Muslim Family Law Ordinance alleging therein that she was married with Muhammad Ishaq/respondent No.2 and out of that wedlock three daughters were born and thereafter without her permission, respondent No.2 contracted second marriage with Mst. Robina (petitioner No.1) and he declared in the Nikahnama that previously he was not married. It was further alleged in the complaint that the petitioners were also liable to be tried as they facilited in the commission of crime.

3. Learned counsel for the petitioners contends that the petitioners being relatives inter se have been dragged in a false and frivolous complaint; that there is no evidence of any sort against any of the petitioners; that from the contents of the complaint, offence under section 6(5)(b) of Muslim Family Law Ordinance is made out only against respondent No.2, husband of respondent No.1 and nobody else can be tried; that section 109, P.P.C. is not applicable, in the instant case.

4. On the other hand learned counsel for respondent No.1 contends that he is ready to concede to the extent of petitioner No.1 who has married with the respondent No.2, whereas petitioners Nos.2 to 6 are close relatives of petitioner No.1 and they deliberately participated in the marriage and wilfully concealed the earlier Nikah, hence offence is made out against them. 5. sHeard. Record perused.

6. As the matter in question pertains to interpretation of section 6(5)(b) of Muslim Family Law Ordinance, 1961. So section 6 is reproduced below for facility of reference: Polygamy.- (1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. (2) An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee and shall state the reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto. (3) On receipt of the application of the applicant under subsection (2) the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant subject to such conditions, if any, as may be deemed fit, the permission applied for. (4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, [to the Collector] concerned and his decision shall be final and shall not be called in question in any Court. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall (a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or Wives which amount if not so paid, shall be recoverable as arrears of land revenue; and (b) on conviction upon complaint be punished with simple imprisonment which may extend to one year or with fine which may extend to five thousand rupees, or with both." A bare reacting of provisions reproduced above indicates that it is meant for the prosecution and punishment of a person who contracts second marriage without observing the legal formalities as provided in section 6 of the Muslim Family Law Ordinance, 1961 and it does not entail any punishment for a person who abets or facilitates in the commission of offence. Muslim Family Law Ordinance, 1961 is a special law and unless the special law itself indicates about the application of certain penal provisions, the same cannot be applied or set into motion. So, I am of the considered view, that provisions of section 109, P.P.C. do not attract in the case in hand and only husband can be prosecuted or punished for the violation of aforementioned provision. Simply signing of Nikahnama being brother or friend of the bridegroom or to participate in the second marriage would not be an offence within the meanings of section 6 (ibid) as one can be a witness of the fact that Nikah between the spouses took place in his/her presence and the petitioners Nos.2 to 6 cannot be saddled for the responsibility of anything wherein they are not party and similarly they cannot be made responsible for any condition written in Nikahnama.

7. In view of the above, I am of the considered view that very summoning of the petitioners in complaint filed under section 6(5)(b) of Muslim Family Law Ordinance, 1961 is illegal and without jurisdiction, hence I accept this petition and quash the proceedings qua the petitioners pending before the learned trial Court. There shall be no order as to costs. N.H.Q./R-33/L Proceedings quashed.