P L D 1997 Lahore 680 (PLP)

Briefly stated the facts of the case are that the application of respondent No.5 for the grant of her maintenance filed against the petitioner was accepted vide order dated 3-10-1992 passed by the Arbitration Council under the provisions of section 9 of the Muslim Family Laws Ordinance, 1961, for a sum of Rs.39,

000. The petitioner was detained in civil prison for 40 days pursuant to warrants of arrest and detention issued by respondents Nos. l to 3 for the recovery of- the said amount of maintenance as arrears of land revenue and was released thereafter. However, fresh warrants for arrest and detention of the petitioner were issued by respondent No.3 alongwith the demand notice for the recovery of the same amount of maintenance. .

2. It is contended by the learned counsel for the petitioner that the repeated warrants of arrest and detention cannot be issued once the petitioner had served out the civil imprisonment of 40 days. He relied on the case of Malik K. Dhanalakshmi Animal v. Malik Krishnamurti AIR 1951 Madras 756.

3. On the other hand, the learned Additional/Assistant Advocate-General, Punjab, as well as the learned counsel for respondent No.5 have stated that there is no prohibition in law for issuance of repeated warrants of arrest and detention of the petitioner till the maintenance is fully recovered from the petitioner.

4. I have heard the learned counsel for the parties at some length. Subsection (1) of section 9 of the Muslim Family Laws Ordinance, 1961, provides for constitution, by the Chairman, of an Arbitration Council to determine the matter of maintenance payable by a husband to his wife. Subsection (2) ibid empowers the council to fix the period within which the maintenance is to be paid by the husband. Subsection (3) of section 9 ibid further provides that any amount payable under subsection (1) or (2) if not paid within time shall be recoverable as arrears of land revenue.

5. The procedure for recovery of the arrears of land revenue has been provided for under the provisions of section 82 of the West Pakistan Land Revenue Act, 1967. Subsection (1) thereof empowers the Revenue Officer to issue a warrant for the arrest of a defaulter and to keep him under his persona restraint for a period not exceeding 10 days. If the arrears remain unpaid, d Collector is empowered, by subsection (5) of section 82 (ibid), to issue an order to the Officer Incharge of a Civil Jail of the District to confine the defaulter therein for a period not exceeding one month. There is no express provision for issuance of repeated warrants of arrest and detention after a defaulter has served out maximum period of 40 days of detention. The provisions of section 82 being a restraint on personal liberty have to be strictly construed so as to prevent any misuse of public power by a public officer.

6. Normally, an express provision is made in the relevant law where a repeated deprivation of personal liberty of a person for the same cause is intended by the Legislature. For instance, section 344 of the Criminal Procedure Code, 198, empowers Court to remand an accused to judicial custody from time to time but for a term not exceeding 15 days at a time. Such legislative intent is not spelt out from the context or language of section 82 of the West Pakistan Land Revenue Act, 1967. Even under section 55 of the Code of Civil Procedure, 1908, a judgment-debtor may be arrested in execution of a money decree and detained in prison by warrant of the Civil Court to suffer simple imprisonment for a maximum period of one year. Under subsection (3) of section 488 of the Criminal Procedure Code, a Family Court by exercising the powers of a Magistrate may issue warrants of arrest and detention, against a defaulter of maintenance, for a period extending to one month for every default. Similarly, under Article 10 of the Constitution of Islamic Republic of Pakistan, a person may be held in preventive detention for successive periods of three months at a time with the approval of an appropriate Review Board.

7. A similar question came up for consideration in the cases of Emperor v. Bani (AIR 1938 Allahabad 386(F.B.) (1883) 7 Bombay 106(108)(D.B.) and Malik K. Dhanalakshmi Animal (supra). It was held that a person could not be sentenced a second time with imprisonment for default of payment of a sum for which he had already undergone imprisonment. It was further held that a maintenance decree was not a bundle of many different or separate decrees and a judgment-debtor/husband in a maintenance decree, after having been committed to a civil prison for a definite period in an execution petition for recovering the maintenance could not be again sent to the civil prison for recurring periods for recurring maintenance amounts for later periods. Needless to say that the powers of a Family Court under sections 13 and 20 of the West Pakistan Family Courts Act, 1964, are not restricted to recover the decretal amount of maintenance only as arrears of land revenue but are exercisable as a Civil Court executing a money decree and also under section 488, Cr.P.C. See the case of Qurban Ali Khan v. IV, Civil and Family Judge (Central), Karachi PLD 1993 Karachi 159. 8. 1, therefore, hold that, for the recovery of maintenance as arrears of land revenue in execution of a decree, a defaulter who has once served out maximum period of 40 days of civil imprisonment is not liable to be again incarcenated under the provisions of section 82 of the West Pakistan Land Revenue Act, 1967. The legal maxim "Nemo debet bis vexari pro una et eadem causa (it is .a rule of law that a man shall not be twice vexed for one and the same cause) is fully attracted to the facts of the case. This, however, does not mean that a defaulter is absolved of his liability to pay the maintenance. The same is recoverable by all other lawful methods..

9. In this view of the matter, this writ petition is accepted', the impugned warrants for arrest and- detention of the petitioner issued by respondent No:3 are declared to be without lawful authority and of no legal effect. There shall be no order-as to costs. _

10. This judgment shall not preclude the respondents from proceeding for the recovery of the amount of ,maintenance from the petitioner in accordance with law. A.A./M-438', . Petition accepted