1989 PLP 4654 (MLD)

He also defended the impugned judgment with regard to the jurisdiction the Judge Family Court to proceed under Section 476 Cr.P.C.

6. Section 14 of the West Pakistan Family Courts Act, 1964, referred to by learned counsel for the petitioner reads as follows:‑‑ "14. (1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable:‑‑ (a) to the High Court, where the' Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Addl. District Judge; and (h) to the District Court, in any other case." Section 439‑A.Cr.P.C. reads as follows: "439‑A. Sessions Judge s powers of revision.‑‑(1) In the case of any proceedings before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by Section 439." subsection (4) of Section 476 Cr.P.C. reads as follows:‑‑ "(4) Any person sentenced by any Court under this section may, notwithstanding anything herein before contained, appeal:‑‑ (a) in the case of a sentence by the High Court, to the Supreme Court; (b) in case of a sentence by a Court of Sessions, or District Court, or I Court exercising the powers of a Court of Sessions or District Court, to the High Court; and (c) in any other case to the Sessions Judge."

7. It is clear from the wording of Subsection (1) of Section 14 of the Family Courts Act that the procedure laid therein for having recourse to the appellate Courts not only pertains to the 'decrees passed' by the Family Court but tile 'decisions given also. The incorporation of the words 'a decision given' for having recourse to appellate Court, obviously, rather clearly, refers to other orders than a decree. These decisions will include the interim orders passed during the proceedings or the orders passed on any application arising out of the proceedings. The comprehensive language of the Section leaves no room to doubt that no party aggrieved by any order can have a recourse to appellate Court other than the one provided in the section. It is not only, commonly known, but well established too, that where a special provision has been made for filing appeals against the orders passed by a Court or 'authority', the parties cannot have recourse to any forum other than that.

8. The argument of learned counsel for the respondent that since a provision has been laid in Section 476 Cr. P.C. itself, for filing appeals, the respondent, therefore, rightly challenged the order of the Judge Family Court before the Court of Session by way of a revision petition against the order passed by the Judge Family Court on her application under Section 476 Cr.P.C., is without any foundation. In that, firstly, the Judge Family Court had not passed any order resulting from the proceedings under Section 476 Cr.P.C. He in fact, had refused to proceed under Section 476 Cr.P.C. holding that the powers to proceed under Section 476 Cr.P.C. have not been devolved on the Judge Family Court. Obviously, there is a vast difference between a refusal to exercise authority on account of lack of jurisdiction and to allow or disallow a prayer or application on merits by assuming jurisdiction. Secondly, the argument advanced by learned counsel by way of illustration also, does not advance the case of the respondent. In that, provision has been made in subsection (4) of Section 476 Cr. P.C. for filing appeals try the convicted persons, but for riling appeals against the orders of acquittal, provision has been made in subsection (5) of the same Section wherein it is laid down that Chapter XXXI of the Code of Criminal Procedure shall apply to such cases, which means that the appeal against acquittal in proceedings under Section 476 Cr.P.C, has also to be filed as provided in Section 417 Cr.P.C. According to the provisions of Section 417 Cr.P.C. the appeals against acquittal have to be filed on behalf of the Provincial Government by the Public Prosecutor within sixty days. In the case of acquittal, in complaints, however, provision has been made for a private party to file appeals, but that provision can only be availed of by a person, whose complaint has been dismissed after trial by a Court.

9. The impugned orders even otherwise were without jurisdiction as pointed out by learned counsel for the petitioners, as powers under Section 439‑A Cr.P.C. which have been vested in the Court of Session, pertain to the orders passed by Magistrates. The Judge Family Court cannot, by any means be termed as Court of 1st Class Magistrate. The argument of learned counsel for the respondent in this regard that since the provisions of the Judge Family Court for awarding maintenance were parallel to the provisions of Section 488 Cr.P.C. (since deleted) wherein the District Magistrate, Sub‑Divisional Magistrates or the Magistrates of 1st class were competent to hear and decide cases for maintenance, the Courts of Judges Family Courts should be deemed to mean exercising powers of Magistrates while hearing cases of maintenance, in my view, does not hold water at all and so his contention that the orders passed in revision petition by the Addl. Sessions Judge were not without jurisdiction, possesses no force. The legislature in its wisdom created a new law and procedure for having recourse for demanding maintenance, provisions of appeal against such orders wherein have also been provided. [n the circumstances, it is unimaginable to hold or argue even that the aggrieved part can have a recourse to the Sessions Judges depending upon the provisions of Section 488 Cr.P.C. which stands deleted and stood deleted much prior to the dispute that arose between the parties. The whole argument in this regard is even otherwise misplaced and appears to be due to lack of knowledge, for the reason that no appeal or revision could be filed to the Court of Session against the orders passed by the Magistrates under Section 488 Cr.P.C. (since deleted) and the only remedy available then to the affected party was a revision petition to the High Court. In the circumstances, I feel no hesitation in holding that the impugned orders were passed without jurisdiction and so being illegal arc liable to he set aside. Resultantly the writ petitions arc allowed and the impugned orders arc set aside. I have avoided to observe anything about the contentions of learned counsel for the parties with regard to jurisdiction of the Judges Family Courts to initiate and take proceedings under Section 476 Cr.P.C. as the impugned orders were found to have been passed illegally and without jurisdiction. Announced in the presence of Hakim Munawar Ali Khan and Hakim Liayuat Ali Khan petitioners in both the writ petitions. S.A./H‑138/L Writ issued.