2004 PLP 2242 (YLR)

Through this petition asides section 561-A, Cr .P.O. the petitioner No. 1, Kausar Parveen, and six others seek Quashment of criminal complaint filed by respondent No .1, Shama Akhtar. first wife of petitioner Slo.3. Zahid Murad, against the petitioners under section NS) of the Muslim Family Laws Ordinance. 1961 (M, F L .0 . 1961) which is pending in the Court of Special Judicial Magistrate, Gujrat, who vide order dated 5-6- 2002. issued bailable warrants of arrest of the petitioners in the awl of Rs.10.000 each for their appearance before the Court on 19-6-2002.

2. Brief facts which led to the filing of the present petition arc that petitioner No.3, Zahid Murad, was married to respondent No .1, Shahnaz Akhtar, and he statedly divorced her through written divorce-deed dated 1-8-2001. Thereafter he contracted Nikah on 28-12-2001 with petitioner No.1, Kausar Parvcen, which was registered on 29-12-2001 with the Nikah Registrar,- Ward,. No.8, Shandara, Lahore. Admittedly copy of Talagnama was not sent to the Chairman, Union Council and respondent No.1 filed a criminal complaint on 18-4-2002 before the learned Special Judicial Magistrate. Gujrat against Zahid Murad, husband, Kausar Patveen, second wile, Talib Hussain, Nazir Ahmed, Muhammad Arshad Baig and Sajjad Haider, witnesses to the Nikah and Qari Muhammad Akram, Nikah Khawan and Nikah Registrar of Ward No.8, Shadara, Lahore. The Special Judicial Magistrate, Gujrat after recording summary statements of respondent No.l and three other prosecution witnesses, issued summons of the petitioners with the observation that a prima facie case was made out against them and on their failure to appear before him on 18-5-2002 mad 5-6-2002 he issued warrants of arrest of all the petitioners, which order has been assailed through this application in winch quashment of the complaint has also been sought.

3. Learned steed 1st do petitioner has argued that no offence has been committed by petitioner No.1 marrying petitioner No.3 since according to the Shariah every male Muslims is allowed to contract four marriages and the provisions of section 6(5) of the M.F.L.O., 1961 are ultra vires to the Shariab; that the impugned order dated 11-5-2002 as well as the order dated 5-6-2002 for issuance of warrants of their arrest are without lawful authority since the Special Judicial Magistrate, Gujrat has no jurisdiction in the matter; dim do marriage between petitioners Nos.1 sad 3 had taken place at Shadara and assuming without conceding that any offence has been committed the same would be deemed to be committed within the jurisdiction of the Court at Shadara, therefore, the Special Judicial Magistrate at Gujrat lacks territorial jurisdiction to entertain the complaint; that even if the provisions of section 6(5) of the M.F.L.O., lint, are considered to be effective. the second marriage would not be rendered invalid, therefore, prima facie second marriage contracted by the petitioner is not an offence and even under the provisions of section 6(5) only petitioner No.3 i.e. husband of respondent No 1. could be considered liable and the M.F.L.O., 1961 being a special law the provisions of section 109, P.P.C. are not attracted and petitioners Nos.2, 4, 5, to and 7 cannot be prosecuted under the said section and that Petitioner No.1 would be considered an aggrieved party and under no stretch of imagination can be prosecuted as party to the offence; that the petitioners have no other adequate remedy except to invoke the provisions of section 561-A, Cr.P.C. since the complaint is based on mala fide and prima facie no offence is disclosed from the contents of the complaint on which, the Special Judicial Magistrate, Gujrat, could have proceeded to issue the impugned orders and, therefore, application under section 249-A, Cr.P.C. is not appropriate and efficacious remedy for the petitioners and it is appropriate that the orders be declared illegal and the complaint be quashed. Learned counsel has cited the following cases in support of his arguments:-- Syed Tofazal Hussain Shah and 2 others v. The State 1991 PCr.LJ 1063; Mst. Naseem Akhtar and others v. Mst. Shaheen Kausar and another PLD 1995 Lah. 475; Faheem-ud-Din v. Sabeeha Begum and another 1990 SCMR 612; Basharat, Iqbal V. Dr. Nargis Rehana and another 1993 MLD 571; Makbul Ali and others v. Munwara Begum and others 1989 ILJ 92 Sylhet (Bangla Desh); Mst. Ghulam Fatima and others v. Mst. Anwar alias Anwari and another 1981 CLC 1651; Muhammad Ali Hassan v. Fateh Muhammad and others 1991 CLC Note 66 at p.50; Mian Dad and another v. The State PLJ 1983 FSC 236; Saleem Raj and others v. The State and others 1992. PCr.. 2114; Syed Tahir Hussain Mehmoodi v. The State through Assistant Director, FIA, CBC, Quetta PLD 1995 Quetta 76; Ali Muhammad and others. v. Muhammad Anwar and others 1990 PCr.LJ 1549; and Taj Muhammad v. The State 1989 PCr.LJ 1833.

4. Learned counsel for respondent, Shahnaz Akhtar, has supported the 'impugned order with the preliminary objection that the petitioner could have filed criminal revision- under sections 439, Cr.P.C., 435, Cr.P.C. or could have filed an application for quashment before the same Court under sections 249-A and 26(5)-K of the Cr.P.C.

5. On merits it has been argued that petitioner No.3 had not divorced respondent No.1 and she had no knowledge of the purported divorce notice prepared by The petitioner on 1-8-2001 since neither copy was sent to her nor was sent to the Chairman, Arbitration Council; that petitioner. No.3 had contracted second marriage without having sought permission of the first wife or having obtained permission of the Arbitration Council and, therefore committed offence under section 6(5) of the M.F.L.O., 1961 while petitioners Nos.2, 4, 5, 6 and 7 are guilty of having facilitated the offence and, therefore, they are also liable for prosecution under section 6(5) of the M.F.L.O, 1961 read with section 109, P.P.C. It has been further argued that the marriage between petitioner No.3 and respondent No.1 was contracted in Gujrat, therefore, the Court at Gujrat has the jurisdiction to entertain the complaint and that the Special Judicial Magistrate, Gujrat has rightly directed that bailable warrants of arrest of the petitioners be issued since they have failed to appear before the Court despite summons having been issued to them for two earlier dates and since prima facie they are all guilty of an offence to the extent that petitioners Nos.1 and 3 have contracted second marriage during the subsistence of marriage of petitioner No.3 with respondent No.1 and no consent has been obtained from the Union Council and the offence had been committed with the abetment and assistance of the other petitioners, therefore, there is no infirmity in the impugned order.

6. I have heard the learned counsel for the parties and I have also gone through the orders passed by the Special Judicial Magistrate, Gujrat on the complaint of respondent No.l. The Special Judicial Magistrate, Gujrat had issued summons for the appearance of all the petitioners for 18-5-2002 and on their failure to appear on 18-5-2002 and 5-6-2002 he ordered that their bailable warrants of arrest be issued in order to ensure their appearance in the Court on 19-6-2002. The complaint had been filed by respondent No.1 under section 6(5) of the M.F.L.O., 1961 which provides as under:- "6(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 punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both."

7. The provisions of the M.F.L.O., 1961 were scrutinized by the Federal Shariat Court and it was held in the judgment cited as Allah Rakha and others v. Federation of Pakistan and others PLC 2000 Federal Shariat Court 1 that the provisions of section 6 of the M.F.L.O 1961 are not in contravention with the provisions of Shariah since they do m impinge on the right of a Muslim man to contract second marriage but mere, regulate the circumstances in which suck marriage may be contracted and, therefore provisions of section 6 have not been struck down. However, it is clear from the plan wording of section 6(5) that only the man who contracts second marriage without the permission of his wife or the Arbitration Council may be prosecuted. There is an provision for prosecution of the sewed wife who herself may file a complaint under section 6 since she would also be ins aggrieved party where two marriages haw been contracted by her husband, nor is there any provision for prosecution of the witnesses and the Nikah Registrar, since the Nikahnama itself does not disclose or contain any clause to show as to whether the man is previously married (although there is a clause which requires disclosure as to whether the female who is contracting party is previously married). Even otherwise section 109 would not be attracted in the case of section 6 of the M.F.L.O., 1961 which is a special law to deter Muslim male from contracting second marriage without valid reason.

8. Regarding the objection of the petitioners that the Special Judicial Magistrate, Gujrat has no jurisdiction to entertain the complaint; admittedly the marriage of petitioner No.3 and respondent No.1 took place in Gujrat and it has been held in the case cited as Syed Arshad Ali and another v. Navid Raza and the State 1984 PCr.LJ 585, that complaint can be lodged either at the place where the first marriage was contracted or where the second marriage was contracted. It has also been held in the case cited as Saleem Raj and others v. The State and others 1992 PCr.LJ 2114, that petition under section 561-A, Cr.P.C. can be filed in the circumstances which were similar to the circumstances of this case, therefore, it is held that the complaint could be lodged before the Magistrate at Gujrat and he has the power to summon the party who is prima facie guilty of the offence. However, the Magistrate was bound to apply his mind and determine as to whether all the persons named in the complaint could be summoned as accused. The second wife, witnesses and Nikah Khawan could at best be summoned as witnesses and not as accused in the case, therefore, to their extent the order for issuance of their warrants for their appearance as co-accused is without lawful authority. However, to the extent of petitioner No.3 Zahid Murad, he is prima facie an accused in terms of the complaint under section 6(5) of the M.F.L.O., 1961 and since he had failed to appear before the Magistrate in response to the summons issued, there is no infirmity in the order regarding issuance of his warrants of arrest. The proceedings before the Special Judicial Magistrate, Gujrat on the complaint of respondent No.1 which had been stayed during the pendency of this petition, shall continue. Petitioner No.3 may be proceeded against in terms of the complaint. This petition is accepted to the extent of petitioners Nos.1, 2 and 4 to 7 and the complaint as well as the order for issuance of their bailable warrants is quashed. No order as to costs. H.B.T./K-30/L Petition partly accepted.