P L D 1983 Lahore 615 (PLP)

Mst. Humaira, respondent No. 1, filed an application before Chairman, Union Committee No. 36, Gulberg South, Lahore, against the petitioner, for initiating proceedings under section 6(5)(b) of the Muslim Family Laws Ordinance, 1961. She briefly stated therein that the petitioner had married her without informing her that he was already married and without taking necessary permission for entering into second marriage. The Arbitration Council issued notice to the petitioner to file written reply. The petitioner filed written reply in which he did not deny the subsistence of his first marriage. He failed to produce any permission from the Chairman, Arbitration Council for entering into second marriage. While application was pending proceedings, the Deputy Commissioner, Lahore entrusted the application to Chairman, Union Committee, Ward No. 35, who after considering the application directed that a complaint be filed against the petitioner in the Court of A. C. Cantonment, under section 6(5)(b) of the Muslin Family Laws Ordinance, 1961. Thereafter, the complaint was filed on behalf ,of the Chairman, Union Committee No. 35, Gulberg, Lahore, against the petitioner in the Court of Assistant Commissioner (Cantonment) Lahore for proceeding against the petitioner under section 6(5)(b) of the Muslim Family Laws Ordinance. The application/complaint filed by Mst. Humaria was also attached as Annexure "A", for ready reference. The learned Magistrate after receipt of the complaint vide order dated 8-2-1982 directed the petitioner to appear before him on 15-2-1982. The petitioner after appearance submitted an application under section 249-A, Cr. P. C. The application was dismissed on 16-6-1982. The petitioner challenged the order of the Magistrate by way of filing a revision petition under section 439-A, Cr. P. C., which was dismissed by Additional Sessions Judge, Lahore,. vide order dated 8-11-1982. The petitioner bas challenged the orders of both the lower Courts by way of petition under section 561-A, Cr. P. C.

2. Learned counsel for the petitioner has challenged the proceedings on the grounds : (a) That the Chairman, Union Committee had no authority to file a complaint as he is not an aggrieved person in terms of rule 21 of the rules framed under the W. P: Muslim Family Laws Ordinance and as such there is no proper complaint before the trial Magistrate. (b) That even if the Chairman had the authority, he could not have proceeded on the application of Mst. Humaira, who being second wife of the petitioner, cannot be deemed to be an aggrieved person, as at the time of seeking permission for second marriage, it is the first wife whose consent or refusal has to be considered. (c) That the learned trial Magistrate on receipt of complaint without recording the statement of the complainant, issued notice for appearance of the petitioner, which is in violation of section 200, Cr. P. C., according to which recording of statement of the complainant is incumbent. Reference has been made to section 190, Cr. P. C. and Rahim Dad v. State etc. 1980 P Cr. L J 500, State v. Muhammad Ghufran etc. 1971 P Cr. L J 792, Mst: Khatija v. State etc. P L D 1978 Kar. 348 and Ali kuhammad v. Bagh All 1977 P Cr. l J 891.

3. On behalf of respondent No. 1, it. has been argued : (a) That the petitioner had duped her by posing that the petitioner was unmarried and that had he acted- in accordance with law and got permission from the relevant authority for second marriage, she would have come to know of his first marriage and would not have married him and as such she is an aggrieved person. Reference has been made to Legal Phrases by William C. Burton, wherein 'aggrieved' has been defined as under : "adversely affected, cheated,', damaged, defrauded, fleeced, harassed, harried, ill-used, imposed upon, injured, justly complaining, misserved, offended, oppressed, persecuted, taken advantage of, wronged." (b) That no doubt the respondent had submitted an application before the Chairman, Union Committee for action against the petitioner and had not directly filed a complaint before the Magistrate but the fact remains !hat the Chairman; Union Committee while filing the complaint for action against the petitioner had also enclosed the application/complaint filed by her before the Chairman and that application/complaint of the respondent was also before the Magistrate while he. had issued notice for appearance of the petitioner. (c) That the provision for examining the complainant on receipt of complaint has been .considered by the higher Courts and the provision has not been construed as strictly binding. It has been held more than once that non-examination of the complainant after filing the complaint is an irregularity curable under section 537, Cr. P. C. and is not an illegality. In this regard reliance has been placed on Shamim v. State etc. P L D 1966 S C 178, Badsha , Mia v. State P L D 1958 Dacca 598 and Emperor v: Bateshar etc. I L R 37 All. 628. 4, There seems to be Some force in the argument of the learned counsel for the respondent that second wife is also an `aggrieved person', in terms of rule 21 of the rules framed under the W. P. Muslim Family Laws Ordinance, particularly in the circumstances of this case, where the petitioner had married her without disclosing that he had a subsisting marriage. This fact is borne out from relevant columns of the Nikahnama and is also not denied by the petitioner. It is obvious that the petitioner had duped respondent No. 1 by not disclosing that he was a married person. Had he acted m accordance with law and. had obtained prior permission for entering into second marriage, the respondent would have definitely come to know of it and in that case she might not have married him, as stated by her. In this view of the matter, I have no doubt in my mind that second wife is also an aggrieved person in the set circumstances of this case. The important point in this case is whether the complaint had been properly filed or not and whether the complaint pending before the learned Magistrate, on which he had issued notice to the petitioner, has been filed by an aggrieved person? It is not the case of the learned counsel for the respondent that the Chairman in any manner is an, aggrieved person. His case is that even though the respondent has not directly filed the complaint in the Court of the Magistrate, it is of no consequence for the reason that the complaint had reached the Magistrate, who is seized of the matter. 5. - No doubt the Chairman, Union Committee while filing the complaint against the petitioner under section 6(5)(b) of the Muslim Family Laws Ordinance, had attached the application/complaint of the respondent as Annexure "A", but the fact remains that the Chairman had filed the regular complaint before the Assistant Commissioner (Cantonment), Lahore with the prayer on his behalf `that the respondent may be proceeded against according to law and be suitably punished'. The learned Assistant Commissioner had passed-on this complaint for disposal to the Ilaqa Magistrate. The order of the Assistant Commissioner for disposal of the complaint was not passed on the application/complaint of the respondent. Obviously, the learned Assistant Commissioner bad treated the complaint filed by the Chairman as complaint. The learned Magistrate also while entertaining the complaint had recorded :- ISTAGHASA HAZA MASOOL HUWA - DARG REGISTER HUWAY AUR BARAY-E-TALABI ILZAAM ALIA 15-2-1982 PESH HOWAY. ILZAM ALIA BAZRIAH SAMNAT TALAB HUWAY It is clear from the above wording of 1 the order "ISTAGHASA HAZA MASOLL HOWA" is reference to the complaint received with the order of the Assistant Commissioner. It is obvious--from the order of transfer made, by the Assistant Commissioner and from the order of summoning the petitioner by Magistrate that both of them had initiated action and proceedings on the complaint filed by the Chairman, Union Committee. After 8-2-1982, the case was adjourned for five times. Nobody has been- shown to have appeared on behalf of the respondent No.

1. The order dated 24-5-1982 shows that on behalf of Chairman, Union Committee, P. S. I. and Syed Baqir Ali Shah, Advocate, had appeared. Thereafter, also Syed Baqir Ali Shah, Advocate, had appeared on behalf of Chairman, Union Committee. It is apparent that the Chairman was pursuing the case as complainant and had engaged a counsel. In the circumstances, it is not possible to grant that the Magistrate was proceeding on the application/complaint of respondent No.

1. It is clear from the above narration of facts that the proceedings were initiate B and continued on the complaint filed by the Chairman, Union Committee, who had been represented through a counsel. It is, thus, obvious that the complaint has not been filed by an aggrieved person and as such proceeding, pending in the Court of the Magistrate have not been filed in accordance with law. Since I have held that the proceedings have not been filed in accordance with law, I do not think that it will be of any use to give any finding on the contentions raised by the learned counsel for the petitioner regarding legality or otherwise of procedure adopted by the Magistrate after issue of process against the petitioner without recording the statement of the complainant. The proceedings are quashed only on the ground that the complaint has not been filed by an aggrieved person in terms of the provision of rule 21 of the rules framed under the W. P. Muslim Family Laws Ordinance, as the continuance of the same will be an abuse of the process of law. There will be no bar to file fresh complaint in accordance with law by any of the aggrieved persons, subject of course to any time limitations. M. A. K. Proceedings quashed.