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Criminal Miscellaneous No. 550/Q of 1974, decided on 11th February 1975.

‑‑ S. 6(2) read with S. 16, Muslim Family Law Rules, r. 21 and Notifications Nos. OSD/BD/XXII/71 dated 26‑11‑71, para. 9, OSD/ BD/XXI/71 dated 23‑6‑71, para. 4, OSD‑LG/XVIII/72 dated 12‑6‑72 & ADL‑72/785 dated 17‑6‑72‑Bigamy, complaint for‑Words and expressions used in Notification No. OSD/BD/XXII/71 dated 26‑11‑71 Have same meanings as assigned to them in Ordinance VIII of 1961 Chairman and Union Council being separately defined in Ordinance and not used synonymously, word Chairman' in notification cannot include Union Council‑Complaint for bigamy‑Could be made only by Union Council‑Union Councils being dissolved and no provisions made to create their substitute for performance of their function, complaint by a person designated as Chairman; held, not competent‑Magistrate seized of case, held, barred from taking cognizance of case‑Proceedings quashed‑Criminal Procedure Code (V of 1898), S. 561‑A.

Ahmad Nawaz Malik for Petitioner.

M. A. Zafar for Respondent No. 2.

Kh. Muhammad Asghar for the State.

This is an application under section 56 t‑A, Cr. P. C. by Fateh Muhammad for quashment of proceedings under section 6(2) of the Muslim Family Laws Ordinance, 1961, pending in the Court of Mr. Safdar Mahmood, Magistrate 1st Class, Lahore.

2. The facts, briefly, are that the Chairman, Union Committee Ward No. 14/15, Shalamar Town, Lahore (respondent No. 1), lodged a complaint against Fateh Muhammad for bigamy. According to the petitioner this complaint could only be lodged by the concerned Union Council' and not by the Chairman of the said Council alone. In this behalf he relied on the wording of rule 21 of the Rules framed under section 11 of Muslim Family Laws Ordinance, 1961. This rule reads as follows :‑

"No Court shall take cognizance of any offence under the Ordinance or these rules save, on a complaint, in writing by the Union Council stating the facts constituting the offence."

3. It is contended by the learned counsel for the respondent No., 2 that since all the Local Councils, including the Union Councils had been dissolved in 1971, and Chairmen had been appointed to function in their place, it was within the competence of a Chairman to lodge a complaint with regard to an offence under section 16 of the Muslim Family Laws Ordinance, 1961. I have studied the legal position, in the light of this contention, with the help of the learned State Counsel.

The first enactment relating to the dissolution of Local Councils was Martial Law Order No. 21. Section 2(1) of the said Martial Law Order provided as under :‑

"2.‑(1) Notwithstanding anything contained in the Basic Democracies Order, 1959 (P. O. No 18 of 1959) and the Municipal Administration Ordinance, 1960 (X of 1960) the Provincial Government may, if it considers necessary in the public interest as to do, by notification in the official Gazette, dissolve a Local Council constituted under the Basic Democracies Order, 1959 (P. O. No. 18 of 1959) or a Municipal Committee constituted under the Municipal Administration Ordinance, 1960 (X of 1960)."

It was promulgated on 15‑6‑1971. Thereafter, by a Notification No. O. S. D ‑BD/XXI/71, dated 23‑6‑1971‑[Ref. P L D 1971 Pb. Statutes 94], the Provincial Government dissolved all the Local Councils constituted under the Basic Democracies Ordinance, 1959 with immediate effect. It was, however, provided that members of the Local Councils so dissolved. shall continue to perform their functions, inter alia under the Muslim Family Laws Ordinance, 1961, till the conclusion of the proceedings pending before them. By section 3 of the said Notification, all Chairmen, Vice‑Chairmen and members of such Local Councils etc., were also declared as having ceased to hold office. But it was provided that :

"3. All Chairmen, Vice‑Chairmen and Members of such Local Councils or Municipal Committees shall cease to hold office forthwith

Provided that the Members of Local Councils dissolved under paragraph 2 shall continue to perform their functions under the Conciliation Courts Ordinance, 1961 and the Muslim Family Laws Ordinance, 1961 till the conclusion of the proceedings pending before them. By section 4 of the said Notification certain categories of: persons were appointed as 'Administrators' to perform the functions of the Local Councils or Municipal Committees or of the Chairmen or Vice‑Chairmen thereof under the provisions of Basic Democracies Order, 1959 or the Municipal Administration Ordinance, 1960, as the case may be, or under any rule, regulation or bye‑laws made thereunder."

4. Subsequently on 18‑9‑1971 Martial Law Order 21 was reconstituted with retrospective effect by Martial Law Order No. 24. Thereafter by another Notification No. OSDBD/XXII/71, dated 26th November 1971‑[Ref. P L D 1972 Ph. Statutes 55], it was provided that Chairmen shall be appointed for each of the Union Council dissolved by the earlier notification dated 23‑6‑1971 and such Chairmen shall‑perform all functions of Chairmen of Union Councils, inter alia under the Muslim Family Laws Ordinance, 1961, in respect of all applications, cases or other proceedings filed in or registered with the office of the concerned Union Council on or after the 23rd of June 1971.

Para. No. 9 of this Notification reads as follows :‑

"Words and expressions used in this notification and defined in the Muslim Family Laws Ordinance, 1961, or the Conciliation Courts Ordinance, 1961, shall have the meanings respectively assigned to them as in the said Ordinances."

Still later, by another Notification No. OSD‑LG/XVIII/72‑(Ref. P L D 1972 Ph. Statutes 271), published in the Gazette of Punjab, Extraordinary, of 12th of June 1972, it was provided, in supersession of the earlier notification issued by the Government, that all Deputy Commissioners in the Province were authorised to appoint Members of the Provincial Assembly‑ or of the National Assembly, in cases where Members of the Provincial Assembly had been appointed as Ministers, to discharge functions of Chairmen' under the said Muslim Family Laws Ordinance for all areas, except cantonment areas, within their respective districts.

5. Later on, by another Notification No. ADL‑72/785, dated 17th June 1972 (Ref. Extraordinary Gazette, dated 17‑6‑1972) certain Members of the Provincial Assembly and National Assembly were nominated as Chairmen for different areas. Subsequently, however, by yet another Notification, dated 18th February 1974, the Provincial Government took away the powers of the Deputy Commissioners to appoint Members of the National Assembly as Chairmen and authorised them to appoint Members of the Provincial Assembly or any other person, (subject to the previous approval of the Council of Ministers), to discharge functions of a Chairman under the Muslim Family Laws Ordinance within their respective districts, some other persons were thereafter nominated to be "Chairmen" under this notifi cation.

6. A reading of the above noted Martial Law Orders and notifications shows that provision was made enabling Local Councils, even after their dissolution to deal with cases already pending before them. A provision was also made for the appointment of 'Chairman' for the purposes of the Basic Democracies Ordinance, 1959 and the Municipal Administration Ordinance, 1960. Provision was also made, subsequently, through Notification No. OSD/BD/XXII/71, dated 26th November 1971, for the appointment of certain persons for the performance of functions of the 'Chairmen' under the Muslim Family Laws Ordinance, 1961. But no provision was made for nomination of persons or bodies of persons to perform the functions of Union Councils. It is pertinent to note that section 9 of tile Notification No. OSD‑BD/XXI1/71, dated 26th November 1971, provides that all the words and expressions used in it and also defined in the Muslim Family Laws Ordinance, 1961 shall have the meaning assigned to ‑ them as give in the said Ordinance. Now, the words 'Chairman' and 'Union Council' have been separately defined in the Muslim Family Laws Ordinance and have not been used as synonymous with each other. Consequently, even in the afore. mentioned Notification (No. OSD‑BD/XXII/71, dated 26th November 1971), the word 'Chairman' cannot be read as including a 'Union Council'. We have already noticed that rule 21 of Rules framed under the Muslim Family Laws Ordinance provides that complaint for bigamy can only be filed by a Union Council and since the Union Councils have been dissolved and no provision has been made to create a substitute to perform their functions, a complaint by a person designated as 'Chairman' (as in the present case), would not be competent and the Court concerned is not authorised to take cognizance thereof. This view is also supported by‑

(1) Muhammad Aslam v. State P L D 1967 Pesh. 201.

(2) Muhammad Shafi v. Chairman, Union Committee 1972 P Cr. L J 73.

7. Since the complaint in the present case has been filed by a Chairman' and not by a Union Council, the Magistrate before whom it is pending is barred from taking cognizance thereof, in view of the provisions of rule 21'L of the Rules under the Muslim Family Laws and criminal proceedings based on it are consequently liable to be quashed. I, therefore, order accordingly. It would, however, be open, in case of an appropriate amendment in the law or rules, for the concerned authority or person to file another complaint against the petitioner, on the same facts on which the present complaint is based.

S. A. H. Proceedings quashed.

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