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Criminal Miscellaneous No. 821/Q of 1975, decided on 2nd June 1976.

‑‑‑ Ss. 2(d) & 7(1), (2) and West Pakistan Family Laws Rules, r. 21 read with Criminal Procedure Code (V of 1898), S. 561‑A‑Quash ment of proceedings‑Criminal prosecution‑Cognizance" Union Council" as defined in S. 2(d) of Ordinance‑Neither synonymous nor inclusive of expression "Chairman"‑Complaint filed by Chairman and not by Union Council as required under r. 21 of Rules Magistrate not competent to take cognizance‑Contention that petitioner, having sent notice to Chairman after 18 days of pronouncement of talaq, was liable under S. 7(2) of Ordinance No time limit having peen fixed under S. 7(1) for sending notice to Chairman, petitioner, held, could not be prosecuted under S.7(2; of Ordinance‑Proceedings quashed, in circumstances. [Quashment of proceedings].

It is laid down in rule 21 of West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 that "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". The Union Council has been defined in section 2(d) of the Ordinance. It is provided therein that "Union Council" means the Union Council or the Town or Union Committee constituted under the Basic Democracies Order, 1959 (P. O. No. 18 of 1959) and having in the matter jurisdiction as prescribed." "Chairman" has been defined under section 2(b). "Chairman" means the Chairman of the Union Council or a person appointed by the Central or Provincial Government, or by an officer authorised in this behalf by any such Government, to discharge the functions of a Chairman under this Ordinance. Chairman and Union Council have been defined separately in the Ordinance and not used synonymously. The word Chairman cannot include Union Council. They have separate entities. In view of the fact that the complaint had been filed by the Chairman the proceedings are liable to be quashed as the Magistrate could take cognizance only if the complaint had been filed by the Union Council. Besides, no time limit has been fixed under subsection (1) of section 7 of the Muslim Family Laws Ordinance for sending notice to the Chairman. It is simply provided that "any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq to any form whatsoever, give the Chairman notice in writing of his having done so and shall supply a copy thereof to the wife. Talaq does not become effective until the expiration of 90 days from the day on which notice under subsection (1) of section 7 is delivered to the Chairman. Under subsection (1) the words "as soon as may be" have been used and they do not mean immediately.

Muhammad Saleem Shahnazi for Petitioner.

Ch. Inayatullah for Respondent No. 2.

Date of hearing: 2nd June 1976.

Muhammad Yusuf filed this petition for the quashing of proceedings pending against him in the Court of Ch. Muhammad Arshad Virk, Magistrate 1st Class, Lahore, under section 7 (2) of the Muslim Family Laws Ordinance (VIII of 1961).

2. Muhammad Yusuf,' petitioner, was married to Mst, Tahira Akhtar, respondent .No. 2. on 22‑4‑1973. The couple was unable to pull on smoothly. On 16‑3‑1975, the petitioner divorced his wife Mst. Tahira Akhtar, respondent No. 2 and after the pronouncement of Talaq, he sent a notice in writing to respondent No. 2. He however, did not send notice in writing to the Chairman, Union Committee. Ward No. 7/8, Kot Khawaja Saeed, Lahore till 4‑4‑1975. On 30‑3‑1975, Khawaja Muhammad Hanif, a brother of Mst. Tahira Akhtar moved the controlling Authority for taking action against the petitioner under section 7 (2) of the Muslim Family Laws Ordinance. His complaint was sent to the Chairman. On 24‑4‑1975, Mian Muhammad Rafi, M. P. A., Chairman Union Committees, Wards 7/8, Kot Khawaja Saeed, Lahore, filed a complaint against the petitioner under section 7 (2) of the Muslim Family Laws Ordinance, 1961, in the Court of the learned District Magistrate, Lahore, who transferred it to the Ilaqa Magistrate. The Ilaqa Magistrate took cognizance of the complaint, on 29‑4‑1975, and he issued notices to the parties for 8‑5‑1975. The petitioner appeared before the learned Magistrate and the statements of three witnesses were recorded on 2‑12‑1975.

3. Muhammad Yusuf seeks the quashing of proceedings on the ground that the Chairman, Union Committee, was not competent to file the complaint and thus the learned Magistrate could not take cognizance in view of rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961; that in not sending notice to the Chairman soon after the pronouncement of the Talaq, the petitioner had not committed any offence anti since he had sent a copy of notice to the Chairman on 4-4‑1975 and complied with the provisions of section 7 (1) of the said Ordinance, ha could not be prosecuted under subsection (2) of section 7.

4. It is laid down in rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, that 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." The Union Council has been defined in section 2 (d) of the Ordinance. It is provided therein that "Union Council" means the Union Council or the Town or Union Committee constituted under the Basic Democracies Order, 1959 (P. O. No. 18 of 1959) and having in the matter jurisdiction as prescribed," "Chairman" has been defined under section 2 (b). "Chairman" means the Chairman of the Union Council or a person appointed by the Central or Provincial Government, or by an officer authorised in this behalf by any such Government, to discharge the functions of a Chairman under this Ordinance. Chairman and Union Council have been defined separately in the Ordinance and not used synonymously. The word Chairman cannot include Union Council. They have separate entities. It is an admitted fact that in the instant case the complaint had been filed by the Chairman and not the Union Council. The learned counsel for the petitioner rightly placed reliance on Fateh Muhammad v. Chairman, Union Committee, Ward No. 14/15, Lahore and 2 others (P L D 1975 Lab. 951), Muhammad Islam v. The State (P L D 1967 Pesh. 201), Muhammad Shafi v. The Chairman. Union Committee, Lahore and 2 others (1972 P Cr. L 173). In view of the fact that the complaint had been filed by the Chairman the proceedings are liable to be quashed as the learned Magistrate could take cognizance only if the complaint had been filed by the Union Council. Besides, no time limit has been fixed under subsection (1) of section 7 of the Muslim Family Laws Ordinance for sending notice to the Chairman. It is simply provided that "any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman notice ire writing of his having done so, and shall supply a copy thereof to the wife. Talaq does not become effective until the expiration of 90 days from the day on which notice under subsection (1) of section 7 is delivered to the Chairman. Under subsection (1) the words "as soon as may be" have been used and they do not mean immediately. 1n the instant case the petitioner bad sent a copy of notice to the Chairman after 18 days of the pronounce ment of the Talaq. By sending the copy of notice to the Chairman after 18 days of the pronouncement of the Talaq, the petitioner could not be said to have committed any offence under section 7 (2) of the Ordinance.

5. For the reasons stated above, I accept this petition and quash the proceedings.

Petition accepted.

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