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Criminal Miscellaneous Q. No. 2 of 1986, decided on 17th March, 1986.

‑‑‑S. 6‑‑West Pakistan Rules under the Muslim Family Laws Ordinance 1961, r. 21‑‑Polygamy‑‑omplaint‑‑Courts in Baluchistan have no jurisdiction to initiate proceedings on accusation of polygamy unless complaint was made by concerned Union Committee‑‑Complaint filed by private complainant, held, was not maintainable.‑‑[Complaint].

‑‑S. 6‑‑West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, r.21‑‑Polygamy‑‑Complaint‑‑Provisions of rule 21, Muslim Family Rules, 1,961, does not contemplate delegation of authority to private persons for initiating action on behalf of Union Council.

‑‑‑S. 6‑‑West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, r. 21‑‑Polygamy‑‑Complaint to be lodged by Union Council and not merely by its Chairman‑‑Union Council and its Chairman two different entities‑‑Union Council includes Chairman whereas Chairman does not include Union Council‑‑Authorisation by Chairman to a private person to file a complaint also would not fulfil requirement of law.‑‑[Complaint].

Mirza Farrukh Beg v. Sub‑Divisional Magistrate Central, Karachi and others 1984 P Cr. L J 111; Muhammad Shafi v. The Chairman Union Committee, Lahore and others 1972 P Cr. L J 73; Fateh Muhammad v. Chairman Union Committee Ward No. 14/15 Lahore and others P L D 1975 Lah. 951 and Haji Muhammad Islam v. The State P L D 1967 Pesh. 201 rel.

‑‑‑Ss. 177 to 179‑‑Place of inquiry and trial of criminal offence‑‑ Provisions of Ss. 177 & 179, Criminal Procedure Code, to be adhered to‑‑Neither any violation of law or rule committed in District nor any consequences thereof ensued within territorial limits of Criminal Courts at Q‑‑Criminal Courts at Q, held, had no jurisdiction in matter.‑‑ [Jurisdiction].

‑‑‑Ss. 249‑A & 561‑A‑‑Muslim Family Laws Ordinance (VIII of 1961), S. 6‑‑Petition for quashing of proceedings‑‑Maintainability of, in face of alternate remedy‑‑Alternate remedy of challenging proceedings available to accused by approaching trial Court, held, not complete bar to entertaining petition directly by High Court when impugned action appeared to be totally without jurisdiction or launched for improper motive intended at harassment of accused or likely to result in abuse of process of Court or tending to violate principles of justice.‑ [Jurisdiction].

Dr. Abdul Shakoor v. The State 1985 P Cr. L J 2477; Muhammad Rashid v. The Sate 1977 S C M R 92; Syed Manzoor Hussain Shah v, Syed Agha Ghulam Hussain Naqvi and others 1983 SCMR 775; Sanaullah v. Muhammad Akhtar and others 1979 S C M R 97 and Mst. Urooj Begum and others v. Javed Saleem and another 1985 P Cr. L J 585 ref.

Syed Arshad Ali and another v. Navid Raza and others 1984 PCr.LJ 585; Muhammad Shafi v. The State 1985 P Cr. L J 540; Abdullah and others v. Ghulam Rasool and another 1985 P Cr. L J 103; Mian Munir Ahmad v. The State 1985 S C M R 257; Khushi Muhammad v. Niaz Ali and others 1984 P Cr. L J 2223 and Hussain Bakhsh and others v. Noor Muhammad and another 1983 P Cr. L J 1585 ref.

‑‑‑S. 561‑A‑‑Muslim Family Laws Ordinance (VIII of 1961), S.6‑‑Quashing of proceedings‑‑Proceedings initiated against accused on complaint of private complainant who had no authority to initiate same‑‑Proceedings quashed‑‑Held: Failure to interfere in such circumstances would frustrate power of quashment provided by law.

‑‑‑S. 561‑A‑‑Muslim Family Laws Ordinance (VIII of 1961), S.6‑‑Quashing' of proceedings‑‑Remedy was available with trial Court but petition admitted by High Court on ground that complaint was filed by private complainant who was not authorised to file complaint before that Court‑ Petition, held, was maintainable before High Court and could be decided by it on merits.

Abdul Wahid v. Muhammad Shafi P L D 1978 Quetta 66 rel.

Ghulam Sarwar Malik for Appellant.

Malik Sultan Mahmood and Muhammad Riaz Ahmed for the State.

Date of hearing: 9th March, 1986.

This petition under section 561‑A, Cr.P.C. seeks quashment of proceedings initiated by E. A. C. II and Magistrate first Class, Quetta on the complaint of Mst. Noor Khatoon.

2. Complainant Noor Khatoon was married to petitioner in village Sabral Union Council "Kufri" of District Khushab (Punjab Province) in the year 1964. There is, however, no child from wedlock. Relations between the parties have become strained on the attempt of petitioner to have second marriage.

3. It is the case of complainant that petitioner has contracted second marriage in violation of section "6" of West Pakistan Muslim Family Laws Ordinance, 1961, as such he is liable to be punished. Whereas according to petitioner, the complainant had given necessary permission in writing for the said purpose towards January, 1984.

4. However factum of second marriage, was real bone of contention between the parties. Thus on 13‑1‑1985 Mr. Kamalud Din brother of complainant addressed an application to Chairman, Union Council, kufri for taking action against petitioner for intended violation of Family Laws. In the meantime petitioner by means of deed, dated 13‑2‑1985 divorced the complainant and also gave notice, in that behalf to Union Council Kufri of Khushab District. It appears from the record that aforesaid application of Kamalud Din was disposed of, by Chairman Union Council No.7, Kufri on 14‑2‑1985 in the following terms:‑

5. Record reveals that in the meantime, towards 16‑11‑1985 respondent Mst. Noor Khatoon filed a complaint in the Court of E.A.C. II and Magistrate First Class, Quetta urging that petitioner be punished for forging certain documents and violating provision of Family Laws. In pursuance thereof statement of complainant was recorded on 17‑11‑1985 and notice for appearance of petitioner was directed to be issued. However, petitioner participated in the proceedings before trial Court through his counsel and challenged the jurisdiction of Court as well as validity of complaint filed by private respondent.

6. Thereafter on 30‑1‑1986 petitioner submitted an application under section 249‑A, Cr.P.C. before trial Court wherein also; inter alia territorial jurisdiction of trial Court and competency of proceedings in view of bar contained in rule 21 of Muslim Family Court Rules, 1961 was pleaded. Surprisingly no order has been passed on this application so far. Since lower Court instead of disposing of objections raised on behalf: of petitioner insisted for his appearance, therefore, present petition for quashment was filed on 22‑2‑1986.

7. Mr. Ghulam Sarwar Malik, learned counsel for petitioner vehemently urged that (i) By virtue of rule 21 of Muslim West Pakistan Rules, framed under the Muslim Family Laws Ordinance, 1961, complaint regarding polygamy could be instituted only by concerned Union Council, therefore, proceedings initiated on the complaint of Mst. Noor Khatoon are not valid, (ii) No cause of action has at all accrued to petitioner at Quetta, therefore, proceedings by the trial Court are totally without jurisdiction, (iii) Without determining question of jurisdiction which was specifically pleaded the summoning of petitioner was illegal.

8. Learned counsel for respondents on the other hand vehemently opposed the maintainability of petitioner for quashment and argued that (i) Alternate remedy was available to petitioner which has already been resorted to by moving an application to the trial Court, therefore, same grievances cannot be directly placed before this Court. (ii) Complainant at present is residing at Quetta with her brother Kamalud Din therefore, trial Court has jurisdiction in the matter. (iii) Chairman Union Council, Kufri has authorised vide his order, dated 14‑2‑1985 (referred to above) to institute proceedings against the petitioner, therefore, according to him objection raised by petitioner's side are misconceived.

Mr. Sultan Mahmood, learned counsel for the State has challenged validity of complaint filed by relying on the observation in case Mirza Quetta on 20‑4‑1985 which was vehemently contested by petitioner. Ultimately these proceedings were dismissed on 24‑12‑1985 having not been pressed. The order is, reproduced below:‑‑

Farrukh Beg v. Sub‑Divisional Magistrate Central. Karachi and others 1984 P Cr. L J 111.

Firstly I will take up objection concerning validity of complaint, filed by Mst. Noor Khatoon. Undisputedly procedure for lodging the complaint regarding violations of the provisions of Family Laws Ordinance, 1961 has been specified under rule 21 of Muslim Family Rules, 1961, which for convenience is reproduced below:‑-

"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."

It may be mentioned that this rule has, however, been amended only in Punjab Province by means of Notification No.S.O‑I‑15/75‑VoI. II Gazette of Punjab Extra of 26‑11‑1976, but above quoted provisions are intact in this Province. Therefore, apparently Courts here, will not have jurisdiction to initiate proceedings on the accusation of polygamy unless complaint is made by concerned Union Committee. In the circumstances complaint filed by respondent Mst. Noor Khatoon, ex facie is not maintainable. Learned counsel for private respondent, however, attempted to urge that Chairman Union Council, Kufri by means of letter, dated 14‑2‑1985 has authorised her to take action against petitioner. In this behalf it may be seen that abovequoted rule does not contemplate delegation of authority to a private person, for initiating action on behalf of Union Council. Besides law specifies lodging of complaint by Union Council and not merely by Chairman which are two different entities. Evidently "Union Council" includes Chairman, whereas Chairman does not include "The Union Council". Therefore, alleged authorisation of Chairman Union Council relied upon by respondent also would not fulfil the requirement of law, in letter and spirit. This aspect is supplemented by various pronouncements of superior Courts. Some of which are mentioned below:‑

(i) Mirza Farrukh Beg v. Sub‑Divisional Magistrate, Central Karachi and others 1984 P Cr. L J 111.

(ii) Muhammad Shafi v. The Chairman Union Committee, Lahore and others 1972 P Cr. L J 73.

(iii) Fateh Muhammad v. Chairman Union Committee Ward No.14/15, Lahore and others P L D 1975 Lah. 951.

(iv) Haji Muhammad Islam v. The State P L D 1967 Pesh. 201.

Thus observation in the abovequoted judgment lead to the conclusion that complaint filed by Mst. Noor Khatoon is clearly incompetent.

Next important point relates to territorial jurisdiction of Courts at Quetta, to deal with the matter. It is not disputed that Kamalud Din brother of complainant has been transferred to Quetta about a year back and at best she came here alongwith him. Obviously complainant is not permanent resident of Quetta. In para. "2'' of the complaint it has been asserted that brother of complainant had submitted an application, dated 13‑1‑1985 to Chairman, Kufri against the petitioner. In that application factual position that complainant was in Islamabad till then has been unequivocally admitted. Relevant extract from the application is reproduced below:‑

In the given peculiar circumstances it may be seen that first marriage took place in year 1964 at village Sabral "Union Council Kufri" of District Khushab; whereas second marriage is alleged to have been contracted at Karachi. Besides complainant apparently never resided at Quetta till transfer of his brother at this place. Therefore, territorial jurisdiction cannot be deemed to have shifted or continue to be moving with temporary change of complainant's residence. The principle of law regarding place for enquiry and trial of criminal offence contained in sections 177 and 179, Cr.P.C. had to be adhered to. Evidently in the instant case neither any violation of law or rule has been committed nor any consequences thereof has at all ensued within the territorial limits of Criminal Courts at Quetta, therefore, for both these reasons inquiry or trial of this matter at Quetta is not justified.

Next point relates to question of maintainability of filing quashment proceedings directly to this Court. Learned counsel for private respondent has vehemently objected to these proceedings contending that alternate remedy of challenging the validity was available to petitioner by approaching the trial Court, which has also been availed, therefore, without exhausting normal remedies this petition is not competent. In support of his submissions he has relied on the following cases: ‑

(i) Dr. Abdul Shakoor v. The State 1985 P Cr. L J 2477.

(ii) Muhammad Rashid v. The State 1979 S C M R 92.

(iii) Syed Manzoor Hussain Shah v. Syed Agha Ghulam Hussain Naqvi and others 1983 S C M R 775.

(iv) Sanaullah v. Muhammad Akhtar and others 1979 S C M R 97.

(v) Mst. Urooj Begum and others v. Javed Saleem and another 1985 P Cr. L J 585.

On the other hand learned counsel for petitioner had vehemently convassed that existance of alternate remedy by itself is not sufficient to debar petitioner from approaching this Court to challenging validity of the proceedings which are inherently without jurisdiction, and are likely to result in abuse of process of the Court. To substantiate this contention reference is made to following decided cases (i) Syed. Arshad Ali and another v. Navid Raza and others 1984 P Cr. L J 585:‑-

"8. Admittedly, the petitioners did not move the Magistrate under section 249‑A, Cr.P.C. It is also correct that at present only process has been issued against them and no evidence has yet been recorded. But this would not stand ire the way of the petitioners because I think that they have taken the right step in the right direction. Normally, a party aggrieved is expected first to move the trial Court. This may be taken as a rule but there is always an exception to the rule. The present case comes within the exception. I do not agree with the objection of the counsel for the respondent /complainant that the petitioners be ordered to approach the Magistrate in the first instance because there are good grounds not only for entertaining this petition but also for granting the relief prayed for.

This case is also distinguishable from the one referred to in the preceding paragraph inasmuch as that was a police challan where as the present one is a private complaint.

Even otherwise, I do not think that it was essential for the petitioners to approach the Magistrate because it is clear from the order, dated 17th April, 1982 that the Magistrate had made up his mind to issue process being convinced on examination of the preliminary evidence and the complaint under section 202, Cr.P.C. that a prima facie case was made out against the petitioners under section 382, P. P. C.

9...........................

Taking all the above aspects into consideration, I am clear in my mind that this is a clear case of the abuse of the process of Court, and it is in the interest of justice to stop these proceedings, I, therefore, accept this petition and quash the proceedings pending in the Court of Magistrate at Daska not only against the two petitioners but also against the third brother who though has not moved for quashment."

(ii) Muhammad Shafi v. The State 1985 P Cr. L J 540.

"I am of the view that from the allegations contained in the F.I.R. no criminal liability can be said to have been made out against Muhammad Shafi petitioner. The challan submitted against Muhammad Shafi petitioner, therefore, "contains no allegation as accusations, which if allowed to go to trial even remotely is likely to end up in conviction. Whatever allegations have been made against him. "As such, the criminal proceedings cannot be allowed to continue. Reliance in this behalf is placed on Superintendent of Police, F.I.A., Lahore and another v. Akhtar Hussain Bhutta P L D 1978 S C 193 as stated above, Ghulam Rasool etc. vendees want these proceedings to continue so that they are able to recover 15 per cent compulsory land acquisition charges from Muhammad Shafi petitioner. The matter between the parties was amicably settled by the three arbitrators, vide award, dated 29‑7‑1979. In this view of the matter, I find that the present proceedings against Muhammad Shafi are sought to be kept pending with mala fides as a coercive measure.

In view of the above, this petition is accepted. The proceedings pending in the Court of Mr. Ishaq Ali, Magistrate Section 30, Kasur, against Muhammad Shafi petitioner under F.I.R. No.226, dated 23‑5‑1983, Police Station, City Kasur are quashed

(iii) Abdullah and others v. Ghulam Rasool and another 1985 P Cr. L J 103.

"It is not the intention of law that the accused should necessarily be subjected to approach the trial Court in a case where there is a clear cut abuse of process of the Court. If a case of flagrant injustice which has been committed at the level of subordinate Court is brought to the notice of this Court it cannot refuse to exercise its extraordinary jurisdiction conferred by section 561‑A, Cr.P.C. merely because the aggrieved party has alternative remedy. This can be exercised by the High Court under section 561‑A, Cr.P.C. in view of the enactment of section 299‑A, Cr.P.C. are not barred as section 561‑A, Cr.P.C. is larger in scope and intent than section 249‑ A ,Cr.P.C. Section 561‑A, Cr.P.C. recognises the inherent powers of the High Court both as a Court of record, and also ‑in view of its general jurisdiction over all the criminal Courts subordinate to it and to compel the compliance to it of the code or to give effect to any order thereunder or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The power therefore, to free an accused from a groundless charge in criminal proceedings faced by him is, therefore, co‑extensive both with the trial Court and the High Court. Therefore, the power of the High Court under section 561‑A, Cr.P.C. to quash the proceedings is not at all affected by enactment of section 249‑A , Cr.P.C. I am fortified in my above view by the observations in the above-said cases."

(iv) Mian Munir Ahmad v. The State 1985 S C M R 257.

"16. As a result of the above discussion we hold: that provisions of section 561‑A, Cr.P.C. apply to the proceedings pending before any Court, whether subordinate to the High Court or not, unless the offence being tried is an offence under any law other than the Pakistan Penal Code and the power has been specifically taken away by any enactment relating to the said (special) Law; and

that the powers of the trial Court under sections 249‑A, Cr.P.C. and 265‑K, Cr.P.C. are co‑extensive with the similar powers of the High Court under section 561‑A, Cr.P.C. and both can be resorted to. It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining in appropriate cases, an application under section 561‑A, Cr.P.C. directly."

(v) Khushi Muhammad v. Niaz Ali and others 1984 P Cr. L J 2223.

"7. The learned counsel for the State did not contest the contention that the proceedings arising out of the complaint filed by the respondent were nothing but a measure, rather device to harass the petitioners but maintained that the petitioners should have had recourse to provisions of section 249‑A of the Code of Criminal Procedure in the first instance. This argument does not appear to be of much substance in the circumstances of the under consideration case because provisions of section 249‑A, Cr. P.C. were not available when the present criminal miscellaneous petition was filed in 1970, as section 249‑A, Cr.P.C. was introduced for the first time through Code of Criminal Procedure (Amendment) Ordinance, 1977. Moreover, in this case the learned Magistrate seized of the matter summoned the petitioners to stand trial under sections 408 and 410, P.P.C. after recording and considering the preliminary evidence produced by the complainant and, therefore, it would be an exercise in futility if the same Court is approached again to proceed under section 249‑A, Cr.P.C. In Abdul Wahid v. Muhammad Shafi and another P L D 1978 Quetta 66 it was ruled that when a revision petition has already been admitted and has come for regular hearing before the High Court it should be decided on merits although the practice of direct approach to the High Court is highly unappreciable.

8. The upshot of the discussion is that the complaint filed by the respondents is found to be false having been filed only for ulterior motives and is thus a sheer abuse of the process of the Court. "

(vi) Hussain Bakhsh and others v. Noor Muhammad and another 1983 PCr. LJ 1585.

"I see great force in the contention of the learned counsel for applicants, that case reported in P L D 1979 SC 94 is not bar to maintainability of above' petition, the trial Court, after holding preliminary inquiry issued process against the present applicants and as such no useful purpose will be served by moving application under section 249‑A, Cr. P.C. before the learned trial Court, which has tentatively come to conclusion, on prima facie nature of the complaint in question. Therefore, I am of the opinion that above petition is maintainable and cases reported in 1983 PCr.LJ 132 and 1982 P Cr. L J 1039, fully supported this conclusion of mine and as such I see no force in the contentions of the learned counsel for respondent No.1 and State counsel, that above petition. is not maintainable."

Thus, taking into consideration tenor of authorities relied by both sides, it is evident that, in practice it is preferred that aggrieved party should avail normal remedies by approaching trial Court at the first instance. Nevertheless, it is not the rule or intention of law, that party should only be subjected to approach lower Court even if there is patent illegality or flagrant abuse of process of Court. In my opinion complete bar in entertaining petition directly cannot be pleaded. When an action appears to be totally without jurisdiction, or launched for improper motive intended at harassment of accused or is likely to result in abuse of process of Court or tends to violate principles of justice, powers of quashment Court ligitimately be exercised.

Since in this case proceedings initiated by trial Court or the complaint of Mst. Noor Khatoon have been found to be devoid of lawful authority, therefore, it would be, too much of technicality rather an exercise in futility to require the petitioner to approach trial Court for agitating alternate remedy. Failure to interfere in the given circumstances may frustrate powers of quashment provided by law.

Besides it may be seen that this petition has been earlier admitted therefore, on the principle ruled in Abdul Wahid v. Muhammad Shafi PLD 1978 Quetta 66 it would be appropriate if this petition is decided on merits. Thus keeping in view peculiar circumstances of this case, and points discussed above, I am inclined to hold that present petition is maintainable.

For the foregoing reasons petition is accepted, and consequently proceedings commenced by trial Court in this matter, are directed toll be quashed.

M.Y.H. Proceedings quashed

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