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Criminal Petition No. 13 of 1985, decided on 2nd June, 1986.
(On appeal from the judgment, dated 23‑12‑1984 of the Lahore High Court in Criminal Petition for Special Leave to Appeal No. 8 of 1984).
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), Ss.249‑A 417(2)‑‑Muslim Family Laws Ordinance (VIII of 1961), S.6(5)‑‑Leave to appeal against acquittal‑‑High Court allowed petition for leave to appeal, set aside order of acquittal under S.249‑A, Cr.P.C. passed by Magistrate and remanded complaint for trial according to law‑‑Impugned order, held, was detailed and comprehensive‑‑Question involved being that in case where first marriage was performed abroad and not registered under Muslim Family Laws Ordinance, whether it was necessary for husband to seek permission of his first wife before contracting second marriage in Pakistan‑‑Some points raised in support of leave petition though found arguable on legal plane, but in circumstances of case, it was not an appropriate occasion for adjudicating upon such points‑‑Leave refused in circumstances.
Ch. Muhammad Abdus Saleem, Advocate Supreme Court and Ch. M. Aslam, Advocate‑on‑Record for Petitioner.
Nemo for Respondent No. l.
Mian Nusaratullah, Senior Advocate Supreme Court for Respondent No. 2.
Date of hearing: 2nd June, 1986.
The petitioner, Mian Khadim Hussain, was married to Mst. Fauzia Hussain (respondent No.l herein) on 28‑6‑1975 under the Registration of Marriage Act, 1949, in Birmingham (United Kingdom). Later on, he came to Pakistan and got married to Mst. Farhat Saeeda in Gujrat on 22‑4‑1982. Mst. Fauzia filed a complaint with the Chairman, Arbitration Council, Ward No.4, Municipal Committee, Gujrat that the petitioner had taken another wife, without her permission and, therefore, had contravened the provisions of section 6(5) of Muslim Family Laws Ordinance, 1961. This complaint was forwarded to the Ilaqa Magistrate on 31‑7‑1983 by the Chairman, Arbitration Council for trial.
When the case was taken up Mian Khadim Hussain submitted an application under section 249‑A, Cr.P.C. seeking acquittal. The application was accepted by the Magistrate 1st Class, Gujrat, vide his order, dated 7‑12‑1983 and the petitioner was acquitted under section 249‑A, Cr.P.C. on the ground that there was no likelihood of the accused being ultimately convicted of any offence.
Feeling aggrieved, Mst. Fauzia Hussain, respondent No. l, filed a petition for leave to appeal before the Lahore High Court against .he aforesaid order under section 417(2) of the Criminal Procedure Code.
A learned Single Judge of the said learned Court by a detailed and comprehensive order allowed the said petition, set aside the order of acquittal, dated 7‑12‑1983 passed by the learned Magistrate and remanded the complaint of Mst. Fauzia Hussain for trial according to law. In the course of the order the learned Judge observed:
"In the instant case, the marriage of Mst. Fauzia Hussain and Mian Khadim Hussain was duly registered before the Deputy Registrar, at Birmingham. It was not registered under the Muslim Family Laws Ordinance but that would not make the marriage between them as a 'doubtful fact'. The parties lived together as husband and wife. They had two daughters out of their wed‑lock. Mst. Fauzia Hussain filed a suit for dissolution of marriage and for maintenance against Mian Khadim liussain who in retaliation filed a suit for restitution of conjugal rights against Mst. Fauzia Hussain in Pakistani Courts. This would mean that both the parties accepted and admitted the fact of their first marriage in Birmingham. The precise argument of the learned counsel fore respondent No. 1 was that as the first marriage was not registered under the Muslim Family Laws Ordinance, therefore, it was not necessary for him to seek permission of his first wife before contracting second marriage in Pakistan. I am not prepared to accept this argument of the learned counsel Even if the earlier marriage of the parties was performed in Birmingham, then also that was a valid marriage between the two Muslims and as such Mian Khadim Hussain could not have entered in second marriage without permission of his first wife under the Muslim Family Laws Ordinance."
Ch. Muhammad Abdus Saleem, learned counsel for the petitioner, has addressed a lengthy argument before us in which he raised a large number of points, some of which do seem to be arguable on the legal B plane. However, we feel that, in the circumstances of this case, this is not an appropriate occasion for adjudicating upon the points raised and we are not inclined to grant leave to appeal in this case.
This petition, accordingly, stands dismissed.
M . I . Petition dismissed.
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