MUHAMMAD ISMAIL vs SUPERINTENDENT, DISTRICT JAIL, SHEIKHUPURA and 2

ORDER

' TARIQ SHAMIM, J.--- Through this petition under section 491, Cr.P.C. Prayer has been made for the production of Fateh Ali son of the petitioner before this Court to be dealt with in accordance with law.

2. The facts of the case are that respondent No,3 filed a suit for maintenance of herself and her three children against Fateh Ali in the Court of Judge, Family Court, Ferozewala. The matter was contested where after a decree in the sum of Rs,1,24,398 was passed in favour of respondent No,3 and against the said Fateh Ali by the learned Judge, Family Court on 15-5-2004 which was challenged before the learned Additional District Judge, Ferozewala through an appeal which was dismissed on 14-7-2004 and the decree, therefore, attained finality. Respondent No,3 filed execution proceedings before the learned Judge, Family Court, Ferozewala on 11-9-2004. The said Fateh Ali filed objection petition which was dismissed by the learned Executing Court. Bailable warrants were issued against the judgment-debtor on 4-4-2006. The. Appeal against the said order was also dismissed by the learned Appellate Court on 25-5-2006.

3. The judgment-debtor thereafter filed an application seeking his release against bail bonds on the ground that the judgment-debtor was willing to deposit Rs,10,000. The learned Executing Court on 14-6-2006 accepted the offer of the judgment-debtor and subject to his furnishing bail bond in the Court in the sum of Rs,3,00,000 he was directed to be released on bail. On the joint request of the parties the order dated 14-6-2006 was recalled by the learned Court and the judgment-debtor was directed to pay a sum of Rs,10,000 to the decree-holder at once and on submission of surety bonds Fateh Ali was directed to be released from jail. The balance decretal amount was ordered to be paid within one month from the date of the orders i,e, 15-6-2006. The judgment-debtor appeared before the learned Court on 28-6-2006 and made the request for extension in time which was declined by the learned Court. On the last day fixed for the payment of the amount in question, the judgment-debtor filed an application under Order XXI, rule 29 read with section 151, C.P.C. For stay of proceedings. After hearing the parties the learned Court dismissed the application and he was taken into custody and sent to judicial lock-up.

4. The judgment-debtor on 19-7-2006 filed another application seeking easy instalments of the decretal amount which was also dismissed by the learned Court holding that the request of the judgment-debtor for instalment of Rs,1,000 per month was neither reasonable nor proper. The case was fixed for 29-7-2005 when it transpired that no payment had been made by the judgment- debtor to the decree-holder, therefore, the case was fixed for payment of the decretal amount for 4-9-2006. However, on 25-8-2006 the judgment-debtor once again filed another application seeking his release from jail which was dismissed by the learned Court on 26-8-2006.

5. The learned counsel for the petitioner contended that the order dated 15-7-2006 passed by the learned Court committing the judgment-debtor to judicial lock-up was not an order in the eye of law as the prerequisites of section 51, C.P.C. Were not complied with and that the order had been passed in a mechanical manner. Further submitted that the aforesaid order did not specify the period of detention of the son of the petitioner/judgment-debtor, hence there was no lawful justification for his further detention. Also maintained that the learned Court on 29-7-2006 when the judgment-debtor was produced before it without passing any order for his further incarceration, adjourned the case to 4-9-2006, hence, the detention was without lawful authority.

4. Pre-admission notice was issued to respondent No,3 Mst. Anwar Begum who despite issuance thereof did not enter appearance.

5. I have heard the learned counsel for the petitioner and perused the documents placed on the file.

6. Family Courts Act, 1964 has created a special procedure for decision of family matters and C.P.C.

And Evidence Act are not applicable to a case before the Family Court for the reasons that the Family Courts are given inquisition jurisdiction through special procedure provided under the Act for regulating family matters. The reason for exclusion of the provision of C.P.C. And Evidence Act is that the spouse may have easy access to justice. The Family Courts are special Tribunals which regulate and supervise the rights of the parties under the provisions of the Family Courts Act.

Reliance is placed on the cases of Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others PLD 1967 SC 402.

7. The execution of money decrees is governed by section 13(3) of the Family Courts Act, 1964, whereby the learned Executing Court could summon the judgment-debtor to pay maintenance allowance and on his refusal to pay the Court could proceed and adopt coercive measures. In the instant case the learned Executing Court before passing order against the judgment-debtor for his committal in the judicial lock-up made concerted efforts in order to recover the decretal amount from him in execution of the decree passed against him for maintenance. However, the efforts of the learned Court were frustrated by the delaying tactics employed by him 7-A. The contention of the learned counsel for the petitioner that the orders of committal of the judgment-debtor to judicial lock-up were passed in violation of section 51, C.P.C. Is misconceived as the provision of C.P.C. Are not stricto senso applicable to proceedings under the West Pakistan Family Courts Act.

8. Even otherwise the petitioner through this petition filed under section 491, Cr.P.C. Cannot challenge the proceedings of the learned Executing Court regulated by the West Pakistan Family Courts Act, 1964 wherein, as stated earlier, special procedure has been provided for the recovery of decretal amount pursuant to the decrees passed by the Family Courts which includes adopting coercive measures in case the judgment- debtor is found evasive in complying with the orders for payment of the amount in question. The detention of Fateh Ali, judgment-debtor is pursuant to the orders passed by the learned Executing Court which are well within the ambit of the law and cannot be termed as illegal or arbitrary in any manner.

9. For what has been stated above, the petition being misconceived is dismissed.