KHALIL AHMAD vs Mst. SHAHNAZ AKHTAR and anothers

1. {{BLUR PAGE}} rte The brief facts culminating into the filiASDASDASDASDng of this quashJQWDOHImentSDZX petition are that Mst. Jil Shahnaz Akhtar wifFWERGe of the pqfeqwcdxggomplaint agaigsnst tilt him under sectiosdAFEn 6(5) of the Muslim Family it; Laws Ordinance. Section 6 is as follows:- wi yiatrly maii; during the llocrlm t10 Ilyi01116."/Atatiik 81tOittil'1"th&.Ilirevibus ("9) , the 5111 ilt*ktigoiher nor shall any such marriage contracted without such {{BLUR PAGE}} ' An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee and shall state the reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto.

2. ' On receipt of the application under subsection (2) the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant subject to such conditions, if any, as may be deemed fit, the permission applied for.

(4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision to the Collector concerned and his decision shall be final and shall not be called in question in any Court.

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall--

(a) pay immediately the entire amount of dower, whether prompt or deterred, due to the existing wife or which amount, if not so paid shall be recoverable as arrears of land revenue; and

(b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both."

3. It was alleged, inter alia, that Mst. Shahnaz Akhtar complainant was resident of Lahore and according to the petitioner Khalil Ahmad, the second marriage was contracted in Muzaffargarh.

4. The same was also registered within the limits of District Muzaffargarh. According to the learned counsel under section 5 read with section 177, Cr.P.C., the crime is always local and it would be triable only by a criminal Court in whose jurisdiction the crime has been committed. Sections 5 and 177, Cr.P.C. Are reproduced as follows:-- "5.---(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences, under any other law shall be investigated, be inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

5. "177. Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed."

6. ' It has been laid down that the offence is to be tried by a Court in whose jurisdiction, the same is committed. According to the petitioner, as the second marriage was contracted in Muzaffargarh, therefore, the complaint should be filed there and not in Lahore. The application under section 249- A, Cr.P.C. Was moved which was dismissed by the learned trial Magistrate on the ground that the complainant i,e, Mst. Shahnaz Akhtar has been vested with the right to institute a complaint wherever she wants to file the same. It appears that the learned Magistrate has intermingled the provisions of the Muslim Family Laws Ordinance, Cr.P.C. And the West Pakistan Family Courts Act, and observed that the wife has been conferred with the right of filing the suit at a place where she lives but so far that right is concerned, that cannot be extended to file the private complaint. The reasons assigned by the learned trial Magistrate appear to be misconceived as very important aspect of the law has not been adverted to either by the learned Magistrate or by the learned counsel.

2. Under section 6(5), the offence is constituted when the second marriage is contracted without the permission of the existing wife or the concerned Arbitration Council meaning thereby the offence would be not to seek permission and permission has been sought from the first wife who was residing at Lahore. That permission has to been sought and that not seeking the permission is an offence. When it would be an offence, the same is to be determined by the trial Court as well. As the refusal by Mst. Shahnaz Akhtar occurred at Lahore, therefore, the violation of section 6(5) of the Muslim Family Laws Ordinance had occurred at Lahore. Under section 5 read with section 177, Cr.P.C., the trial Court at Lahore has jurisdiction to hear and try the complaint. The learned counsel in support of his contentions has placed reliance on Shaukat Ali v. Kalsoom Akhtar and another (PLD 1991 Lah.247) wherein it is held that the offence under section 6(5) of the Ordinance would be tribal by Illaqa Magistrate in whose jurisdiction the same is alleged to have been committed. There is no cavil with this proposition but the point is whether the contract of second marriage without the permission of first wife or the refusal to grant permission by existing wife is the offence committed. The offence under section 6(5) of the Ordinance is refusal by the existing wife or the contract of second marriage without her permission. As regards, the contract of second marriage, it is prohibited by the provisions of the Islamic Law. May be the second marriage be entered and can be legal practice but so far non-grant of permission by first wife is concerned, that is made an offence and the trial is being held with regard to that offence. Since that offence has occurred at Lahore, therefore, the Criminal Court at Lahore has jurisdiction. This petition appears to be misconceived. The same, therefore, is dismissed. The learned trial Magistrate will proceed with the trial. Since it is an old matter, it would be proper that he should see that the same is disposed of urgently without further loss of time.