1. HAMOODUR RAHMAN, C. J.-The petitioner in this case married one Mst. Mubarika Begum, resident of Peshawar Cantonment on the 21st December 1962, but on the 31st July 19.65, he gave a notice to the Chairman of the Union Council, Ward No. 3, Peshawar Cantonment under section 7 of the Muslim Family Laws Ordinance, 1961, intimating to .Him that he had divorced his were.
2. The Chairman, after receipt of the notice, constituted an Arbitration Council for the purpose of bringing about a reconci--liation between the parties. Before the Arbitration Council Mst. Mubarika Begum complained that the petitioner had, in contravention of the provisions of section 6 of the above-mentioned Ordinance, married during the subsistence. Of his first marriage, without the permission of the Arbitration Council. On the basis of this information the Chairman of the Union Council on the 3rd October 1965, lodged a complaint before a Magistrate under section 6, subsection (5) of the Ordinance of 1961. During the pendency of this proceeding the divorce became final on the conciliation proceeding having failed. The Deputy Commissioner, Peshawar who is the Controlling Authority of the Union Council, on the 4th February 1966, confirmed that the Arbitration Council having failed to bring about a compromise in the case, the divorce had become effective after a lapse of 3 months from the date of issue of the notice to the Chairman.
3. The complaint was heard by the Additional District Magistrate, Peshawar who on the 16th August 1966, filed the complaint on the ground that the Chairman was not competent to file the complaint as under rule 21 of the Rules under the West Pakistan Family Laws Ordinance, 1961, this function had been entrusted to the Union Council. The Additional District Magistrate was also of the view that after the Deputy Commis--sioner had confirmed that the divorce had become effective the complaint could not be lawfully proceeded with.
4. No further step was taken thereafter either by the Union Council or by Mst. Mubarika Begum until the 16th June 1969 when the Union Committee purported to lodge a second complaint on the same grounds against the petitioner.
5. On the 25th October 1969, the petitioner appeared before the Magistrate and took up the plea that a second complaint was incompetent. When this was overruled by the Magistrate, it was submitted before him that the complaint, in any event, disclosed no offence as the second marriage had taken place after the divorce had become final. The Magistrate did not pass any order on this plea but fixed the case for taking evidence. There--upon the petitioner moved an application under section 561-A of the Criminal Procedure Code for the quashment of the proceedings before the Lahore Seat of the High Court. This application was returned to him to be presented to the Peshawar Seat. A learned Single Judge of the Peshawar Seat, on the 30th January 1970, rejected the application on the ground that the application was premature as the Magistrate had only fixed the case for taking of evidence.
6. The petitioner now seeks special leave to appeal. When this petition came up for hearing on the 26th March 1970, it was pointed out on his behalf that the proceedings were really in abuse of the process of the Court for on the proof he had already furnished along with his application under section 561-A, Cr. P. C. It was clear that no case had been made out in the petition of complaint.
7. This material consists of a Photostat copy of a letter issued by the Second Secretary of Embassy of Pakistan in Germany on the 11th February 1966, certifying that the Govern--ment of Pakistan have no objection to the marriage of the petitioner to a foreign national. The other document relied upon is a Photostat copy of the Marriage Certificate dated the 28th February 1966.
8. On hearing the petitioner and perusing these documents this Court, on the 26th March 1970, directed notice to issue to the Additional Advocate-General, Peshawar as also summoned the records of the Magistrate.
9. We have heard the learned Additional Advocate-General. He contends that since the matter had been fixed for the taking of evidence, the High Court was right in dismissing the petition under section 561-A, Cr. P. C. But he has not been able to produce any material to show that any offence under subsection (5), section 6 of the Family Laws Ordinance, 1961 had been disclosed in the petition of complaint. No date of marriage his been given therein nor is there anything on the record to suggest that the documents produced by the petitioner are not genuine.
10. It is clear that if the marriage took place on the 28th February 1966, then that was a valid marriage after the petitioner's first marriage with Mst. Mubarika Begum had stood finally dissolved and the dissolution confirmed by the letter of the Deputy Commissioner, Peshawar dated the 4th February 1966. We are also unable to appreciate why after the first complaint was dismissed on the 16th August 1966, the Union Committee waited for more than three years to file the second complaint.
11. This seems to suggest that the Union Committee is not acting purely in the interest of justice. We are, accordingly, of the view that this was a fit case in which the High Court should have interfered and quashed the proceedings which have clearly been filed at the instance of the first were of the petitioner and savors of personal vindictiveness. To allow the proceedings before the Magistrate to continue would amount in our view, to an abuse of the legal process. We, therefore, treat this petition as an appeal, allow the appeal, set aside the order of the High Court and quash the proceedings pending in the Court of Magistrate, First Class, Peshawar (Mr. Qamar Ali Shah) under section 6, subsection (5) of the West Pakistan Muslim Family Laws Ordinance, 1961, in the matter of Union Council, Ward No. 3, Peshawar v. A. Basit.