This is a petition under section 561-A, Cr. P. C. By Abdul Latif, petitioner, for quashment of the order dated 19th January, 1983 passed by an Additional Sessions Judge of Rawalpindi accepting the revision petition Of Mst. Bilqees Begum, respondent No. 1, against the acquittal of the petitioner by a 1st Class Magistrate of Rawalpindi on 5th September, 1982.
2. The brief facts of the case are that Mst. Bilqees Begum, reason--dent No. 1, filed a private complaint against her husband, Abdul Latif, petitioner under section 6 of the Muslim Family Laws Ordinance, 1961, for his prosecution for having taken a second wife without the permission of the Arbitration Council. A 1st Class Magistrate of Rawalpindi, before whom the private complaint was pending, acquitted the petitioner on 5th September, 1982 on the ground that the complainant and her counsel were absent and that complainant had not filed necessary copies of the documents as were required by section 241-A, Cr. P.C., with her complaint. Being aggrieved, respondent No. 1 preferred a revision petition against the said order, which was allowed by an Additional Sessions Judge of Rawalpindi on 19th January, 1983. Being dissatisfied by the said order, the petitioner has filed the present petition for quashment, which is now before me for disposal.
3. Learned counsel for the petitioner submits that the impugned order of the learned. Additional Sessions Judge is illegal as no revision lies against an order of acquittal and that the respondents' remedy was only by way of petition for leave to appeal before the High Court under section 417 (2), Cr. P. C. In this connection, learned counsel has cited Muhammad Bakhsh v. Iqbal Ahmad (1980 P Cr. L J 191). Learned counsel further submits that respondent No. 1 had not filed the necessary copies of the documents, as were required by section 241-A, Cr. P. C,. With her complaint, with the result that even otherwise her private complaint was liable for instant dismissal. It is also submitted that section 259, Cr. P. C., accepted by the learned Additional Sessions Judge as applicable in the case was deleted from the Statute Book in 1975 and that the impugned order on this ground is also not sustainable. As a coup de grace, learned counsel further submits that section 247, Cr. P. C. Was not applicable, as the offence for which the petitioner was charged was non-compoundable.
4. Learned counsel for respondent No. 1 submits that previously the private complaint was before Ch. Nazir Ahmad, M.I.C., Rawalpindi, but after the petitioner applied for bail before arrest before the learned Sessions Judge, Rawalpindi, the file was called by the Sessions Judge and after the bail petition was decided, the file stood transferred to the Court of Mr. Hyder Mehdi, M.I.C., without the knowledge of respondent No. 1/com--plainant, as in the meantime the jurisdiction of the Magistrate dealing with the relevant Police Station had changed. Accordingly, On 5th September, 1982 when the respondent's private complaint was dismissed, she had no notice of the said case being before Mr. Hyder Mehdi, M.I.C. Learned counsel further submits that the offence in question being non---compoundable, section 247, Cr. P. C. Is inapplicable to the case and the acquittal of the petitioner on the ground of absence of the complainant is basically illegal. Learned counsel next contends that the non-filing of the documents required by section 241-A, Cr. P. C. To be filed with the private complaint, did not authorise the Magistrate to summarily dismiss the complaint. In this regard it is submitted that the period of time mentioned in section 241-A, (2) Cr. P. C. Is not mandatory. In this connection, Karim Dad v. Muhammad and others and Nasir Ahmad v. The State (1980 P Cr. L J 1272) are referred. It is lastly submitted that the jurisdiction of this Court to act under section 561-A, Cr. P. C. Is discretionary and, in the peculiar circumstances of this case, this Court should not exercise its discretion in favour of the petitioner.
5. I have given my anxious consideration to this case. It cannot be denied that against an order of acquittal passed on a private complaint, the complainant has no right of filing a revision petition, 14 but only a petition for leave to appeal under section 417 (2), Cr. P. C. If any authority is required in the said connection, Muhammad Bakhsh v. Iqbal Ahmad may be referred. However, it cannot be overlooked that the absence of the respondent/complainant before Mr. Hyder Mehdi, M. I. C.
Rawalpindi, on 5th September, 1982 was for reasons beyond her control and of which she had no notice. The findings of the learned Additional Sessions Judge, Rawalpindi in this connection are cogent and clear and I have no hesitation in approving the same. The offence under section 6 of the Muslim Family Laws Ordinance, 1961, entails a punishment of a year. As such, under Schedule II of the Cr. P. C.. The said offence is non-compoundable. In these circumstances, in view of section 247, Cr. P. C., the trial Magistrate was incompetent to acquit the petitioner on the ground that the complainant was absent. Taking all circumstances into consideration, I would not like to exercise my discretion in favour of the petitioner, as to do so would be to support an illegal order passed by the trial Magistrate.
7. For the foregoing reasons, there being no merit in this petition, the same is dismissed,