MUHAMMAD FAHEEM WALL J.- Through instant appeal, the appellant Mst. Mujahida has called in question the judgment & order dated 11.11.2023, passed by the learned Additional Sessions Judge-III, Swabi, whereby appeal filed by the respondent Alamgir Khan, against his conviction and sentence was allowed and he was acquitted of the charge.
2. Brief facts of the case are that appellant filed a complaint against the respondent before the learned trial court, under Section 6 of the Muslim Family Laws Ordinance, 1961, alleging that she had contracted marriage with the appellant on 17.02.2019, but the appellant subsequently contracted a second marriage without her consent and permission of the Arbitration Council. After recording statement of the appellant under section 200 Cr.PC the matter was referred to the SHO police station concerned for inquiry. Upon receipt of inquiry report the learned trial court summoned the respondent, framed charge, and proceeded to trial. The appellant produced & examined five witnesses in support of her complaint, including herself and the concerned Inquiry Officer.
Thereafter, statement of respondent was recorded under section 342 Cr.PC and he produced two defence witnesses. Upon conclusion of the trial and hearing arguments, the respondent was convicted and sentenced by the learned trial court vide judgment & order dated 20.02.2023.
Feeling aggrieved, the respondent filed an appeal. The appellate court, held that the matter was exclusively triable by the Family Court and not by the Judicial Magistrate, thus vide impugned judgment & order dated 11.11.203 while setting aside the conviction & sentence of the respondent, acquitted him of the charge. Dissatisfied with such acquittal, the appellant preferred this appeal against acquittal of the respondent.
3. Arguments of learned counsel for the parties heard and with their valuable assistance record has been perused.
4. It evinces from the record that the accused/respondent was charged on the strength of Section 6 of the Muslim Family Laws Ordinance 1961, read with Rule 21 of West Pakistan Rules under the Muslim Family Laws Ordinance 1961, for contracting second marriage without seeking permission of the complainant or arbitration council, during the subsistence of an existing marriage. Accused/ respondent was found guilty of the offence under section 6 (5)(b) of the Muslim Family Laws Ordinance 1961, and after conviction was sentenced to undergo simple imprisonment for 02 months and also to pay fine of Rs.5000/-, in default thereof to further undergo simple imprisonment for the period of 01 month. The execution of sentence however, was postponed and kept in abeyance till the expiry of time of appeal or the decision of the appeal, if so preferred by the convict, under the powers conferred upon the trial court under section 382-A Cr.P.C., for the reason that the punishment of imprisonment awarded to the convict is less than one year. The respondent being aggrieved of the aforesaid order of conviction and sentence preferred an appeal before the court of learned Additional Sessions Judge-III/MCTC, Swabi, who vide order dated 11.11.2023 allowed the appeal by declaring all the proceedings conducted by the Judicial Magistrate right from its inception as "Coram non Judice". Consequently, the order & judgment of the trial court was set aside and the respondent was acquitted of the charge. The appellant being dissatisfied with such order of acquittal filed the instant appeal under section 417 of the Cr.P.C.
5. Before diverting to the other merits of the case, counsel for the respondent has raised preliminary objection regarding the maintainability of present appeal. Learned counsel for the respondent has referred to section 417(2) of Cr.P.C. wherein it has been provided that "If an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
In the present case, the relevant criminal proceedings had admittedly been instituted upon the complaint filed by wife of the accused, the present appellant, without obtaining special leave to appeal from the High Court; therefore, the appellant is legally precluded from instituting the present appeal before the High Court as a mater of right.
Learned counsel for the appellant has raised a valid point, and it is equally true that specifically no particular application for grant of special leave to appeal has been filed by the appellant in terms of section 417 (2) of Cr.P.C, rather the heading of the appeal reveals that the appeal has been inadvertently filed u/s 417 (2A) Cr.P.C., but important aspect of the case is that the heading of the appeal shows that, the appeal has not only been filed u/s 417 (2A) Cr.P.C. but in the caption it has also been prayed that the same shall be read with "other relevant laws"; therefore, such an error can be condoned for the ends of justice, more particularly, when the case has already been admitted for full hearing vide order of this Court dated 08.03.2024. Even otherwise, the court has ample inherit powers to make such orders as may be necessary to secure the ends of justice.
Consequently, this appeal shall be deemed and treated as an appeal under section 417 (2) read with section 417 (2) (a) Cr.P.C, and the admitting note dated 08.03.2024 shall be deemed and treated as an order for grant of special leave to appeal from the order of acquittal.
6. Reverting back to the merits of the present appeal, as stated earlier, the accused has been convicted under section 6 (5) (b) of the Muslim Family Laws Ordinance 1961, but the appellate court converted the said order of conviction into that of acquittal, primarily upon a technical issue that according to Section 5, no other court can assume jurisdiction in respect of the provisions of Muslim Family Laws Ordinance, except the Court constituted under the West Pakistan Family Courts Act 1964, and it was only the Family Court who can try offences under the PPC as mentioned in Part-II of the schedule, in cases where one of the spouses is a victim of an offence committed by the other. The learned appellate court was probably under impression that as in the present case trial has been conducted, resulting into conviction of the accused/respondent by a Judicial Magistrate; therefore, he was not authorized to assume jurisdiction and carry out proceedings in clear violation of section 5 of the Muslim Family Laws Ordinance 1961 read with Part-II of its schedule.
With all due respect to the aforesaid observations of the learned Additional Sessions Judge- III/MCTC, Swabi, in order to resolve the controversy it is pertinent to reproduce relevant Section 5 as well as Part-I and Part-II of its schedule annexed to the West Pakistan Family Courts Act 1964;
5. Jurisdiction. (1) Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part I of the Schedule.](2)
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other.
(3) The High Court may with approval of the Government, amend the schedule so as to alter, delete or add any entry thereto."] SCHEDULE ["PART I"]
1. Dissolution of marriage ["including Khula7
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children ["and the visitation rights of parents to meet them"]
6. Guardianship.
7. Jactitation of marriage.
8. Dowry
9. Personal property and belongings of a wife.
["PART II"] Offences and aid and abetment thereof under sections 337-A(1), 337-F(i), 341, 342, 343, 344, 345, 346, 352 and 509 of the Pakistan Penal Code (Act XLV of 1860".)
7. The cursory look at section 5 (1) of ibid Section of Law provides that the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in Part-I of the Schedule, the same would manifest that the Family Court shall have exclusive jurisdiction in matters pertaining to dissolution of marriage including Khulla; dower; maintenance; restitution of conjugal rights, custody of children including visitation rights of parents to meet them; guardianship; jactitation of marriage; dowery and personal property and belongings of a wife.
Similarly, Section 5(2) denote that the Family Court shall have exclusive jurisdiction to try offences, where one of the spouses is a victim of an offence committed by the other, if the offence falls in Part-II of the schedule i.e. the offences, including its aid and abetment thereof under section 337- A(i), 337-F(i), 341, 342, 343, 344, 345, 346, 352 and 509 of the Pakistan Penal Code (Act XLV of 1860).
8. An independent overview of Part-II of the ibid schedule read with section 5(2) of the West Pakistan Family Court Act, 1964, manifest that if any offence mentioned in the schedule is committed by one of the spouses against the other, then the exclusive jurisdiction would lie with the Family Court to try such offences; however, a threadbare perusal of the ibid provisions of law, glorify that when the accused has been charged under section 6(5)(b) of the Muslim Family Laws Ordinance 1961, which is not part & parcel of Part-II of the schedule; then, the jurisdiction to try such an offence only lies with the courts of ordinary criminal jurisdiction, to be tried by the concerned judicial magistrate. Meaning thereby that the offences which are not included in Part-II of the schedule of West Pakistan Family Courts Act 1964, including Section 6(5)(b) of the Muslim Family Laws Ordinance 1961, shall not be tried by the Family Court.
9. In the present case, the accused/ respondent has been charged under section 6(5) (b) of the Muslim Family Laws Ordinance, 1961, which can be tried by the courts of ordinary criminal jurisdiction; therefore, assumption of jurisdiction and taking cognizance by the learned Judicial Magistrate was unexceptional, which could not have been reversed, solely on the point of jurisdiction.
10. The learned appellate court has not catered to this aspect of the matter and has fallen in error in allowing the appeal against acquittal on a hyper technical ground, without discussing the other merits of the case, which otherwise is not sustainable in the eyes of law for the aforementioned explanation and reasons given in the preceding paragraphs. The error committed by the Appellate Court has caused substantial miscarriage of justice that warrants interference of this court in its appellate jurisdiction.
11. For the foregoing discourse, the appeal is allowed, the judgment & order of acquittal passed by learned Additional Sessions Judge-III/MCTC, Swabi is hereby set-aside, and the case is remanded back to the appellate court to rehear the appeal and decide it upon merits, after providing an opportunity of hearing to the parties. Parties are directed to appear before the learned appellate court on 04.08.2025.