In September 1966 Mst. Aziz Fatima, wife of the applicant, filed an application under section 488, Cr.
P. C. For her maintenance and that of her minor children, Mst. Najma, Mst. Saleha, Mst. Jahan Ara and Syed Muhammad Abid Hasan in the Court of the S. D. M., Mirpurkhas. Mst. Aziz Fatima claimed maintenance at the rate of Rs. 250 per month from the applicant. While the application was pending the provisions of the West Pakistan Family Courts Act, 1964 were applied to District Tharparkar, of which Mirpurkhas is the headquarter, by notification dated 21st February 1967 issued under subsection (3) of section 1 of the Act. No objection was, however, taken to the jurisdiction of the Court and on 30th October 1967 the learned S. D. M. By an order granted maintenance at the rate of Rs. 150 per month to Mst. Aziz Fatima and her children. Against the above order a revision was filed in the Court of Sessions which was dismissed on 31st July 1968. Another revision was preferred in the High Court and though the question of jurisdiction was agitated before the learned Sessions Judge yet this point was not agitated before the learned Single Judge of this Court but on merits the learned counsel for the applicant pressed the petition for admission and since he was unable to make out a point the revision was summarily dismissed vide order dated 23rd September 1968: Upon the dismissal of the revision application the learned S. D. M. Issued notice dated 19th May 1967 calling upon the applicant to deposit the sum of Rs. 3,903.98 as arrears of maintenance. The applicant again invoked the jurisdiction of the Sessions Court by filing a revision application against the notice calling upon ham to deposit the arrears of maintenance but his application was dismissed vide order dated 17th April 1970. The applicant again invoked the revisional jurisdiction of this Court to question the legality of the notice and his application was accordingly admitted to regular hearing on 11th May 1970.
2. Mr. Aziz Ullah Shaikh, the learned counsel for the applicant, 'has urged that in the order dated 23rd May 1968 Passed by my learned brattier, Safdar Shah, J., there was no treatment of the question of jurisdiction as it was not raised before him apart from a narration in the judgment that the jurisdiction was challenged before the learned Sessions Judge; and accordingly the decision on merits would not affect his contention as to the order being a nullity in law and further that the objection as to the jurisdiction could be taken even at the the of the enforcement of the order.
Under the circumstances, it would not be a review of the order but a mere decision as to the non- executability of the order directing the applicant to deposit the arrears of maintenance. On the other Mr. Riaz Hashmi, the learned counsel for Mst. Aziz Fatima, has urged with vehemance that the order dated 23rd September 1968 was final as the applicant had not preferred an appeal against this order to the Supreme Court and in that view of the matter the objection as to the jurisdiction cannot be taken now even though the order may be a nullity in law. Mr. Riaz Hashmi in support of his contention has relied on the decisions of the Supreme Court reported as Government of Pakistan v. Syed Akhlaq Husain and another (PLD 1965 SC 527), Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 101) and Income-tax Officer, Central Circle 2, Karachi and another v. Cement Agencies Limited (P L P 1969 SC 322). In Government of Pakistan v. Syed Akhlaq Husain, the question was of a wrong view of law taken by the Supreme Court but no question of jurisdiction was involved. In Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner, the question was as to the interpretation of sec--tion 29(2) of the Displaced Persons (Compensation and Rehabilita--tion) Act, 1958 upon the contention raised whether an appeal or revision lies against the order of the delegatee and in that context their Lordships of the Supreme Court applied the rule from the date on which the decision was made. No question of lack of jurisdiction was involved even in this case. In Income-tax Officer, Central Circle 2, Karachi v. Cement Agencies Ltd. Cases were sought to be reopened upon the decision of the Supreme Court in some other case and no question of any jurisdiction was involved. It was held by their Lordships that those related to matters passed and closed and until the decisions are set aside in accordance with law no fresh proceedings could be initiated in respect of the years for which the orders had been passed. It was the finality of the order that formed the basis of the observations of their Lordships of the Supreme Court. No question of lack of jurisdiction was involved.
3. Subsection (3) of section 488, Cr. P. C. Envisages the issue of a warrant for levying the amount in case of default of the payment of maintenance and the Magistrate is empowered to sentence such person to imprisonment for one month of until payment if sooner made. The Magistrate is also empowered under subsection (5) to cancel the order under certain conditions mentioned in it and under section 489 he can also vary the orders. Each step after the passing of the main order is a fresh exercise of jurisdiction and it can only be exercised if the Magistrate has jurisdiction in the matter. The contention of Mr. Riaz Hashmi in this context loses force, for the exercise of jurisdiction must have legal sanction and it cannot be conferred by a judgment of this Court in revision if the jurisdiction s was taken away by another statute and no finality can be pleaded in this behalf. In Adanan Afzal v: Capt. Sher Afzal (PLD 1969 SC 187) their Lordships of the Supreme Court while construing sections 5 and 20 of the West Pakistan Family Courts Act vis-a-vis section 488, Cr. P. C.
Have held at page 193 of the report as under :- "A comparison of these provisions thus indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters.
Looking at the provisions as a whole we are of the view that all that the Family Courts Act has done is that it has changed the forums altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contain a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. We would, therefore, hold that the Act affected also pending proceedings and the District Magistrate was right in holding that the Courts of Magistrates had no longer any jurisdiction either to entertain hear or adjudicate upon a matter relating to maintenance."
4. The weighty observations of their Lordships of the Supreme Court conclude the matter. The Act being procedural in nature, also affected the pending proceedings and the Magist--rates lost jurisdiction under section 488, Cr. P. C. In respect of scheduled matters from the day the Family Court Act was enforced and in this view of the matter the S. D. M. Could not issue a notice calling upon the applicant to pay the arrears of maintenance.
5. For the foregoing reasons I would set aside the order of the S. D. M. Dated 19th May 1967 calling upon the applicant to deposit the arrears of maintenance and accept this revision.