' This is a petition for special leave to appeal by Mst. Fauzia Hussain against the order dated 7-12- 1983, passed by a Magistrate 1st Class, Gujrat, acquitting Mian Khadim Hussain respondent No, 1 from the charge under section 6(5), Muslim Family Laws Ordinance, 1961.
2. The precise allegation against Mian Khadim Hussain accused was that he contracted a second marriage with Mst. Farhat Saeeda on 22-4-1982 during the existence of his first marriage with Mst.
Fauzia Hussain complainant.
3. The facts necessary for disposal of this petition are as follows which are not disputed by the parties.
' Mst. Fauzia Hussain petitioner married Mian Khadim Hussain respondent No, 1 on 28-6-1975, at Birmingham (U. K.). This marriage was registered under the Registration of Marriage Act, 1949 in Birmingham. The spouses lived happily for some time and had two daughters out of the wedlock.
Both the spouses are Pakistan nationals and had also taken British nationality. It is admitted by both the learned counsel appearing on behalf of the spouses that they held dual nationality. Mst.
Fauzia Hussain and Mian Khadim Hussain lived together happily. However, after some time there was estrangement of relations between the two. Both the parties came over to Pakistan. Mst. Fauzia Hussain on 16-4-1983, filed two suits before Judge Family Court, Gujrat ; one was for dissolution of her marriage with Mian Khadim Hussain and the second was for maintenance on her own behalf as well as on behalf of her two minor daughters. These two suits are still pending. Mian Khadim Hussain respondent on 17-5-1983. Filed a suit for restitution of conjugal rights against Mst. Fauzia Hussain at Lahore. This suit was later transferred to Judge Family Court, Gujrat and is also pending alongwith the above-mentioned two suits by Mst. Fauzia Hussain. The respondent Mian Khadim Hussain having contracted second marriage on 22-4-1982, without permission of his first wife, a complaint under section 6(5), Muslim Family Laws Ordinance, 1961 was filed by Mst. Fauzia Hussain on 10-4-1983 before the Chairman, Arbitration Council, Ward No, 4, Municipal Committee; Gujrat.
Tbis complaint was forwarded by the Chairman, Arbitration Council, on 31-7-1983 for trial by the Ilaqa Magistrate. The respondent Mian Khadim Hussain appeared before the Magistrate and filed an application under section 249-A, Cr. P. C. Which was accepted vide impugned order dated 7-12- 1983. The petition for special leave to appeal was ,admitted on 25-3-1984 where after this petition is being treated as an appeal under section 417(2), Cr. P. C. The above-stated facts are not disputed by any of the two parties.
4. The learned counsel for respondent No, 1 raised the following preliminary objections :-
(i) That Mst. Fauzia Hussain has titled this petition as appeal under section 417(2), Cr: P. C. Instead of classifying the same as petition for special leave to appeal and as such, is liable to be dismissed ;
(ii) that the present petition under section 417(2), Cr. P. C. Was not maintainable because the respondent Mian Khadim Hussain was not being prosecuted on a private complaint but on the basis of a complaint by Chairman, Arbitration Council ;
(iii) that the petition for special leave to appeal under section 417(2), Cr. P. C. Was barred by time. In support of this, he placed reliance on Muhammad Ibrahim v. Gopi Lal and another AIR 1958 All 691 and Qamrul Islam v. The State and another 1981 P Cr. L r 586, and
(iv) that the Courts in Pakistan have no jurisdiction in the matter because the first marriage between the parties was solemnized in Birmingham under the British Law. The precise argument of the learned counsel was that the first marriage having been solemnized in Birmingham, there was no need of permission of the first wife for second marriage under the Muslim Family Laws Ordinance. In support of this, the learned counsel placed reliance on Dr. A. L. M. Abdullah v. Rokeya Khatoon and another PLD 1969 Dacca 47 and Sher Ahmad v. Mst. Zubaida Bibi and others NLR 1984 SC J 182.
5. The learned counsel for Mst. Fauzia Hussain petitioner controverted the above arguments of the learned counsel for the respondent. It was contended by him that Mst. Fauzia Hussain and Mian Khadim Hussain wefe both Pakistan nationals and even if they contracted marriage in Birmingham, they would still be bound by the provisions of the Muslim Family Laws Ordinance, 1961.. He placed reliance on Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (1) and Mrs. Marina Jatoi v.
Nuruddin K. Jatoi and another (2).
6. I have. Heard the learned counsel' for the parties at great length and have also gone through the case-law cited at the Bar.
The first and second objections pertain to the maintainability of this petition under section 417(2), Cr. P. C. The present complaint was filed by Mst. Fauzia Hussain before Chairman, Arbitration Council on 10-4-1983, who forwarded the same, after hearing both the parties, to the Ilaqa Magistrate for trial. The procedure adopted by the Chairman, Arbitration Council was uncalled for because the Court could take cognizance of any offence under the Ordinance on a complaint in writing by the aggrieved party. The relevant provision of law contained in rule 21 of the Muslim Family Laws Rules, 1961 as substituted vide Notification No, S.
0. X-115/75-Vol. II-Punjab Gazette, Extra, dated 26th November, 1976 is reproduced below :- "No Court shall take cognizance of any offence under the Ordinance or these rules save on a complaint in writing by the aggrieved party, stating the facts constituting the offence."
It appears that Mst. Fauzia Hussain filed the complaint in the Court of the Magistrate through Chairman, Arbitration Council under some wrong advice. It was not necessary for her to institute the complaint through the Chairman, Arbitration Council because she being an aggrieved party could herself file the complaint direct in the Court of competent jurisdiction. As such, the complaint by Mst. Fauzia would be considered by aggrieved party. The accused having been acquitted in the said complaint, the only remedy available to Mst. Fauzia Hussain was to come up to this Court B under section 41-7(2), Cr. P. C. During the arguments it was contended by the learned counsel that the provisions of section 417(2), Cr. P. C. Were attracted only in cases of 'private complaints" and not in complaints by, public functionaries. I am not impressed by this argument because a Court can take cognizance of an offence under section 190, Cr. P. C. Upon al
(1) PLD 1963 SC 51 (2) PLD 1967 SC 580 complaint of facts which constitute such offence or upon a report in writing of such facts made by any Police Officer or upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that offence has been committed. The provisions of section 190 and section 417, Cr. P. C. Make no distinction between private complaints or a complaint by a public functionary. The distinction is between a complaint and a report by a Police Officer. The word "private" is not known to the Code of Criminal Procedure. The only word used is a complaint. As such, the argument of the learned counsel that the present petition was not competent because the complaint had been forwarded by the Chairman, Arbitration Council is without any basis and cannot be sustained. In any case, as held above, the proceedings before the Chairman, Arbitration Council were unnecessary because according to Muslim Family Laws Rules as substituted in Punjab, Mst. Fauzia Hussain is an aggrieved party and could file a complaint directly in a Court of competent jurisdiction.
The mere fact that the title of this petition has been classed as an appeal will not mean that this petition was not maintainable because the D law under which this petition was filed, was correctly stated in the title of , the petition. In view of the above, the first two preliminary objections of the learned counsel for the respondent are repelled.
' The third preliminary objection of the respondent pertains to the period of limitation prescribed by section 417(3), Cr. P. C. Which is reproduced below :- "(3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order."
' It was contended by the learned counsel that this petition was filed after expiry of sixty days from the date of the impugned order which passed on 7-12-1983. The learned counsel argued that this being a special law, the provisions of the Limitation Act would not be applicable and as such, the petition under section 417(2), Cr. P. C. Should have been filed within sixty days.
' I have considered this argument. The impugned order was passed on 7-12-1983. The petitioner filed application to obtain certified copy of this order on 8-12-1983. This copy was prepared and delivered on 28-12-1983. This means that 20 days were spent for obtaining copy of the impugned order. According to the learned counsel for respondent No, 1, the petitioner was not entitled to these 20 days under section 12 of the Limitation Act because the provision of section 417(3). Cr. P. C. Was a special law to which the provisions of Limitation Act were not applicable. In support of this contention, he placed reliance on Muhammad Ibrahim v. Gopi Lal and another (1). The facts of this case were that on a complaint by Muhammad Ibrahim, Gopi Lal etc. Were tried for an offence under section 297, I. C. P. Before a Magistrate and convicted. They went up in appeal against their conviction and sentence which was allowed by the Sessions Judge who acquitted the accused on 22-6-1957. Muhammad Ibrahim complainant on 30-8-1957, filed an application under section 417(3), Cr. P. C. For grant of special leave to appeal from the order of the said acquittal. This application was filed beyond the period of sixty days. Subsequently, on 26-9-1957, i,e, after about 26 days of the institution of
(1) AIR 1958 All. 691 the application, an application under section 5 of the Limitation Act praying for extension of the period of limitation was filed which was disposed of by a Division Bench of the Allahabad High Court. Their Lordships while interpretting the relevant provisions of law held that "the intention of Legislature was that application under clause (3) must be made within sixty days of the order of acquittal and that the High Court has no power to extend the period of limitation. The bar of the High Courts entertaining an application under subsection (3) after the expiry of sixty days is absolute and section.5 of Limitation Act cannot apply." In the cited case, the application under section 5 was moved on the ground of sickness. I have gone through this judgment and am of the view that it is not applicable to the facts of the present case. In the case of Muhammad Ibrahim, it was held that provisions of section 5 of the Limitation Act could not be applied to condone the delay in filing a petition for special leave to appeal under section 417. Cr. P. C. The Code of Criminal Procedure is a general law. It is doubtful whether the expression "special law" in subsection (1) (2) of the Code of Criminal Procedure will include provisions contained in the Code itself. Subsection (2) of section 11 of the Code of Criminal Procedure is reproduced below :- "(2) It extends to the whole of Pakistan but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
A perusal of the above provision would indicate that the Code of Criminal Procedure extends to the whole of Pakistan : that nothing contained in the Code shall affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. It means that the Code of Criminal Procedure is a general law and is not applicable to any special or local law which may prescribe a special procedure for trial or period of limitation. It makes distinction in general and special or local law. The words "special or local law" have not been defined in the Code. However, under section 41, P. P. C., a special law is a law applicable to a particular subject. Here the word "subject" means a law on a particular subject like custom, income-tax, banking etc. Under section 42, P. P. C., a local law is a law applicable only to a particular part of the territories comprised in Pakistan. The Code of Criminal Procedure cannot, therefore, be considered to be a special or a local law. It is a general law applicable to the whole of Pakistan and to all Courts exercising jurisdiction under the Code of Criminal Procedure. In this view of the matter, it cannot be said that the provisions of section 417, Cr.
P. C. Contained in the Code are special law as stated in subsection (2) of section 1, Cr. P. C. Or section 41, P. P. C. However, this fact cannot be denied that special period of limitation has been prescribed in subsection (3) of section 417, Cr. P. C for filing petition for special leave to appeal. The question, therefore, to be examined is whether the provisions of section 12 of the Limitation Act, will be applicable in the instant case or not. It was conceded by the learned counsel for the respondent that if the period spent in obtaining the copies is allowed under section 12 of the Limitation Act, then this petition will be within limitation. Subsection (2) of section 29 of the Limitation Act reads as follows :- "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law ; and
(b) the remaining provisions of this Act shall not apply."
A study of these provisions would indicate that in spite of special limitation prescribed in a provision, the provisions contained in section 4, sections 9 to 18 and section 22 shall apply to the period of limitation prescribed specially for a certain provision of law unless these provisions are expressly excluded by such special or local law. A study of section 417(3),G Cr. P. C. Would show that the provisions of section 4, sections 9 to 18 and section 22 of Limitation Act have not been expressly excluded. In this view of the matter, I am of the view that section 12 of the Limitation Act would be applicable to the special period of limitation prescribed by section 417(3), Cr. P. C. The case of Muhammad Ibrahim is not, therefore, applicable to the facts and circumstances of this case. In that case, only the provisions of section 5 were held to be not applicable to the special period of limitation prescribed by section 417, Cr. P. C. Which is not the situation in the case in hand.
' The second judgment cited on this point by the learned counsel for the respondent was Qamarul Islam v. The State and another (I). In my view, this judgment is also not applicable to the facts of the present case. In the case of Qamarul Islam, Ghulam Ali accused was prosecuted on the complaint of Qamarul Islam, Game Inspector on the allegation that Ghulam Ali illegally secured and offered for sale 14 leopard skins, one crocodile skin and one snow leopard skin which were protected animals. Ghulam Ali was acquitted by the trial Court. Qamarul Islam, Game Inspector approached the District Magistrate for filing a Government appeal against acquittal which was declined. He, therefore, filed an application under section 417(2), Cr. P. C. Against the acquittal of Ghulam Ali on 19-5-1979. In this judgment, although the question of limitation was noted but no finding was given on the point. The question of limitation was considered in the context that even if the said petition by Qamarul Islam was time barred, it should be considered as a revision petition.
This was declined without any finding on question of limitation. I am, therefore, of the view that the judgment in Qamarul Islam's case was not applicable to the facts and circumstances of this case.
7. In view of the above I hold that the provisions of section 12 of the Limitation Act were applicable to a petition for special leave to appeal under section 417(2), Cr. P. C. And as such, the present petition was within time.
8. The last preliminary objection which in fact is the point involved on merits of this case also, pertains to the jurisdiction of the Court. The trial Magistrate vide impugned order acquitted Mian Khadim Hussain under section 249-A, Cr. P. C. From the charge under section 6(5), Muslim Family Laws Ordinance by concluding that "the first marriage of Mst. Fauzia complainant with Mian Khadim Hussain accused' was contracted at
(1) 1981 P Cr. L J 586 Birmingham (England). Entry of the marriage was also made there in the Office of Deputy Registrar and the complainant is a permanent citizen of Birmingham (England). As such this Court has no jurisdiction to adjudicate the matter and does not fall under the provisions of Family Laws Ordinance in Pakistan." In view of the above conclusion, the learned trial Magistrate held that it would not be justified to deal with the case in such circumstances and proceeded to acquit the accused.
9. The learned counsel for the respondent in support of his contention on preliminary objections as well as on merits of this petition placed reliance on Dr. A. L. M. Abdullah v. Rokeya Khatoon and another (1) and Sher Ahmad v. Mst. Zubaida Bibi and others (2).
' In the case of Dr. A. L. M. Abdullah, the marriage between the spouses had not been registered in England or any other foreign country. In that case, the marriage of the parties, solemnized under Muslim Law, was not registered under the Muslim Family Laws Ordinance and as such, it was held that non-registration causes doubt on solemnization of such marriage. As is clear, this is not the situation hi the case in hand. As such, this judgment is not applicable to the facts and circumstances of this case and cannot, therefore, be relied upon.
' The facts of the case of Sher Ahmad were also different than the facts and circumstances of the case in hand. In the cited judgment, Sher Ahmad claimed Mst. Zubaida Bibi to be his wife. She denied the assertions of Sher Ahmad and therefore, filed a suit for jactitation of marriage and in the alternative prayed for dissolution of her marriage on the ground of exercise of option of puberty.
The Additional District Judge decreed the suit for jactitation of marriage by holding that as the marriage was not registered as required by section 5 of the Muslim Family Laws Ordinance, the plea raised by the respondent Mst. Zubaida Khatoon that there was no valid marriage between the parties was a possible view. The judgment of the Additional District Judge was upheld by the High Court as well as by the Hon'ble Judges of the Supreme Court. The judgment in the case of Sher Ahmad was given on totally different facts. In the instant case, the marriage of Mst. Fauzia Hussain and Mian Khadim Hussain was duly registered before the Deputy Registrar, at Birmingham. It was not registered under the Muslim Family Laws Ordinance but that would not make the marriage between them as a "doubtful fact". The parties lived together as husband and wife. They had two daughters out of the wedlock. Mst. Fauzia Hussain filed a suit for dissolution of marriage and for maintenance against Mian Khadim Hussain who in retaliation filed a suit for restitution of conjugal rights against Mst. Fauzia Hussain in Pakistani Courts. This would mean that both the parties accepted 'and admitted the fact of their first marriage in Birmingham.. The precise argument of the learned counsel for respondent No, I was that as the first marriage was not registered under the Muslim Family Laws Ordinance, therefore,. It was not necessary for him to seek permission of his first wife before contracting second marriage in Pakistan.. I am not prepared to accept this argument of the learned counsel. Even if the earlier marriage of the parties was performed in Birmingham, then also that was a valid marriage between the two Muslims and as such, Mian Khadim Hussain could not have entered in second marriage without permission of his first wife under the Muslim Family Laws Ordinance. The marriage before a Registrar in Birmingham does not necessarily import the essential of monogamy. Such marriage
(1) PLD 1969 Dacca 47 (2) NLR 1984 SC J 182 conforms to requirements of Muslim marriage and would be recognized as a valid marriage under Muslim Law. In support of this, respectfully, reliance is placed on Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf and Mrs. Marina Jatoi v. Nuruddin K. Jatoi and another.
10. In view of the above discussion, I allow this petition and set aside the order of acquittal dated 7- 12-1983, passed by Magistrate 1st Class, Gujrat and remand the complaint of Mst. Fauzia Hussain for trial and proceedings according to law.
' The parties are directed to appear before the Sessions Judge, Gujrat on 5-1-1985, who will entrust this case for trial according to law to a Court of competent jurisdiction (other than Mr. Muhammad Musa Khan, M. I. C., Gujrat) at Gujrat.