This writ petition has been filed against the order dated 19-3-89 of Additional Sessions Judge, Lahore in revision petition (No. M.A. 31/88) filed by Mst. Sarwar Bano respondent against the petitioner. Writ Petition No. 1980/89 has been filed by Hakim Liaquat A.I Khan (brother of the petitioner in this petition) against the order dated 19-3-1989 passed by the same Judge in revision petition (No. M.A. 30/88) filed by Mst. Sarwar Bano against Hakim Liaquat A.I Khan. Although two separate orders have been recorded in the revision petitions filed by Mst. Sarwar Bano before the Addl. Sessions judge yet the revision petitions pertained to the same matter and similar orders have been passed in both the revision petitions. The points of law and facts urged in both the writ petitions are also similar. In fact the two-impugned judgments are verbatim copies of each other.
Both the writ petitions are, therefore, being taken up together for disposal.
2. The background leading to the filing of both the writ petitions is that, Mst. Sarwar Bano a divorced wile of Liaquat A.I Khan had filed a suit for her maintenance as well as for the maintenance of her son before the Judge Family Court. The prayer for grant of maintenance of the son was allowed by the Judge Family Court but the prayer for grant of maintenance to Mst. Sarwar Bano was dismissed. During the proceedings in the suit for maintenance, Mst. Sarwar Bano tiled an application for initiating proceedings under section 476 Cr. P.C. Against Liaquat All Khan her ex- husband and Munawar A.I Khan (petitioner) brother of Liaquat A.I Khan who had appeared as a witness for his brother.
3. Learned judge Family Court dismissed the application vide order dated 14-10-8fi holding that the Family Courts had not been devolved the powers to exercise jurisdiction for initiating proceedings and taking action under Section 476 Cr.P.C. Mst. Sarwar Bano challenged the order passed by the Judge Family Court by way of separate revision petitions against Liaquat A.I Khan and Munawar A.I Khan in this Court. Both the revision petitions were disposed of as having been withdrawn vide order dated 26-1-88 passed by this Court. Thereafter Mst. Sarwar Bano preferred two separate revision petitions against both the petitioners before the Sessions Judge, Lahore on 15-7-88. The revision petitions, which were entrusted to the Addl. Sessions Judge, were allowed by him vide separate orders passed in both the revision petitions on 19-3-89 and the case was remanded to the Judge Family Court for proceeding under Section 476 Cr.P.C. On the application filed by Mst.
Sarwar Bano. The writ petitions, as noted above, have been filed against the orders passed by the Additional Sessions Judge.
4. Learned counsel for the petitioners has challenged the impugned orders on the ground of having been passed illegally and without jurisdiction. He also challenged the jurisdiction of the Judge Family Court to proceed under. Section 476 Cr.P.C.
Learned counsel contended that a special provision has been laid in the West Pakistan Family Courts Act, 1964 for filing appeals against the decisions given or the decrees passed by a Family Court. In this connection he referred to Section 14 of the Act. Learned counsel argued that in view of the specific provision made in the Family Courts Act for filing appeal, the petitioners neither could have filed a revision petition before the Sessions Judge nor the Sessions Judge or the Additional Sessions Judge was competent to entertain and decide the same. Learned counsel further contended that the impugned order was even otherwise illegal and without jurisdiction from another angle also, in that, he contended that learned Addl. Sessions Judge had no powers to set aside the order passed by the Judge Family Court, while exercising revisional powers under section 439-A Cr.P.C.
5 Learned counsel for the respondent controverted the contentions raised by learned counsel for the petitioner and argued that the impugned order was passed lawfully and within jurisdiction. In that, he pointed out that a special procedure for filing appeal against the order passed and action taken under section 476 Cr.P.C. Has been laid down in sub-section (4) of the said section. Learned counsel while clarifying his point contended that if the learned Judge Family Court had accepted the application Filed by the respondent for initiating proceedings under Section 476 Cr.P.C. Against the petitioner and taken action thereunder, the respondents would have a right of filing appeal before the Sessions Judge and refusal of the Sessions Judge not to have taken action against the respondents does not mean that the provisions of subsection (4) of Section 476 Cr.P.C. Became redundant.
Learned counsel further contended that the provisions made for filing a suit before the Family Courts for maintenance are parallel to the provisions which existed in the Code of Criminal Procedure vide Section 488 Cr.P.C. Learned counsel argued that repeal/deletion of the said section from the Code of Criminal Procedure did not mean that the order passed by a Judge Family Court in regard to the matter pertaining to the maintenance could not be heard in appeal/revision by a Sessions Judge.
He also defended the impugned judgment with regard to the jurisdiction the Judge Family Court to proceed under Section 476 Cr.P.C.
6. Section 14 of the West Pakistan Family Courts Act, 1964, referred to by learned counsel for the petitioner reads as follows:-- "14. (1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable:--
(a) to the High Court, where the' Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Addl. District Judge; and
(h) to the District Court, in any other case."
Section 439-A.Cr.P.C. Reads as follows: "439-A. Sessions Judge---s powers of revision.--(1) In the case of any proceedings before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by Section 439." subsection (4) of Section 476 Cr.P.C. Reads as follows:-- "(4) Any person sentenced by any Court under this section may, notwithstanding anything herein before contained, appeal:--
(a) in the case of a sentence by the High Court, to the Supreme Court;
(b) in case of a sentence by a Court of Sessions, or District Court, or I Court exercising the powers of a Court of Sessions or District Court, to the High Court; and
(c) in any other case to the Sessions Judge."
7. It is clear from the wording of Subsection (1) of Section 14 of the Family Courts Act that the procedure laid therein for having recourse to the appellate Courts not only pertains to the 'decrees passed' by the Family Court but tile 'decisions given also. The incorporation of the words 'a decision given' for having recourse to appellate Court, obviously, rather clearly, refers to other orders than a decree. These decisions will include the interim orders passed during the proceedings or the orders passed on any application arising out of the proceedings. The comprehensive language of the Section leaves no room to doubt that no party aggrieved by any order can have a recourse to appellate Court other than the one provided in the section. It is not only, commonly known, but well established too, that where a special provision has been made for filing appeals against the orders passed by a Court or 'authority', the parties cannot have recourse to any forum other than that.
8. The argument of learned counsel for the respondent that since a provision has been laid in Section 476 Cr. P.C. Itself, for filing appeals, the respondent, therefore, rightly challenged the order of the Judge Family Court before the Court of Session by way of a revision petition against the order passed by the Judge Family Court on her application under Section 476 Cr.P.C., is without any foundation. In that, firstly, the Judge Family Court had not passed any order resulting from the proceedings under Section 476 Cr.P.C. He in fact, had refused to proceed under Section 476 Cr.P.C.
Holding that the powers to proceed under Section 476 Cr.P.C. Have not been devolved on the Judge Family Court. Obviously, there is a vast difference between a refusal to exercise authority on account of lack of jurisdiction and to allow or disallow a prayer or application on merits by assuming jurisdiction. Secondly, the argument advanced by learned counsel by way of illustration also, does not advance the case of the respondent. In that, provision has been made in subsection
(4) of Section 476 Cr. P.C. For filing appeals try the convicted persons, but for riling appeals against the orders of acquittal, provision has been made in subsection (5) of the same Section wherein it is laid down that Chapter XXXI of the Code of Criminal Procedure shall apply to such cases, which means that the appeal against acquittal in proceedings under Section 476 Cr.P.C, has also to be filed as provided in Section 417 Cr.P.C. According to the provisions of Section 417 Cr.P.C. The appeals against acquittal have to be filed on behalf of the Provincial Government by the Public Prosecutor within sixty days. In the case of acquittal, in complaints, however, provision has been made for a private party to file appeals, but that provision can only be availed of by a person, whose complaint has been dismissed after trial by a Court.
9. The impugned orders even otherwise were without jurisdiction as pointed out by learned counsel for the petitioners, as powers under Section 439-A Cr.P.C. Which have been vested in the Court of Session, pertain to the orders passed by Magistrates. The Judge Family Court cannot, by any means be termed as Court of 1st Class Magistrate.
The argument of learned counsel for the respondent in this regard that since the provisions of the Judge Family Court for awarding maintenance were parallel to the provisions of Section 488 Cr.P.C.
(since deleted) wherein the District Magistrate, Sub-Divisional Magistrates or the Magistrates of 1st class were competent to hear and decide cases for maintenance, the Courts of Judges Family Courts should be deemed to mean exercising powers of Magistrates while hearing cases of maintenance, in my view, does not hold water at all and so his contention that the orders passed in revision petition by the Addl. Sessions Judge were not without jurisdiction, possesses no force. The legislature in its wisdom created a new law and procedure for having recourse for demanding maintenance, provisions of appeal against such orders wherein have also been provided. [n the circumstances, it is unimaginable to hold or argue even that the aggrieved part can have a recourse to the Sessions Judges depending upon the provisions of Section 488 Cr.P.C. Which stands deleted and stood deleted much prior to the dispute that arose between the parties.
The whole argument in this regard is even otherwise misplaced and appears to be due to lack of knowledge, for the reason that no appeal or revision could be filed to the Court of Session against the orders passed by the Magistrates under Section 488 Cr.P.C. (since deleted) and the only remedy available then to the affected party was a revision petition to the High Court.
I have avoided to observe anything about the contentions of learned counsel for the parties with regard to jurisdiction of the Judges Family Courts to initiate and take proceedings under Section 476 Cr.P.C. As the impugned orders were found to have been passed illegally and without jurisdiction.
Announced in the presence of Hakim Munawar A.I Khan and Hakim Liayuat A.I Khan petitioners in both the writ petitions.
S.A./H-138/L Writ issued.