' This application filed under section 561-A, Cr.P.C. Has arisen in somewhat unusual circumstances.
2. The marriage between applicant Muhammad Hanif and respondent Mst. Hamida took place on 10-10-1989. It is alleged by the applicant that his wife Mst Hamida was detained by her parents and was not restored to him in spite of sincere efforts made therefor. In the year 1987, the applicant contracted second marriage, whereupon Mst. Hamida, respondent No,2, filed a complaint against him before respondent No,3 for the offence under section 6(1) of the Muslim Family Laws Ordinance, 1961. The respondent No,3 recorded the evidence and passed an order convicting the applicant to imprisonment for one year and a fine of Rs,5,000. The case was then forwarded to Deputy Commissioner (South) Karachi, for execution of the sentence who transferred it to A.C.M.- XV (South) Karachi. The learned Magistrate treated this order of conviction as complaint and initiated the proceedings against the applicant. It is in these circumstances that the present application for the quashment of proceedings pending against the applicant in the Court of Illaqa Magistrate is filed.
3. Section 6(5)(b) of the Muslim Family Laws Ordinance, 1967 which is relevant in this case provides as follows:-- "any man who contracts another marriage without the permission of the Arbitration council shall;
(a) ....................................................................
(b) On conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both."
4. Rule 21 of the Muslim Family Laws Rules, 1961, again lays down that no Court shall take cognizance of any offence under the Ordinance or these rules, save on a complaint in writing by the Union Council, stating the facts constituting the offence.
5. From the perusal of the above provisions of law it is thus obvious that the learned Magistrate could take cognizance against the applicant only on a complaint made in writing by the Union Council concerned stating the facts constituting the offence. In the present case the respondent No,3 who is Member, Advisory Council, Karachi Metropolitan Corporation, has not only tried the applicant but has recorded conviction also in complete disregard of the above provisions of law.
His letter which is on record reflects this position in clear terms in the following manner:-- "In our Union Council one case of polygamy was pending according to which Muhammad Hanif son of Eassa Sopara was guilty of solemnising second marriage and was sentenced to one year imprisonment and fine of rupees five thousand. The case is sent to your Court for execution of the sentence and if any legal flaw is left the same be rectified."
6. In the case of Zakir Hussain Siddiqui v. Mst. Nasim Bano etc. Reported in 1989 CLC 106, Muhammad Zahoorul Hag, J. (as he then was) examined this point although in different context and made the following observations:-- "It is, therefore, apparent that the complaint in respect of bigamy is to be made by the Union Council and by none else. The Arbitration Council has nothing to do with such a complaint.
Moreover, it is clear from reading the Schedule of the Family Courts Act, 1%4, that Family Court Judge, can only deal with the matter of dissolution of marriage, dower, maintenance, restitution of conjugal rights custody of children, guardianship and jactitation of marriage, and therefore, he has no jurisdiction to deal with and try an offence of bigamy and therefore, the Family Court Judge, will have no jurisdiction in such cases. Such offence can only be tried by a Magistrate."
7. Mr. Diwan Bashir Ahmed, learned counsel for respondent No,2 has contended that the order of respondent No,3 which has been reproduced above was in fact a complaint and it has been treated as such by learned A.C.M.-XV (South) Karachi. Although there is no particular form in which a complaint should be made but a letter which is sent to the concerned Magistrate for execution of sentence can by no stretch of imagination be treated as a complaint. B The respondent No,3 has demonstrated in no uncertain terms for anyone to see that he had assumed the powers of 1st Class Magistrate and recorded the conviction against the applicant. The cases reported as Muhammad Islam v. The State PLD 1967 Pesh. 201 and Mian Khadim Hussain v. Mst. Fauzia Hussain and another 1986 SCMR 1821, which are relied upon on behalf of respondent No,2 have no bearing to the point in issue.
8. In view of the aforesaid reasons the proceedings drawn against the applicant in the manner described above are illegal and cannot he sustained. The same are hereby quashed. The application made under section 561-A, Cr.P.C. Is accepted. It is needless to observe that the above proceedings are quashed only on account of a legal flaw and this order will not be a bar to fresh proceedings which are initiated against the applicant in accordance with law.