' Mst. Kalsoom Akhtar respondent is the first wife of Shaukat Ali petitioner who contracted second marriage with Azra Perveen respondent on 24-3-1989. Mst. Kalsoom Akhtar filed a petition with the Union Council for initiating proceedings under Muslim Family Laws Ordinance, 1961, against the petitioner. The same was forwarded to D.C. Okara who entrusted it to Malik Altaf Magistrate 1st Class for disposal.
2. Shaukat petitioner moved an application for the transfer of the proceedings under the Muslim Family Laws Ordinance, 1961 from the Court of the said Magistrate to some other Court of competent jurisdiction whereupon the learned Sessions Judge Okara, transferred the same to the District Magistrate, Okara. The latter vide its letter dated 25-11-1990 returned the same to the learned Sessions Judge as according to him the case could not be transferred to him by Sessions Judge. Thereupon the learned Sessions Judge without any demur I entrusted it to the Court of Assistant Commissioner, Okara. The petitioner has approached this Court for the transfer of the proceedings from the Court of the Asstt. Commissioner, Okara to some other Court of competent jurisdiction.
3. On 12-3-1991, the learned Asstt. A.-G. Appeared and in his presence the following order was recorded:- "Learned A.A.-G. Wants further time to prepare up. Adjourned to 273-1991. Ostensibly it seems that the order of the Distt. Magistrate Okara dated 25-11-1990 whereby he flouted the order of the learned Sessions Judge transferring the case to him for trial, amounts to Contempt of Court. Issue show-cause notice to him to explain his conduct personally in Court on the above-said date."
4. In obedience to the notice, the Distt. Magistrate has appeared with his counsel. Learned counsel for the petitioner, for Mst. Kalsoom Akhtar respondent, the Distt. Magistrate and his counsel as well as the Asstt. Advocate-General have been heard.
5. At the very outset the learned Asstt. Advocate-General frankly conceded at the Bar that he could not support and defend the order of the Distt. Magistrate.
6. The Distt. Magistrate in his order objected to the order of the learned Sessions Judge transferring the case to him and observed,"... ... It (the order of the Sessions Judge) is required to be rectified accordingly " His precise objections were:--
(a) The Distt. Magistrate, in his capacity as Controlling Authority under the Muslim Family Laws Ordinance, had entrusted the complaint to the Illaqa Magistrate and as such had the personal knowledge of the facts of the case.
(b) The Distt. Magistrate was Collector as well and so Controlling Authority for the disposal of the cases under the Muslim Family Laws Ordinance, and Revisional Authority as well.
(c) The Distt. Magistrate was not a Court for the trial of the cases under the Muslim Family Laws Ordinance.
(d) The High Court, the Court of Sessions and the Court of the Magistrates (1st Class, 2nd Class and 3rd Class), are the category of Courts under Section 6 of the Code of Criminal Procedure, having ordinary and appellate jurisdiction; the Court of Distt. Magistrate was defined in section 10(1) of the Code, it was independent of the classes of Courts mentioned in section 6. The Distt. Magistrate is the Controlling and Administrative Court for the criminal Courts of the Magistrates subordinates to the Distt. Magistrate (sections 12 and 17 of the Code). The Distt. Magistrate was not subordinate to the Sessions Judge (section 17 of the Code was referred to). Claim was thrown that the Distt.
Magistrate is not the Court of original jurisdiction, it was supervisory and having administrative control. Section 192 of the Code was referred to in this respect. The Distt. Magistrate was Appellate/Revisional Court in view of the provisions of sections 406, 406-A, 407 and 435(2) of the Code.
7. It was finally claimed by him, "Consequently one Appellate Court (Sessions Court) under the general law cannot transfer a case to another Appellate/Revisional Court/Distt.
Magistrate/Collector under the Special as well as General Law....The case (pages 1 to 96) is, therefore, returned with the request to entrust the same to some other Court of competent jurisdiction."
8. The order of the Distt. Magistrate is illegal, inappropriate and improper. There is no mention of any Controlling Authority in the Muslim Family Laws Ordinance 1961. 'Collector' only finds mention in sections 6 and 9 of the Ordinance and Rule 6-A of the Rules framed under section 11 of the Ordinance. Under section 6, the decision of the Arbitration Council (on any application for permission to contract second marriage during the subsistence of earlier one) can be brought before the Collector in revision. Order of the Arbitration Council for maintenance under section 9 of the Ordinance is also subject to revision before the Collector. Rule 6-A confers powers upon the Collector to appoint any other member of the Union Council as Chairman of the Arbitration Council in place of "Chairman" on the application of any party to the proceedings before the Arbitration Council.
' The complaint against the petitioner is admittedly under section 6 (5) of the Muslim Family Laws Ordinance. In a complaint/proceedings under section 6 (5) of the Ordinance, the Collector as such has no function at all to perform. Hence the objections raised by the District Magistrate declining to hold the trial are without any basis in view of the provisions of the Ordinance.
9. The category of Courts including those of the Magistrates have been given in section 6 of the Code of Criminal Procedure. Section 10 requires the Provincial Government to appoint a Magistrate of the 1st Class to be called the Distt. Magistrate. Reading the two sections together, the conclusion is irresistible that designating'a,Magistrate 1st Class as a Dist. Magistrate would not take him out of the category of Magistrates in the District.
10. All offences under the Pakistan Penal Code are to be investigated, inquired into and tried in accordance with the provisions of the Code of Criminal Procedure. Section 5(1) ibid clearly so provides. In subsection (2) it is further laid down that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code subject to any enactment for the time being in force regulating the manner or place of investigating, inquiIing into, trying or otherwise dealing with such offences. The offence of bigamy under section 6(5) of the Muslim Family Laws Ordinance is an offence under a Special Law, but neither in the Ordinance nor in the Rules framed thereunder any separate Court or procedure for trial is indicated. So in view of the provisions of subsection (2) of section 5 of the Code it is to be tried in accordance with the provisions of the Code. Section 177 ibid requires that every offence shall ordinarily be tried by a Court within the local limits of whose jurisdiction it was committed. The offence under section 6(5) of the Ordinance would thus be triable by the Illaqa Magistrate in whose jurisdiction it has allegedly been committed. The District Magistrate being a Magistrate in the Distt.
The Sessions Judge could well transfer the case to his Court as he can from the Court of one Magistrate to that of another in the District. Subsection (1-C) of section 528 of the Code makes the position very much clear. Under it, Sessions Judge may withdraw any case from or re-call any case which he had made over to any Magistrate subordinate to him and may refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. Explanation to the subsection reads, "All Magistrates (which would certainly include Distt. Magistrate) shall be deemed to be subordinate to the Sessions Judge for the purpose of this subsection."
11. The Distt. Magistrate being a Magistrate in the District for the purpose of section 528 (1-C) is subordinate to the Sessions Judge, who can thus entrust any case to him for inquiry and trial or withdraw the same. The order of the Distt. Magistrate was, therefore, illegal, improper and inappropriate.
12. It is asserted and not denied at the Bar that Mst. Kalsoom Akhtar is connected with Addl. Deputy Commissioner (G) of the Distt. So the case pending in the Court of Asstt. Commissioner Okara, is withdrawn from his Court and is transferred to the Court of Senior Civil Judge Okara, as Magistrate Section 30/Magistrate 1st Class. The petition is disposed of.