' The facts leading to the filing of this Constitution petition are that respondent No.1 Dr. Nargis Rahana had filed a complaint against the petitioner and his real brother Major (Rtd.) Khalid Iqbal for an offence under section 6(5) of Muslim Family Laws Ordinance, 1961. Allegation in the complaint was that Major (Rtd.) Khalid Iqbal, co-accused, during the subsistence of his earlier marriage, married the complainant (respondent No.1) without disclosing the factum of his earlier marrilage. Allegation against the petitioner was that he had connived with his co-accused and thereby abetted the offence. In the present proceedings, the petitioner challenges initiation of proceedings against him.
2. It was contended by learned counsel for the petitioner that the only role ascribed to the petitioner in the alleged commission of offence is that he was a witness in the Nikahnama; no other role is ascribed to him. Argued that the Muslim Family Laws being a special law, provisions of section 109, P.P.C. cannot be attracted to it nor section 34 of the P.P.C. can be made applicable.
Argued that a bare reading of the relevant section of the Muslim Family Laws Ordinance indicates that it is the person who contracts marriage who is to inform whether he was married previously or not. Argued that the petitioner has been involved simply because he happens to be real brother of his co-accused. The petition was seriously resisted by learned counsel for the respondent.
According to him, the petitioner being real brother was in the knowledge of things and he should have informed the respondent. Failure on his part clearly indicates that he had also committed the fraud.
3. I have heard the learned counsel at length and gone through the file minutely. Admittedly, the petitioner is a brother of his co-accused. The only allegation against him is that he had abetted the commission of offence. It is well-settled law that provisions of section 109, P.P.C. cannot be attracted to the special laws unless the special law itself indicates to that effect. In the instant case, reading of section 6 of the Muslim Family Laws Ordinance, 1961 clearly indicates that only a person, who contracts marriage in contravention of the said provisions, can be tried. Simply signing Nikahnama as a witness does not mean that the petitioner had shared the common intention for the commission of the offence or had abetted the same. Signing of Nikahnama as a witness simply means that he is a witness of the fact that Nikah between the parties has taken place in his presence. He cannot be saddled with the responsibility of anything which has been written in the Nikahnama or any conditions thereof.
' For what has been discussed above, I accept the petition and quash the proceedings qua the petitioner pending before the trial Court. There shall be no order as to costs.