' This petition has been filed under section 561-A, Cr.P.C. Calling in question the proceedings in a case titled "Mst. Shaheen Kausar v. Muhammad Ashraf and others" for an offence under section 494/495, P.P.C. Pending in the Court of Magistrate Section 30, Model Town, Lahore praying for the quashment of the same on the ground that the said proceedings amounts to the abuse of process of law.
2. The facts leading to the present petition are; that Mst. Shaheen Kausar, respondent No,1 herein, filed a private criminal complaint under the above said sections of the Penal Code against her husband Muhammad Ashraf, his first wife Naseem Akhtar, his sister Mst. Hameeda Begum, Javed Akhtar, husband of the said Mst. Hameeda Begum and Farooq Hussain brother of the said Mst.
Naseem Akhtar on the allegations that the accused persons dishonestly and fraudulently made the complainant and her parents to believe that Muhammad Ashraf was an unmarried graduate and Government Contractor and they induced the complainant to marry the said Muhammad Ashraf, on 28-5-1989; that the Rukhsati took place on 6-7-1989; that the complainant while living with her husband came to know in April, 1991 that he was previously married to Mst. Naseem Akhtar and that when the parents of the complainant protested against this conduct, the said Muhammad Ashraf gave beating to the complainant and turned her out of his house.
3. The present petition has been filed only by three accused persons namely, Mst. Naseem Akhtar, Mst. Hameeda Begum and Syed Javed Akhtar. Muhammad Ashraf and Farooq Hussain, accused, have not joined in this application.
4. The learned counsel for the petitioners has urged for the quashment of the proceedings on the ground that a Muslim male can have as many as four wives at the same time and that the second marriage of Muslim male is not void only because his first wife is living and, therefore, section 494/495, P.P.C. Are not attracted to this case. It is further urged that there was no allegation in the complaint that there was any property delivered to or retained by the accused persons through the said false statement of cheating and fraud, therefore, no offence under section 420, P.P.C. Was made out. It is also contended that the complaint was pending for the last about one and a half year and the petitioners, who lived in Faisalabad had been made to appear before the Magistrate at Lahore on more than 22 dates/occasions at great expense, inconvenience and waste of their time. It is further urged that as no case on the basis of the allegations in the complaint itself had been made out, the continuation of this complaint case against the petitioners shall be an abuse of the process of the trial Court. Lastly, it has vehemently been argued that the only remedy for the respondents is left to file a complaint under section 6(5) of the Muslim Family Laws Ordinance (VIII of 1961) and Rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961.
5. On the other hand, the learned counsel for the respondent vigorously controverted the arguments stating that the remedy under section 6 subsection (5) of the Muslim Family Laws Ordinance, 1961 is available only to the first wife by filing a complaint under Rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 if the second marriage has been solemnized without the prior permission of the Arbitration Council. Further, argues that the second wife has left with remedy only under sections 494 and 495, P.P.C. When the subsequent marriage is performed having concealed the first one. Further, argues that according to Rule 21 of the West Pakistan Rules framed under the Muslim Family Laws Ordinance, 1961 (as amended in the Punjab), the first wife is the only aggrieved person.
6. Mr. Ijaz Ahmed Chaudhry, Assistant Advocate-General also advanced the arguments in support of respondents.
7. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties. I am of the considered view that the charge under sections 494 and 495, P.P.C. Could not be framed against Muhammad Ashraf, accused for the sole reason that he is a Muslim male, who can have plurality of wives and can also have as many as four wives at the same time. Para. 255 of D.F. Mulla Principles of Mahomedan Law, Pakistan Edition, 1990 reads as follows:-- "A Mahomedan may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular."
8. The second marriage of Muhammad Ashraf, accused, with the complainant during the life time of his first wife could not, therefore, be considered as void within the meaning of section 494/495, P.P.C. The relevant portion of sections 494 and 495, P.P.C. Is reproduced as under for facility of reference:-- "494-Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (under line is mine).
495-Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years; and shall also be liable to fine."
9. The initial requirements of section 494, P.P.C. Are that when the husband and wife are living, as is in the present case, and if one of the spouses contracts another marriage, during the subsistence of the first marriage, the subsequent marriage is void under the law. It shall he an offence under section 494, P.P.C. And if the second marriage is not void as it is not in the case of Muslim, as a privilege of having as many as four marriages the said section shall not come in operation against the said person. The reliance is placed on Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51. Para.36 at page 74 where it was held that; "Section 6 is aimed at restricting polygamy. Subsection (1) thereof reads; 'No man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance'. The expression 'existing marriage' stands unqualified and would obviously cover the marriage of a Pakistani Muslim male with a Muslim non- citizen or even a non-Muslim lady, if it is recognized as valid by the laws of Pakistan. The expression 'another marriage' occurring subsequently in this subsection, should have the same connotation, prima facie. The generality of the words cannot be cut down by importing into this subsection any extraneous considerations. The Ordinance of course only penalises the person in respect of a marriage, celebrated in contravention of the provisions of the Ordinance by making him liable to imprisonment or fine or both but does not invalidate the marriage itself. But that has no bearing on the question we are considering."
It has been consistently held in Mrs. C.M. Samuel v. C. Samuel PLD 1967 SC 334, Muhammad Aslam v. Ghulam Muhammad Tasleem PLD 1971 Lahore 139, Mian Dad and another v. The State PLD 1983 FSC 518 and Zullay Khan v. Noor Muhammad PLD 1986 Quetta 290; that failure to obtain permission under section 6 of the said Ordinance only attracts penal action but does not effect the validity of the second marriage. As Muhammad Ashraf, accused, himself, cannot be prosecuted under sections 494 and 495, P.P.C., no charge under the said section for the alleged abetment/conspiracy can stand against the petitioners herein.
10. Now the question arises as to whether, the second wife has no locus standi to file a complaint against her husband, who has committed an offence of polygamy as she is not an aggrieved person within the meaning of subsection (5) of section 6 of the Muslim Family Laws Ordinance, 1961 because the said provisions only intend for the protection of his wife, rather than that of second wife. Subsection (5) of section 6 of the said Ordinance, 1961 reads as under:-- "Any man who contacts another marriage without the permission of the Arbitration Council shall:--
(a) Pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid shall be recoverable as arrears of land revenue; and
(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."
' Rule 21 of the West Pakistan Muslim Family Laws Ordinance, 1961 has been framed regarding the procedure for the prosecution. The above said rule 21 reads as follows:-- "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 fact constituting the offence." (as amended for the Punjab).
11. The arguments of the learned counsel for the petitioners that on the facts given in the complaint, Muhammad Ashraf, accused, can be punished under subsection (5) of section 6 of the Muslim Family Laws Ordinance, 1961 on the complaint of the second wife is correct in view of Faheem-ud- Din v. Sabeeha Begum and another PLD 1991 SC 1074. The relevant portion of the said authorative dictum is as follows:-- "Apart from the foregoing general consideration, we do not agree with the learned counsel that a second wife cannot be an aggrieved person if there is no permission under section 6. Firstly, as has been alleged from the respondent's side in this case the appellant had made misrepresentation about his first marriage. This would shatter the faith of a loving wife in her husband. His esteem may dwindle considerably in her view. This besides causing unhappiness to the husband would also cause serious grievance to the second wife whose expectations of a harmonious married life would suffer. Secondly, as a corollary from the foregoing, the act or omission of the husband in such a case in her view would amount to an offence as it is punishable as an offence. A respectful lady might feel a shock that she had been married to a criminal. Thirdly, and this is more important, if the husband would have obtained requisite permission there can be visualised a possibility that she might have married him notwithstanding there being a first wife. But without such a permission she might not have married him for an obvious common place reason that she might also be treated as a criminal---at least by extending of vicarious liability as an accessory in a crime through abetment or otherwise. And lastly, there is possibility that of a. Would be second wife, deciding not to marry a man who is not only already married but has also, declined or failed to obtain permission to marry, for the second time. In our society marriage by younger unmarried girls with widowers or with man having another wife under a subsisting marriage, to a considerable extent carries a stigma also for the second wife. It is so important in our society that some social workers and organizations try to influence and prevail upon the second would be wives not to go through such a marriage as according to them it might prove harmful for both the wives or one of them on account of the nature of a husband in not being observant of limits of God in doing justice between them in accordance with Islamic principles. And above all the ladies before solemnizing the contract of marriage do look at the qualification of the would-be husband and amongst which an important one is that he should be bachelor and unattached.
' In the light of the foregoing we find no force in the argument that the respondent, the second wife was not an aggrieved person." ' but under the said section only Muhammad Ashraf can be prosecuted. The other co-accused (petitioners herein) cannot be prosecuted under the above referred section as the general provisions relating to the abetment contained in section 109, P.P.C. Cannot be extended to prosecution under subsection (5) of section 6 of the said Ordinance No, VIII of 1961, which being a special law had not itself indicated to that effect. The precedent from this Court reported as Basharat Iqbal v. Dr. Nargis Rehana and another 1993 MLD 571, correctly enunciated the law on this point. There is no allegation in the complaint that any property was delivered to or retained by the petitioners herein through any false statement or cheat. The prosecution under section 420, P.P.C.
Can also not be sustained against the petitioners herein.
12. In view of the above discussion, the prosecution of the petitioners herein under the above complaint case is clearly an abuse of the process of the Court. This petition is, therefore, accepted and the said complaint case against the petitioners herein is quashed under the inherent powers of the Court under section 561-A, Cr.P.C.