Through this petition under section 561-A, Cr.P.C., the petitioners have assailed the orders of the learned Additional Sessions Judge, Sheikhupura, dated 12-6-1994, whereby he dismissed the revision petition of the petitioners against the order of the learned Magistrate dated 21-11-1993, who dismissed their application under section 249-A, Cr.P.C.
2. Facts giving rise to this petition are that Mst. Gulnaz Bokhari respondent herein filed a complaint against Shahbaz Ali, his brother-in-law, Saif Shah, his sisters Mst. Shahnaz Begum and Robina and his father Bashir Shah, under section 420/494/109, P.P.C. Read with section 6 of the Muslim Family Laws Ordinance, 1961, alleging therein that Shahbaz Ali in the presence of his first wife (the respondent) contracted second marriage without obtaining permission from her and that the remaining petitioners abetted the offence under section 6 of the Ordinance and thus are liable to be prosecuted under sections 420/4941109, P.P.C. The learned Magistrate after recording the preliminary evidence of Gulnaz Bokhari and her father summoned all the accused persons under the aforesaid provisions of law vide order, dated 7-9-1992.
Shahbaz Ali and the petitioners moved an application under section 249-A, Cr.P.C. Before the learned Magistrate for their acquittal. The learned Magistrate vide his order, dated 21-11-1993, dismissed the said application, observing therein that Shahbaz Ali had not obtained the permission to contract a second marriage from the concerned Arbitration Council and that the petition had been filed at a premature stage.
The petitioners and Shahbaz Ali then assailed the order of the learned Magistrate in revision before the learned Additional Sessions Judge, who too dismissed the revision petition vide order, dated 12- 6-1994; hence this petition by the three petitioners excluding Shahbaz Ali, the husband of the respondent.
3.Vide order, dated 25-7-1994, the petition qua Mst. Shahnaz Begum and Mst. Robina Akhtar was admitted to regular hearing on the ground that they are neither the witnesses of the Nikah nor there is any evidence that they prompted their brother to enter into second marriage during the subsistence of first wife. However, the petition qua Saif Shah was dismissed.
4. The learned counsel for the petitioners vehemently contended that the petitioners are being prosecuted as they abetted the offence under section 6 of the Muslim Family Laws Ordinance, 1961 by instigating the principal accused Shahbaz Ali to contract a second marriage during the subsistence of first marriage without obtaining the consent from the former wife and certificate from the concerned Arbitration Council, as contemplated under section 6 of the Muslim Family Laws Ordinance, 1961. He argued that the petitioners were neither party to the marriage nor they could be tried for having abetted the offence, because the provisions of the Penal Code could not be applied to the provisions of Muslim Family Laws Ordinance, 1961, which is special Statute. Placed reliance on 1991 PCr.LJ 1063 and PLD 1968 Lah. 703.
5. The learned counsel for the respondent argued that the petitioners abetted the commission of the offence under section 6 of the Muslim Family Laws Ordinance, 1961, by deceitful means and as such they are liable to be punished under section 420/494/109, P.P.C. Hence the complaint against the petitioners was competent and the case-law cited by the learned counsel for the petitioners is not applicable to the facts of the case.
6. I have heard the learned counsel for the parties and have perused the record.
The allegation against the petitioners is that when the respondent was turned out of his house by Shahbaz Ali, they managed his second marriage with Mst. Nasim Akhtar, without observing the legal formalities as laid down in section 6 of the Muslim Family Laws Ordinance, 1961 and without obtaining the certificate from the concerned Arbitration Council and thus they are liable to be prosecuted under section 420/494/109, P.P.C. In this connection it may be observed that there is no evidence on the record that the petitioners A prompted her brother to enter into second marriage, nor they are the witnesses 'to the; marriage. Even otherwise the provisions of section 109, P.P.C. Are not applicable to offences under the Muslim Family Laws Ordinance, 1961, which is a special enactment and as such the continuance of proceedings against the petitioners would be an abuse of the process of the Court. Respectfully following the case-law relied upon by the learned counsel for the petitioners I accept this petition qua the two petitioners and quash the proceedings against them.
Before parting with this order, I may observe that for the violation of section 6 of the Muslim Family Laws Ordinance 1961, only the husband is liable whereas for the other offences, if the respondent has sufficient evidence in her possession against the persons who committed the forgery and prepared false document, she can file a complaint against them in the proper Court. With these observations, this petition stand disposed of.