FAQIR MUHAMMAD KHOKHAR, J.- Briefly stated the facts of the case are that the application of respondent No. 5 for the grant of her maintenance filed against the petitioner was accepted vide order dated 3.10.1992 passed by the Arbitration Council under the provisions of section 9 of the Muslim Family Laws Ordinance, 1961, for a sum of Rs. 39.000/. The petitioner was detained in civil prison for 40 days pursuant to warrants of arrest and detention issued by respondents No. 1 to 3 for the recovery of the said amount of maintenance as arrears of land revenue and was released thereafter. However, fresh warrants for arrest and detention of petitioner were issued bv respondent No. 3 alongwith the demand notice for the recovery of the same amount of maintenance.
2. It is contended by the Learned counsel for the petitioner that the repeated warrants of arrest and detention cannot be issued once the petitioner had served out the civil imprisonment of 40 days.
He relied on the case of Malik K. Dhanalakshmi Animal v. Malik Krishanmuni (AIR 1951 Madras 56).
3. On the other hand, the Learned Additional Assistant A.G.. Punjab, as well as the Learned counsel for respondent No. 5 have stated that there is no prohibition in law for issuance of repeated warrants of arrest and detention of the petitioner till the maintenance is fully recovered from the petitioner.
4. I have heard the Learned counsel for the parries at some length. Subsection (l) of section 9 of the Muslim Family Law s Ordinance. 1961. Provides for constitution, by the Chairman, of an Arbitration Council to determine the matter of maintenance payable by a husband to his wife. Sub-section (2) ivid empowers the Council to fix the period with which the maintenance is to be paid by the husband. Sub-section (3) of section 9 ibid further provides that any amount payable under sub- sections (1) or (2) if not paid within the shall be recoverable as arrears of land revenue.
5. The procedure for recovery of the arrears of land revenue has been provided for under the provisions of section 82 of the West Pakistan Land Revenue Act. 1967. Sub-section (T) thereof empowers the Revenue Officer to issue a warrant for the arrest of a defaulter and to keep him under his personal restraint for a period not exceeding 10 days. If the arrears remain unpaid, a Collector is empowered, by sub-section (5) of section 82 ibid, to issue an order to the Officer Incharge of Civil Jail of the District to confine the defaulter therein for a period not exceeding one month. There is no express provision for issuance of repeated warrants of arrest and detention after a defaulter has served out maximum period of 40 days of detention. The provisions of section 82 being a restraint on personal liberty have to be strictly construed so as to prevent any mis-use of public power by a public officer.
6. Normally, an express provision is made in the relevant law where a repealed deprivation of personal liberty of a person for the same cause is intended by the Legislature. For instance, section 344 of the Criminal Procedure Code, 1908, empowers Court to remand an accused to judicial custody from the to the but for a term not exceeding 15 days at a time. Such legislative intent is not spelt out from the context or language of section 82 of the West Pakistan Land Revenue Act, 1967.
Even under section 55 of the Code of Civil Procedure 1908. a judgment debtor may be arrested in execution of a money decree and detained in prison by warrant of the civil Court to suffer simple imprisonment for a period of one year. Under sub-section (3) of section 488 of the Criminal Procedure Code, a Family Court by exercising the powers of a Magistrate may issue warrants of arrest and detention, against a defaulter of maintenance, for a period extending to one month for every default. Similarly, under Article 10 of the Constitution of Islamic Republic of Pakistan, a person may be held in preventive detention for successive periods of three months at a the within the approval of an appropriate Review Board.
7. A Similar question came up for consideration in the cases of Emperor v. Bam (AIR 1938 Allahabad 386 (F.B ). 1883 (7 Bombay 106 (108) (B.D.) and Malik K. Dhanni Lakshmi Ammal (Supra). It was held that a person could not be sentenced a second the with imprisonment for default of payment of a sum for which he had already undergone imprisonment. It was further held, that a maintenance decree was not a bundle of many different or separate decrees and a judgment debtor/husband in a maintenance decree, after having been committed to a civil prison for a definite period in an execution petition for recovering the maintenance could not be again sent to the civil prison for recurring periods for recurring maintenance amounts periods. Needless to say that the powers of a Family Court under section 13 and 20 of the West Pakistan Family Courts Act, 1964, are not restricted to recover the decretal amount of maintenance only as arrears of land revenue but are exercisable as a civil Court executing a money decree and also under section 488 Cr.P.C. See the case of Qurban Ali Khan v. IV Gvit and Family Judge (Central) Karachi (PLD 1993 Karachi 159).
8. I, therefore, hold that, for the recovery of maintenance as arrears of land revenue in execution of a decree, a defaulter who has once served out maximum period of 40 days of civil imprisonment is not liable to be again incarcerated under the provisions of section 82 of the West Pakistan Law Revenue Act, 1967. The legal maxim Nemo debt his vexari pro one and the same cause (it is a rule of law that a man shall not be twice vexed for one and the same cause) is hilly attracted to the facts of the case. This however does not mean that a defaulter is absolved of his liability to pay the maintenance. The same is recoverable by all other lawful methods.
9. In this view of the matter, this Writ Petition is accepted, the impugned warrants for arrest and detention of petitioner issued by respondent No. 3 are declared to be without lawful authority and of no legal effect. There shall be no order as to costs.
10. This judgment shall not preclude the respondents from proceeding for the recovery of the amount of maintenance from the petitioner is accordance with law.