Order, dated 4-10-1994 passed by Deputy Commissioner, Dera Ghazi Khan has been challenged through this Constitutional petition by Hussain Bakhsh Khan, Ex-Chairman, Union Council Chak Jalohar, District D.G. Khan.
2. Brief facts culminating into filing of this petition are that Abdul Majeed husband of Mst. Waziran, respondent No.2, according to the petitioner conveyed a notice of Talaq to the petitioner on 8-2- 1993 while he was acting as Chairman, Union Council Chak Jalohar. It is stated that after observing all the formalities as Chairman of Arbitration Council, the petitioner certified that Talaq between Abdul Majeed and Mst. Waziran had become effective. Mst. Waziran on coming to know that an absolutely false and fictitious certificate of Talaq had been issued by the petitioner, submitted an application before the Deputy Commissioner, D.G. Khan. It was stated by Mst. Waziran that she had neither been divorced by her husband nor any notice had been conveyed to the Chairman, Union Council. As she had never been divorced by her husband, therefore, she was his widow, however, the brothers of her deceased husband by joining hands with the Chairman manipulated to obtain an absolutely false and fictitious certificate of Talaq to deprive her of her right of inheritance from the property of her deceased husband. She has also an issue from Abdul Majeed.
3. At that time, Ch. Muhammad Azhar assumed charge as Deputy Commissioner, D.G. Khan. On finding that serious allegations have been levelled and the Chairman by misusing his lawful authority had issued a fictitious certificate, he initiated inquiry. The Project Manager of R.D. Markaz Choti was appointed as Inquiry Officer. The Project Manager conducted a detailed inquiry, examined the witnesses and also checked up the relevant record. According to the report, Abdul Hakeem and Abdul Karim, brothers of Abdul Majeed in connivance with the Chairman/Secretary, Union Council Jallohar played fraud and by misrepresenting the facts got a false Talaqnama registered in the Union Council under the forged signatures of Abdul Majeed to deprive Mst.
Waziran and also to damage her reputation. As observed above, Mst. Waziran has a daughter who at that time was a few months old from her husband Abdul Majeed. The Deputy Commissioner on receipt of the report, requested the S.P., Dera Ghazi Khan to register a case against Hussain Bakhsh petitioner, Secretary Union Council, Abdul Karim and Abdul Hakim brothers of Abdul Majeed under sections 420, 466, 467 and 468, P.P.C. Vide order, dated 4-10-1994.
4. The order, dated 4-10-1994 has been assailed on the ground that the Deputy Commissioner has no power or jurisdiction to set aside a certificate issued under section 7(1) of the Muslim Family Laws Ordinance, 1961. Learned counsel has referred to Rule 16(1) of the West Pakistan Family Laws Rules under the Muslim Family Laws Ordinance, 1961 which is reproduced as follows:--- "An application for the revision of a decision of Arbitration Council, under subsection (4) of section 6, or of a certificate under subsection (2) of section 9, shall be preferred within thirty days of the decision or of the issue of the certificate, as the case may be, and shall be accompanied by a fee of two rupees. "
It is, therefore, argued that no revision was available against a certificate which was granted under section 7 of the Muslim Family Laws Ordinance as this section has been specifically excluded from the revisional jurisdiction of the Deputy Commissioner. In support of his contention he has cited the judgment reported as Mst. Maryam v. D.M. Controlling Authority PLD 1996 Lah. 336 wherein it was held that "revision being creation of statute; could neither be presumed nor inferred. Where statute specifically and expressly declares any order, judgment or decision amenable to revision, same would be revisable and not otherwise. Since an order granting certificate of Talaq under section 7 of the Ordinance is not revisable, therefore, the D.C. /Controlling Authority had no authority or jurisdiction to set aside the same. It has, therefore, been prayed that a writ may be issued declaring the order, dated 4-10-1994 as without lawful authority and of no legal effect.
5. Mst. Waziran respondent No.2 has appeared in person alongwith her minor daughter. She was unrepresented as she could not afford to engage any counsel.
6. Report and parawise comments were called for from the Deputy Commissioner/respondent No.
1. The same was submitted and have been placed on the file. It was stated in the report that an inquiry was got conducted through Project Manager and it was revealed that the act of the petitioner in issuing a bogus/fraudulent certificate was punishable under the penal provisions of the P.P.C. Accordingly the local police was directed to register a case under sections 420, 466, 467 and 468, P.P.C. The order was passed after affording full opportunity of hearing to the parties. As regards the legal provisions, it was submitted that the same could be interpreted by the Court.
7. With a view to properly appreciate the contentions raised by the learned counsel, it is necessary to comprehend the relevant provisions of law relating to pronouncement of Talaq and issuance of certificate by the Chairman. Section 7 of the Muslim Family Laws Ordinance deals with Talaq. It lays down that after pronouncement of Ta1aq in any form whatsoever, the Chairman concerned will be given notice in writing of such divorce and a copy thereof shall be supplied to the were. Under subsection (4) of section 7 it is mandated that the Chairman shall constitute an Arbitration Council for bringing out a conciliation between the parties. Arbitration Council has been defined under section 2(a) which means "a body consisting of the Chairman and a representative of each of the parties to a matter ....". Further under subsection (d) "Union Council" means Union Council concerned which is the Union Council constituted under the Basic Democracies Order, 1959 which was subsequently adopted by the Punjab Local Government Act, 1975. The Act of 1975 has now been replaced by the Punjab Local Government Ordinance, 1979. The Ordinance of 1979 which was applicable at that time and has been revived again defines various local councils under section 8 which are Union Councils, Zila Councils, Town Committees, Municipal Committees and Municipal Corporations etc. As noted above, the Arbitration Council to be constituted for conducting the proceedings in Talaq would as such include the Chairman as its head and he in case of non--- conciliation between the parties will issue a certificate after expiry of 90 days. Section 153 deals with supervision of the Local Councils. It says that the Government shall exercise general supervision and control over the local councils in order to ensure that their activities conform to the provisions of the Ordinance. Under section 154 the working of local councils is subject to inspection by the Inspecting Officer to be appointed by the Government : The Inspecting officer has a power under subsection (2)(b) to call for and inspect or cause to be inspected files, registers, books or documents in the possession or under the control of a local council. Under clause (c) the Inspecting Officer has the power to require the production of such statement, accounts, reports, documents and copies of documents relating to the proceedings of a local council as the Inspecting Officer may think fit. Under clause (e) he has the power to inquire generally into the affairs of a local council. Vide Notification No.S.O.(L)-1/18-79, dated 6-2-1980 the Project Managers having territorial jurisdiction over the Union Council concerned have been appointed as Inspecting Officers. Under Rule 6-A(1) of the W.P. Family Laws Rules under Muslim Family Laws Ordinance, 1961 it has been provided that in case the Chairman is mis-conducting himself in any proceedings, the Collector may stay the proceedings and may appoint any other member of the Union Council as Chairman for purposes of this Ordinance. Although this rule is not strictly applicable to the instant case yet by drawing analogy it can be deduced that the Collector has the administrative control over the Chairman.
8. Keeping in view the set up and the hierarchy as provided under the aforesaid provisions of law, it becomes abundantly clear that the Chairman of the Union Council who has to perform variety of functions is subject to the control and supervision of the Government and more specifically subject to inspection by the Project Manager. In the instant case, on an application moved before the Deputy Commissioner that the petitioner/Chairman had, by misusing his position and office, issued a Talaqnama which is absolutely false and fictitious because neither Talaq was pronounced by the husband nor any arbitration council was constituted. The entire record prepared in that behalf was absolutely bogus and the whole exercise has been taken up at the instance of the A brothers of Abdul Majeed who wanted to deprive Mst. Waziran of her right of inheritance. It is true that the order of issuance of certificate by the Chairman has not been made revisable but if in a case a Chairman prepares an absolutely false and fictitious record to the detriment of a party and the act amounts to en offence punishable under the Penal Code, then the same can be looked into by the Inspecting Officer and the delinquent Official cannot escape his criminal liability. It is not a case wherein the legality or propriety of the certificate has been challenged. Had that been so, then it could be accepted that issuance of a certificate of Talaq was not amenable to revisional jurisdiction of the Deputy Commissioner if the Chairman transgresses all the limits and commits fraud which amounts to an offence then the same can be inquired into by the Inspecting Officer, as has been done in the present case. There is no cavil with the law laid down by this Court and the authority cited by the learned counsel i.e., PLD 1966 Lahore 336. The facts of the present case are altogether different from the facts of the cited case. As already observed, if the legality, propriety or even the maintainability of an order passed by a Chairman has to be challenged through revision then the Deputy Commissioner of course has no jurisdiction to set aside the same but if it is found that no proceedings whatsoever have taken place and an offence has been committed then no exemption can be allowed to the Chairman and a false and fictitious certificate which has no basis cannot be allowed to remain operative. Very serious consequences flow from the issuance of certificate. The marriage in-between the spouses comes to an end which is not only an offence but a gross violation of the Islamic Injunctions. Marriage is not only a contract but has a spiritual sanctity as well. The sanctity of the marriage has also been violated. Not only the were would be deprived to receive her share in the inheritance but the issue out of the wedlock would be rendered illegitimate. It also amounts to dishonour of the departed soul of her husband. The Chairman/petitioner, therefore, if true, committed an extremely heinous crime under the P.P.C. As well as under the Islamic Law.
9. As already observed, the Project Manager functioning as Inspecting Officer conducted elaborate inquiry by keeping in view the principles of natural justice. The parties were afforded the opportunity of hearing and the entire record was examined. The statements of the witnesses produced by the parties were also recorded. A heinous crime has been unearthed. Not only care and caution has been taken on the factual side but the relevant law enunciated by the superior Courts has also been followed. The judgments reported as 1970 DLC 560 (D.B.), PLD 1956 Kar. 393 and NLR 1980 AC 421 have also been cited in the impugned order. According to these rulings, the powers and functions to be exercised under section 7(3) of the Muslim Family Laws Ordinance, 1961 read with Rules 3(a) and 3(b) of the Rules frames under this Ordinance have been elaborately explained and guideline has been provided as to how and in what manner the power has to be exercised. It is a known maxim of equity that "ubi jus (e.i) remedium" that every wrong has a remedy. If a wrong has been committed by a Chairman, it does not mean that the same is remedy-less. The respondent Deputy Commissioner as well as the Project Manager have exercised their authority in the aid of justice and fairplay. It has been consistently laid down by this Court as well as by the Honourable Supreme Court that no writ is to be issued in aid of injustice. It is also an unexceptionable maxim that whoever comes to the Court must come with clean hands. Relevant pronouncements in this behalf are contained in the cases reported as PLD 1965 SC 269, PLD 1968 Lahore 1334. Similarly it has also been laid down in PLD 1965 SC 399 that if the order challenged under Article 199 is equitable and has promoted the cause of justice, the same is not be set aside.
Vide impugned order, dated 4-10-1994 a case has been ordered to be registered against the petitioner/Chairman etc. The petitioner as well as others shall have full opportunity to defend themselves in a Court of law because no one can be punished without trial.
10. In view of the above discussion, I find no merit in this petition which is hereby dismissed. A copy of this order shall be sent to S.P., Dera Ghazi Khan for compliance of the order, dated 4-10-1994 passed by the Deputy Commissioner.