Mst. MUJAHIDA vs ALAMGIR S — 2026 CLC 863 PESHAWAR-HIGH-COURT

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Mst. MUJAHIDA VS ALAMGIR S.6---Criminal Procedure Code (V of 1898), S.417(2)---Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife---Unlawful act and criminal intent---Jurisdiction---First/existing wife filed private complaint against her husband that her husband contracted second marriage without her consent and permission of the Arbitration Council---After a trial conducted by the Judicial Magistrate, accused was found guilty of the offence under S.6(5)(b) of the Muslim Family Laws Ordinance, 1961, and after conviction was sentenced to undergo simple imprisonment for two months---Respondent/accused being aggrieved of the order of conviction and sentence preferred an appeal, which was allowed and respondent was acquitted---Complainant/appellant being dissatisfied with such order of acquittal filed the present appeal---Held: In the present case, the relevant criminal proceedings had admittedly been instituted upon the complaint filed by wife of the accused, the present appellant, without obtaining special leave to appeal from the High Court; therefore, the appellant was legally precluded from instituting the present appeal before the High Court as a matter of right---No particular application for grant of special leave to appeal had been filed by the appellant in terms of S.417 (2) of Cr.P.C---An independent overview of Part-II of the ibid Schedule read with S.5(2) of the West Pakistan Family Court Act, 1964, manifested that if any offence mentioned in the Schedule was committed by one of the spouses against the other, then the exclusive jurisdiction would lie with the Family Court to try such offences; however, a threadbare perusal of the ibid provisions of law glorified that when the accused had been charged under S.6(5)(b) of the Muslim Family Laws Ordinance, 1961, which was not part and parcel of Part-II of the Schedule; then, the jurisdiction to try such an offence only laid with the Courts of ordinary criminal jurisdiction, to be tried by the concerned Judicial Magistrate---Meaning thereby that the offences which were not included in Part-II of the Schedule of West Pakistan Family Courts Act, 1964, including S.6(5)(b) of the Muslim Family Laws Ordinance, 1961, shall not be tried by the Family Court---In the present case, the accused/respondent had been charged under S.6(5)(b) of the Muslim Family Laws Ordinance, 1961, which could be tried by the Courts of ordinary criminal jurisdiction; therefore, assumption of jurisdiction and taking cognizance by the Judicial Magistrate was unexceptional, which could not have been reversed, solely on the point of jurisdiction---Appeal against acquittal was allowed and case was remanded back to the appellate Court to rehear the appeal and decide it upon merits.

Mst. MUJAHIDA vs ALAMGIR S — 2026 CLC 863 PESHAWAR-HIGH-COURT

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