PLJ 2013 Cr.C.
(Lahore) 168
[Multan Bench Multan]
[Multan Bench Multan]
Present: Altaf Ibrahim Qureshi, J.
Mst. ERUM KHAN--Petitioner
versus
ABDUL GAYYUR
KHAN--Respondents
P.S.L.A. No. 37
of 2003, Converted in Crl. Appeal No. 3 of 2004,
decided on 4.10.2012.
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 241-A
& 417(2)--Entitled to receive copies--No body
could be put to rigors and agony of trial entailing punishment--Remand of
case--Validity--There is no cavil with proposition that provisions of S. 241-A,
Cr.P.C. are directory and not mandatory in nature and
Magistrate ought to have given a reasonable opportunity to ensure the
compliance of the provisions of law--Non observance of provision of law would
not declare subsequent marriage illegal--Now after long time of almost nine
years, remand of case to Magistrate was not justified--Remand of case and
opening of trial would tell upon interest of the children and parties attached
thereto--No justification to allow instant appeal resulting in remand of
case--Appeal was dismissed. [P. 169] A
Ch. Sarfraz Ahmad Zia, Advocate for Petitioner.
Ch. Muhammad
Akbar, Deputy Prosecutor General for Respondent.
Date of hearing:
4.10.2012.
Order
This Petition
for Special Leave to Appeal filed under Section 417(2), Cr.P.C,
is directed against the order dated 28.10.2003 passed by the learned Special
Judicial Magistrate, Multan, whereby he while accepting the application of the
respondent, dismissed the complaint mainly on the ground that copies the
statements, required in terms of Section 241-A, Cr.P.C,
were not provided to the respondent.
2. Learned
counsel for the petitioner contends that the provisions of Sections 241-A, Cr.P.C. are directory in nature and a reasonable time ought
to have been granted to the petitioner to comply with the provisions of law, if
the same were not earlier complied with. Further contends that copies were supplied
to the respondent and the Ahlmad concerned had signed
the receipt of talbana. In support of his
arguments, learned counsel
has placed reliance on Karim Dad vs. Muhammad and 4 others (1980 P.Cr.L.J. 1272 [Lahore]
and Jehanzeb vs. The State and another (2002 P.Cr.L.J. 1929).
3. Arguments heard. Material available on the
file perused.
4. The respondent-Abdul Gayyur
was alleged to be the accused of polygamy by the petitioner, as, in terms of
proviso (6) to Section 5 of Muslim Family Laws Ordinance, 1961, the respondent
had not expressed the intention of subsequent marriage, thus, injured the
rights of his wife, i.e. the present petitioner. To me, whatever be the nature
of crime, no body could be put to rigors and agony of
trial entailing punishment. As a matter of fact, respondent was entitled to
receive copies and the learned counsel for the petitioner rightly relied upon
the case law cited by him at bar. There is no cavil with the proposition that
the provisions of Section 241-A, Cr.P.C. are
directory and not mandatory in nature and the learned trial Magistrate ought to
have given a reasonable opportunity to ensure the compliance of the aforesaid
previsions of law. On the contrary, it is also well settled that non-observance
of the said provision or law would not declare the subsequent marriage illegal.
Now after long time of almost nine years, the remand of the case to the learned
trial Magistrate is not justified. After such a long time, the parties must
have adjusted their matrimonial lives. The remand of the case and opening of
trial would tell upon the interest of the children and the parties attached
thereto. I see no justification to allow this appeal resulting in remand of the
case. Consequently, this appeal is dismissal.
(R.A.) Appeal dismissed
