Muhmmad Gulfam Shafi VS The State etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Criminal Revision No. 43 of 2026

Muhammad Gulfam Shafi Versus The State and another

Petitioner by : Barrister Qasim Nawaz Abbasi, Advocate Respondents by : M/s. Hina Nazir, Syeda Abeer Fatima and Sohail Ahmed, Advocates Mr. Muhammad Waqas Haral, Deputy District Public Prosecutor.

Date of Hearing : 14-9-2026.

SHAHRUKH ARJUMAND, J.-

1.Through this Criminal Revision, Muhammad Gulfam Shafi (“Petitioner”) has challenged order dated 17.09.2025 (“Impugned Order- I”) passed by Assistant Commissioner (Rural)/Sub-Divisional Magistrate, Islamabad (“Trial Court”), whereby Trial Court accepted complaint filed by Mst. Hina Nazeer (“Respondent No.2”) and convicted petitioner and sentenced him for three (03) months simple imprisonment along with a fine of Rs.2,000/- and in default of payment of fine, to undergo a further one month’s imprisonment. The petitioner also challenged order dated 02.04.2026 (Impugned Order-II) passed by learned Additional Sessions Judge-V, East, Islamabad (“Appellate Court”), whereby appeal filed by petitioner against order dated 17.09.2025 was dismissed and conviction of respondent No. 2 was maintained.

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2.Brief facts, as narrated in memorandum of petition, are that Respondent No.2 was married to Petitioner on 19.02.2022 according to Muslim rites against a dower of Rs.15,000/-. A minor son, namely Muhammad Hakan Gulfam, was born out of the wedlock. Respondent No.2 alleged that after marriage, petitioner and his family subjected her to harsh treatment and that on 23.06.2024, petitioner pronounced divorce upon her and expelled her from matrimonial home along with minor child. It was further alleged that despite pronouncement of divorce, petitioner failed to comply with mandatory requirements of Section 7(2) of Muslim Family Laws Ordinance, 1961, particularly requirement to give written notice of pronouncement of divorce to Chairman of relevant Union Council. She further alleged that she and her relatives repeatedly requested petitioner to follow prescribed legal procedure; however, he failed to do so. Consequently, respondent No.2 filed a complaint before Assistant Commissioner Rural ICT, Islamabad seeking initiation of criminal proceedings against petitioner and imposition of penalty prescribed under law for non-compliance with Section 7(2) of Muslim Family Laws Ordinance, 1961. The petitioner contested said complaint by submitting his written reply, whereby he denied allegations levelled against him by respondent No.2. The Trial Court requisitioned a report from concerned Union Council and after hearing both parties, convicted petitioner and sentenced him to three months' simple imprisonment along with a fine of Rs.2,000/- and in default of payment of fine, to undergo a further one month’s imprisonment, vide impugned order dated 17.09.2025. The petitioner assailed said order before Appellate Court; however, the Appellate Court maintained the conviction and vide order dated 02.04.2026, dismissed the appeal filed by petitioner. Feeling aggrieved, petitioner has filed the instant Criminal Revision Petition.

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3.Learned counsel for petitioner submits that impugned orders passed by learned Courts below are contrary to law and facts, non- speaking, unreasoned and result of illegality, irregularity, misreading and non-reading of record. It was argued that petitioner was convicted without following prescribed legal procedure, without recording evidence of complainant or prosecution, without framing a formal charge and without providing an opportunity of defence. He argued that prosecution failed to produce any cogent or convincing evidence or prove offence against petitioner beyond reasonable doubt, while complaint was false, partial and motivated by harassment and ulterior motives. It was further contended that Courts below failed to apply judicial mind, relied upon surmises and conjectures, acted in haste, violated the valuable rights of petitioner and exercised jurisdiction improperly. He therefore, submits that impugned orders are liable to be set aside and matter should be decided on its merits rather than technicalities.

4.Learned counsels for respondent No.2, on the other hand, opposed instant petition and submitted that impugned orders passed by learned Courts below are based on proper appreciation of material available on record and in accordance with law. They contended that petitioner had failed to comply with mandatory requirements of Section 7(2) of Muslim Family Laws Ordinance, 1961, despite having pronounced divorce upon respondent No.2. It was argued that proceedings before Trial Court were conducted in accordance with the applicable law and that petitioner was afforded sufficient opportunity to contest the complaint and defend himself. They, therefore, prayed for dismissal of instant petition.

5.The learned Deputy District Public Prosecutor also opposed this petition with vehemence and submitted that Trial Court, after obtaining requisite report from concerned Union Council and considering the respective contentions of parties, had rightly arrived at conclusion that

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petitioner had committed the offence in question. Learned Deputy District Public Prosecutor argued that petitioner had not been able to demonstrate any material defect in proceedings or any perversity in findings recorded by Courts below. He prayed for dismissal of instant petition.

6.I have heard learned counsels for the parties and perused the record with their assistance.

7.Record reflects that as per the contention of petitioner, he pronounced first verbal divorce on 23.06.2024, second on 30.08.2024 and third on 30.09.2024. It is the contention of petitioner that after pronouncement of first divorce, he also put on his efforts for reconciliation, but the same remained in vain.

8.The period for effectiveness of divorce has been provided as 90 days from the date of divorce and after pronouncement of third divorce on 30.09.2024, the same was to expire on 30.11.2024. Admittedly, petitioner sent written notice of divorce on 13.11.2024 which was after one month and approximately 13 days after pronouncement of third divorce., Even if the period is computed from the date of second divorce i.e. 30.08.2024, the time till sending notice on 13.11.2024 is two months and thirteen days and the period of ninety days did not expire, meaning thereby that notice was sent prior to expiry of ninety days after second divorce. The fact regarding attempt of petitioner qua reconciliation was not discussed by the courts below while awarding and upholding the sentence respectively. No specific period for sending a notice of divorce has been provided under Section 7 of Muslim Family Laws Ordinance (MFLO). The superior courts also laid down that in order to entertain a complaint under Section 7 of Muslim Family Laws Ordinance, 1961 (MFLO), one of requirements is that such complaint should be filed by the Union Council. Further, the words ‘as soon as may be’ occurring in Section 7(1) MFLO do not denote that such notice is to be sent immediately. With regard to filing of any such

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complaint by Union Council, it was held in the case of Fateh Muhammad b Chairman, Union Committee Ward No. 14/15, Lahore and 2 others that:

“7. Since the complaint in the present case has been filed by a `Chairman' and not by a Union Council, the Magistrate before whom it is pending is barred from taking cognizance thereof, in view of the provisions of rule 21 of the Rules under the Muslim Family Laws and criminal proceedings based on it are consequently liable to be quashed.1”

9.Issues of competency to file a complaint U/S 7 of MFLO and period for issuance of notice of divorce were discussed in case of Muhammad Yousuf v. Chairman, Union Committee, Ward No. 7/8, Kot Khawaja Saeed, Lahore and 2 others, where it was held that:

“In view of the fact that the complaint had been filed by the Chairman the proceedings are liable to be quashed as the learned Magistrate could take cognizance only if the complaint had been filed by the Union Council. Besides, no time limit has been fixed under subsection (1) of section 7 of the Muslim Family Laws Ordinance for sending notice to the Chairman. It is simply provided that "any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. Talaq does not become effective until the expiration of 90 days from the day on which notice under subsection (1) of section 7 is delivered to the Chairman. Under subsection (1) the words "as soon as may be" have been used and they do not mean immediately.2”

Fateh Muhammad b Chairman, Union Committee Ward No. 14/15, Lahore and 2 others, P L D 1975 Lahore 951.

Muhammad Yousuf v Chairman, Union Committee, Ward No. 7/8, Kot Khawaja Saeed, Lahore and 2 others, 1977 P Cr. L J 107 (Lahore).

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10.The Courts in this regard relied on Rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 which originally read as under:

“No Court shall take cognizance of any offence under the Ordinance or these rules save, on a complaint, in writing by the Union Council stating the facts constituting the offence.”

11.Rule 21 supra was subsequently amended through Punjab Government Notification No. S.O. X-1-15/75, Vol. II, dated 26 November 1976, but the said amendment was introduced to the extent of Punjab where by substituting the words ‘the aggrieved party’ with ‘the Union Council’ were inserted and newly amended Rule reads as follows:

“No Court shall take cognizance of any offence under the Ordinance or these rules save on a complaint in writing by the aggrieved party, stating the facts constituting the offence.”

12.However, this amendment through Punjab Government Notification No. S.O. X-1-15/75, Vol. II, dated 26 November 1976 was applicable to the extent of Punjab and the position remains the same in the remaining parts as referred in the case of Fateh Muhammad and Muhammad Yousuf supra.

13.It is also an important aspect of the case that learned Executive Magistrate adopted summary procedure for conviction of respondent without framing a formal charge and without recording of evidence. Section 260 Cr.P.C. provides the circumstances where any Magistrate of the first class specially empowered in this behalf by Provincial Government and any Bench of Magistrates invested with the powers of a Magistrate of first class and especially empowered in this behalf by the Provincial

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Government may try in a summary way the offences. These circumstances include:

(a)Offences not punishable with death, transportation or imprisonment for a term exceeding six months;

(b)Offences relating to weights and measures under sections 264, 265 and 266 of the Pakistan Penal Code (XLV of 1860);

(c)Hurt, under section clause (i) of section 337A of the same Code;

(d)Theft, under sections 379, 380 or 381 of the same Code, where the value of the property stolen does not exceed ten thousand rupees;

(e)Dishonest misappropriation of property under section 403 of the same Code, where the value of the property misappropriated does not exceed ten thousand rupees;

(f)Receiving or retaining stolen property under Section 411 of the same code, where the value of such property does not exceed ten thousand rupees;

(g)Assisting in the concealment or disposal of stolen property, under Section 414 of the same Code, where the value of such property does not exceed ten thousand rupees;

(h)Mischief, under section 427 of the same Code; house-trespass, under Section 448 and offences under Sections 451, 453, 454, 456 and 457 of the same Code;

(i)Insult with intent to provoke a breach of the peace, under Section 504 and criminal intimidation, under Section 506 of the same Code;

(j)Abetment of any of the foregoing offence;

(k)Offence of personation at an election under Section 171F of the same Code;

(l)An attempt to commit any of the foregoing offences, when such attempt is an offence;

(m)offences under section 20 of the Cattle-trespass Act, 1871 (I of

14.Further, under Section 261 Cr.P.C. the Provincial Government may, on the recommendation of the High Court, confer on any Bench of Magistrates invested with the powers of a Magistrate of the second or third class power to try summarily all or any of the following offences:

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(a)Offences against Pakistan Penal Code (XLV of 1860), Sections 277, 278, 279, 285, 286, 289, 290, 292, 293, 294, 337A (i), 337L (2), 337H (2), 341, 352, 426, 447 and 504;

(b)Offences against Municipal Acts and the conservancy clauses of Police Acts which are punishable only with fine or with imprisonment for a term not exceeding one month with or without fine;

(c)Abetment of any of the foregoing offences ;

(d)An attempt to commit any of the foregoing offences, when such attempt is an offence.

15.The case in hand involved a summary trial under Section 7 of MFLO which provides imprisonment which may extend to one year or with fine which may extend to five thousand rupees or with both. None of above- mentioned circumstances envisaged either under Section 260 or 261 Cr.P.C, permit trial under Section 7(2) MFLO specifically or permit trial of an ordinary offence punishable with imprisonment of one year. Therefore, the trial of offence under Section 7(2) MFLO ought not to be conducted summarily as the same is not covered by Section 260 or 261 Cr.P.C.

16.It is time and again held by the Superior Courts that during summary trial, procedure of a fair trial cannot be ignored which necessitates framing of a formal charge and recording of evidence. For instance, it was held in the case of Haq Nawaz and others v the State and others that “the procedure for trial of cases prescribed under Chapter XX of the Code, is also applicable, by virtue of section 262, Cr.P.C., to the summary trial under Chapter XXII.”3 It was further held in the case of ‘Qamar-ul-Islam v XIth Additional District and Sessions Judge, Karachi South and another’ that even in cases tried summarily, accused is entitled to the right to fair Haq Nawaz and others v the State and others, 2000 SCMR 785.

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trial that includes his right to cross examine the witnesses of prosecution. The Court in this case categorically held that:

“11. Needless to add here that the summary trial is also meant to provide a complete right of fair-trial hence involvement of an accused for an offence, falling within meaning of Chapter-XXII of the Code, would never be sufficient to award sentence on mere assumption but requirement of fair-trial shall always to be satisfied even if the alleged offence is one, mentioned in Chapters-X and XI of the Code (P.P.C.). Reference may be made to the case of The State v. Wali Dad [PLD 1962 (W.P) Peshawar 2031 wherein it is observed as:- “5. As pointed out above, the case was previously heard as a warrant case, but on remand, it was taken up on the summary side by the learned trial Magistrate. Section 262, Cr.P.C. reads as:- "In trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as hereinafter mentioned."

6.A plain reading of this section would show that after remand the case was taken on the summary side by the trial Magistrate, but since it was a warrant case, the Magistrate was bound to have followed the procedure prescribed for warrant cases. The same view was taken in a case 'Munna v. Emperor (1), wherein it was held that "the object of Chapter XXII, Criminal P.C. is to shorten the record and the work of the Magistrate in making the record: it is not intended to deprive the accused-person of any of the rights under Chapter XX or XXII, Criminal P.C. Hence in a warrant case tried summarily, an accused, after he is examined,

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is entitled to re-call prosecution witnesses for further cross-examination".4”

17.In another case before Peshawar High Court, it was held that in cases where appeal is provided, recording of evidence is necessary. The Court in this regard held that:

“11. Subsection (1) above provides that for trial of the offences mentioned in Chapter XXII, the procedure prescribed in Chapter XX shall be followed except as mentioned thereafter. The words as " hereinafter mentioned" in subsection (1) refer to subsection (2) of sections 262, 263, 2CA, 265. Under section 263 the Magistrate need not record the evidence in case, where no appeal lies. He has to enter the particulars mentioned therein in such form as the Provincial Government may direct. But, in every ease tried summarily in which appeal lies the Magistrate under section 264, shall record the substance of evidence and also the particulars mentioned in 'section 263 and shall record the judgment in the case. Section 262, subsection (1) clearly lays down that except what is provided thereafter, the procedure prescribed in Chapter XX shall be followed in the trial of offence mentioned in Chapter XXII. Therefore, under section 476; Cr.P.C. when it is provided that Court taking cognizance of the offence would try the same in accordance with the procedure prescribed for 'summary trial. in Chapter XXII that means that trial shall be held in accordance with the procedure laid down in Chapter XX i.e. framing of formal charge, 'recording of evidence, hearing the accused and recording such evidence as he produces in his defence, with no embargo on -its power as placed on the Magistrate under subsection (2) of section 262, Cr.P.C.5”

18.Though the case Ghiasuddin involved allegations under Section 476 Cr.P.C., but while adopting procedure of summary trial by the court in Qamar-ul-Islam v XIth Additional District and Sessions Judge, Karachi South and another, 2019 P Cr. L J 841 (Sindh).

Ghiasuddin and another v the State, P L D 1992 Peshawar 179.

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appealable cases, the trial is required to be held in accordance with procedure provided under Chapter XX which provides framing of a formal charge, recording of evidence and hearing the accused except in cases provided in section 263-265 Cr.P.C. In cases where no appeal lies, the Magistrate or the court may proceed in accordance with procedure provided under Section 263 Cr.P.C. Section 264 Cr.P.C. necessitates recording of evidence in appealable cases. Expressions ‘hearing the accused’ and ‘recording of defence evidence’ as used in the case of Ghiasuddin supra further establish that in such like cases, the accused should be provided all the rights available to him including cross examination on the witnesses of prosecution, production of defence evidence and right of hearing. In other words, a summary trial in appealable cases should also cross all the main modes of an ordinary trial for the purpose of affording right to a fair trial to the accused, failing which such trial cannot be considered valid and any conviction passed thereon cannot sustain. Admittedly, order of learned Executive Magistrate was appealable in nature and no evidence in this case was recorded and no charge was framed meaning thereby that procedure of Chapter XX Cr.P.C. was not followed.

19.In view of the foregoing discussion, the impugned orders suffer from legal infirmities and procedural irregularities, consequently, the impugned orders dated 17.09.2025 and 02.04.2026 are set aside and the petitioner is acquitted of the charge. The instant Criminal Revision Petition is accordingly allowed.

20.Before parting with this judgment, it seems germane to reiterate the main principles of summary trial for the purpose of guidance of courts, particularly Executive Magistrates exercising jurisdiction under Cr.P.C. to observe the following:

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i. Cases to be tried summarily are enumerated under Section 260 and 261 Cr.P.C and these provisions are to be complied with in letter and spirit. No other offence can be tried summarily except enumerated under Section 260 and 261 Cr.P.C.

ii. In cases where no appeal lies, the Magistrate or the court may proceed in accordance with procedure provided under Section 263 Cr.P.C.

iii. Before commencement of a summary trial in appealable cases: a. a formal charge should be framed.

b. Prosecution should produce its evidence.

c. Accused shall have a right to cross-examine the witnesses of the prosecution.

d. Accused should be given right to produce defence evidence, if so desired.

e. Accused should be heard before the final order.

21.Extension of these rights is mandatory to establish right to fair trial of the accused and to ensure that no perverse conviction is passed against an accused.

22.The Member Inspection Team (MIT) of this Court is directed to transmit a copy of this judgment, along with the guidelines contained herein, to the learned District & Sessions Judges, Islamabad (East and West) as well as to the District Magistrate/Deputy Commissioner, Islamabad, for circulation amongst all Judicial Magistrates and Executive Magistrates concerned respectively for ensuring compliance in letter and spirit.

(SHAHRUKH ARJUMAND)

JUDGE

Approved for reporting Farid ur Rehman