2000 Y L R 2882
وٹہ سٹہ کی شادی آئین کے خلاف ہے ایسا کرنا جرم ہوگا ۔
(a) West Pakistan Rules under the Muslim Family Laws Ordinance, 1961‑‑‑
‑‑‑‑R.8‑‑‑Constituiton of Pakistan (1973), Art.11 ‑‑‑Entry in Column No.16 of ‑Nikahnama showing "in lieu of sister of 'bridegroom"‑‑‑Validity‑‑‑Such entry being against Art. II of the Constitution of Pakistan (1973) which had forbidden slavery was 'violative of the basic status of an individual as a human being.
To indicate the name of an individual human being in the Column No. 16 of Nikahnama provided for money or money's worth or property is violative of the basic status of an individual as a human being irrespective of tradition or local custom. The making of such an entry in a document maintained as official record is totally detestable.
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑Ss.10 & 19‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.5 ‑‑‑ Constitution of Pakistan (1973), Arts. 11 & 199‑‑‑ Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Complainant in the FLR. Against accused/petitioner had alleged that he (complainant) married his sister with the brother of the accused and her (accused)father had promised to marry his minor daughter/accused with son of the complainant‑‑‑No legal evidence was available on record to show that accused/ petitioner was wife of son of complainant when accused/petitioner had contracted valid marriage with her husband‑‑‑Evidence, however, had proved that son of complainant was already a married person and had two children when accused/petitioner entered into legal marriage with her husband‑‑Registration of F.LR. against accused/ petitioner and putting her on trial having been found to be mala fide and illegal per se said F.I.R.was ordered to be quashed.
2000 Y L R 2882[Lahore]Before Nasim Sikandar, JMst. HASEENA and another‑‑‑PetitionersversusSENIOR SUPERINTENDENT OF POLICE, DERA GHAZI KHAN and 2 others‑‑‑RespondentsWrit Petition No. 10608 of 1999, decided on 10th February, 2000.Malik Muhammad Saleem for Petitioners.Akhtar Masood Ahmad for Respondents Nos. 1 and 2.Ch. Anwar‑ul‑Haq for Respondent No.3.Date of hearing: 10th February, 2000.
ORDER
A case F.I.R. No. 700 of 1999, dated 1‑11‑1999 under sections 10 and 19 of Ordinance VII of 1979 was registered at Police Station Sadder, Dera Ghazi Khan.2. The complainant Muhammad Azeem alleged that in the year 1983 he married his sister Hamida Mai with Abdul Rehman son of Naseer Muhammad. At the time of that marriage allegedly Naseer Muhammad promised to marry his minor daughter Haseena Mai with his son Abdul Latif. Also that actually both Nikkahs were performed and Naseer Muhammad father of Haseena Mai promised to effect Rukksati on attaining of majority by her. However, after she became major, he avoided his nuptial departure and about two months back in connivance with his brother, Naseer Muhammad accused married his daughter Haseena Mai with one Aman Ullah son of Allah Bakhsh. According to the complainant Haseena Mai already being married with his son Abdul Latif, her Nikah with Amanullah was illegal and in fact they were committing Zina.3. It is the case of the petitioner that at the time of the marriage of his brother Abdul Rehman with the sister of the complainant, she was hardly of three years of age and therefore, the question of the marriage with the son of complainant did not arise at all. Also that no Nikkah ceremony was ever held nor any Nikkah was registered as required under law. It is further stated that on attaining majority her father gave her in marriage with petitioner No.2 Aman Ullah and both of them were legally‑wedded husband and wife. Therefore, the aforesaid F.I.R. is sought to be declared illegal and quashed.4. Parties have been heard5. The learned counsel for the complainant resists an interference on the grounds that the challan of the case has already been submitted before the concerned Court. The S.H.O., Police Station Sadder, Dera Ghazi Khan respondent No.2 also supports his parawise comments in which he had earlier submitted that the petitioner was given in Nikkah of Abdul Latif in exchange of Hameedan Mai who was married with Abdul Rehman, the brother of the present petitioner. According to him, Nikkah was duly solemnized by one Maulvi Raheem Bakhsh in the presence of the witnesses. Also according to him the Nikkah of Haseena with Abdul Latif was intact while she had contracted marriage with petitioner No.2 Aman Ullah Khan.6. After considering the arguments from both sides I will not hesitate in holding that the petitioner has a clear case for quashment of the aforesaid F.I.R. The basis of the F. I. R. appears to be an entry in column No.16 of the Nikkah Nama, dated 3‑10‑1983 between the brother of the petitioner and the sister of the complainant. In that para "if in lieu of dower or any part thereof any property had been given if so its nature and specification" it was entered "in lieu of Hamida Haseena Mai, daughter of Naseer Muhammad". This entry itself is against Article 11 of the Constitution of Pakistan, 1973, which forbids slavery in any form. To indicate the name of an individual human being in the column provided for money or money's worth or property is violative of the basic status of an individual as a human being. Irrespective of tradition or local custom, the making of such an entry in a document maintained as official record is totally detestable.7. The registration of the aforesaid F.I.R. is all the more unfortunate in view of the fact that said Abdul Latif duly married on 24‑11‑1996 and is stated to be a father of two children when the F.I.R in question was lodged. If Abdul Latif was already husband of the present petitioner then he was the first accused to have contracted second marriage in the existence and lifetime of first wife. Also the marriage of a three years' old girl which is stated to have been preformed by Hafiz Raheem Bakhsh mentioned in para.23 of the said Nikkah Nama needs to be condemned both in fact as well as in law. It is offensive to a decent mind and also against the provisions of Child Marriage Restraint Act.8. At any rate, there is no legal evidence available to show that the petitioner was a wife of said Abdul Latif when she contracted marriage with petitioner No.2 Amanullah. Also the alleged husband Abdul Latif was already a married person when both petitioners entered into the contract of marriage. The registration of aforesaid F.I.R. and putting the petitioners on trial are accordingly found to be mala fide and illegal per se.9. This petition in the circumstances stands allowed. The said F.I.R. No.700 of 1999, dated 1‑11‑1999 under sections 10 and 19 of Ordinance, VII of 1979 registered at Police Station Sadder, Dera Ghazi Khan stands quashed. The complainant Muhammad Azim son of Ghulam Muhammad and Abdul Ghafoor S.‑I., Police Station Saddar, D.G. Khan shall pay Rs.5,000 each to both petitioners as penalty and cost for having illegally set in motion the above proceedings. A copy of this order shall be sent to the Superintendent of Police, D.G. Khan who will see that the above official is not entrusted with the investigation of any matter involving family laws for at least next one year' till he is properly instructed in that branch of law.H.B.T./H‑20/LPetition allowed.
ORDER
A case F.I.R. No. 700 of 1999, dated 1‑11‑1999 under sections 10 and 19 of Ordinance VII of 1979 was registered at Police Station Sadder, Dera Ghazi Khan.
2. The complainant Muhammad Azeem alleged that in the year 1983 he married his sister Hamida Mai with Abdul Rehman son of Naseer Muhammad. At the time of that marriage allegedly Naseer Muhammad promised to marry his minor daughter Haseena Mai with his son Abdul Latif. Also that actually both Nikkahs were performed and Naseer Muhammad father of Haseena Mai promised to effect Rukksati on attaining of majority by her. However, after she became major, he avoided his nuptial departure and about two months back in connivance with his brother, Naseer Muhammad accused married his daughter Haseena Mai with one Aman Ullah son of Allah Bakhsh. According to the complainant Haseena Mai already being married with his son Abdul Latif, her Nikah with Amanullah was illegal and in fact they were committing Zina.
3. It is the case of the petitioner that at the time of the marriage of his brother Abdul Rehman with the sister of the complainant, she was hardly of three years of age and therefore, the question of the marriage with the son of complainant did not arise at all. Also that no Nikkah ceremony was ever held nor any Nikkah was registered as required under law. It is further stated that on attaining majority her father gave her in marriage with petitioner No.2 Aman Ullah and both of them were legally‑wedded husband and wife. Therefore, the aforesaid F.I.R. is sought to be declared illegal and quashed.
4. Parties have been heard
5. The learned counsel for the complainant resists an interference on the grounds that the challan of the case has already been submitted before the concerned Court. The S.H.O., Police Station Sadder, Dera Ghazi Khan respondent No.2 also supports his parawise comments in which he had earlier submitted that the petitioner was given in Nikkah of Abdul Latif in exchange of Hameedan Mai who was married with Abdul Rehman, the brother of the present petitioner. According to him, Nikkah was duly solemnized by one Maulvi Raheem Bakhsh in the presence of the witnesses. Also according to him the Nikkah of Haseena with Abdul Latif was intact while she had contracted marriage with petitioner No.2 Aman Ullah Khan.
6. After considering the arguments from both sides I will not hesitate in holding that the petitioner has a clear case for quashment of the aforesaid F.I.R. The basis of the F. I. R. appears to be an entry in column No.16 of the Nikkah Nama, dated 3‑10‑1983 between the brother of the petitioner and the sister of the complainant. In that para "if in lieu of dower or any part thereof any property had been given if so its nature and specification" it was entered "in lieu of Hamida Haseena Mai, daughter of Naseer Muhammad". This entry itself is against Article 11 of the Constitution of Pakistan, 1973, which forbids slavery in any form. To indicate the name of an individual human being in the column provided for money or money's worth or property is violative of the basic status of an individual as a human being. Irrespective of tradition or local custom, the making of such an entry in a document maintained as official record is totally detestable.
7. The registration of the aforesaid F.I.R. is all the more unfortunate in view of the fact that said Abdul Latif duly married on 24‑11‑1996 and is stated to be a father of two children when the F.I.R in question was lodged. If Abdul Latif was already husband of the present petitioner then he was the first accused to have contracted second marriage in the existence and lifetime of first wife. Also the marriage of a three years' old girl which is stated to have been preformed by Hafiz Raheem Bakhsh mentioned in para.23 of the said Nikkah Nama needs to be condemned both in fact as well as in law. It is offensive to a decent mind and also against the provisions of Child Marriage Restraint Act.
8. At any rate, there is no legal evidence available to show that the petitioner was a wife of said Abdul Latif when she contracted marriage with petitioner No.2 Amanullah. Also the alleged husband Abdul Latif was already a married person when both petitioners entered into the contract of marriage. The registration of aforesaid F.I.R. and putting the petitioners on trial are accordingly found to be mala fide and illegal per se.
9. This petition in the circumstances stands allowed. The said F.I.R. No.700 of 1999, dated 1‑11‑1999 under sections 10 and 19 of Ordinance, VII of 1979 registered at Police Station Sadder, Dera Ghazi Khan stands quashed. The complainant Muhammad Azim son of Ghulam Muhammad and Abdul Ghafoor S.‑I., Police Station Saddar, D.G. Khan shall pay Rs.5,000 each to both petitioners as penalty and cost for having illegally set in motion the above proceedings. A copy of this order shall be sent to the Superintendent of Police, D.G. Khan who will see that the above official is not entrusted with the investigation of any matter involving family laws for at least next one year' till he is properly instructed in that branch of law.
H.B.T./H‑20/L
Petition allowed.
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