The father prevails over the mother and that is in matters of money and marriage.

 Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE / 691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of the breakdown of the family tie between the parents.

Writ Petition No.3228 of 2020
Nosheeba Nazeer Vs. Sajjad Ahmed and 2 others
ORDER SHEET
IN THE LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT
Writ Petition No.3228 of 2020
Nosheeba Nazeer Vs. Sajjad Ahmed and 2 others
11.01.2021

Raja Muhammad Faraz Khan, Advocate fo the applicant/respondent No.1.

Mr. Shabbir Ahmed Mirza, Advocate with the petitioner.

Mr. Saleem Murtaza Mughal, Additional Advocate General with Muhammad Zaheer Inspector/SHO P.S. Chountra, District Rawalpindi.

In compliance of the order dated 28.12.2020 the minor detenu namely Ali Raza, aged about 7 years, has been produced before the Court by Sajjad Ahmed (respondent No.1), his father.

2. This petition has been filed by the petitioner regarding the alleged illegal and improper detention of her minor son namely Ali Raza by Sajjad Ahmed (respondent No.1). As per contents of this petition, the minor was removed from the custody of the petitioner by Sajjad Ahmed (respondent No.1) on 18.11.2020. The petitioner has also appended her affidavit alongwith the present petition regarding the correctness of the contents of this petition. No counter affidavit has been filed by Sajjad Ahmed (respondent No.1 and the father of the alleged detenue) so as to challenge the contents of the affidavit. The minor Ali Raza had been living with his mother since his birth and had joined his father only recently i.e. on 18.11.2020. Learned counsel for the respondent No.1 has presented an alleged sworn affidavit of the petitioner dated 18.11.2020 executed on a stamp paper, to the effect that in compliance with the decision of the Jirga the petitioner had surrendered custody of the minor Ali Raza of her own accord and with her own consent to respondent No. l namely Sajjad Ahmed on 18.11.2020. It is further stated in the alleged affidavit that the petitioner shall not approach any forum or Court to seek the return of her minor son namely Ali Raza. The petitioner when confronted with the said affidavit, has repudiated the same. She denies under oath that she had executed this document. She states that the minor was taken from her on the pretext of visiting the father and was not returned to her. I have examined the document, which purports to be executed in compliance of some decision of Jirga. The circumstances of handing over of the minor to his father namely Sajjad Ahmad (respondent No.1) are mired in controversy as the respondent No.1 is claiming that the minor was handed over to him in consequence of the agreement effected between him and the petitioner on the intervention of the Jirga whereas the petitioner is claiming that the minor was removed from her custody on the pretext of visiting the father. It is not disputed by both the parties that the child was born when already the parties were living separately from each other and it is also not disputed that divorce was effected between the parties in the year 2018.It is also not disputed that prior to 18.11.2020 the minor had been living with the petitioner. The child has also been questioned by this Court who stated that he had been living with his mother since his birth and had only recently been handed over to his father (respondent No.1). On Court query, the minor namely Ali Raza has stated that he wanted to live with his mother, the petitioner. Prima facie no bond of love and affection exists between the minor and his father as he had not lived with his father ever prior to his handing over to him only recently. Any agreement, though disputed by the petitioner, even if executed with regard to the handing over the custody of the minor, has no value in the eyes of law and cannot be relied upon. There can be no dispute that questions concerning the custody and guardianship of minors cannot be settled by a private compromise or even by arbitration. An agreement of this nature, therefore, cannot be enforced. If an agreement is entered into by a female which appears unconscionable on the face of it, there is a rebuttable presumption that the agreement was entered into by coercion and undue influence. No effective rebuttal is forthcoming to show as to why the petitioner would voluntarily part with her minor son. Hence the purported agreement to hand over the custody of the minor to the respondent No.1 has no value in the eyes of the law. Reliance is placed on the cases of “Mst. SHEHNAZ BIBI Versus MUHAMMAD AKRAM and others” (1995 PCrLJ 307),. “Mst. RIFFAT BIBI versus AMANAT ALI”(1997 M L D 1562), “AFSHAN NAUREEN Versus NADEEM ABBAS SHAH” (1997 M L D 197) and “Mst. TAHERA BEGUM Versus SALEEM AHMED SIDDIQUI” (P L D 1970 Karachi 619). It would only be the learned Guardian Judge who would be in a position to determine the welfare of the child in proceedings if initiated before the same. At present this Court finds it proper and in the interest and for the welfare of the minor to hand over the custody of the minor Ali Raza to his mother, the petitioner, with whom he had lived since his birth and the bond of love and affection exists between the mother and the child and at present there does exist no reason to break the same. It is true that a Guardian court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody. In Arabic language, guardianship is termed as wilayat and custody as hidhanat. Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE / 691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of the breakdown of the family tie between the parents. Reliance is placed on the case of “Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others” (2018 SCMR 427). Reliance is also placed on the case of “Mst. MADIHA YOUNUS Vs. IMRAN AHMED” (2018 SCMR 1991).

3. In view of the above discussion, this petition is allowed and the custody of the minor namely Ali Raza is ordered to be handed over to the petitioner. It has been brought to the notice of the Court that respondent No.1 intends to file an application under section 25 of the Guardian & Wards Act, 1890. It is, therefore, directed that if and when such an application is filed by the respondent No.1, the learned Guardian Judge shall decide the same strictly in accordance with the law and expeditiously, preferably within a period of two months of the filing of the same. It is also directed that the petitioner shall produce the minor before the learned Guardian Judge if, as and when directed by the said court so as to allow Sajjad Ahmad, the father of the minor, to meet with the minor. However, Sajjad Ahmad shall not be allowed to take the minor out of the premises of the court of learned Guardian Judge. It is also made clear that any such petition filed before the court of the learned Judge Guardian Court shall be decided on its own merits, without being influenced in any manner by any observation made in this order. (SADIQ MAHMUD KHURRAM)JUDGE

Approved for reporting.

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لاہور ہائی کورٹ، لاہور کی خلع، طلاق اور تنسیخ نکاح پہ ایک خوبصورت ججمنٹ۔۔

 PLD 2021 LAHORE 757.

حقائق کچھ یوں ہیں کہ خاتون نے فیملی کورٹ میں مقدمہ دائر کیا جس میں یہ موقف اپنایا گیا کہ شوہر کا تعلق میرے ساتھ ٹھیک نہیں ہے اور وہ مار پیٹ کرتا ہے وغیرہ وغیرہ لہذا مجھے میرا حق مہر جو کہ تین ملین سے زیادہ ہے اور دیگر جہیز کا سامان یہ سارا واپس کیا جاۓ اور عدالت مجھے خاوند سے طلاق دلواۓ بالفاظِ دیگر عدالت نکاح کی تنسیخ کرے۔

فیملی کورٹ نے فیصلہ کرتے ہوۓ تنسیخ نکاح کے بجائے خلع کا حکم پاس کیا اور خاتون کو حکم دیا کہ حق مہر سے دستبردار ہوجائیں۔ مذکورہ خاتون اپیل میں گئی اور اپیل میں بھی یہی فیصلہ برقرار رکھا گیا جس کے بعد خاتون کو مجبوراً ہائی کورٹ میں رٹ جوریسڈکشن میں جانا پڑا۔

معزز عدالت نے طے کیا کہ خلع بیوی کا شرعی حق ہے یہ عدالت کا اختیار نہیں ہے کہ وہ کسی کو بھی بن مانگے اس کا حق دلوانا شروع کردے اگر خاتون خلع نہیں مانگ رہی بلکہ تنسیخ نکاح کی بنیاد پہ طلاق مانگ رہی ہے تو عدالت تنسیخ نکاح کے بجائے خلع دینے کا اختیار نہیں رکھتی۔ اس صورت میں عدالت کو شہادت میں جانا ہوگا اور پراپر ٹرائل کے زریعے یہ طے کرنا ہوگا کہ آخر کن وجوہات کی بناء پر خاتون کو طلاق دی جاسکتی ہے یا نکاح کی تنسیخ کی جاسکتی ہے۔۔۔

سب سے اہم نکتہ جو معزز جج نے طے کیا وہ یہ کہ معزز جج نے صراحتا لکھا کہ خلع کی صورت میں بھی اگر خاتون خلع کے لیے راضی ہو مگر شوہر کی طرف سے اجازت نہ دی جاۓ تو یہ خلع شرعاً و قانونا جائز نہیں ہوگا کیونکہ شریعت کہتی ہے کہ خلع میں شوہر کی اجازت ضروری ہے۔

اگر خاتون خلع مانگ لے اور شوہر انکار کر دے تو شریعت و قانون میں خلع مؤثر تصور نہ ہوگا اس لیے خاوند کی اجازت یا قبول ضروری ہے (اس کے لیے دیکھیے مذکورہ ججمنٹ کا پیرا نمبر 14)

معزز جج نے مزید یہ کہا کہ خاتون جن وجوہات کی بناء پہ خاوند سے اپنا نکاح منسوخ کرانا چاہتی ہے اگر وہ وجوہات ثابت نہ ہو جاۓ تو اس صورت میں بھی عدالت خود سے خلع کا حکم نہیں دے سکتی بلکہ عدالت کو دیگر وجوہات کی طرف جانا ہوگا اور عدالت کو دیگر وجوہات کی بناء پر فیصلہ کرنا ہوگا کہ نکاح کی تنسیخ کی جاۓ لیکن خلع کی بنیاد پہ نہیں۔ (اس کے لیے دیکھیے پیرس نمبر 12)

مزید اسی پیرا سے آگے پیرا نمبر 15 میں طے پایا کہ خلع کی صورت میں عدالت یک طرفہ(ex parte) فیصلہ نہیں دے سکتی یعنی خاوند کی غیر موجودگی میں خلع کا فیصلہ نہیں کیا جاسکتا۔

اگر شوہر ان شرائط پہ خلع دینے پہ راضی نہ ہو جن پہ بیوی خلع لینا چاہ رہی ہو تو عدالت تب تک خلع کا حکم جاری نہیں کرسکتی جب تک دونوں کچھ شرائط پہ متفق ہوکر خلع کا فیصلہ نہ کردے۔

مزید یہ کہا گیا کہ اگر خاوند کی بیوی کے ساتھ نا بنتی ہو اور خاوند طلاق بھی نہ دینا چاہ رہا ہو بلکہ بیوی کو اس طرز پہ ٹریٹ کر رہا ہو کہ بیوی مجبور ہر کر خلع مانگ لے اور خاوند کو حق مہر بچ جاۓ تو اس صورت میں عدالتوں کو بہت محتاط ہونا چاہیے اور معاملہ کی تہ تک پہنچانا چاہیے کہ آخر غلطی کس کی ہے یا ظلم کون کر رہا ہے۔

مذکورہ ججمنٹ میں قرآن پاک سے اور ہدایہ سے بھی حوالہ دیا گیا ہے۔

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-Marriage not consummated---Petitioner was ex-husband of respondent and he after Nikah, did not get Rukhsati of respondent for 13 years--

 2020 Y L R 1586

[Sindh]

(a) Islamic law---

----Maintenance for wife and children---Principles---Husband is under obligation to maintain his wife and children.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 132--- Affidavit-in-evidence---Failure to cross-examine---Effect---Affidavit-in-evidence/Written statement does not constitute or otherwise cannot be treated as a legal and valid evidence---Affidavit-in-evidence/Written statement if not cross-examined has to be excluded from consideration.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Concurrent findings of two courts below---Scope---High Court under Constitutional jurisdiction cannot interfere in concurrent findings of two courts below otherwise it may go beyond scope of Art. 199 of Constitution.

(d) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Maintenance, recovery of---Concurrent finding of facts by two courts below---Marriage not consummated---Petitioner was ex-husband of respondent and he after Nikah, did not get Rukhsati of respondent for 13 years---Respondent sought Khula and suit for past maintenance was decreed in her favour by Family Court---Judgment and decree passed by Family Court was maintained by Lower Appellate Court---Validity---Rukhsati of respondent since her Nikah on 24-12-1999 till her Khula on 10.04.2013 under decree of court had not taken place and marriage was also not consummated as such---Respondent was entitled to claim for her maintenance as upon performance of her Nikah, she had attained status of wife and remained in such capacity till 10-04-2013 when she was granted Khula by Family Court---Such release of respondent did not affect liability of husband during subsistence of marriage---Petitioner did not take any positive/concrete steps for taking Rukhsati of respondents---Respondent was not only subjected to 'cruel behavior' but was also deprived for almost 13 years to enjoy a happy married life---Both courts below had rightly observed that a great injustice was caused to respondent who waited for Rukhsati for a long time of almost 13 years and got married at the age of 36 years but only after passing of decree for Khula---High Court declined to interfere in concurrent judgment and decree passed by two courts below as same were not suffering from any illegality, irregularity, infirmity, misreading or non-reading of evidence/ materials available on record---Petition was dismissed in circumstances.

Mst. Rubina Bibi v. Muhammad Bashir Ahmed 2006 YLR 633; Syed Rashid Ali Shah v. Mst. Haleema Bibi and 2 others PLD 2014 Pesh. 226; Mst. Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073; Muhammad Ilyas and others v. Muhammad Sharif and others 2001 CLC 1194; Messrs Society Oil Dealers, Karachi v. District Judge, Karachi and another 2003 MLD 205; Abdul Majeed v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391; Hakim-Ud-Din through L.Rs and orthers v. Faiz Bakhsh and others 2007 SCMR 870; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 and Muhammad Sardar and 3 others v. Federal Land Commission through the Chairman Inland and 27 others 2004 YLR 1689 ref.

Khudinoor v. District Judge Pashin and 2 others 2017 YLR 2349; Mst. Shamim Akhter v. Additional District Judge, Sialkot and another 1991 CLC 1142 and Mst. Farah Naz v. Judge Family Court Sahiwal and others PLD 2006 SC 457 rel.

(e) Family Courts Act (XXXV of 1964)---

----S. 19---Appeal---Court-fee, non-affixation of---Effect---Petitioner did not pay requisite court fee on memo of appeal and same was dismissed by Lower Appellate Court--- Validity--- Lower Appellate Court had rightly dismissed appeal in circumstances.

Hameeda Begum v. First Additional District Judge and another 1988 CLC 1645 rel.

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-Principle that father was natural guardian and lap of mother was cradle of God, was subservient and subordinate to welfare of minor as contemplated by S.25 of Guardians and Wards Act, 1890, which was also in accordance with Islamic Jurisprudence--

 P L D 2021 Federal Shariat Court 50

(a) Constitution of Pakistan---

----Art. 203-D---Federal Shariat Court, jurisdiction of---Scope---Mandate as per Art. 203-D of the Constitution is to answer questions as to whether a particular law or provisions of law is or is not repugnant to injunctions of the Holy Quran and Sunnah of Holy Prophet (peace and blessing of Allah be upon him).

(b) Guardians and Wards Act (VIII of 1890)---

----Ss.7 & 25---Constitution of Pakistan, Art.203-D---Shariat petition---Custody of minor---Natural guardian---Rights---Petitioner contended that provisions of Ss.7 & 25 of Guardians and Wards Act, 1890, were anti-people, inhuman and un-Islamic as the same were to deprive natural guardian---Validity---Held, neither any law was enacted under S.25 of Guardians and Wards Act, 1890, nor it had prescribed any rule, rather it regulated situation where a ward was to leave or was removed from custody of a guardian of his person and natural/certified guardian moved Court for return of the ward---Title of guardianship did not entitle the guardian for return of custody of minor, unless he/she would establish that return of ward was in the interest of minor---Principle that father was natural guardian and lap of mother was cradle of God, was subservient and subordinate to welfare of minor as contemplated by S.25 of Guardians and Wards Act, 1890, which was also in accordance with Islamic Jurisprudence---Shariat petition was dismissed in circumstances.

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لاہور ہائیکورٹ نے قرار دیا ہے کہ عدت گزارے بغیر شادی کو بے قاعدہ یا فاسد کہا جا سکتا ہے لیکن اسے باطل قرار نہیں دیا جاسکتا، عدالت نے عدت مکمل کیے بغیر شادی کو زنا قرار دینے کی درخواست خارج کردی۔

 لاہور ہائیکورٹ کےجسٹس علی ضیا باجوہ نے امیر بخش کی درخواست خارج کرنے کا فیصلہ جاری کیا۔

درخواست گزار کا موقف تھا کہ اس کی سابق بیوی آمنہ نے عدالت سے تنسیخ نکاح کا یکطرفہ فیصلہ لیا اور اگلے روز اسماعیل نامی شخص سے شادی کرلی۔

درخواست میں موقف اپنایا گیا کہ عدت مکمل کیے بغیر اگلا نکاح کرنا زنا کے زمرے میں آتا ہے اس لیے زنا کا مقدمہ درج کروایا جائے۔

عدالت نے قرار دیا کہ درخواست گزار کا موقف درست مان بھی لیا جائے تب بھی شادی باطل نہیں۔ عدت مکمل کیے بغیر ہونے والی شادی کو بے قاعدہ تو کہا جاسکتا ہے لیکن وہ باطل نہیں۔ اس لیے جوڑے کو زنا کا مرتکب قرار نہیں دیا جا سکتا

Marriage without observing the period of Iddah does not entail commission of cognizable offence as defined under section 4 and punishable under section 5 of The Offence of Zina (Enforcement Of Hudood) Ordinance, 1979.

Writ Petition-Criminal Proceedings-Registration of Case
16880-21
AMEER BAKHSH VS
ASJ ETC
Mr. Justice Ali Zia Bajwa

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--Whether a gift, if given to a bride at time of nikah, can be returned if marriage dissolved on basis of khula--

 PLJ 2021 Peshawar 13

Constitution of Pakistan, 1973--

----Art. 199--Suit for dissolution of marriage and recovery of maintenance allowance--Decreed--Appeal filed by petitioner was dismissed--Appeal filed by respondent was partially allowed--Modification of judgment--Question of--Physical whether Haveli was actually given and its possession was handed over to respondent--Whether a gift, if given to a bride at time of nikah, can be returned if marriage dissolved on basis of khula--Challenge to--Petitioner/defendant has failed to produce even a single witness to sale consideration rather admitted that amount was transmitted into his account, thus, in such a situation, it has been proved that amount of sale consideration has been received by him and not by respondent/plaintiff--Although marriage was dissolved on basis of Khula but it divulges from evidence that gold in question was given to respondent/plaintiff, besides dower, meaning thereby that same was given to her as gift and it is settled law that gift cannot be reclaimed once given with free will and consent by a donor--Maintenance allowances decreed in favour of minors to tune of
Rs. 5000/- per month to each minor by trial Court and affirmed by appeal Court is not open to any exception keeping in view recent price hike--However, this Court deems it appropriate to reduce annual increase in maintenance allowances from 20% to 10%, keeping in view circumstances of case--Impugned judgment and decree of learned appeal Court is modified only to extent that annual increase of maintenance allowances shall be decreased from 20% to 10% while rest of judgment and decree of learned appeal Court shall remain intact--Petition was disposed of.

                                                                                [P. 16] A, B, C & D

Mr. Haq Nawaz, Advocate for Petitioner.

Mr. Khalid Rehman Qureshi, Advocate for Respondents.

Date of hearing: 24.9.2020.

 PLJ 2021 Peshawar 13
[Abbottabad Bench]
Present: Muhammad Ibrahim Khan, J.
ZAHID AKHTAR--Petitioner
versus
Mst. SAIMA ZIA and others--Respondents
W.P. No. 1619-A of 2019, decided on 24.9.2020.

Judgment

Petitioner Zahid Akhtar through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the judgment and decree dated 05.10.2019 passed by the learned Additional District Judge-V/Model Civil Appellate Court, Haripur, whereby his appeal against the judgment and decree dated 20.03,2018 of the learned Judge Family Court-II, Haripur, was dismissed while that of the respondents/plaintiffs was partially accepted.

2. Succinctly stated fact of the case are that the respondents/ plaintiffs brought a suit against the petitioner/defendant for dissolution of marriage on the basis of Khula and recovery of monthly maintenance allowance for the minors. The learned trial Court put the petitioner/defendant on notice, who appeared and contested the suit by filing his written statements with many legal and factual objections. During trial reconciliation proceedings were conducted wherein the Respondent No. 1/plaintiff flatly refused to live with the petitioner/defendant, thus, the decree for dissolution of marriage on the basis of Khula was granted in favour of the former in lieu of dower i.e a house and 10 tolas gold ornaments;. From divergent pleadings of the parties as many as four (04) issues were framed including relief. The learned trial Court after recording pro and contra evidence and hearing learned counsel for the parties partially decreed the suit as follows:

“As sequel to my issue wise findings, Plaintiff No. 1 succeeded to prove her case partially, therefore, suit of the plaintiff is partially decreed as under:

          Juzz Alif of the plaint has already been decreed in respect of dissolution of marriage on the basis of Khula vide order No. 12 dated 02.05.2016, however, plaintiff is bound to return gold ornaments weighing 10 tolas or its prevailing market price to defendant.

          Juzz Baay of the plaint for recovery. of maintenance allowances of minors No. 2 to 5 stands decreed from 10.11.2015 @ of Rs. 5000/- per month per head with 20% annual increase for minors No. 2, 4 & 5 till their marriages and minor Plaintiff No. 3 till his majority. Interim maintenance allowances so paid during the pendency of the suit are liable to be adjusted. With no order as to cost.”

3. Felt aggrieved from the judgment and decree of the learned trial Court, both the parties filed separate appeals before the learned appellate Court. After hearing learned counsel for the parties, the learned appellate Court dismissed appeal of the petitioner and partially allowed the respondents’ appeal by modifying the impugned judgment and decree to the extent that the respondent/plaintiff is not liable to return 10 tolas gold ornaments to the petitioner/defendant. Dissatisfied with the judgments and decrees of the fora below, the petitioner has preferred the instant petition.

4. Having heard the arguments of learned counsel for the parties, the record was gone through with their able assistance.

5. As apparent from the record, marriage between the spouses i.e. petitioner and Respondent No. 1 was, solemnized on 08.04.2005. No doubt, as per contents of the Nikah Nama, a Haveli is shown to have been given to the respondent in lieu of dower whereas the gold ornament weighing ten (10) tolas was given to her besides dower, which impliedly means that the gold ornament was shown to have been given to her as gift.

6. Before re-appraising the other evidence, the moot point for consideration before the Court is that whether the Haveli was actually given and its physical possession was handed over to the respondent and whether a gift, if given to a bride at the time of Nikah, can be returned if the marriage dissolved on the basis of Khula?

7. In order to meet the above, a threadbare look at the evidence, so furnished by the petitioner/defendant would reveal that admittedly the Haveli was not only mentioned in the Nikah Nama but as per Behi No. 1 Volume No. 502 Registry No. 1090 dated 5.9.2013 the respondent/plaintiff had sold out the said Haveli to one Azhar Mehmood Hashmi s/o Abdur Rasheed Hashmi in lieu of sale consideration of Rs. 25,00,000/-. In this regard, the petitioner/ defendant produced Registry Moharrir as DW-1, who during his cross-examination deposed that the sale consideration was not paid to the

Respondent No. 1 before Sub-Registrar. Besides, the petitioner/ defendant has failed to produce even a single witness to the sale consideration rather admitted that the amount of Rs. 25,00,000/- was transmitted into his account, thus, in such a situation, it has been proved that the amount of sale consideration has been received by him and not by the respondent/plaintiff.

8. So far as the question of gold ornament of ten (10) tolas is concerned, suffice it to say, that although the marriage was dissolved on the basis of Khula but it divulges from the evidence that the gold in question was given to the respondent/plaintiff, besides dower, meaning thereby that the same was given to her as gift and it is settled law that gift cannot be reclaimed once given with free will and consent by a donor.

9. Last but not the least, it is worth to note that the maintenance allowances decreed in favour of the minors to the tune of Rs. 5000/- per month to each minor by the learned trial Court and affirmed by the learned appeal Court is not open to any exception keeping in view the recent price hike. However, this Court deems it appropriate to reduce the annual increase in the maintenance allowances from 20% to 10%, keeping in view circumstances of the case.

10. The nutshell of the above discussed would be that the impugned judgment and decree of the learned appeal Court is modified only to the extent that annual increase of maintenance allowances shall be decreased from 20% to 10% while rest of the judgment and decree of the learned appeal Court shall remain intact.

11. The writ petition stands disposed of accordingly.

(Y.A.)  Petition disposed of

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Alleged abductee solemnized Nikkah with son of petitioner and in that age has been mentioned as about 17/18 years, she has sworn an affidavit to effect that she has willingly entered into Nikkah,

PLJ 2021 Cr.C. (Islamabad) 236

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), S. 364/34--Allegation of abduction--Post-arrest bail, grant of--Valid nikah--Diverse statement of abductee--Further inquiry--Alleged abductee solemnized Nikkah with son of petitioner and in that age has been mentioned as about 17/18 years, she has sworn an affidavit to effect that she has willingly entered into Nikkah, however, B form produced on record shows that age of abductee is 12 years approximately; she also made statement under Section 164, Cr.P.C. that she was coerced to enter into Nikkah referred facts, made case against petitioner is one of further inquiry--Petition was allowed.

                                                                                              [P. 237] A

2018 PCr.LJ 453, 2018 MLD 899 and 2018 PCr.LJ 1025 ref.

Mr. Rifaqat Islam Awan, Advocate for Petitioner.

Mr. Shafqat Abbas Tarar, Advocate for Respondents.

Ch. Zaheer Farooq, learned State Counsel.

Date of hearing: 6.5.2019.

PLJ 2021 Cr.C. (Islamabad) 236
Present: Aamer Farooq, J.
GHULAM MUSTAFA--Petitioner
versus
STATE & another--Respondents.
Crl. Misc. No. 218/B of 2019, decided on 6.5.2019.

Order

Through the instant petition, the petitioner Ghulam Mustafa, seeks bail after arrest in case FIR No. 74/19, dated 27.02.2019 for offence under Section 364/34, PPC, Police Station Lohi Bhair, Islamabad.

2. The case of prosecution, against the petitioner is that on the complaint of respondent No. 2, an FIR was registered in which it was alleged that the complainant is resident of Islamabad and on 26.02.2019 at about 07:50 a.m. the petitioner alongwith his co-accused kidnapped his daughter Irum Butt aged about 12 years.

3. The petitioner applied for bail after arrest before the Sessions Judge, East-Islamabad, which was dismissed vide order dated 30.03.2019.

4. Learned counsel for the petitioner, inter alia, contends that the petitioner's son contracted valid Nikkah, hence there was no abduction; that the alleged detenue made diverse statements, hence the same cannot be believed; that the investigation stands concluded. Reliance was placed on cases reported as "Zawar Hussain vs. The State and others" (2018 P Cr.LJ 453), "Muhammad Shahbaz vs. The State and another" (2018 P Cr.LJ 1025) and "Muhammad Biial vs. The State and another" (2018 MLD 899).

5. Learned State Counsel alongwith the counsel for the complainant, inter alia, contends that the alleged abductee is a minor; that the Nikkah, if any, is in violation of Child Marriage Restraint Act, 1929.

6. Learned counsels for the parties have been heard and documents placed on record examined with their able assistance.

7. The post arrest bail of one of the co-accused of the petitioner namely Muzaffar Khan was allowed by Additional Sessions Judge, East-Islamabad on 16.3.2019. The alleged abductee solemnized Nikkah with the son of the petitioner and in that the age has been mentioned as about 17/18 years, she has sworn an affidavit to the effect that she has willingly entered into Nikkah, however, the B form produced on record shows that the age of abductee is 12 years approximately; she also made statement under Section 164, Cr.P.C. that she was coerced to enter into Nikkah. The referred facts, made the case against the petitioner is one of further inquiry. Reliance is placed on cases reported as "Zawar Hussain vs. The State and others" (2018 PCr.LJ 453), "Muhammad Shahhaz vs. The State and another" (2018 PCr.LJ 1025), "Muhammad Bilal vs. The State and another" (2018 MLD 899) and "Muhammad Azam vs. The State and another" (2018 PCr.LJ Note 175).

8. In view of above, instant petition is allowed and the petitioner is admitted to bail after arrest subject- to furnishing bail bonds in sum of Rs. 1,00,000/- with one (01) surety in the like amount to the satisfaction of learned Trial Court. It is clarified that the observations made hereinabove are tentative in nature and shall not prejudice the learned Trial Court at the time of trial.

(M.M.R.)         Petition allowed 

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