Thursday, November 19, 2009

Divorce Cases

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Citation Name: PLJ 2006 Lahore High Court 766
Appelant Side: Mst. NAZIRAN BIBI
V e r s u s
Opponent Side: ADDITIONAL DISTRICT JUDGE, MIANWALI and 2 others
Judge Name: Muhammad Muzammal Khan
Judgment Result:Appeal accepted.
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----s. 25--constitution of pakistan (1973), art. 199--custody of minor daughter--mother and father of minor having been separated by divorce were living apart--both claimants i.e. mother and father of minor had entered into their respective second marriages--father of minor was admittedly serving in army where he had to perform his full time duty and he was periodically transferred from one cantonment to another--in absence of father, grandmother of minor was to look after minor, however, she was ill, aged and could not look after minor--step mother could not be relied upon to take care of minor--petitioner/mother's second husband was closely related to minor besides being from same brother hood--lap of mother is the best school for growing child and no one else can look after welfare of minor as compared to woman who had given birth to child--minor is of four years age and from her birth is living with her mother and thus, must have developed deep association/ attachment with her--snatching of minor's custody from her mother in such tender age and entrustment to step-mother could not be justified--evidence on record revealed that welfare of minor was being best served while her living with her mother as compared to respondent who due to his service remains out of house and was not in a position to look after affairs or well being of minor--appellate court's judgment handing over custody of minor to her father was thus, not warranted and was declared to be void and non-existence in the eye of law--trial court's judgment handing over custody to petitioner mother being in accordance with law was thus, restored.

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Citation Name: PLJ 2006 Lahore High Court 785
Appelant Side: SHAHEEN
V e r s u s
Opponent Side: MUHAMMAD ALI
Judge Name: Ch. Ijaz Ahmad
Judgment Result:Application accepted.
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----s. 24--transfer of civil suit--inconvenience of ladies--petitioner/lady resident of lahore, being delegate of the right of divorce, sent a notice of talaq to respondent/husband--respondent in a counter blast filed a civil suit against her in the civil court, rawalpindi--held: superior courts would give due weight and benefit to the inconvenience of the ladies--case was transferred from rawalpindi to lahore.

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Citation Name: PLJ 2006 Lahore High Court 1254
Appelant Side: Haji TARIQ ALI
V e r s u s
Opponent Side: Mst. SHAMIM AKHTAR and 2 others
Judge Name: Muhammad Muzammal Khan
Judgment Result:Petition accepted.
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----s. 9--constitution of pakistan, 1973, art. 199--past maintenance--application for maintenance after expiry of 90 days from service of notice--decree set aside--jurisdiction of arbitration council--maintainability--corum non judice--whether after the divorce to a wife arbitration can council grant past maintenance claimed by her--question of--held: pending notice of divorce by the husband, wife's application for maintenance after the expiry of 90 days from the service of notice, was not maintainable as she was not wife of the respondent--order held void, illegal/non-existence and corum non judice--petition accepted.

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Citation Name: PLJ 2006 Lahore High Court 183
Appelant Side: Mst. IRFANA FAIZ and another
V e r s u s
Opponent Side: STATE and 2 others
Judge Name: Muhammad Jehangir Arshad
Judgment Result:Petition dismissed.
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----before expiry of iddat--validity of talaq--talaq is not effective and in present case distinguish feature was that petitioner's marriage who stood within prohibited degree before expiry of iddat period--held: no inclined to legalize that marriage on touchstone of law declared by supreme court by ignoring distinguishable feature--constitutional petition being equitable discretionary relief same could not be extended exercised when grant of such relief is immoral unfair or against dictates of good conscience and fair play--marriage between parties just three days after alleged divorce with real sister of earlier wife was an unholy which could not be perpetuated by high court through constitutional petition.
Citation Name: PLJ 2005 Karachi High Court 111
Appelant Side: JAGSI
V e r s u s
Opponent Side: Shr. MARWAN and another
Judge Name: Zia Pervez
Judgment Result:Petition dismissed
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----ss. 2(b), 5 & sched.--matters involving hindu citizens--jurisdiction of family courts--family court constituted under west pakistan family courts act, 1964, as competent to adjudicate upon the matters pertaining to divorce claimed on strength of customs; and high court was competent to adjudicate upon matters involving hindu citizens of pakistan to extent specified in schedule to the act which included the cases pertaining to divorce.

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Citation Name: PLJ 2005 FSC 117
Appelant Side: Mst. NISA BEGUM and another
V e r s u s
Opponent Side: STATE
Judge Name: Zafar Pasha Chaudhry
Judgment Result:Accused acquitted.
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----ss. 10 & 16--conviction and sentence recorded against appellant--challenge to--appreciation of evidence--determination of--whether conviction under s. 10 of the ordinance can be sustained merely because no divorce certificate or written notice on behalf of appellant is necessary--held: provisions of muslims family law ordinance the marriage, as well as, divorce has to be duly registered with the concerned union council elaborate procedure for divorce has also been laid down--divorce certificate or written divorce notice was not present on the file but there is reliable evidence on the record from which it could unequivocally be inferred that possibility of tendering divorce cannot be ruled out then it would be not only unsafe rather highly unjust to convict a woman for offence under section 10 of the ordinance merely because she could not produce the relevant document.

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Citation Name: PLJ 2004 Peshawar High Court 260
Appelant Side: SAYED HAMIM SHAH
V e r s u s
Opponent Side: Mst. SABIHA and 2 others
Judge Name: TALAAT QAYYUM QURESHI & MUHAMMAD QAIM JAN
Judgment Result:Writ Petition dismissed.
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--s. ^--constitution of pakistan 1973, art. 199~maintenance allowance of wife and minor daughter-quantum of-family court decreeing maintenance allowance for wife as rs. 2000/- and for daughter as rs. 1,000/- per month-appellate court reducing wife's maintenance to rs. 1,500/- per month and as divorce had become effective during meanwhile so decreeing such for the period of iddat only-challenged in writ petition-held : contention of petitioner that his income was very meagre and he was unable to pay such allowance was not established by evidence on record-high court dismissed writ petition, holding that it could not substitute its own finding in place of finding reached by lower . forums.

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Citation Name: PLJ 2004 Supreme Court 541
Appelant Side: MANZOOR AHMAD
V e r s u s
Opponent Side: NARGIS MIRZA etc.
Judge Name: HAMID ALI MIRZA, ABDUL HAMEED DOGAR AND FAQIR MUHAMMAD KHOKHAR
Judgment Result:Leave refused.
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--s. 5-muslim family laws ordinance, 1961 (viii of 1961), s, 7- constitution of pakistan (1973), art. 185(3)-decree in suit for maintenance granted by courts below assailed-decree/judgment granted by appellate court was based on proper appreciation of evidence and would not call for any interference-petitioner had himself admitted before trial court that he had not divorced respondent-subsequent plea of petitioner that he had divorced his wife was not established on record in terms of s. 7 of muslim family laws ordinance, 1961-interference with judgments of appellate court and high court was thus, not warranted-petition for leave to appeal was dismissed and leave to appeal refused.

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Citation Name: PLJ 2004 Supreme Court 624
Appelant Side: WILAYAT ALI
V e r s u s
Opponent Side: STATE and another
Judge Name: NAZIM HUSSAIN SIDDIQUI, JAVED IQBAL & FALAK SHER
Judgment Result:Petition dismissed.
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-s. 302(b)-criminal procedure code s. 544, 512 and 364-double murder-motive-judicial confession-factum of recovery, absconsion, forthright eye account and medical evidence lend full corroboration to the retracted confession-trial court convicted and sentenced petitioners to death with fine-appeal was dismissed by the high court-motive-daughter of complainant was divorced by accused two years prior to occurrence-contradicitons in the statements-pw makes any contradiction, improvements, or other factors which may adversely reflect on his credibility would not by itself be sufficient to reject his testimony as a whole-it is hardly conceivable rather impossible that real father would substitute assailant with that of petitioner-deceased were taken in the presence of their father and soon after killed by accused and absconding ' accused-testimony finds full support from medical evidence, confession of petitioner, factum of recovery absconsion, recovery of shot gun and statement of eye witness-petitioner was dismissed and leave refused by the supreme court-held, prosecution was proved the guilt of accused to hilt by producing worthy of credence eye account duly supported by medical evidence, voluntary confession made by accused factum of absconsion and recovery of shotgun-then conclusion as arrived at by the learned trial court and affirmed by learned high court being well based and unexceptionable does not warrant inference-petition dismissed.

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Citation Name: PLJ 2004 Cr.C 321
Appelant Side: MUHAMMAD NAWAZ
V e r s u s
Opponent Side: STATE
Judge Name: SH. ABDUL RASHID
Judgment Result:Bail allowed.
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--ss. 10/11-criminal procedure code, 1898 (v of 1898), s. 497-post arrest bail application-offence attributed to petitioner was abduction of complainant daughter and commission of zina with her-petitioner claimed to have divorced his first wife/elder sister of alleged abductee and had placed on record 'nikahnama' with her younger sister-even if prosecution case was admitted that first wife had not been divorced in accordance with law and first "nikah" was still subsisting, subsequent nikah with younger sister of first wife would only amount to irregular marriage and issues of such marriage would be legitimate-petitioner was thus, not committing zina with his second wife-second marriage of petitioner would become valid on divorcing first wife, whom he claims to have divorced-petitioner had thus, committed no offence-petitioner was, therefore, admitted to bail in sum of specified amount with one surety of like amount to satisfaction of trial court.

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Citation Name: PLJ 2004 Cr.C 510
Appelant Side: ZAHIDA SHAHEEN
V e r s u s
Opponent Side: STATE
Judge Name: SARDAR MUHAMMAD ASLAM
Judgment Result:Bail allowed.
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-s. 497(2)--pakistan penal code 1860, s. 302--bail after arrest- explanation of delay is not plausible-petitioner, a woman of 42 years of age having three children from previous husband-charge of murder of new husband-admittedly she had been divorced following a marital dispute with deceased-motive for offence not free from doubt-no plausible explanation for delay of 2.8 days-case open to further enquiry- bail was granted in circumstances.

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Citation Name: PLJ 2004 Cr.C 648
Appelant Side: ZAMURRAD PERVAIZ and another
V e r s u s
Opponent Side: STATE
Judge Name: MAULVI ANWAR-UL-HAQ,
Judgment Result:Bail granted.
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-s. 497-offence of zina (enforcement of hudood) ordinance, 1979, s. 10(2)-bail prayer for-accused married without permission of existing wife-nikahnama was cancelled-f.i.r. lodged against accused-held: no nikah registrar has any lawful authority to cancel nikah-nikah once performed between parties can be dissolved either by husband by pronouncing divorce in manner prescribed or by.a competent court- existing wife had not consented to that marriage is concerned, that is not at all a subject matter of (enforcement of hudood ordinance, 1979- offence constituted under muslim family laws ordinance, 1961, which is not cognizable by police and it is only upon complainant of an existing wife or wives that a court can take cognizance and proceed matter-bail granted.

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Citation Name: PLJ 2004 FSC 115
Appelant Side: MUHAMMAD YOUNAS
V e r s u s
Opponent Side: STATE
Judge Name: DR. FlDA MUHAMMAD KHAN; S.A. MANAN AND ZAFAR PASHA CHAUDHRY
Judgment Result:Appeal dismissed.
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-ss. 10 & 11-abduction and murder of victim lady-statement of complainant-that main accused had developed illicit relations with deceased lady was supported by medical evidence whereby she had fetus of over seven months-evidence on record would indicate that appellant wanted to marry victim lady but she did not accede to his demand because of the fact that her elder sister was wife of appellant-father of victim lady could not accept that his elder daughter be divorced and younger one be given in marriage especially when he had smelled foul .play in between appellant and his deceased daughter-appellant being aggrieved on account of refusal by complainant and deceased chose to forcibly abducted victim lady from her house-factum of abduction by appellant was thus, fully established

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Citation Name: PLJ 2004 Lahore High Court 506
Appelant Side: Mst. PIARI JAN
V e r s u s
Opponent Side: MUHAMMAD AFZAL and 14 others
Judge Name: MAULVI ANWAR-UL-HAQ
Judgment Result:Revision accepted.
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--s. 42-civil procedure code, 1908 (v of 1908), s. us-plaintiffs filed suit for declaration that their predecessor had divorced defendant during his life time and that share of his inheritance awarded to her be declared to be void-plaintiffs suit was dismissed, however, they, succeeded in appeal and their suit was decreed-legality-plaintiff s predecessor had earlier filed suit against present defendant during his life time that defendant stands divorced-plaintiffs suit was however, dismissed for lack of evidence as also for non-prosecution when he was still alive-predecessor of plaintiff had also filed writ petition to that effect which was also dismissed-no evidence was available on record that deceased plaintiff had taken any steps for restoration of those proceedings-writ petition had been filed against order of maintenance allowed by arbitration- effect of dismissal of writ petition was that deceased had to pay maintenance to defendant and that order remained in the field-trial court had rightly dismissed present suit of successors-in-interest of deceased plaintiff on the basis of evidence on record while appellate court had misread evidence in decreeing their suit-judgment of trial court whereby plaintiffs suit was dismissed was restored while that of appellate court decreeing their suit was set aside.
Name: PLJ 2004 Lahore High Court 892
Appelant Side: Mian ARIF MAHMOOD
V e r s u s
Opponent Side: Mst. TANVIR FATIMA and 2 others
Judge Name: MUHAMMAD GHANI
Judgment Result:Petition partly allowed.
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--ss. 7(1) and 9-constitution of pakistan, 1973. art. 199--maintenance awarded by arbitration council-without hearing respondent (husband)-- validity of-petitioner assailed decision of chairman arbitration council and dismissal of his revision by district officer (revenue)-plea of the petitioner that he divorced the respondent with notice to nazim concerned and that maintenance was awarded without hearing him- impugned decision speaks that arbitration council sent notice to petitioner through registered post and also served through proclamation in the daily "ujrat"-writ petition was partly allowed modifying the impugned decision-held: "no error of approach or jurisdictional defect has been found in the impugned decision, requiring interference in constitutional jurisdiction-further held: respondent has been found entitled to maintenance till the talaq became effective arid also for the iddat period-petition partly allowed.

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Citation Name: PLJ 2004 Lahore High Court 1535
Appelant Side: UM-A-TAMEEM alias SAMINA BIBI & another
V e r s u s
Opponent Side: S.H.O., POLICE STATION TANDLIANWALA DISTT. FAISALABAD & two others
Judge Name: M. BlLAL KHAN
Judgment Result:Petition accepted.
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--s. 7-offence of zina (enforcement of hudood) ordinance 1979 (vii of 1979), ss. 10. 16-constitution of pakistan, 1973-art. 199-offence of zina--quashment of fir-constitutional petition-failure to send notice of talak to chairman union council-effect-petitioner claims that on strength of divorce deed she had contracted valid and legitimate marriage which is perfectly legal-fact that notice of talak was not sent to chairman union council will not render talak ineffective-continuation of proceedings in fir shall not serve any useful purpose and will clearly amount to abuse of process of law-held further: respondent no. 3 if aggrieved may agitate matter before appropriate forum which is judge family court in instant case-petition allowed.

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Citation Name: PLJ 2003 Cr.C 642
Appelant Side: WAQAR AHMAD and another
V e r s u s
Opponent Side: STATE
Judge Name: M. JAVED BUTTAR
Judgment Result:Pre-arrest bail declined.
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-s. 498-bail before arrest-offence u/s. 364/109 ppc--contention that case against petitioners was false, alleged abductee was divorced by petitioner on 19.6.2001 and she went missing, on her own, from \ 20.6.2001 by leaving the house of petitioner-he does not know her whereabouts and the petitioners have been involved falsely by the in-laws of petitioner because he has divorced his former wife; present wife of petitioner has been falsely involved because the petitioner contracted marriage with her against the wishes of his former wife-a grown up woman is missing from the house of petitioner-it is alleged by the complainant that she has been done away by the petitioners with the connivance of her mother-petitioners have failed to satisfactorily explain the whereabout of the abductee-it is a very serious allegation of the commission of a henious offence and so far there is no material available on the record to justify the grant of pre-arrest bail to the petitioners--pi-e- arrest bail declined in the circumstances

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Citation Name: PLJ 2003 Cr.C 913
Appelant Side: MUHAMMAD ISHTIAQ
V e r s u s
Opponent Side: STATE
Judge Name: SARMAD JALAL OSMANY
Judgment Result:Bail granted.
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--s. 497(2)-bail-grant of--prayer for--case of further inquiry-offence of zina (enforcement of hudood) ordinance (vii of 1979), s. 10(2)-- whether or not female with whom accused had claimed to have married, was divorced earlier by her husband, was a question of further inquiry and only trial court could establish such fact-f.i.r. was delayed by three years for which no reasonable explanation was given-f.i.r. having been lodged after consultation-tentative conclusion was borne out by fact that some difference of opinion existed on religious matters between accused and complainant-both accused and female who allegedly had contracted marriage soon after divorce were living together as husband and wife-- prima facie, its hardly a case of zma--accused was entitled to bail in the circumstances. .

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Citation Name: PLJ 2003 Lahore High Court 227
Appelant Side: Mst. SAIQA
V e r s u s
Opponent Side: ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 2 others
Judge Name: TANVIR BASHIR ANSARI
Judgment Result:Order accordingly.
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-.k7zwfa--restoration of benefit or gift-dower whether paid or un-paid can never be in nature of a benefit or gift which is liable to be restored in consideration for granting khula divorce-impugned judgment passed by trial court was not sustainable to extent that it makes grant of khula subject to condition of re-payment of paid amount of dower and to obligate her to forego unpaid dower amount-impunged judgment and decree was, thus, liable to be modified to that extent.

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Citation Name: PLJ 2003 Lahore High Court 309
Appelant Side: Mst. SAIQA
V e r s u s
Opponent Side: ADDL. DISTRICT JUDGE etc.
Judge Name: TANVIR BASHIR ANSARI
Judgment Result:Petition accepted.
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-s. & sched.-petitioner was found entitled to dissolution of marriage on the basis of khula, in consideration whereof she was directed by family court to return dower amount already received and forgoing of remaining dower amount and maintenance allowance-legality-dower is a settlement in favour of wife made prior to completion of marriage a contract and is a pre-condition of a valid marriage-payment of dower is indispensible so much so that in its absence relationship between man and wife could not be legitimized and would be regarded as a sinful union-gift or benefit on other hand which is to be restored to husband by wife in lieu of obtaining khula is in essence a gratuitous offering which may be bestowed by husband on wife is merely voluntary in nature- dower whether paid or un-paid can never be in the nature of a benefit or gift which is liable to be restored in consideration for granting khula divorce-impugned judgment passed by trial court was thus, not sustainable to the extent that it makes grant of khula subject to condition of repayment of paid amount of dower by wife to husband and to obligate her to forego unpaid dower amount-impugned judgment and decree was thus, liable to be modified to that extent.

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Citation Name: PLJ 2003 Lahore High Court 309
Appelant Side: Mst. SAIQA
V e r s u s
Opponent Side: ADDL. DISTRICT JUDGE etc.
Judge Name: TANVIR BASHIR ANSARI
Judgment Result:Petition accepted.
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-s. 5 & sched-foregoing right of maintenance in lieu of khula divorce- where court had found wife legally entitled to claim maintenance and on the other hand directed her to forego same in lieu of khula, it would be contradiction in terms and'impugned judgment and decree is liable to be modified.

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Citation Name: PLJ 2003 Lahore High Court 1240
Appelant Side: SABA RIAZ
V e r s u s
Opponent Side: NAZIM/CHAIRMAN ARBITRATION COUNCIL, GULBERG LAHORE and another
Judge Name: MRS. NASIRA IQBAL
Judgment Result:Petition accepted.
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--s. 7--constitution of pakistan (1973), art. 199--notice of talaq issued by chairman arbitration council on behalf of respondent assailed by petitioner-petitioner claimed that both parties were citizens of u.s.a; had contracted marriage in u.s.a., therefore, respondent chairman lacks jurisdiction to issue such notice-parties being american citizens, they would by covered by law of state where their marriage was contracted and all disputes relating therefrom including proceedings of divorce would be governed by law of state of oklahama (u.s.a), therefore, respondent chairman has no jurisdiction to entertain, notice sent to him by husband of petitioner regarding divorce that he had pronounced on petitioner-proceeding conducted by respondent chairman were declared to be without lawful authority and of no legal effect.

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Citation Name: PLJ 2002 Cr.C 997
Appelant Side: ZEESHAN AFZAL alias SHANI
V e r s u s
Opponent Side: STATE
Judge Name: ALI NAWAZ CHAUDHRY AND RUSTAM ALI MALIK
Judgment Result:Appeal dismissed
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--s. 302--murder--offence of--conviction and sentence-appeal against-offence not seen by anyone-convict picked up in identification parade-recovery of stolen articles effected by police-motive not shown m, fir--effect of~appreciation of evidence-it is admitted fact that mst "s" deceased was paternal aunt of "z" accused/appellant whose mother had been divorced by his father-he himself in his statement u/s 342 cr.p.c. had stated that his father had contracted second marriage-in his aforesaid, statement he had further stated that his paternal aunt "s", deceased loved him and she wanted to marry his daughter "m" deceased with him, but other relatives took it ill and they did not like his visits to house of his aforesaid paternal aunt-it is correct that in fir there was no intention of alleged stolen articles-but we can also understand as to what was state of mind of complainant immediately after reaching his house when he saw dead bodies of his mother and sister lying in bath room with their throats cut with sharp edged weapon-only possible thing he could do at that moment was to shout, cry and to raise alarm-it could not be expected from him at that moment to check up household articles to find out as to whether any theft had been committed in house-conduct of complainant in that respect does not appear to be unnatrual-having failed to marry mst *m" daughter of his aunt, "z" accused/appellant could do anything, including murder of "mst". "m" and her mother-in original fir no notice was attributed to accused appellant-as such it was not necessary for prosecution to prove existence of motive-even most heinous offences are some times committed without existence of any motive-however, during trial, it did come to light that "z" accused/ appellant did have motive to committee offences in question-death sentence of appellant confirmed-appeal dismissed.

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Citation Name: PLJ 2002 Cr.C 3
Appelant Side: GULZAR AHMAD and another
V e r s u s
Opponent Side: STATE
Judge Name: ASIF SAEED KHAN KHOSA
Judgment Result:Bail granted.
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--s. 497 (1st) proviso-bail-offence u/s. 10(2)/11 offence of zina(enforcement of hudood) ordinance, 1979 read with s. 380 ppc-- contention that petitioners have duly contracted marriage with each other after petitioner no. 1 had divorced his previous wife-it is not disputed that no stolen property was recovered from petitioner's possession during investigation-challan has already been submitted and, thus, physical custody of petitioners is no longer required for purposes of investigation-petitioner no. 2 is a woman and her case attracts provisions of first proviso to sub-section (1) of section 497, cr.p.c.-bail granted.
Citation Name: PLJ 2002 Lahore High Court 1748
Appelant Side: SHAMSHAD BIBI
V e r s u s
Opponent Side: S.P. OKARA and 2 others
Judge Name: IJAZ AHMAD CHAUDHARY
Judgment Result:Petition accepted.
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-s. 561-a offence of zina (enforcement of hudood) ordinance (vii of 1979), s. 16-constitution of pakistan (1973), art. 199-petitioners seeking quashment of f.i.r. registered against them under s. 16 of offence of zina (enforcement of hudood) ordinance, 1979-complainant had divorced his wife (accused) and kept his daughters-accused lady claimed that her daughters finding life difficult with their step mother had on their own accord left their father's house and joined her and that no-body had abducted them and registration of case was to pressurise her to send daughters to him-pn'ma facie it seems that complainant has wrongly shown petitioner as his wife and has concealed factum of contracting of second marriage by him~registration of case and pendency of investigation seem to be abuse of process of law-f.i.r. registered againt petitioners was quashed in circumstances.

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Citation Name: PLJ 2002 Sh.C-AJ&K 1
Appelant Side: Mst. DILSHAD BANO
V e r s u s
Opponent Side: IMTIAZ HUSSAIN and another
Judge Name: FTIKHAR HUSSAIN BUTT
Judgment Result:Appeal dismissed.
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-s. 14-recovery of dower money after divorce of plaintiff-defendant's claim that plaintiff while obtianing "khula" had compromised with defendant to the effect that if he divorced her through "khula" she would forego her claim of dower money and thus, plaintiff having obtained khula was not entitled to claim dower amount was convincing and proved on record-remission of dower being act of plaintiffs free will and consent was not assailable and parties to such bilateral agreement were bound by the same-plaintiff was, therefore, not found entitled to claim dower money.

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Citation Name: PLJ 2001 Lahore High Court 100
Appelant Side: MUHAMMAD RASHID
V e r s u s
Opponent Side: JUDGE, FAMILY COURT, CfflSHTIAN DISTRICT BAHAWALNAGAR and another
Judge Name: SHAIKH ABDUR RAZZAQ
Judgment Result:Petition dismissed.
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--s. 5-constitution of pakistan, 1973, art 199-dissolution of marriage prayed for on ground of option of puberty-decree on ground of khula- validity of-challenge to-contention that family court was not justified to grant decree on ground of khula, because respondent no. 2 neither sought divorce on such ground nor as a witness she uttered a single word in this regard-held : no doubt respondent no. 2 sought divorce on ground of option of puberty, but findings on that score had been returned against her-however, the fact remained that parties were married about 11 years ago, but rukhsati had not taken place till filing of suit-since rukhsati had not taken place, so the question of hatred being agitated in her statement did not arise-fact that parties were married more than0 ne decade ago, but they had not lived together for a single day, and she sought divorce on ground of option of puberty clearly evinced that conscious of the court was satisfied that parties could not live within imits of god and there was no use to order to continue a hateful union of parties-petition dismissed.

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Citation Name: PLJ 2001 Cr.C 154
Appelant Side: RANJHO
V e r s u s
Opponent Side: STATE
Judge Name: WAHID BUX BRAHI
Judgment Result:Application dismissed.
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-s. 497-bail after arrest-ofteaces u/ss. 324/34 and 342 p.p.c.-prayer for bail-there is enough evidence to indicate that prima facie an attempt was made to commit murder of fio!?.ipiainart't and at this stage it cannot reasonably be conceived that petltkaar was cot liable for alleged offence-accused has been ascribed specific tx?le and allegations against him of serious nature-however, ohsemttioa made in this petition of tentative nature and will not affect merits of case at the trial-bail refused-2000ranjho v. state owahid bux brahi, petitioner will be at liberty to move high court again for bail after two months if directions for trial is not compiled with.[pp. 156&157] a.b&cmr. mugheri, learned counsel for the applicant argued that tlir-re were two accused persons both allegedly fired from their pistols at mst. shabana, therefore. it can not be ascertained whose fire hit the victim. he further contended that the injuries are on non-vital part of the body, therefore, it cannot be said at present that the assailant had an intention to kill the victim. he relied on the cases of saleem khan v. the slate (1999 p.cr.l.j, 140), muhammad shakeel v. the state (1996 criminal law judgment 238), zulfiqar v. the slate (1994 p.cr.l.j, 2285) and mansha khan and 2 others v. the state (1977 s.c.mr, 449).learned state counsel vehemently opposed the bail plea and submitted that there are fire-arm injuries on the person of the victim and the motive stated in the fir is supported by the witnesses which shows that, prima facie, the applicant had an intention to commit qatl-i-amd.i have considered these contentions in the light of material on record collected during the investigation. there are four fire-arm injuries out of which one is wound of entry on right shoulder and another is wound of exit on upper right arm and the third, a wound of re-entry at right armpit. it is stated in the f.i.r. that the applicant used to compel mst, shabana to obtain divorce form her husband muhammad murad, the applicant's brother and openly issued threats that he would otherwise kill mst. shabana. in furtherance of the said motive, as alleged, mst. shabana was caused injuries by making fires from pistols, in her house in presence of complainant. one of the injuries has been declared to be 'jaifah' which is punishable with imprisonment for 10 years,

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Citation Name: PLJ 2001 SC-AJ&K 317
Appelant Side: NASIR PERVAIZ
V e r s u s
Opponent Side: SHAZIA QAYYUM & 2 others
Judge Name: SARDAE SAID MUHAMMAD KHAN, C.J., MUHAMMAD YUNUS SURAKHVI
Judgment Result:Appeal accepted.
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-marriage held at azad kashmir and respondent lady obtained divorce at u.k.-validity-country court u.k. had no jurisdiction to pass decree against appellant husband because he was neither citizen nor he ever resided in united kingdom-held: english court had no jurisdiction to assume jurisdiction-foreign court has no jurisdiction over non-resident pakistani subject even if there is law legislated by british parliament in that regard

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Citation Name: PLJ 2001 Cr.C 294
Appelant Side: Mst. NAZIR YASIN
V e r s u s
Opponent Side: YASIN FARHAT and another
Judge Name: KH. MUHAMMAD SHARIF
Judgment Result:Appeal accepted.
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-ss. 4 & 60(2)~divorce act, 1872, s. 19(4)--pakistan penal code (xlv of 1860), s. 494-second marriage by a christian in presence of his first wife-provisions of s. 494 p.p.c. whether applicable to second marriage by a christian in presence of his first wife-second marriage of respondent in presence of his first wife whom he had not divorced was void and act of respondent was punishable under s. 494 p.p.c.-order of trial court acquitting respondent for such offence was set aside and respondent was convicted under s. 494 p.p.c. for a term of 4 years with fine of rs. 20000 and in default to undergo further imprisonment for 6 months-amount of fine if recovered, would be paid to appellant, (lawfully wedded wife) of respondent. [pp. 296, 297, 300] a, b & c pld 1963 sc 51; pld 1967 sc 580; pld 2000 fsc 1. mr. t.s. gill and masood akhtar khan, advocates for appellant. ms. ezra shiyaat, advocate for respondent no. 1. nemo for state.

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Citation Name: PLJ 2001 Cr.C 530
Appelant Side: MUHAMMAD HANIF
V e r s u s
Opponent Side: STATE
Judge Name: ZAFAR PASHA CHAUDHRY
Judgment Result:Petition accepted
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--s. 497-offence u/s. 494 r/w. s. 10(2) ordinance mi off 197p--prd\vr i^- bail-furhter inquiry-case of--co-accused has been admitted to bai---('.. accused does not admit herself to be wife of previous usband- prosecution even did not advert to this aspect of case as to what legal evidence is available against petitioner to burden him that he had knowledge that lady had been divorced and inspite of that etitioner contracted marriage with her-held: case against petitioner is open to further enquiry and petitioner cannot be kept in jail as matter of punishment-bail allowed. [pp. 530 & 581] a mr. uhammad saleem, advocate for petitioner. ch. imtiaz ahmad, advocate for state. date of hearing: 9.4.2001.

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Citation Name: PLJ 2001 Lahore High Court 100
Appelant Side: MUHAMMAD RASHID
V e r s u s
Opponent Side: JUDGE, FAMILY COURT, CfflSHTIAN DISTRICT BAHAWALNAGAR and another
Judge Name: SHAIKH ABDUR RAZZAQ
Judgment Result:Petition dismissed.
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--s. 5-constitution of pakistan, 1973, art 199-dissolution of marriage prayed for on ground of option of puberty-decree on ground of khula- validity of-challenge to-contention that family court was not justified to grant decree on ground of khula, because respondent no. 2 neither sought divorce on such ground nor as a witness she uttered a single word in this regard-held : no doubt respondent no. 2 sought divorce on ground of option of puberty, but findings on that score had been returned against her-however, the fact remained that parties were married about 11 years ago, but rukhsati had not taken place till filing of suit-since rukhsati had not taken place, so the question of hatred being agitated in her statement did not arise-fact that parties were married more than0 ne decade ago, but they had not lived together for a single day, and she sought divorce on ground of option of puberty clearly evinced that conscious of the court was satisfied that parties could not live within imits of god and there was no use to order to continue a hateful union of parties-petition dismissed.

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Citation Name: PLJ 2001 Lahore High Court 310
Appelant Side: Syed ZIA-UL-HASSAN GILANI
V e r s u s
Opponent Side: MIAN KHADIM HUSSAIN, ADDITIONAL DISTRICT JUDGE, MIANWALJ and 7 others
Judge Name: MUHAMMAD NAWAZ ABBASI
Judgment Result:petition dismissed.
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-rule 6 read with civil procedure code, 1908, section 20 constitution of pakistan, 1973, article 199-maintenance suit-decree passed in and upheld by appellate court-whether family court at issa khel had jurisdiction to entertain suit of respondent lady while living in her parents house at issa khel, but her minor daughters were studying atkarachi-question of-held: it was an admitted fact that respondent lady after divorce was permanently living with her parents at issa khel- her daughters being in her custody despite living temporarily at karachi in connection with their education would be deemed to be permanent resident of the place of residence of their mother-cause of action arose in favour of respondent lady as guardians of minors at issa khel, where she was residing permanently, thus, temporary residence of her daughters at karachi would not affect jurisdiction of family court at issa khel to entertain suit of maintenance on their behalf-in given situation, respondents could invoke jurisdiction of court either at issa khel or karachi and both courts having concurrent jurisdiction were competent to entertain suit-petition dismissed.

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Citation Name: PLJ 2001 Lahore High Court 354
Appelant Side: GHULAM NAZAK
V e r s u s
Opponent Side: FATIMA BIBI and another
Judge Name: SHAIKH ABDUR RAZZAQ
Judgment Result:Petition dismissed.
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-s. 5 & sched.-constitution of pakistan (1973), art. 199-suit for dissolution of marriage and for restitution of conjugal rights filed respectively by wife and husband-trial court dismissed suit of wife for dissolution of marriage while decreed husband's suit for restitution of conjugal rights-appellate court, however, reversed such findings and decreed wife's suit, while dismissed husband's suit-validity-perusal of statement of wife (plaintiff) would reveal that she had categorically stated that she would prefer to die than to live in the house of her husband-trial court on account of such statement of plaintiff, was not justified to allow such hateful union to continue any further-appellate court having taken all such aspects of case into consideration had returned its finding in favour of plaintiff (wife)-neither plaintiff nor defendant had hrought on record any documentary evidence on question of benefits to be given to wife in lieu of khula-both parties had tried to build their case on oral evidence on that score-appellate court in such context had not deemed it proper to impose any condition while granting divorce on basis of khula--no interference was, thus, warranted in the judgment and decree of appellate court whereby plaintiffs suit had been decreed.
Citation Name: PLJ 2001 Lahore High Court 833
Appelant Side: MUHAMMAD BAKHSH
V e r s u s
Opponent Side: MUHAMMAD BAKHSH
Judge Name: MRS. FAKHAR-UN-NISA KHOKHAR
Judgment Result:Orders accordingly.
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-respondent stated that suit for dissolution of marriage was filed forcibly by her parents on her behalf as her marriage was an exchange marriage where petitioner's sister was married with her brother and she -got married with petitioner-she was living happily with her two children in her husband's house, when petitioner's sister left house of her brother and divorce took place between them, therefore, as a counter blast family suit was filed on her behalf-she did appear in family court but under fear of her life, now she does not want that decree in her favour maintained any further and has no objection if same is set aside- respondent brought actual hard facts and has explained circumstances, which were responsible for bringing suit for dissolution of marriage, therefore, judgment and decree is set aside-respondent may join her husband.

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Citation Name: PLJ 2000 Karachi High Court 49
Appelant Side: BHAMBHAR and others
V e r s u s
Opponent Side: Mst. NOORIA and others
Judge Name: MUSHTAUQE AHMAD MEMON
Judgment Result:Order accordingly
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-s. 7-constitution of pakistan (1973), art 35-civil procedure code (v of 1908), s. 115-widow of deceased person sought to be excluded from inheritence on ground of having been divorced in life time of deceased- quantum of proof-allegation about pronouncement of divorce was stated by plaintiff and her witnesses in self contradictory terms, therefore, oral testimony was doubtful about such aspect-dissolution of marriage, however, could not be inferred and finding in that behalf could not based on mere presumptions-such approach is in consonance with injunctions of islam and art 35 of the constitution-even otherwise notice contemplated under s. 7, muslim family laws ordinance 1961, has not been alleged to have been sent by deceased-divorce even if presumed to have been pronounced would not become effective in absence of notice- finding recorded by appellate court about disentitlement of widow of deceased as heir of deceased, on basis of alleged divorce, was unfounded and contrary to law which needs to be rectified-widow of deceased, in view of deceased having died childless would be entitled to the of estate left by him.

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Citation Name: PLJ 2000 Lahore High Court 1345
Appelant Side: Ch. MUHAMMAD JAVED
V e r s u s
Opponent Side: CHAIRMAN, UNION COMMITTEE WARD NO. 7, LAHORE CANTT, LAHORE and another
Judge Name: CH. LJAZ AHMAD
Judgment Result:Petition dismissed.
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--s. 7--constitution of pakistan (1973), art. 199--petitioner divorced respondent and sent notice thereof to official respondent alongwith copy of divorce deed-petitioner, however, allegedly withdrew notice of divorce before expiry of 90 days-official respondent on expify of 90 days from receipt of divorce deed, issued divorce certificate to respondent-petitioner challenging divorce certificate-constitutional petition-maintainability-petitioner admittedly had sent notice of divorce to respondent (wife) and official respondent-petitioners further claim that he had subsequently withdrawn notice of divorce before expiry of 90 days was disputed by both respondents-factual controversy thus, existed between partiec which required evidence, therefore, constitutional petition was not proper remedy-petitioner, however, has alternative remedy under provisions of muslim family law ordinance 1961, constitutional petition, therefore, was not maintainable.

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Citation Name: PLJ 2000 Lahore High Court 1345
Appelant Side: Ch. MUHAMMAD JAVED
V e r s u s
Opponent Side: CHAIRMAN, UNION COMMITTEE WARD NO. 7, LAHORE CANTT, LAHORE and another
Judge Name: CH. LJAZ AHMAD
Judgment Result:Petition dismissed.
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--s. 7--constitution of pakistan (1973), art. 199--petitioner divorced respondent and sent notice thereof to official respondent alongwith copy of divorce deed-petitioner, however, allegedly withdrew notice of divorce before expiry of 90 days-official respondent on expify of 90 days from receipt of divorce deed, issued divorce certificate to respondent-petitioner challenging divorce certificate-constitutional petition-maintainability-petitioner admittedly had sent notice of divorce to respondent (wife) and official respondent-petitioners further claim that he had subsequently withdrawn notice of divorce before expiry of 90 days was disputed by both respondents-factual controversy thus, existed between partiec which required evidence, therefore, constitutional petition was not proper remedy-petitioner, however, has alternative remedy under provisions of muslim family law ordinance 1961, constitutional petition, therefore, was not maintainable.

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Citation Name: PLJ 2000 Lahore High Court 1804
Appelant Side: GULSHAN HUSSAIN and another
V e r s u s
Opponent Side: COMMISSIONER (REVENUE) ISLAMABAD/DEPUTY COMMISSIONER
Judge Name: MUHAMMAD NAWAZ ABBASI
Judgment Result:Order accordingly.
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-ss. 4 & 17(4)~constitution of pakistan (1973), art. 199--validi1y of notification for acquisition of land in question, challenged by petitioners on the ground that the same was not being acquired for "public purpose" and that acquisition of land for private housing scheme was not possible under land acquisition act 1894~"public purpose"~connotation~ jurisdiction of high court to entertain and decide constitution petition in such matter-element of "public purpose" or public welfare could not be divorced from charitable activities in which appellant was engaged- inquiry relating to "public purpose" is limited only to the extent of determining existence of "public purposes-necessity of taking private property for "public purpose" is legislative determination-objection that housing foundation (for which land was being acquired) being registered company was not amenable to writ jurisdiction of high court has no force-notification in question having been issued by land acquisition collector and not by housing foundation, objection as to jurisiction was not entertainable-petitioners thus, could competently invoke constitutional jurisdiction of high court under art. 199 of the constitution-housing foundation being government supervised and controlled company was, thus, amenable to judicial review of high court in terms of art. 199 of the constitution.

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Citation Name: PLJ 2000 Lahore High Court 1851
Appelant Side: MUHAMMAD ASAD
V e r s u s
Opponent Side: Mst. HUMERA NAZ and 3 others
Judge Name: MRS. FAKHAR-UN-NlSA KHOKHAR
Judgment Result:Petition dismissed.
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-s. 7-oral talaq and talaq in writing-effect-no particular form is necessaiy for pronouncing talaq which may be in writing or by word of mouth-under sunni law where husband reduces talaq in writing and in clear words mentions name of the lady whom he had divorced, such fact constitutes valid divorce-talaknama in writing is record of the fact of oral talaq or the same would be deed by which divorce would become effective-such divorce must disclose clear intention that marriage stands, terminated-in case of oral talaq, however, communication would be necessaiy for the purpose of dower, maintenance or woman's right to pledge her husband's credit foi means of subsistence-talaq becomes irrevocable in ahsan mode on expiry of iddat-talaq in hasan mode becomes irrevocable and complete on third pronouncement irrespective of iddat-talaq in badai mode irrevocable immediately on itspronouncement irrespective of iddat-such talaq is called talaq-i-bain i.e., irrevocable talaq.

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