Thursday, November 19, 2009

Marriage Cases Law

Citation Name: PLJ 2009 Peshawar High Court 123
Appelant Side: WAZIR ZADA
V e r s u s
Opponent Side: Mst. TAJ BIBI etc
Judge Name: Shahji Rehman Khan & Jehan Zaib Rahim
Judgment Result:Petition dismissed
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----s. 12--constitution of pakistan 1973 art. 199--suit for jactitation of marriage & cross suit for conjugal rights--judgments in favour of lady by the two courts--held: family judge after considering material points involved in the case dismissed suit of petitioner and decreed suit for jactitation of marriage which was also affirmed by the appellate court--impugned judgments were free from any jurisdictional defect so were not open to interfere--petition dismissed.

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Citation Name: PLJ 2009 Cr.C 444
Appelant Side: TAJ-UD-DIN and another
V e r s u s
Opponent Side: STATE and another
Judge Name: Muhammad Alam Khan
Judgment Result:Bail accepted
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----s. 497--pakistan penal code, (xlv of 1860), ss. 496-a, 365-b & 380--bail, grant of--petitioners have been charged for abetment and helping the enticement--there is a nikahnama showing the marriage of alleged abductee--nothing has been brought on record by the prosecution that she was previously married--factum of previous nikah or marriage and this aspect of the case makes the case of the accused/petitioners arguable for purpose of bail--bail allowed.

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Citation Name: PLJ 2009 Cr.C 492
Appelant Side: NABAN
V e r s u s
Opponent Side: STATE
Judge Name: Kazim Ali Malik & Rana Zahid Mahmood
Judgment Result:Appeal accepted
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----ss. 449/302/109--conviction and sentence--challenge to--appreciation of evidence--motive does not corroborate testimonies of the two eye-witnesses--post-mortem examiner did not observe blackening tattooing or scorching in or around the injury--two eye-witnesses were inimical towards the appellant--accused assaulted family honour, of the complainant by contracting run away marriage with ex-wife of his brother--complainant also stated that his wife had also been abducted by accused--held: it would not be safe to believe the inimical witnesses, particularly when their testimonies are not receiving support from any corroborative piece of evidence--further held: prosecution failed to prove the charge of house trespass and murder against the appellant beyond and shadow of doubt--appeal accepted.

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Citation Name: PLJ 2009 Cr.C 1083
Appelant Side: Syed ALI HASSAN, ADVOCATE
V e r s u s
Opponent Side: STATE
Judge Name: S. Ali Hassan Rizvi
Judgment Result:Bail confirmed
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----ss. 498 & 497--pakistan penal code, (xlv of 1860), ss. 420/467/468/ 471--pre-arrest bail, grant of--prayer for--cancellation of case--subject of case--nikahnama of complainant with another during the subsistence of marriage of the petitioner--complainant (wife) have entered into marriage with another person without getting divorce from petitioner--according to cancellation report, the document of nikahnama which was basis of fir was found a forged one and case has been recommended for cancellation--nikah is registered with union council under muslim family law ordinance, 1961 and if there was any violation in registration the proper forum has not been approached for seeking cancellation or declaration that the document question in forged one--entry in the union council of the nikah cannot otherwise be cancelled without availing proper forum--competent court still has not agreed with the report for cancellation of the case--document was already with the police--petitioner was not required for recovery purpose--endorsement of the copy of the cancellation report to the unconcerned police officer having no concern with the range and with regard to the status of the petitioner who was an advocate and if relief of pre-arrest bail was withheld would result into his arrest which may lower his honour and dignity from the estimation of right thinking society--all aspects of the matter and legal value of the opinion of the police for cancellation of case it is in the interest of justice to grant extra ordinary relief of pre-arrest bail to the petitioner--bail confirmed.

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Citation Name: PLJ 2009 Supreme Court 106
Appelant Side: LIAQUAT ALI etc.
V e r s u s
Opponent Side: STATE
Judge Name: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Muhammad Moosa K. Leghari
Judgment Result:Order accordingly.
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----ss. 302, 148 & 149--conviction & sentence of death--appreciation of evidence--day-light occurrence--motive and enmity had been established, even admitted by the accused--there was no possibility of false implication as both parties were from the same locality--prosecution case was fully proved by ocular evidence duly corroborated by medical evidence & motive--formation of the unlawful assembly, premeditated & preconcerted attack resulting into two murders and causing injury to one pw was proved beyond any doubt--venue of occurrence was also established--weapons were specifically mentioned by pws and were duly proved by medical evidence as pellets had been recovered from two dead bodies--held: minor discrepancies could not mar the prosecution case--however as appellants had not come to the place of occurrence with weapon and they were disregarded by complainant party, before persons in the marriage ceremony--death sentence was converted into life imprisonment.

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Citation Name: PLJ 2009 Supreme Court 362
Appelant Side: SHAMS-UD-DIN
V e r s u s
Opponent Side: MUHAMMAD SHAHBAZ QAMMAR and 2 others
Judge Name: M. Javed Buttar, Zia Perwez & Mian Hamid Farooq
Judgment Result:Crl. Appeal accepted.
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----ss. 308 & 34--constitution of pakistan, 1973, art. 1852(2)--leave to appeal--conviction sentence awarded by the trial court was set aside by high court--appeal against acquittal--appreciation of evidence--held: case of the prosecution is duly supported by the dying declaration of deceased in which she narrated the entire story about the incident--specific motive in the instant case as the husband of the deceased lady, as he contracted second marriage as a consequence whereof she was not enjoying cordial relations with him--motive coupled with circumstantial evidence has been established--deceased suffered severe burns, the question of holding a pen will not arise, therefore, her inability to sign the statement cannot be made a ground for acquittal--consequential effect cannot be ignored so as to set aside the judgment based evidence on mere hypothetical assumptions as to her putting thumb mark on the complaint and failure to inscriber her signatures, indeed the accused are entitled to benefit of doubt but such doubt has to be reasonable and rational and not hypothetical and whisperical in utter disregard to the facts of the case, positive evidence available on record--appeal was allowed.

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Citation Name: PLJ 2009 Supreme Court 626
Appelant Side: EJAZ NASEEM
V e r s u s
Opponent Side: FAREEHA AHMAD and others
Judge Name: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery & Sheikh Hakim Ali
Judgment Result:Leave refused.
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----s. 5--suit for dissolution of marriage on bases of khula--jurisdiction--section 5 of family courts act has conferred exclusive jurisdiction upon a family court to entertain, hear and adjudicate upon matters specified in part i of schedule family court was passed of the jurisdiction by the family courts act, to adjudicate upon all those matter, pleaded as counter claim in the written statement--not only dissolution of marriage yet dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage, dowery, personal property and belongings of wife are entered and included in the schedule.

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Citation Name: PLJ 2009 FSC 66
Appelant Side: ABDUL MAJEED
V e r s u s
Opponent Side: STATE
Judge Name: Syed Afzal Haider
Judgment Result:Appeal accepted.
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----s. 10(2)--criminal procedure code (v of 1898), s. 164--conviction and sentence recorded against accused by trial court--challenge to--appreciation of evidence--victim recorded her statement u/s. 164 of cr.p.c. but latter refused to record her statement with direction that statements recorded u/s. 161 of cr.p.c. were sufficient--element of abduction or enticement had not been proved--independent evidence was not produced in trial court--no evidence of zina-bil-jabar or even in zina--question of marriage--determination of--evidence of marriage with accused had been brought and the fact that she had challenged the legality of her second nikah was incorporated--factum of marriage at one stage was admitted by abductee and therefore carnal relationship between the spouses during that period would not attract the mischief of s. 10(2)--held: a big dent had been created in prosecution story because the element of marriage between appellant and victim and the filing of jactitation suit had come on record--even retracted acknowledgment of marriage by victim would entitle the accused to claim benefit of doubt--further held: no element of abduction or enticement and the case was covered by mischief of s. 10(2) of offence of zina ordinance, then the punishment would be awarded to both the male and female--some important links were missing and there appears to be suppression of certain basic facts--appeal accepted.

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Citation Name: PLJ 2009 FSC 84
Appelant Side: MUHAMMAD RIAZ and another
V e r s u s
Opponent Side: STATE
Judge Name: Syed Afzal Haider
Judgment Result:Appeal accepted.
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----ss. 10(2) & 11--jointly appeal was filed--conviction and sentence recorded against accused by trial court--challenge to--appreciation of evidence--accused abducted/enticed away complaint's sister with object of committing zina-bil-jabr--male accused divorced older sister of co-accused--section 11 of ordinance, 1979 was altered to s. 10 of offence of zina (enforcement of hudood ordinance--question of--whether nikah between both accused was solemnized during iddat period--held: husband after divorcing his wife was not competent to enter into another nikah so long as the first wife was in iddat might be overlooked because even senior govt. officer might not be awared of provisions of personal law but an additional sessions judge, is supposed to be well versed, as a student of law, with fundamental principles of muslim personal law pertaining particular to family life--wherein the marriage with the other sister during subsistence of marriage with her sister was declared void--element of abduction has not been proved because according to complainant is a waj-takkar witness--conviction and sentence recorded by trial court u/s. 10(2) of offence of zina as serious doubt has crept in prosecution version--appeal was accepted.

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Citation Name: PLJ 2009 FSC 84
Appelant Side: MUHAMMAD RIAZ and another
V e r s u s
Opponent Side: STATE
Judge Name: Syed Afzal Haider
Judgment Result:Appeal accepted.
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----ss. 10(2) & 11--unexplained delay of 86 days--conviction and sentence recorded against accused by trial court--challenge to--marriage subsistence with elder sister--validity--such a delay may be seen in light of statement of accused who stated that after divorce of his wife her parents demanded more ornaments and money at time of divorce and still more money at the time of later marriage with her sister--appeal accepted.
Citation Name: PLJ 2009 Cr.C 169
Appelant Side: MUHAMMAD HUSSAIN
V e r s u s
Opponent Side: SHO POLICE STATION KALAR KAHAR, DISTRICT CHAKWAL and 8 others
Judge Name: Malik Saeed Ejaz
Judgment Result:Petition dismissed.
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----s. 491--`habeas corpus'--illegal detention--recovery of detenue--held: direction was issued for recovery of the alleged detenue to sho, but asi, present in court has stated that recovery of the alleged detenue could not be effected at the given address--as such no roaming search can be made--further held: detenue had contracted marriage with her fee will--however, the petitioner was at liberty to get the case register against respondent for abduction of the alleged abductee, if he feel that his daughter has been abducted and she has not contracted marriage with respondent with her free will--petition dismissed.

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Citation Name: PLJ 2009 Cr.C 174
Appelant Side: MUHAMMAD MUNAWAR
V e r s u s
Opponent Side: STATE
Judge Name: Khurshid Anwar Bhinder
Judgment Result:Bail admitted.
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----s. 497--pakistan penal code, (xlv of 1860)--s. 365-b--bail, grant of--prayer for--further inquiry--forcibly contracted marriage--nominated in fir with specific role of abduction--question of sui-juris--abductee was pregnant for about four months out of marriage took place--held: woman cannot get pregnant until and unless menstruation start occurring and it is sufficient to have menstruation to prove the factum of being adult as pregnancy cannot take place until and unless menstruation starts--since abductee got pregnant, there is no question of her being minor--case was that of further inquiry into his guilt--bail was admitted.

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Citation Name: PLJ 2009 Cr.C 361
Appelant Side: Mst. UMME KULSOOM and 3 others
V e r s u s
Opponent Side: STATE and another
Judge Name: Muhammad Alam Khan
Judgment Result:FIR quashed.
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----s. 561-a--offence of zina (enforcement of hudood) ordinance, 1979, ss. 11 & 16--quashment of fir--petitioner was divorced by her previous husband--petitioner with her own free will contracted a second marriage--out of wedlock a baby was also born which petitioner was having in her lap when she appeared before high court--suit for jactitation of marriage also pending before family court of exclusive jurisdiction--no justification for registration of the case--fir quashed.

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Citation Name: PLJ 2009 Lahore High Court 324
Appelant Side: Mst. SAIRA ZULFIQAR
V e r s u s
Opponent Side: THE ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others
Judge Name: Syed Shaheen Masud Rizvi
Judgment Result:Petition accepted.
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----s. 5 & sch.--constitution of pakistan, 1973, art. 199--suit for recovery of dower amount, gold ornaments and property under iqrarnama--dower amount decreed--appeal rejected--concurrent finding--constitutional petition--marriage being a contract--amount of dower was independent in itself and the property and gold ornaments were in addition to the said amount of haq-ul-mehar--gold ornaments and the property were in lieu of amount of haq-ul-mehar stands totally falsified by evidence on record--courts below erroneously and illegally held that petitioner is not entitled to the property mentioned in nikahnama and iqrarnama--petition accepted.

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Citation Name: PLJ 2009 Lahore High Court 574
Appelant Side: AFTAB AHMAD
V e r s u s
Opponent Side: JUDGE FAMILY COURT, TAXILA, DISTRICT RAWALPINDI and 3 others
Judge Name: Mazhar Hussain Minhas
Judgment Result:Order accordingly.
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----s. 5(1) & (4)--registration of marriage--effect of non-registration--held: no doubt, a marriage solemnized under muslim law requires its registration under s. 5(1) of the ordinance, 1961 but the nikah does not become invalid due to its non-registration--if a person does not report the marriage to the nikah register, he may be held liable under clause (4) of s. 5.

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Citation Name: PLJ 2009 Lahore High Court 584
Appelant Side: IFTIKHAR AHMAD and others
V e r s u s
Opponent Side: AKHTAR ALI S.H.O. and others
Judge Name: Kazim Ali Malik
Judgment Result:FIR accused.
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----s. 294--constitution of pakistan, 1973, art. 199--applicability--marriage function--vague and general allegation--obscene songs or obscene acts--arranging or watching live dance inside the house--according to s. 294, whoever does any obscene act or signs or utters any obscene song in or near any public place is liable for the offence--sho made a vague and general allegation that the dancing girls were singing obsence songs and doing obscene acts literal meanings of the word `obscene' is something offensive to modesty or decency--question of--whether a certain song is obscene or not, the song itself has to be looked into--determination--unless and until actual words are used before the court it cannot be said that the song was obsence or not--accused persons could not be held liable under penal provision of law for live dances inside the house.

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Citation Name: PLJ 2009 Lahore High Court 584
Appelant Side: IFTIKHAR AHMAD and others
V e r s u s
Opponent Side: AKHTAR ALI S.H.O. and others
Judge Name: Kazim Ali Malik
Judgment Result:FIR accused.
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----s. 294--constitution of pakistan, 1973, art. 199--quashment of fir--live dance--offence of--live dances are being telecast on government run t.v. and private t.v. channels--no one can deny that with the permission of the govt. live dances by female artists are being performed and watched in the stage dramas--there is no restriction in shooting film songs at public places--now-a-days sequential and situational songs are integral part of script of the drama--if shooting of dances and songs at public places in a film and performing such acts in stage dramas is allowed, then why the petitioners and their 20 co-accused were arrested by the sho while watching live dance in a marriage ceremony inside their walled house--sho was fully aware that they were not liable u/s. 294 ppc--alleged obscene act had not been done at any public place--registration of case, apprehension of accused, seizure of camera, and preparation of challan by the police and declared as illegal, void, without lawful authority and thus amenable to constitutional jurisdiction and inherent power of high court--fir quashed.

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Citation Name: PLJ 2009 Lahore High Court 584
Appelant Side: IFTIKHAR AHMAD and others
V e r s u s
Opponent Side: AKHTAR ALI S.H.O. and others
Judge Name: Kazim Ali Malik
Judgment Result:FIR accused.
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----ss. 173 & 170--constitution of pakistan, 1973, art. 199--pakistan penal code, (xlv of 1860), ss. 294 & 109--marriage functions (prohibition of ostentations displays and wasteful expenses) ordinance, 2000--punjab marriage functions (prohibition of ostentations displays and wasteful expenses) act, 2003, scope--punjab marriage functions (prohibition of ostentations displays and wasteful expenses) amended act, 2006, scope--marriage functions--arranging or watching live dance inside the house--non-cognizable offence--validity--arranging or watching live dance inside the house does not fall within the ambit of any of the provisions of the laws--marriage functions would show that decoration of street, road or public park or any place other than a house where marriage ceremony is being held, with lights or illumination; firing by fire-arm or exploding crackers or other explosive devices, displaying fire works, displaying dowery to the public eye and serving meal, to the guests except one dish with hot and cold soft drinks have been prohibited--all the offences under the laws are non-cognizable--arranging or watching dance in a marriage ceremony does not fall within the purview of any of the penal provisions of law regulating marriage functions--sho illegally apprehended 25 accused persons.

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Citation Name: PLJ 2009 Lahore High Court 584
Appelant Side: IFTIKHAR AHMAD and others
V e r s u s
Opponent Side: AKHTAR ALI S.H.O. and others
Judge Name: Kazim Ali Malik
Judgment Result:FIR accused.
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----ss. 96 & 294--constitution of pakistan, 1973, art. 199--constitutional jurisdiction--duty of court--scope of--question why a search warrant had not been obtained by s.h.o.--performing of watching live dance in marriage ceremony inside a walled house--high court while exercising constitutional jurisdiction or inherent powers always judge acts and omissions of government functionaries touching fundamental rights critically in order to protect the people from harassment and blackmailing and also to keep the officials within their allotted sphere.

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Citation Name: PLJ 2009 Sh.C-AJ&K 17
Appelant Side: MUHAMMAD JAVAID
V e r s u s
Opponent Side: Mst. ZARRIA BEGUM
Judge Name: Iftikhar Hussain Butt
Judgment Result:Appeals dismissed
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----s. 14--aj&k family courts procedure rules, 1998, r. 22(i)--limitation act, 1908, ss. 12(2)(3) & (4)--suit for recovery of dower and the suit for dissolution of marriage were filed--ex-parte decrees were passed--assailed--appeals were filed after expiry of prescribed period of limitation--validity--appeal against a decision or a decree passed by family court can be presented within 30 days of the date of decision or decree--instant appeals were filed after nine days of expiry of prescribed period of limitation--held: rule 22(1) of ajk family courts procedure rules, postulates that an appeal u/s. 14 of family courts act, shall be preferred within 30 days of the passing of decree or decision excluding the time requisite for obtaining copies thereof, provided the appellate court can, for sufficient cause extend the period--appeals were dismissed being hopelessly time barred.
Citation Name: PLJ 2009 Sh.C-AJ&K 20
Appelant Side: MUHAMMAD SHAFAAT
V e r s u s
Opponent Side: Mst. RIFFAT SHAHEEN
Judge Name: Iftikhar Hussain Butt
Judgment Result:Appeal dismissed
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----s. 286--dower as compensation--decree of dower amounting rupees one lac was passed--assailed--suit for recovery of dower that at the time of nikah ceremony, the dower was fixed rupees one lac but with mala-fide intention rupees twenty-five were incorporated in nikahnama--agreement deed was executed that in case of separation, appellant will pay compensation as dower, and maintenance allowance to minor--validity--an amount of dower can be fixed even after the marriage and can also be increased--dower is payable to the wife even it has not been specified at the time of `nikah'--held: impugned decision for recovery of dower does not smack of any illegality--family court has appreciated and appraised the evidence and no ground for interference in the impugned decision has been made out--appeal was dismissed

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Citation Name: PLJ 2009 Sh.C-AJ&K 30
Appelant Side: MUHAMMAD ZAMAN & others
V e r s u s
Opponent Side: AMEER HAMZA
Judge Name: Sardar M. Ashraf Khan
Judgment Result:Appeal accepted
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----both the mother and the father of the minor contracted second marriage--welfare of minor--father of the child is a police employee, who by virtue of his profession is compelled to remain away from his house--in such state of affairs, the minor (female child), if given in the custody of the father, she will ultimately remain on the mercy of her step-mother, who cannot be a substitute of real mother having natural love and affection for her female child--a female child will also be happier and familiar with the company and association of her mother--appeal allowed

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Citation Name: PLJ 2009 Sh.C-AJ&K 122
Appelant Side: KABEER HUSSAIN
V e r s u s
Opponent Side: FARHAT-UN-NISA and 3 others
Judge Name: Iftikhar Hussain Butt
Judgment Result:Appeal dismissed.
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----s. 5, schd.--dissolution of marriage--cause of action--second suit--validity of--previous suit filed by the respondent was dismissed by the apex court on point of limitation, in such like cases whenever afresh cause of action arises, a wife can file a suit for dissolution of her marriage; therefore, the court below did not comit any illegality while passing impugned decision and decree

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