Marriage Cases

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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--claim of khula--none framing of issue--effect of--second suit--respondent had claimed the relief of `khula' in relief clause of her suit had also led evidence on that point; therefore, for the reason only that an issue was not framed about `khula' was not sufficient to throw out the case of the respondent--it had been persistently opined by the superior courts that if the plea of `khula' is not taken in the suit or an issue is not framed but if from the perusal of evidence the claim of `khula' is proved, the court is empowered to pass a decree on basis of `khula'

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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--cruelty--proof of--second suit--it is not necessary for a wife to prove that she was ill-treated physically rather if it is proved on the record that the husband has made the life of her wife miserable by cruelty of conduct, it is sufficient to hold that the husband treats her wife with cruelty.

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Citation Name: PLJ 2009 Lahore High Court 14
Appelant Side: MUHAMMAD AKRAM
V e r s u s
Opponent Side: LEARNED JUDGE FAMILY COURT, PATTOKI DISTT. KASUR
Judge Name: Zubda-Tul-Hussain
Judgment Result:Petition allowed.
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----s. 11(2)--constitution of pakistan, 1973, art. 199--constitutional petition--summoning of the witnesses--involvement in multiple civil and criminal litigation which includes the proceedings of various suits before family court--applications for summoning the record of the suit for dissolution of marriage and including the names of two witnesses in the list of the witnesses, were dismissed--assailed--validity and propriety of orders--parties may, with the permission of the court call any witness at any later stage if the court considers such expedient in the interest of justice--by virtue of provisions the court is competent to allow a party to include these name of a desired witness in the list in accordance with s. 7(2) of west pakistan family courts act--held: the witnesses so included can be produced by the party, though it cannot get the summons issued if within three days of the framing of the issue it has not intimated the court its desire that a witness may be summoned through the court--petition was allowed

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Citation Name: PLJ 2009 Lahore High Court 162
Appelant Side: Mst. HAMIDA YASMIN
V e r s u s
Opponent Side: AHMAD ALI and another
Judge Name: S. Ali Hassan Rizvi
Judgment Result:Petition dismissed
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----s. 5 and schedule--constitution of pakistan, 1973, art. 199--suit for dissolution of marriage decreed in lieu of payment as a zar-e-khulla--invoking of constitutional jurisdiction--challenge to--validity of--when the respondent paid her (to the petitioner) haq-e-mehr--petitioner had not joined to the respondent after obtaining a decree--earlier decree was passed while the suit was filed on 10.8.2006--she had not joined to the respondent after the suit decreed and even before for which period she claimed the maintenance--it is apparent that she did not allow to respondent to perform conjugal rights and insisted upon for dissolution of marriage--peculiar circumstances makes the case that where petitioner persistently and insistently claims the decree for dissolution should have returned the amount received as haq mehr--she was entitled for decree only on the basis of khulla, therefore, no illegality in the impugned judgment could be pointed out into miscarriage of justice--petition dismissed.

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Citation Name: PLJ 2009 Lahore High Court 415
Appelant Side: Syed SIKANDAR ALI SHAH
V e r s u s
Opponent Side: Mst. OMAIRA ANWAR and 4 others
Judge Name: S. Ali Hassan Rizvi
Judgment Result:Petition dismissed
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----art. 199--west pakistan family courts act, 1964--s. 10(4)--constitutional petition--writ petition was filed through real mother--suit for dissolution of marriage on the basis of khula was decreed--case was remanded in appeal--jurisdiction--only order of family court which could conceivably be challenged--petitioner was insane and confined to distt. jail--he should have been summoned at pre-trial stage to record statement before passing a decree--petitioner was not granted an opportunity to cross-examine--validity--notwithstanding any decision or judgment of any court or tribunal, the family court in a suit for dissolution of marriage, if reconciliation fails, shall pass a decree for dissolution of marriage--held: if the petitioner was indeed insane and suffered from schizophrenia, it passes my comprehension as to what would have been the use of calling him from jail--question of jurisdiction was irrelevant for purposes of dissolution of marriage and decree for dissolution was sound both on law and facts--petition appears to have been filed in a circuitous manner, to take a chance and to make a cobweb of litigation--further held: petitioner has no justifiable cause to be examined in extra ordinary jurisdiction of high court.

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Citation Name: PLJ 2009 Lahore High Court 415
Appelant Side: Syed SIKANDAR ALI SHAH
V e r s u s
Opponent Side: Mst. OMAIRA ANWAR and 4 others
Judge Name: S. Ali Hassan Rizvi
Judgment Result:Petition dismissed
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----s. 10(4)--constitution of pakistan, 1973, art. 199--constitutional petition--no limitation to file writ petition--question of laches--suit for dissolution of marriage on basis of khula--case was remanded in appeal--order passed by family court which was sough to be challenged in writ petition--held: no limitation to file a writ petition albeit question of laches would be relevant--impugned order was dated 15.9.2008 whereas the writ petition was filed on 19.2.2009--petitioner had challenged the order dated 6.9.2008 before appellate court and he was successful vide judgment dated 14.10.2008 passed by distt. judge--order dated 15.9.2008 to all intents and purposes was quite lawful and with jurisdiction--proceedings before chairman, arbitration council would also be quite within the mandate of the authority

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Citation Name: PLJ 2009 Lahore High Court 422
Appelant Side: ASIF ALI
V e r s u s
Opponent Side: SHO, P.S., HARBANSPURA, LAHORE and 3 others
Judge Name: Raja Muhammad Shafqat Khan Abbasi
Judgment Result:Petition dismissed
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----s. 56(c)--constitution of pakistan, 1973--art. 199--constitutional petition--investigation should be stopped--quashing of fir--validity--till decision of suit for dissolution of marriage filed by abductee against her husband who is complainant in fir--held: u/s. 56(c) of specific relief act, no such restraint order can be issued against criminal investigation--petition was dismissed.
Citation Name: PLJ 2009 Lahore High Court 438
Appelant Side: Mst. RABIA KHIZAR and another
V e r s u s
Opponent Side: SHO, POLICE STATION CHOOCHAK DISTRICT, OKARA and 6 others
Judge Name: Zubda-Tul-Hussain
Judgment Result:FIR quashed.
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----art. 199--pakistan penal code, (xlv of 1860), s. 365-b--abduction--plea of marriage--puberty--quashment of fir--petitioner had already attained the age of majority as report of s.m.b. and even if she was not yet over the age of 18 years she was admittedly a pubert lady and as such she was entitled to enter into a contract of marriage by her choice--allegation of abduction and the occurrence as alleged in the fir having totally been refuted by the alleged abductee--impugned fir had no basis for legal proceedings--fir was quashed.

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Citation Name: PLJ 2009 Lahore High Court 497
Appelant Side: NAJEEB ULLAH
V e r s u s
Opponent Side: Mst. MAKHDOOM AKHTAR and another
Judge Name: Zafar Iqbal Chaudhry
Judgment Result:Petition dismissed
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----art. 199--constitutional petition--reversing of pending--condition for return of gold ornaments was struck down--suit for dissolution of marriage was decreed on the basis of khula--wife was held liable to return the amount which she received as haq mehr as well as gold oranments--condition for return of gold ornaments was struck down by appellate court--validity--if husband wants to divorce his wife, then she should not tease her to get the dower back--if he does not want to divorce but the wife is bent on separation, the gold ornaments did not include in haq mehr of the wife--petition dismissed.

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Citation Name: PLJ 2009 Lahore High Court 499
Appelant Side: ZAFAR HAYAT
V e r s u s
Opponent Side: Mst. SHAMIM BIBI and 2 others
Judge Name: S. Ali Hassan Rizvi
Judgment Result:Petition dismissed.
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----art. 199--constitutional petition--custody of minors--age of minors is below ten--entitlement of custody of minors--welfare of minor lay with mother--validity--when real mother is alive and father has entered into second marriage the female minors who are below ten, cannot be said to form an intelligence preference--minors were residing with step mother--paramount consideration ought to be for securing the welfare and happiness of the minors to live with the mother who in case of female is better to look after as compared to father who has entered into second marriage--held: no substitute of the real mother for her female children--no illegality in impugned order calling interference in exercise of constitutional jurisdiction of high court.

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Citation Name: PLJ 2009 Lahore High Court 520
Appelant Side: SABIR HUSSAIN
V e r s u s
Opponent Side: NUSRAT BIBI
Judge Name: Ali Hassan Rizvi
Judgment Result:Petition dismissed.
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----s. 12--constitution of pakistan 1973, art. 199--suit for recovery of dower and maintenance allowance--judgments of family court and appellate court--constitutional petition--held: marriage between the spouses still existed--claim of the wife was that petitioner/husband had given her 100 kanal land, as dower out of which 50 kanal was got mutated in her favour at the time of nikah--petitioner never alleged as to how the entry in nikahnama was fictitiously made, after nikah--there was no legal justification to deny the dower settled and maintenance claimed--appellate court was final court of fact--no misreading or non-reading of evidence found--petition dismissed in limine

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Citation Name: PLJ 2009 Lahore High Court 525
Appelant Side: MUHAMMAD FAISAL
V e r s u s
Opponent Side: MUHAMMAD HAFEEZ-UL-REHMAN, JUDGE FAMILY COURT, LAHORE and 3 others
Judge Name: S. Ali Hassan Rizvi
Judgment Result:Petition dismissed
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----art. 199--constitutional petition--minor had independent right to ask maintenance from the father--non-compliance of orders entailed penal action--order for interim maintenance allowance of minors--lacks the source of income--validity--right of minors cannot be declined merely on the ground that the father is not having source to provide the maintenance--held: father must provide maintenance and duty rests upon him--whereas the father has entered into second marriage and also in application filed u/s. 25 of guardians and wards act, for custody of minor has raised the ground that he is having sufficient financial resources to maintain and noursh his minors--conduct of the petitioner for non-compliance of orders may also entail penal action--interim maintenance order was justified and cannot be interfered with by exercise of constitutional jurisdiction of high court--petition dismissed.

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Citation Name: PLJ 2009 Lahore High Court 527
Appelant Side: Mst. RUKHSANA BIBI
V e r s u s
Opponent Side: SHO, P.S. KAMEER DISTT. SAHIWAL and 2 others
Judge Name: Muhammad Sayeed Akhtar
Judgment Result:F.I.R. quashed.
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----art. 199--offence of zina (enforcement of hudood) ordinance, 1979, ss. 10(2) & 16--constitutional petition--quashment of fir--allegation of "zina"--abduction--petitioner has appeared in person and stated that she was neither enticed away or taken away by the accused with an intent to commit zina with any person--relationship between her husband and herself became strained and she went to live with her relative of her own free will--at present, she is lodged in darulaman--she has also filed a suit for dissolution of marriage--nothing has come out during investigation that offence of zina was committed--fir was quashed.

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Citation Name: PLJ 2009 Lahore High Court 531
Appelant Side: ZAFAR ALI KHAN
V e r s u s
Opponent Side: ADDITIONAL DISTRICT JUDGE, LAHORE
Judge Name: S. Ali Hassan Rizvi
Judgment Result:Petition dismissed
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----art. 199--constitutional petition--suit for recovery of maintenance allowance--family court enhanced the maintenance allowance--appreciation of evidence--modified the decree to extent of quantum of maintenance allowance and was granted decree at rate of rs. 6000/- per month--petitioner was a qualified doctor and having two wives--petitioner had entered into marriage after divorce of respondent--validity--evidence of the petitioner was not believable that he was getting only rs. 7000/- as salary while maintaining two families--rate of maintenance allowance enhanced in appeal cannot be said to be beyond his means or exorbitant--bleak sources or means of income of a husband or father was hardly a valid ground in context of maintenance, so as to justify interference in finding recorded by courts of fact--no case was made out for interference in exercise of constitutional jurisdiction of high court

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Citation Name: PLJ 2009 Lahore High Court 547
Appelant Side: MUSHTAQ SOHAIL CHEEMA
V e r s u s
Opponent Side: ADDL. DISTT. JUDGE GUJRAT and 3 others
Judge Name: Kh. Farooq Saeed
Judgment Result:Petition dismissed
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----art. 199--constitution petition--welfare of the child--determination of the custody--prohibitory decree of stepfather--absolute rule--status of father or second marriage of the mother may in some cases be good reason for depriving the mother from the custody of her children but such obviously cannot be considered as an absolute rule--petition dismissed.

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Citation Name: PLJ 2009 FSC 167
Appelant Side: Capt. (Rtd.) MUKHTAR AHMAD SHAIKH
V e r s u s
Opponent Side: GOVT. OF PAKISTAN
Judge Name: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan, Salahuddin Mirza & Muhammad Zafar Yasin
Judgment Result:Order accordingly.
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----s. 6--punishment of qazf--as regard qazf, separate law namely offence of qazf (enforcement of hadd) order, 1979 deals with it under which in action may if taken u/s. 6 thereof for which the punishment shall be eighty stripes--no un-islamic character is attributed to section 151(4) as it is strictly in accordance with the injunction of islam--a woman is placed in a more exalted and respected position then a man in islam and for this reason the punishment of qazf has been ordained in the holy quran as victims thereof are mostly women--even a husband who had falsely made allegations of zina paves way to a decree for dissolution of marriage in favour of his wife.

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Citation Name: PLJ 2009 FSC 173
Appelant Side: FAZAL HUSSAIN alias FAJJA and another
V e r s u s
Opponent Side: STATE and another
Judge Name: Muhammad Zafar Yasin & Syed Afzal Haider
Judgment Result:Appeal accepted.
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----s. 2(c)--"marriage"--definition of--purpose of--offence of zina--the marriage of a minor, who has attained puberty as contemplated by the definition of the term "adult" in section 2(a) of ordinance vii of 1979, has not been considered void at all--for the purposes of the offence of zina (enforcement of hudood) ordinance, 1979, a pubert girl is an adult person--it therefore implies that consummation of marriage, which is not void ab-initio, is covered by the mischief of section 10 of ordinance, (vii of 1979)
Citation Name: PLJ 2009 FSC 116
Appelant Side: Mst. DURR-E-SHAHWAR BEGUM
V e r s u s
Opponent Side: Haji BAKHTAWAR SAID MUHAMMAD and another
Judge Name: Salahuddin Mirza
Judgment Result:Petition accepted.
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----ss. 6, 7 & 14--criminal procedure code, (v of 1898), s. 202--illegitimate--immoral character and disowned the pternity of children--postponement of issue of process--preliminary inquiry--sajjada nashin of dargah of hazrat baba farid shakar gunj--unfortunately marriage did not last long and divorced deed was executed--committed the offence of qazf--effect reconiliation after receipt of divorce deed--false charge of adultery and declared that her children were not from his nutfa and were illegitimate--immoral character and disowned the paternity of her children--allegations of immorality, even though made after marriage between parties stood dissolved due to divorce, were nevertheless in respect of period when marriage between them subsisted and therefore s. 7 of qazf ordinance, was not applicable--charge was not framed against respondent u/s. 7 of qazf ordinance, but decided to proceed against him u/s. 14 of qazf ordinance--such relationship had admittedly come to an end when respondent divorced petitioner and executed divorce deed--petitioner and respondent were just a woman and man, not husband and wife--when respondent in his written statements and before a punchayat in his own house made imputation of zina and explicitly alleged that all of her children were illegitimate children, therefore, action of respondent clearly attracted provisions of ss. 6 and 7 of qazf ordinance--petition accepted

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Citation Name: PLJ 2008 Lahore High Court 169
Appelant Side: M. BASHIR
V e r s u s
Opponent Side: ZUBAIDA BEGUM etc
Judge Name: Muhammad Muzammal Khan
Judgment Result:Petition accepted
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----s. 10(3), (4)--constitution of pakistan, (1973), art. 199--suit for dissolution of marriage--in the failure of compromise between the parties, court was the frame issues in the suit and the fix the same for recording of evidence but being oblivious of this procedure, statement of respondent was recorded in absence of the petitioner--no pre-trial hearing was done--no effort for reconciliation was made--the parties married to each other about three decades ago and he out of his stroke of pen dissolved the relations inter parties without following the law--respondent was awarded decree for dissolution of marriage in an illegal exercise and unwarranted haste at the back of the petitioner--petition was accepted.

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Citation Name: PLJ 2008 Karachi High Court 62
Appelant Side: ASIF ALI
V e r s u s
Opponent Side: Mst. TEHMINA NASEEM SHAD and 2 others
Judge Name: Dr. Rana Muhammad Shamim
Judgment Result:Petition dismissed
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----s. 25--west pakistan family courts act, 1964--s. 14--constitution of pakistan (1973), art. 199--constitutional petition--custody of minor--welfare of minor--courts below concurrently gave custody of minor to mother and the father who had divorced her had challenged the concurrent judgments of the courts below--validity--minor was patient of imperforated disease and had been operated thrice, in such circumstances when minor had attachment with his mother, in case he was given in the custody of his father who was stranger for him, it would deteriorate his health--father, who had contracted second marriage, when he would leave for his job, child would be at the mercy of step mother--in presence of real mother, who was living in a combined family having sisters and mother, it would not be proper to deprive the child from the natural love and affection of the mother particularly when nothing substantial had come on record to prove that the mother had failed to properly look after her son--scope of powers of high court while dealing with the concurrent findings of courts below, in exercise of constitutional jurisdiction, was very limited--burden of proving that findings recorded by courts below were vitiated by evidence on record or suffered from non-reading of material evidence or there was jurisdictional defect, lay on the petitioner, which the petitioner in the present case had failed to point out--both courts below had very carefully examined all the aspects of the matter in regard to the welfare of the minor--concurrent judgments of the courts below could not be interfered with by the high court in exercise of its constitutional jurisdiction.

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Citation Name: PLJ 2008 Karachi High Court 82
Appelant Side: MINOO HOSHANG KAPADIA, KARACHI
V e r s u s
Opponent Side: ARNAZ MINOO KAPADIA, KARACHI
Judge Name: Nadeem Azhar Siddiqi
Judgment Result:Petition allowed
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----ss. 32(e), 32(g) & 34--judicial separation and divorce--scope--husband sought judicial separation on the ground of desertion of wife but instead of separation, wife sought divorce on the ground of cruelty and personal violence--validity--allegation by wife against husband that he forcefully pulled her by right wrist, aggravating an old injury was not covered under the definition of `grievous hurt' and marriage could not be dissolved on such ground--cruelty and personal violence, under s. 34 of parsi marriage and divorce act, was an additional ground for judicial separation and not divorce--petition was allowed accordingly.

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Citation Name: PLJ 2008 Peshawar High Court 205
Appelant Side: HASEEB AHMAD
V e r s u s
Opponent Side: Mst. SHAISTA and another
Judge Name: Syed Yahya Zahid Gillani & Shah Jee Rehman Khan
Judgment Result:Petition dismissed
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----s. 10(4)--constitution of pakistan, 1973, art. 199--pre-trial reconciliation proceedings--word "shall"--import of--the word "shall" used in the proviso of s. 10(4) is directory in nature and not mandatory at all--family court can dissolve marriage after failure of pre-trial reconciliation proceedings if circumstances for khula under the principles of quran and sunnah, so permit--held: family court can skip over such stage and frame issues to record evidence on other grounds of dissolution of marriage if court considers it more convenient--petition dismissed.

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Citation Name: PLJ 2008 Peshawar High Court 233
Appelant Side: MUHAMMAD NOOR
V e r s u s
Opponent Side: Mst. FIRASAT BIBI
Judge Name: Jahanzaib Rahim and Shahji Rahman Khan
Judgment Result:Petition dismissed
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----art. 199--contitutional jurisdiction--divergent pleadings--respondent filed suit for dissolution of marriage, maintenance and dower against husband, was accepted--appellate court partially accepted the appeal to extent of dissolution of marriage and half share of house mentioned in nikah nama--assailed--validity--held: high court could not interfere in the judgment and decree passed by court of competent jurisdiction that it is within exclusive jurisdiction of family court to believe or disbelieve the evidence--no interference is warranted in impugned judgment of appellate court in exercise of constitutional jurisdiction of high court--petition was dismissed.

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Citation Name: PLJ 2008 Peshawar High Court 268
Appelant Side: Mst. NAGINA BIBI
V e r s u s
Opponent Side: MUKHTAR HUSSAIN and 2 others
Judge Name: Muhammad Alam Khan and Shah Ji Rehman
Judgment Result:Petition accepted
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----s. 5--constitution of pakistan, 1973, art. 199--dissolution of marriage--relief of dower and maintenance granted but dissolution of marriage refused--concurrent finding--constitutional petition--there was a difference in the temperaments of the parties--relation inter-se the parties have become so strained to have a happy union and to live within the limits prescribed by allah almighty and the petitioner was entitled to the decree for dissolution of marriage on the ground of khulla--writ petition accepted--decreed of the two courts below modified and only decree for dissolution of marriage granted on basis of khulla subject to the condition that petitioner will not claim the house decreed in her favour as she has claimed khulla in lieu of the house--petition accepted.

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Citation Name: PLJ 2008 FSC 7
Appelant Side: JODAT KAMRAN and 10 others
V e r s u s
Opponent Side: STATE
Judge Name: Dr. Fida Muhammad Khan & Salahuddin Mirza
Judgment Result:Appeals accepted
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----ss. 10 & 11--pakistan penal code, (xlv of 1860), ss. 420, 466, 468 & 471--appreciation of evidence--charge of forgery and fraud--conviction and sentence--challenge to--abduction and zina-bil-jabr--nikah--medical evidence of pregnancy--legitimate offspring--second marriage during subsistance first marriage is void and illegal--charges of abduction of commission of zina or zina-bil-jabr and of committing forgery and fraud cannot be sustained--a valid marriage had taken place between accused and abductee--a child was admitted born after the passage of six months from the date of marriage--held: child is the legitimate offspring of the couple--child is the legitimate offspring of the couple and it is a great cruelty both to the child as well as to her mother that the child should be kept away from the loving care of the mother--victim has been forcibly married to someone in meanwhile--such second marriage of abductee during the subsistence of first marriage is obviously void and illegal--the proper forum to agitate these points is, however, the family court and federal shariat court feel helpless to take any action in this regards--appeals accepted.

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Citation Name: PLJ 2008 Supreme Court 849
Appelant Side: YASIN alias GHULAM MUSTAFA
V e r s u s
Opponent Side: STATE
Judge Name: M. Javed Buttar, Chairman; Ch. Ejaz Yousaf,
Judgment Result:Appeal allowed.
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----ss. 10(2) & 16--constitution of pakistan, 1973, arts. 185(3) & 203-dd--abduction of woman--conviction and sentence recorded against accused--accused was acquittal from charge of murder--challenge to--leave to appeal--appreciation of evidence--accused was convicted merely on suspicion for committing zina prior to marriage--validity--no evidence on record to prove that deceased had been previously married to another person nor to prove that accused and the deceased were committing zina prior to their marriage--evidence was grossly deficient to prove that she had been abducted by the accused--appeal allowed.

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Citation Name: PLJ 2008 Supreme Court 67
Appelant Side: AYAZ BAIG
V e r s u s
Opponent Side: STATE
Judge Name: Rana Bhagwandas, ACJ
Judgment Result:Leave declined.
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----art. 185(3)--compromise for not being genuine heir--father and mother were already dead and widow had contracted second marriage--loosing all relationship and affinity with her previous husband--question of--compromise--validity--legal heirs--no doubt at the time of death the deceased being issueless and father being alive, his brothers and sisters could not be the legal heirs but now, at the belated stage they cannot be ignored when the question comes to genuineness of compromise and when they are most likely to nurse grudge against the convict--which agreement is necessary for the future harmoney between the families--held: courts below have rightly disallowed the compromise being not genuine--leave declined.
Citation Name: PLJ 2008 Sh.C-AJ&K 43
Appelant Side: MUHAMMAD ZARIF and another
V e r s u s
Opponent Side: STATE and anothers
Judge Name: Sardar Muhammad Nawaz Khan
Judgment Result:FIR quashed.
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----s. 561-a--offence of zina (enforcement of hadd) act, 1985--ss. 10, 11, 19 & 14--case of abduction or enticement--quashment of proceedings--jurisdiction--jurisdiction of high court to quash the proceedings before any court--accused were spouses and got a free-will deed--shariat court allowed their bail--female accused was allowed bail subject to provide a mehram stands as surety--refusal of accept this condition--male accused also refused to come out of the custody and did not furnish surety bond--assailed the fir--question of minority--fir was lodged by the father of female accused was menstruating at the time of examination--documents like nikahnama, free-will certificate and statement before magistrate would show her age as 18 years--shariat court called female accused from jail and inquired about her marriage and her age--female accused on solemn affirmation categorically stated before the court that she out of her free-will and consent contracted marriage with co-accused and she did not except co-accused want to live with anybody else whoever may be--validity--whether both accused were major and adult and they have contracted marriage out of their free-will and consent constitutes any offence--answer was in negative--case against accused was baseless thus, such a case if allowed to continue will result into nothing but incarceration of the both accused--held: accused by entering into wedlock when they were adult and major have committed no offence--shariat court is fully competent to quash the proceeding before any court of competent jurisdiction if it is convicted that it is abuse of process of the court or take any action which is found in the interest of justice--f.i.r. quashed.

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Citation Name: PLJ 2008 Sh.C-AJ&K 43
Appelant Side: MUHAMMAD ZARIF and another
V e r s u s
Opponent Side: STATE and anothers
Judge Name: Sardar Muhammad Nawaz Khan
Judgment Result:FIR quashed.
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----ss. 10, 11 19 & 14--criminal procedure code, (v of 1898), s. 561-a--both accused contracted marriage out of free-will and consent--sexual intercourse was admitted--presumption in criminal law, how strong it may be cannot substitute proof--validity--medico-legal report confirms that female accused has been subjected to sexual intercourse but it become immaterial in the back drop of the marriage the spouses have admitted--possibility of zina before marriage has been considered--presumption how strong it may be cannot substitute proof--in case of zina the standard of evidence is much more strict than in criminal case--shariat court is fully satisfied that the accused by entering into wedlock when they are adult and major have committed no offence--fir quashed.

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Citation Name: PLJ 2008 Sh.C-AJ&K 55
Appelant Side: BILAL HAMZA ABBASI
V e r s u s
Opponent Side: WAZIR MUHAMMAD and another
Judge Name: Iftikhar Hussain Butt
Judgment Result:Appeal dismissed.
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----specific mode for dissolution of marriage--divorce pronounced--telephonic call--cogent, sufficient and reliable evidence--appellant had pronounced talaq through telephonic call by producing cogent, sufficient and reliable evidence--no proof of intention is required--validity--islam does not prescribe any specific mode for dissolution of marriage--it is an overt act on the part of husband which could indicate a clear intention to annul the marriage to operate as a divorce--no particular form of words is prescribed for affecting a talaq--if the words of `talaq' are clear express and very well understood as implying divorce, no proof of intention is required--it is also not necessary that divorce should be pronounced in the presence of wife or even addressed to her--witness for the respondent told him that appellant tried to hand over the divorce deed to him but he refused to receive the same--held: appellant had pronounced talaq through telephonic call by producing cogent, sufficient and reliable evidencey--any non-reading or misreading of the evidence on the part of family court--appeal dismissed.

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Citation Name: PLJ 2008 Sh.C-AJ&K 160
Appelant Side: Syed ABDUL QAYYUM SHAH
V e r s u s
Opponent Side: Mst. TANVEER ANDLEEB and 3 others
Judge Name: Iftikhar Hussain Butt
Judgment Result:Appeal dismissed.
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----islamic principle of khula--"surah "al-baqrah" verse. 229 of the holy quran is the base and origin of the legality of `khula'--the limits prescribed by almighty allah in the verse means the direction to lead a happy life; therefore, before dissolving the marriage on ground of khula, the court must satisfy its conscious that there is every apprehension that the spouses will not lead a happy life within the limits ordained by almighty allah, the wife wants separation from her husband and she has to pay the consideration--if all the conditions are fulfilled then there is no option left for the court except to annul the marriage and grant `khula in favour of the wife.

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Citation Name: PLJ 2008 Cr.C 861
Appelant Side: MUHAMMAD ARSHAD
V e r s u s
Opponent Side: STATE
Judge Name: Tariq Shamim and Muhammad Ahsan Bhoon
Judgment Result:Order accordingly.
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----ss. 302(b), 34 & 364--conviction and sentence--challenge to--modification in quantum of sentence--motive of the occurrence--marriage of the deceased with sister of the accused, without the consent of the accused--although each and every injury had not been specifically mentioned/attributed in the fir nor in the testimony before the trial court--it was not humanly possible for the witnesses to count and ascribe each and every injury to the accused persons--although the witnesses were related to the deceased, but solely on account, their testimony cannot be discarded--the witnesses are natural witnesses whose presence at the spot cannot be doubted--medical evidence supported the prosecution version as to the time of occurrence, locable of injuries and weapons used in commission of offence--according to the serologist reports that the articles/weapons were stained with human blood--prosecution had proved its case against the accused through credible ocular account corroborated by medical evidence and supported by the evidence of recovery of weapons from the accused as well as the motive behind the murder of the deceased--held: accused's age was recorded as 18 years at the time his statement was recorded--since the occurrence in the case took place on 21.1.2001 and his statement was recorded on 13.7.2002 i.e. more than a year and five months after the occurrence, occupied with the fact that the age as mentioned in the statement was not challenged by prosecution, the furtherance of safe administration of justice, sentence reduced of accused from death to imprisonment for life and conviction of accused maintained--appeal dismissed with the modification in the quantum of sentence--order accordingly.

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Citation Name: PLJ 2008 Cr.C 1014
Appelant Side: SIKANDAR
V e r s u s
Opponent Side: STATE
Judge Name: M.A. Zafar and Muhammad Ahsan Bhoon
Judgment Result:Order accordingly.
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----s. 302(b)--criminal procedure code, (v of 1898)--ss. 410 & 374--conviction and sentence recorded against accused by trial court--challenge to--appreciation of evidence--benefit of doubt--motive on basis of suspicion--interested and inimical witnesses--accused made four fires shots hitting the deceased at his left abdomen, left flank, left buttock and below the umbilicus near penis--motive acclaimed marriage of the accused with niece of complainant--enmity and ill-will of all prosecution witnesses was visible from evidence--contradiction in fir as well as in evidence--version was changed--eye-witnesses were chance witnesses--validity--motive is always double edge weapon and in instant case after murder of niece of deceased by her own family the motive for implication of the deceased in present case was available to them--held: motive can be taken as motive for the murder of deceased on basis of suspicion, which could be used for false implication of the accused--none of eyewitnesses was able to justify his presence at scene of occurrence when they are interested and inimical witnesses towards the accused, it cast serious doubt to prosecution case--accused was acquitted.

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Citation Name: PLJ 2008 Cr.C 1036
Appelant Side: ALLAH YAR
V e r s u s
Opponent Side: STATE
Judge Name: Khurshid Anwar Bhinder
Judgment Result:Bail declined
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----s. 497--pakistan penal code, (xlv of 1860)--s. 365-b--post arrest bail, declined--nikah over nikah--not valid--prima facie--held: nikah over nikah is not valid in islam earlier marriage of the abducee subsisted and there was no evidence which could prove that the divorce was effected between the spouses--bail declined.

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