Thursday, November 19, 2009

Marriage Cases

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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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-generally, it is possible for a young muslim girl to enter into a marriage without intervention of a "wall".

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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.

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Citation Name: PLJ 2001 Lahore High Court 472
Appelant Side: Dr. SABIRA SULTANA
V e r s u s
Opponent Side: MAQSOOD SULARI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAWALPINDI & 2 others
Judge Name: MUHAMMAD NAWAZ ABBASI,
Judgment Result:Petition accepted.
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--s. 5 & sched., read with family laws ordinance, 1961, section 6--constitution of pakistan (1973), art. 199-dower-suit for-second marriage without permission & consent of first wife-plea & proof of~ claim for dower was made by petitioner on ground that without her permission & consent, respondent no. 3 contracted second marriage-suit was contested through general attorney, who also appeared as witness on behalf of respondent husband-family court decreed suit, but appellate court dismissed it-held : notwithstanding pleadings of parties, it was admitted fact that respondent husband contracted second marriage without permission of petitioner to that effect, petitioner's statement made on oath remained un-rebutted as respondent husband himself did not appear in witness-box-consent of first wife being a personal matter would be in exclusive knowledge of respondent and could not be pleaded through a third person, therefore, attorney of respondent, while appearing in witness-box on behalf of respondent, would not be in a position to rebut petitioner's statement on oath-held further : perusal ofnikahnama of second marriage of respondent also did not show that it was contracted with permission of arbitration council or that consent of petitioner was obtained by him at any stage-writ petition was accepted and decree passed by family court was restored.

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Citation Name: PLJ 2001 Lahore High Court 472
Appelant Side: Dr. SABIRA SULTANA
V e r s u s
Opponent Side: MAQSOOD SULARI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAWALPINDI & 2 others
Judge Name: MUHAMMAD NAWAZ ABBASI,
Judgment Result:Petition accepted.
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--ss. 6(5)(b) & 13-second marriage-permission of arbitration council- absence of-consequence of-second marriage in existence of first marriage without permission of first wife and arbitration council is not void, but it is an offence punishable with imprisonment or fine or with both, and further husband is liable to pay immediately entire dower, whether prompt or deferred, to existing wife or wives-on such ground, existing wife or wives can seek dissolution of marriage u/section 13 of muslim family laws ordinance, 1961.
Citation Name: PLJ 2001 Lahore High Court 472
Appelant Side: Dr. SABIRA SULTANA
V e r s u s
Opponent Side: MAQSOOD SULARI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAWALPINDI & 2 others
Judge Name: MUHAMMAD NAWAZ ABBASI,
Judgment Result:Petition accepted.
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-dower as prompt & deferred-classification of~concept of & wisdom behind-whether this classification would negate concept of dower in islam and defeat provisions of muslim family laws ordinance, 1961-question of-in the holy qur'an and sunnah, there is no classification of dower as prompt & deferred, but deferment of payment of dower for an indefinite period with consent of wife is not prohibited-classification of dower as prompt & deferred has no legal sanction behind it except general practice in the muslim society for convenience of parties- concept and wisdom of this classification depend upon better relations of parties and protection of right of a woman in un-foreseen circumstances without taking away her right of payment of dower till marriage is not dissolved-a person who contracts 2nd marriage without dissolution of marriage with first wife or wives and without their permission, then he cannot withhold payment of dower to first wife or wives on any excuse nd condition of dissolution of marriage for payment of deferred dower is not required-postponement of payment of dower for an indefinite period would not mean that it cannot be claimed before dissolution of marriage and if it is considered as such, it would negate the concept of dower in islam and defeat muslim family laws ordinance.

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Citation Name: PLJ 2001 Lahore High Court 472
Appelant Side: Dr. SABIRA SULTANA
V e r s u s
Opponent Side: MAQSOOD SULARI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAWALPINDI & 2 others
Judge Name: MUHAMMAD NAWAZ ABBASI,
Judgment Result:Petition accepted.
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-s. 6(5)-provisions of section 6(5) of ordinance being not in conflict with islam, it is mandatory for husband to pay to first wife entire amount of dower, whether prompt or deferred, in case he contracts second marriage without dissolution of first marriage or permission of first wife and arbitration council.

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Citation Name: PLJ 2001 Lahore High Court 472
Appelant Side: Dr. SABIRA SULTANA
V e r s u s
Opponent Side: MAQSOOD SULARI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAWALPINDI & 2 others
Judge Name: MUHAMMAD NAWAZ ABBASI,
Judgment Result:Petition accepted.
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-s. 6-without hearing first wife-permission of arbitration council to contract second marriage-validity of~permission of arbitration council to a person to contract second marriage without knowledge and hearing of first wife, even if given, is neither binding on her nor valid and legal.

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Citation Name: PLJ 2001 Lahore High Court 825
Appelant Side: MUHAMMAD SARWAR and 12 others
V e r s u s
Opponent Side: MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 4 others
Judge Name: CH. LlAZ AHMAD
Judgment Result:Petition disposed of according
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-art. 199-inheritance mutation on death of one widow of original owner of land-challenged by petitioners as well as by reversioners-appeal of reversioners accepted by collector-set aside by commissioner, reversed by member board of revenue-writ petition filed by petitioners failed-inheritance mutation on death of second widow of original owner in accordance with shariat application act, 1948--validity~execution of will by owner-effect o-constitutional petition for determination ofdisputed question of fact- aintainability~"s" is original owner of land in question-he solemnized marriage in his life time with mst. "g" and mst. "z"-died issueless on 4.3.1945-msf. "g" died in 1961 and land which was held by her, finally reverted to respondents by order of member, board of revenue-petitioners filed writ petition which was dismissed on 6.6.1974 by high court on ground that petitioners should avail remedy available to them before civil court as disputed questions of fact are likely to arise for determination-petitioners did not file any suit-meaning thereby order passed by member board of revenue against petitioners on 24.7.1963 is final to extent of land owned by mst. "g"-subsequently, mst. "z" died in year 1970 and land owned by her was also reverted to respondents by order of member board of revenue dated 19.3.1981- aforesaid fact clearly reveals that issue is same which has been finally decided earlier by member board of revenue order dated 24.7.1963 qua mst. "g" widow of late "s"-in present controversy land was owned by second widow which is in dispute-controversy between parties is same and high court has laid down principle that writ petition is not maintainable in earlier round of litigation in aforesaid writ petition as disputed question of fact could not be decided in constitutional jurisdiction-held: writ petition is not maintainable and petitioners have alternate remedy by filing civil suit before competent jurisdiction- petition disposed of accordingly.

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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 2001 Lahore High Court 1089
Appelant Side: GHULAM ABBAS
V e r s u s
Opponent Side: SESSION JUDGE SARGODHA and others
Judge Name: ZAFAR PASHA CHAUDHRY
Judgment Result:Petition dismissed.
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-- art. 199--offence qazf (enforcement of hadd) ordinance no. viii of 1979, s. 14--lian--husband registered f.i.r. u/s. 10(2) of offence of zina (enforcement of hudood) ordinance no. vii, 1979-accused wife admitted to bail-husband moved application for cancellation of bail- sessions judge after adopting procedure and administering oath, held that process of lian has been completed, therefore, court ordered dissolution of marriage between husband and wife--judgment of sessionsjudge will be treated as decree of dissolution of marriage in between spouses in view of provisions of s. 14 of qazf ordinance-writ petition against-there are two requirements that matter should be before a court and husband accuses his wife of zina-s. 14 of qazf ordinance does not provide that procedure prescribed thereunder would be followed only in case wherein dissolution of marriage has been sought for-whenever accusation is made by husband against his wife and controversy or issue is subject-matter of decision by court, s. 14 has to be applied-writpetition dismissed.

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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 Cr.C 53
Appelant Side: MUHAMMAD SHER and others
V e r s u s
Opponent Side: Mst SULTANA and another
Judge Name: JAWAID NAWAZ KHAN GANDAPUR
Judgment Result:Orders accordingly.
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explained-mptive for commission of offence given in firthat complainant was residing in her father's house and had instituted asuit for dissolution of her marriage against her husband/petitioner no, 1,seems to be quite convincing-complainant has received two injuries-itdoes not stand to reason that she would let off real culprits for attemptingto her life-question of involving her husband falsely in this case seems tobe quite remote-petitioner no. 1 is connected with commission of crimeharged with, hence, he is not entitled to be released on bail-however,case of other two petitioners stands on different footing-they have nomotive to haveattempted at life of lady complainant-reasonable groundsdo not exist for believing that they are connected with commission ofoffence-their case is that of further inquiry, hence, their prayer for bailaccepted-orders accordingly.

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Citation Name: PLJ 2000 Cr.C 441
Appelant Side: KHAN MUHAMMAD and 2 others
V e r s u s
Opponent Side: Mst, HASSAN ZADGAI and another
Judge Name: JAWAID NAWAZ KHAN GANDAPUR
Judgment Result:Petition dismissed.
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-s. 561-a--quashment of order-ms?, "s" kept under illegal confinement after death of her husband and forced to marry one of brothers of deceased-search warrant u/s. 100 cr.p.c. ssued by magistrate and she was handed over to her mother-revision petition before addl sessions judge failed-validity of order of lower forum-additional sessions judge held that ccording to contention of respondent no. 1, mst. "s" is her daughter who was married to "k" and then "k" was killed but she has been kept in illegal confinement by petitioners-in er tatement before judicial magistrate, mst. "s" has stated that her husband died after three months of her marriage and she is living in the house of her in-laws but two sons of her father in aw wanted to force her to re-marry with one of them for which she is not ready and she wanted to go back to house of her parents-this statement of mst. "s" clearly shows that she was compelled to reside in house of father-in-law whereas after death of her husband, she is free to live anywhere she desires-thus she has correctly been handed over to her mother-held: ounsel of petitioners failed to convince that respondent no. 1, in any way abused process of any of lower courts or that interference by high court with verdict of lower forums would ecure ends of justice-petition without any substance is accordingly dismissed in limine

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Citation Name: PLJ 2000 Cr.C 605
Appelant Side: GHULAM AKBAR SHAH
V e r s u s
Opponent Side: STATE
Judge Name: ZAFAR PASHA CHAUDHRY
Judgment Result:Bail allowed
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--s. 497--bail-grant of-prayer for-further inquiry-case of-offence u/s. 0/16 of zina ordinance, 1979-whether parties who are sui juris and have contracted marriage which is admitted by unsel for state, have ommitted any offence, is a question which needs further inquiry- lthough investigation has been completed, yet challan has not been ubmitted so far-question of guilt erwise of petitions is open to urther inquiry-bail allowed.
Citation Name: PLJ 2000 SC-AJ&K 73
Appelant Side: Mst. SHAHEEN AKHTAR
V e r s u s
Opponent Side: MUHAMMAD ALAM
Judge Name: SARDAR SAID MUHAMMAD KHAN, C.J., AND MUHAMMAD YUNUS SURAKHVI
Judgment Result:Orders accordingly.
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-s. 12-suit for declaration and dissolution of marriage-decreed to~ appeal against-dismissal on ground of limitation-appeal against-no ody should suffer fro mistake of court or its officer-it has not been ontroverted that judgment was orally announced and was written by rial court at a belated stage-there is no counter affidavit to rebut ontention of appellant that she supplied necessary stamps alongwith pplication for issuance of copies in time-in view of application supported y affidavit sworn in by counsel of appellant, it was desirable to condone elay-appeal accepted.

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Citation Name: PLJ 2000 Supreme Court 1094
Appelant Side: Mst. FIRDOUS IQBAL
V e r s u s
Opponent Side: SHIFAAT ALI and others
Judge Name: MUHAMMAD BASHIR JEHANGIRI AND SH. RIAZ AHMAD
Judgment Result:Appeal accepted.
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-s. 25-constitution of pakistan (1973), art. 185 right ofhizanat of minor child-essentials-welfare of minor is paramount consideration in determining custody of minor notwithstanding right of father to get custody after seven years of age of male minor child-right of father to claim custody of minor son is not an absolute right in that, father may disentitle himself to custody on account of his conduct in the light and circumstances of each case-evidence on record indicated that father who had sought custody of minor neglected him since separation of spouses inter se and had voluntarily left custody to petitioner/mother-mother had brought him up and educated him till she had to opt for second marriage-mother even after her second marriage had not been negligent in the care of her minor son, having entrusted that duty to her mother and father, and minor is being properly educated till date in local school-father had neglected the child during all that period till mother had applied for maintenance of child; it was only thereafter that father applied for custody of minor-father having married again, his second wife was living in village, where no one would save minor from step-motherly treatment if custody of minor was allowed to remain with father-high court had thus, erred to interfere in concurrent findings of fact that welfare of minor lay in leaving him to custody of mother and that too in exercise of constitutional jurisdiction of high court-petition for leave to appeal was converted into appeal and while setting aside impugned order of high court, orders of two courts below that welfare of minor lies with mother and that she was entitled to retain his custody was restored.

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Citation Name: PLJ 2000 Lahore High Court 98
Appelant Side: Mst AZRA BIBI
V e r s u s
Opponent Side: MUHAMMAD ASLAM and others
Judge Name: SAYED NAJAM-UL-HASSAN KAZMI
Judgment Result:Petition accepted.
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-s. 5 & sehed.-constitution of pakistan (1973), art. 199-suit for jactitation of marriage filed by petitioner was dismissed while that of respondent for restitution of conjugal rights was decreed by two courts below--validity--petitioner in her suit claimed that she was never married to respondent and that she was wife of specified person while respondent alleged in his suit that petitioner was married to him~ petitioner was, thus, raising plea which was negative in nature and onus would have been discharged the moment she had appeared in witness box and recorded her statement and thereafter, respondent was required to prove existence of any valid nikah between petitioner aud himself-perusal of evidence on record would show that respondent had miserably failed to prove any valid nikah with petitioner-respondent's statement in court was contradictory to other witnesses who did not support him nor corroborated his statement-court's below, thus completely ignored such important aspect of matter which had material bearing on plea raised by respondent-father and other male members of petitioner's, family were conspiciously missing in alleged marriage of respondent with petitioner while other material witnesses were withheld for reasons not brought on record-no evidence worthy of consideration, thus, existed on record to assume existence of any valid marriage between petitioner and respondent-petitioner was admittedly bring with specified person as his wife for the last few years which fact was not denied by father of petitioner-evidence on record, thus, clearly indicated that findings recorded by two courts below in dismissing petitioner's suit for jactitation of marriage suffered from glaring misreading and mis interpretation of evidence and perversity of reasoning, therefore, legally untenable-petitioner's suit for jactitation of marriage was decreed while that of husband for restitution of conjugal rights was dismissed in circumstances.

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Citation Name: PLJ 2000 Lahore High Court 130
Appelant Side: SHAGUFTA ANWAR
V e r s u s
Opponent Side: Mian ZULFIQAR and others
Judge Name: SAYED NAJAM-UL-HASSAN KAZMI
Judgment Result:Petition dismissed.
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-s. 13--constitution of pakistan (1973), art 199--application for ejectment of tenant for personal use of premises-ejectment application was dismissed by rent controller but granted by appellate forum-validity - evidence on record produced by landlord clearly indicated that two grown-up sons of landlord were of marriageable age and he required to accommodate ms sons after their marriage in rented portion of house which was part and parcel of house occupied by landlord himself-such evidence having not been controverted by tenant through cogent evidence was sufficient to prove that landlord required property in question, in good faith for accommodating need of his sous who were to be married- appellate forum, after considering evidence on record had come to.

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Citation Name: PLJ 2000 Lahore High Court 246
Appelant Side: MUMTAZ HUSSAIN
V e r s u s
Opponent Side: Mst. ZAIBUN-NISA
Judge Name: TASSADUQ HUSSAIN JlLANI
Judgment Result:Petition dismissed.
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-s. 5 & sched.-constitution of pakistan (1973), art. 199-suit for jactitation of marriage by wife decreed while that of husband for restitution of conjugal rights was dismissed-plaintiff (lady) was herself best witness on question of m&a/i--defendant did not produce evidence in rebuttal, although he took eight months to conclude his evidence-order of trial court indicated that when statement of witnesses of plaintiff were recorded, defendant, was present and he was given opportunity to cross examine them, which opportunity he did not avail-defendant after several months filed application for re-summoning witnesses and another application for summoning secretary union council concerned-such applications were rightly dismissed by trial court which found them to be meant for prolonging proceedings-defendant's plea that evidence recorded in suit for jactitation of marriage could not read in suit for restitution of conjugal rights, was fallacious in as much as, suits had been consolidated and suit for jactitation of marriage was no longer civil suit stricto senso for having been included in schedule to west pakistan family courts ordinance, 1964 and such amendment having been made in procedure if the same had been effected during trial of suit; would have retrospective effect-there being no arbitrariness in judgment and decree or jurisdictional defect, interference in extra-ordinary jurisdiction was not warranted.

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Citation Name: PLJ 2000 Lahore High Court 417
Appelant Side: TAUQIR AHMED SHAH
V e r s u s
Opponent Side: Mst. YASMEEN AKHTAR and 2 others
Judge Name: JAWWAD S. KHAWAJA
Judgment Result:Petition dismissed.
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--s. 5 & sched.-west pakistan family court rules 1965, r. 22(3)-civil procedure code, 1908 (v of 1908), o.xli, r. l-- onstitution of pakistan (1973), art. 199-petitioner did not challenge decree passed against him in respondent's suit for dissolution of marriage; only decree which he challenged was in suit for dower filed by respondent-effect-where two or more suits had been consolidated and decided by means of one judgment, affected party would have option to challenge all decrees passed on basis of consolidated judgment by means of one appeal provided if certified copies of all decrees, which were challenged in appeal were filed with appeal-petitioner admittedly did not filed certified copy of decree for dissolution of marriage before lower appellate court-even grounds of appeal showed that only challenge made by petitioner was in respect of decree passed against him in suit for recoveiy of dower and he did not challenge decree of dissolution of marriage on basis thereof- provision of r. 22(3) family courts rules 1965, made it obligatory on party preferring appeal against decree dissolution of marriage to file certified copy of such decree before appellate court-filing of certified copies of all decrees in consolidated litigation at the time of preferring single appeal being essential requirement of law, could not be dispensed with by appellate court-in addition thereto, high court would not interfere with impugned judgment which has been passed in accordance with law-judgment of appellate had been dismissed on account of failure to file certified copies of consolidated cases.

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Citation Name: PLJ 2000 Lahore High Court 819
Appelant Side: MUHAMMAD IJAZ QURESHI
V e r s u s
Opponent Side: CHANGEZ KHAN MIC etc.
Judge Name: SHAIKH ABDUR RAZZAQ,
Judgment Result:Petition dismissed.
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-art. 199 read with criminal procedure code, sections 356, 561-a and muslim family laws ordinance, 1961--section 6(5)~petitioner's first wife lodged omplainant, u/s. 6(5) of family laws 1961, in the court of haqa magistrate that petitioner has contracted a second marriage without seeking permission from her-petitioner seeks cancellation of the same ue to its repugnancy to injunctions of islam and violation of section 356 cr.p.c.--held: proceedings are u/s. 200, 202, 204 cr.p.c. and ection 356(1) cr.p.c. is not applicable-so far as the repugnancy of section 6(5) of family laws is concerned the relief can be sought before federal shariat court under article 203-d of constitution-writ petition dismissed in limine.

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Citation Name: PLJ 2000 Lahore High Court 872
Appelant Side: MUHAMMAD ASLAM
V e r s u s
Opponent Side: Mst. SURRAYA
Judge Name: MRS. FAKHAR-UN-NlSA KHOKHAR
Judgment Result:Petition dismissed.
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--ss. 5, 23 & sched.-constitution of pakistan (1973), art. 199-wife's claim for specified amount of dower was decreed by appellate court-validity-petitioner claimed that contents ofnikahnama wherein specified amount of dower was entered was incorrect-validity of marriage registered under s. 23, family courts act 1964, would not be questioned in any family court nor would any evidence in regard thereto be admissible before such court-whenever marriage was questioned through fraud or misrepresentation on the ground that wife had not given free consent to marriage or marriage was fasid or was opposed to muslim laws or was out come of fraud remedy was not available in family court but the same was available in court of general jurisdiction-marriage under muslim law being civil contract, transaction of dower becomes complete on day of marriage-endorsement of dower against columns in nikahnama is verification of settlement and arrangement already reached between parties-whenever any woman makes demand through filing suit for recovery of dower, person who contends that entries in nikahnama were not correct, he was bound to rebut those entries through strong evidence otherwise courts were bound to give solemn affirmation to entries in nikahnama-petitioner has not produced any cogent evidence in rebuttal of entry relating to dower amount in nikahnama, therefore, judgment and decree of appellate court decreeing respondent, claim for down amount was un-exceptionable and was maintained in circumstances.

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Citation Name: PLJ 2000 Lahore High Court 989
Appelant Side: BUSHRA BIBI
V e r s u s
Opponent Side: JUDGE FAMILY COURT Bahawalpur etc
Judge Name: RAJA MUHAMMAD SABIR
Judgment Result:Orders accordingly.
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--art. 199 of constitution of pakistan, 1973-suit for dissolution of marriage-decreed on ground of khula on condition that petitioner shall return three tolas of gold to her husband she will not claim dower, dowry or any maintenance allowance-appeal against-dismissal of-writ against- petitioner in her statement before trial court stated that she lived haj); !>y with respondent no. 3 for one month, thereafter, he started to figl: i"f with her-he belongs to shia sect, whereas she is a sunnat-wal-j. at~he used to compel her to follow his faith, she came to house of her parents in her wearing clothes alone~her ornaments were taken away by him, which he lost in gambling-he was compelling her that if she does not convert to his faith, she will be murdered--she further stated that she cannot pull on as his wife in any circumstances-she was cross examined at length but respondent no. 3 could not gain anything favourable to him from her-from evidence, this fact is clear that petitioner went to house of her parents in wearing clothes and she did not take any ornaments with her-there is no allegation against her that she deliberately collectedly all clothes, ornaments etc and ran away from house of her husband in his absence-return of ornaments could only be ordered if it was established on record that same were given to her by husband and were in her possession-dowry is not a zar-i-khula-these articles were given to her by her parents and petitioner could be directed to return only those articles which she received from her husband, therefore, dowry could not be declined to wife for a decree based on khula-impugned judgments and decree of khula to the extent of dowry and ornaments declared without lawful authority-however, same was maintained regarding dower and maintenance-orders accordingly.

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Citation Name: PLJ 2000 Lahore High Court 1072
Appelant Side: ATTAULLAH
V e r s u s
Opponent Side: Mst. RIZWANA etc.
Judge Name: SHEIKH ABDUR RAZZAQ,
Judgment Result:Petition dismissed in limine.
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-s. 9(6) read with art. 199 of constitution of pakistan, 1973-suit forrestitution of conjugal rights-decreed -appeal against-dismissal of-- hallenge to-petitioner had never paid prompt dower to his wife sagreed upon-whether she was justified in living apart from her husband-question of--plaintiff/petitioner filed a suit tor restitution ofconjugal rights asserting that he was married with respondent, on 19.9.1994 ad a prompt dower of rs. 15000/ was fixed-his contention isthat said prompt dower was paid to her wife just after marriage-thiscontention stand repudiated by respondent- to prove his tand,petitioner examined himself as dw-1 and brought on record statement ofdw-2--a perusal of statement of petitioner clearly reveals that he has not uttered even a single word regarding payment of rompt dower of rs15000/-this silence on part of petitioner supports stand of his wife respondent that she was never paid prompt dower-tms being factualposition, respondent was justified in living apart rom her husband-trial court has rightly returned findings on disputed issue which have beenduly confirmed by learned appellate court-accordingly, it is held thatjudgment of courts below are nexceptionable
Name: PLJ 2000 Lahore High Court 1343
Appelant Side: MUHAMMAD HAYAT etc.
V e r s u s
Opponent Side: STATION HOUSE OFFICER P.S. SADDAR CHINIOT DISTRICT, JHANG etc
Judge Name: MUHAMMAD NASEEM CHAUDHRI
Judgment Result:Petition accepted.
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--s. 154--constitution of pakistan (1973), art. 199-quashing of f.i.r. registered against petitioners-police officer present in court had expressed that both accused have been declared as innocent during police investigation-complainant's wife who is sister of female petitioner had instituted suit for dissolution of marriage against complainant and to put pressure on petitioners who were helping complainant's wife, f.i.r. had been lodged after 11 months of alleged incident-award againstpetitioners secured by complainant indicated that dispute between parties was that of civil nature and about setting aside of award, matter was pending before civil court-registration of criminal case is transgression of authority on the part of s.h.o. police station concerned- there being delay of 11 months in reporting matter to police and the fact that award had been drawn and issued relating to matter in question, f.i.r. required and desired to be quashed has to fall on the ground like house of cards-there was no necessity to place matter in question, before ilaqa magistrate for discharge of accused persons in view of circumstances of matter~f.i.r. registered against petitioner on initiation of complainant was quashed in circumstances.

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Citation Name: PLJ 2000 Lahore High Court 1343
Appelant Side: MUHAMMAD HAYAT etc.
V e r s u s
Opponent Side: STATION HOUSE OFFICER P.S. SADDAR CHINIOT DISTRICT, JHANG etc.
Judge Name: MUHAMMAD NASEEM CHAUDHRI
Judgment Result:Petition accepted.
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--s. 154--constitution of pakistan (1973), art. 199-quashing of f.i.r. registered against petitioners-police officer present in court had expressed that both accused have been declared as innocent during police investigation-complainant's wife who is sister of female petitioner had instituted suit for dissolution of marriage against complainant and to put pressure on petitioners who were helping complainant's wife, f.i.r. had been lodged after 11 months of alleged incident-award againstpetitioners secured by complainant indicated that dispute between parties was that of civil nature and about setting aside of award, matter was pending before civil court-registration of criminal case is transgression of authority on the part of s.h.o. police station concerned- there being delay of 11 months in reporting matter to police and the fact that award had been drawn and issued relating to matter in question, f.i.r. required and desired to be quashed has to fall on the ground like house of cards-there was no necessity to place matter in question, before ilaqa magistrate for discharge of accused persons in view of circumstances of matter~f.i.r. registered against petitioner on initiation of complainant was quashed in circumstances

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Citation Name: PLJ 2000 Lahore High Court 1466
Appelant Side: Mst. HASEENA and another
V e r s u s
Opponent Side: SENIOR SUPERINTENDENT OF POLICE, DERA GHAZI KHAN and 2 others
Judge Name: NASIM SIKANDAR
Judgment Result:Petition accepted.
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--ss. 10 & 19-criminal procedure code, 1898 (v of 1898), s. 154--constitution of pakistan (1973), arts. 11 & 199--quashing of f.i.r. registered against petitioners who were allegedly husband and wife-basis of f.i.r. appears to be entiy in column of nikahnama between brother of petitioner and sister of complainant wherein if in lieu of dower or any part thereof, any property had been given its nature and significance is to be recorded; however, in that column instead of amount of dower or detail of property it was entered that in lieu of wife of brother of petitioner, petitioner would be married to son of complainant-petitioner at that time was three years of age-such entry itself was against art. 11 of the constitution, which forbids, slavery in any form-to indicate name of individual human being in column provided for money or money's worth or property was violative of basic status of individual as human being-registration of f.i.r. was all the more unfortunate that petitioner after marriage had two children when the same was registered against her-marriage of three years old girl which was allegedly performed needs to be condemned both in fact as in law-no legal evidence, however, was available to show that petitioner was wife of complainant's son when she married co-petitioner-registration of f.i.r. and putting petitioners to trial was mala fide and illegal per se-f.i.r was quashed-complainant and police officer who had investigated and prepared challan would pay specified amount each to both petitioners as penalty and costs for having illegally set in motion criminal proceedings-superintendent of police was directed not to entrust to concerned police officer with investigation of any matter involving family laws for at least next one year till he was properly instructed in that branch of law.

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Citation Name: PLJ 2000 Lahore High Court 1793
Appelant Side: Dr. SABIRA SULTANA
V e r s u s
Opponent Side: MAQSOOD SULARI ADDITIONAL DISTRICT SESSION JUDGE RAWALPINDI & 2 others
Judge Name: MUHAMMAD NAWAZ ABBASI
Judgment Result:Petition accepted.
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--s. 6(5)-constitution of pakistan (1973), art. 199-second marriage by husband in existance of first marriage without permission of first wife and arbitration council-wife's entitlement to claim deferred dower in such case-where marriage was contracted in contravention of provision of s. 6(5) of muslim family laws ordinance, 1961, apart from penal offence and punishment prescribed for the same, husband was liable to pay immediately entire dower whether prompt or deferred to existing wife or wives and same was recoverable as arrear of land revenue-where husband seek, permission for second marriage in presence of first wife from arbitration council, such council at the conclusion of proceeding issues certificate to husband but in present case respondent (husband) has not produced such certificate before court-perusal ofnikahnama of marriage of respondent with second wife also did not show that respondent contracted second marriage with permission of arbitration council or with consent of petitioner-classification of dower as prompt and deferred has no legal sanction behind it except the general practice in muslim society for the convenience of parties, therefore, deferment of payment of dower for indefinite period with consent of wife was not 1794 lah. dr. sabira sultana v. maqsood sulari

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Citation Name: PLJ 2000 Lahore High Court 1846
Appelant Side: MUHAMMAD PERVAIZ
V e r s u s
Opponent Side: ADDITIONAL DISTRICT JUDGetc.
Judge Name: MRS. FAKHAR-UN-NlSA KHOKHAR
Judgment Result:Petition dismissed.
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-legitimacy-defendant (petitioner having been burdened with maintenance of his two children claimed that younger child (daughter) was illegitimate child and was not born out of his wedlock with plaintiff-courts below, however, disbelieved assertion of defendant and burdened him with maintenance of that child which he claimed to be illegitimate--validity-perusal of evidence would indicate that only defendant and two of his relatives had claimed that minor girl was illegitimate child-plaintiff admittedly left house of defendant on 7.5.1996 when she was already pregnant, the girl having born on 30.12.1996-any child born after six months of wedlock would be legitimate child unless proved otherwise by solid evidence-plaintiff and defendant were married on 11.7.1994 and male child was born before the birth of female child-evidence relating to illegitimacy not confidence inspiring and trust worthy-legitimacy has to be determined in line with islamic principles-paternity is established by marriage between parents of child-where legitimacy was questioned, primary evidence was that of mother of the child who would be the best person to testify that child was legitimate issue from her hushand-during early conception of legitimacy plaintiff was admittedly living in the house of her husband/ defendant, therefore, legitimacy of respondent child was established as she was born when wedlock between spouses was subsisting-defendant had remained silent for 9 months, and as per his own claim be disclaimed the child after her birth-judgments of courts below were based on cogent and reasonable evidence, thus, the same were un-exceptionable~writ petition against concurrent judgments of courts below was dismissed and defendant (petitioner) was burdened with costs of rs. 50.000/- to be paid to plaintiff and her female child for redressel of injury to their reputation.

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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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Citation Name: PLJ 2000 Lahore High Court 1877
Appelant Side: Mst. KAUSAR PERVEEN
V e r s u s
Opponent Side: ADDITIONAL DISTRICT JUDGE CHICHAWATNI DISTT. SAHILWAL and another
Judge Name: MAULVI ANWAR-UL-HAQ
Judgment Result:Petition accepted.
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-s. 5 & sched.-qanun-e-shahadat, 1984 (10 of 1984), art. 85(5)~suit for jactitation of marriage-petitioner in his suit had claimed to be legally wedded wife of "y" and had borne him three children and that respondent through a registered "nikahnama" which he had not executed was claiming to he her husband-petitioner's such suit was decreed by trial court but in appeal district judge dismissed the same-validity-tenure of impugned judgment showed that appellate court was under impression that onus to prove that petitioner was not legally wedded wife of respondent was upon petitioner which of course was not the position on record-wording of relevant issue would show that onus to prove lawful wedding between petitioner and respondent was upon the latter-respondent's "nikahnama" being under challenge, heavy onus lay upon respondent to prove execution of such document which he failed to discharge by not producing any witness of 'nikahnama' or "nikah khawan "--respondent even did not cross-examine petitioner about "nikahnama", execution where of she had denied-respondent having flailed to prove issue relating to his marriage with petitioner, latter was entitled to decree for jactitation of marriage-declaration by a man and woman that they were married and were husband and wife would be enough to support plea of valid marriage-petitioner having claimed that she was and is wife of "y" and those being no denial of such assertion by "y", she would be deemed to be the wife of "y" by and not respondent-apellant court having misread evidence on record its judgment and decree was liable to be set aside and was set aside-judgment and decree of family court for jactitation of marriage was restored in circumstances.

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Citation Name: PLJ 2000 Supreme Court 1094
Appelant Side: Mst. FIRDOUS IQBAL
V e r s u s
Opponent Side: SHIFAAT ALI and others
Judge Name: MUHAMMAD BASHIR JEHANGIRI AND SH. RIAZ AHMAD
Judgment Result:Appeal accepted.
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-s. 25-constitution of pakistan (1973), art. 185 right ofhizanat of minor child-essentials-welfare of minor is paramount consideration in determining custody of minor notwithstanding right of father to get custody after seven years of age of male minor child-right of father to claim custody of minor son is not an absolute right in that, father may disentitle himself to custody on account of his conduct in the light and circumstances of each case-evidence on record indicated that father who had sought custody of minor neglected him since separation of spouses inter se and had voluntarily left custody to petitioner/mother-mother had brought him up and educated him till she had to opt for second marriage-mother even after her second marriage had not been negligent in the care of her minor son, having entrusted that duty to her mother and father, and minor is being properly educated till date in local school-father had neglected the child during all that period till mother had applied for maintenance of child; it was only thereafter that father applied for custody of minor-father having married again, his second wife was living in village, where no one would save minor from step-motherly treatment if custody of minor was allowed to remain with father-high court had thus, erred to interfere in concurrent findings of fact that welfare of minor lay in leaving him to custody of mother and that too in exercise of constitutional jurisdiction of high court-petition for leave to appeal was converted into appeal and while setting aside impugned order of high court, orders of two courts below that welfare of minor lies with mother and that she was entitled to retain his custody was restored.

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Citation Name: PLJ 2000 Supreme Court 1491
Appelant Side: MAQBOOL AHMED
V e r s u s
Opponent Side: SHAIKH MUHAMMAD ANWAR, etc.
Judge Name: KHALiL-UR-REHMAN KHAN, MAULANA MUHAMMAD TAQI USMANI AND DR. MAHMOOD A. GHAZI
Judgment Result:?
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--s. 10(2) read with qazf ordinance, 1979, s. 14--accusation of zina by appellant upon his wife-conviction for-appeal against-acceptance of-- appeal to supreme court-under section 14 of qazf ordinance, when a husband accuses his wife of zina, he shall be asked by court, whether he is prepared to prove his allegation by producing four witnesses-if he is prepared to do so, court will proceed to record their evidence-but if husband cannot produce of four witnesses, then wife would have a right that instead of being prosecuted for zina u/s. 10(2) of zina ordinance, she demands husband to under go procedure of li'an u/s. 14 of qazf ordinance-if both spouses undergo procedure by swearing prescribed oaths court shall pass an order to dissolve marriage between them which shall operate as a decree for dissolution of marriage and no appeal shall lie against it--thereafter all proceedings in connection with allegation of zina will come to an end-a wife who accepts usband's accusation as true, shall be awarded punishment for offence of 'zina liable to hadd'- held: trial court as well as fsc over-looked said important aspect of case-both husband and wife swore oaths before supreme court they were right on their stand-therefore, marriage between them was dissolved-no further proceedings u/s. 10(2) of zina ordinance called for-appeal disposed of.

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Citation Name: PLJ 2000 FSC 17
Appelant Side: BASHIR MASIH alias SAHUKAT and another
V e r s u s
Opponent Side: STATE
Judge Name: SARDAR MUHAMMAD DOGAR,
Judgment Result:Appeal allowed.
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--ss. 10(2) & 16-abduction and zina-bil-jabr~offences of-conviction for-appal against--both appellant's had taken up plea at trial that they had embraced islam and had contracted marriage-they had taken same plea of time of arrest also-they examined in defence nikahkhawan who had performed their nikah and produced nikahnama as well and also certified signatures of register on it-nikahkhawan disclosed that brother of (female) accused was present at time of nikah who had attested the same-prosecution had failed to disprove factum of performance of nifta/z-prosecution was also not able to bring home charges against appellants beyond reasonable shadows of doubt-appeal allowed.
Citation Name: PLJ 2000 FSC 22
Appelant Side: ALLAH YAR and another
V e r s u s
Opponent Side: STATE
Judge Name: SARD A R MUHAMMAD DOGAR
Judgment Result:Appellants acquitted.
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-ss. 10(2)-conviction of appellant for offence of zina holding that they had been committing the same aftei abduction till they had entered into marriage on specified date-trial court, however had acquitted them of charge under s. 16 of the ordinance-validity--trial court had accepted plea advanced by appellants that they had entered into marriage vide. regular nikahnama and that their marriage was declared valid by family court also-finding of trial court., however, that "accused persons had completely failed by justify that from night of specified date till their marriage on subsequent date they had not been living in adultery" was not correct adjudication of issue of guilt before him-prosecution had to prove its case-appellants, of course, had also to prove the plea that set up but to reasonable extent-total burden to prove innocence, however, could not be placed on shoulders of accused persons unless prosecution had brought reasonable evidence on record against. accused-proscution had not produced any evidence that appellants (accused) were living together from specified date till they entered into marriage and had been committing zma-impugiied judgment was thus, not maintainable, same was set aside and appellants, were acquitted of the charge of zina.

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