2006 P Cr (PLP)

MUHAMMAD JEHANGIR ARSHAD, J.

Through this constitutional petition, a prayer for quashment of F.I.R. No.327 dated 24-7-2005 under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 Police Station Jampur District Rajanpur, has been made on the ground that both the petitioners being sui juris have married with their free-will and right of marriage being protected by the Constitution, hence registration of F.I.R. was not warranted by law. In support of this contention, reliance has been placed on the case Hafiz Abdul Waheed Ropari v. Mrs. Asma Jehangir and another PLD 2004 SC 219.

2. I am afraid the aforesaid contention of the petitioner is sustainable in the peculiar facts and circumstances of the case and the case-law referred to above is applicable to the present case, being distinguishable. Kaleem Ullah petitioner No.2 was admittedly married with Mst. Rukhsana real sister of petitioner No.1. However, it is submitted that Kaleem Ullah contracted marriage with petitioner No.1 on 26-7-2005 after divorce given to Mst. Rukhsana on 23-7-2005. When questioned, whether any notice in terms of section 7 of the Muslim Family Laws Ordinance, 1961 was given learned counsel frankly conceded that no such notice was issued. He however, argued that it is now a declared law that any Tallaq given under Muslim Law shall not be rendered ineffective for want of notice and further that at the most a marriage between the parties before effectiveness of said Tallaq could be considered as irregular but not void.

3. I have considered arguments but am not persuaded to agree with the same. The fact that petitioner No.2 allegedly divorced his wife Mst. Rukhsana real sister of petitioner No.1 on 23-7-2005 and married petitioner No.2 just after three days i.e. on 26-7-2005, cannot be approved on any legal or moral consideration. I am of considered opinion that before the expiry of Iddat, Tallaq is not effective and since A in the present case distinguishing feature is that petitioner No.2 married Mst. Irfana petitioner No.1 who stood within the prohibited degree, before the expiry of Iddat period, hence, I am not inclined to legalize such marriage on the touchstone of law declared by Honourable Supreme Court in the cited judgment by ignoring the distinguishable feature of present case. Even otherwise, constitutional petition being equitable/ discretionary relief, same cannot be extended/exercised when grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay, as held in the case Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC

415. To me, the marriage between the parties just three days after the alleged divorce with the real sister of earlier wife is an unholy alliance which cannot be perpetuated by this Court through the relief sought in this constitutional petition. Even c otherwise, since the petitioners have not approached this Court with clean hands, no such relief can be granted to such persons. I am fortified in my view by the judgment' of Honourable Supreme Court of Pakistan in Raunaq Ali's case PLD 1973 SC 236 and by this Court in Nisar-ul-Haq v. Tehsil Municipal Administrator City PLD 2002 Lah.

359. Lastly it would not be out of place to observe that as held by the Honourable Supreme Court in Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR

398. The Courts do not function in vacuum and must take due notice of social and moral environments prevailing in community, such as, tendency on part of some young men to abuse provisions of law D in furtherance of their illicit love affairs. Although the said observation of the Honourable Supreme Court was passed while deciding a habeas corpus petition under section 491, Cr.P.C. yet the pronouncement of the apex Court can be equally made applicable while exercising constitutional jurisdiction, especially in the matter like the one in hand seeking enforcement of an unholy relationship between the petitioners.

4. The result of above discussion is that I find no substance in this petition which is accordingly dismissed in limine. N.H.Q./I-123/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.