2008 PLP 376 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

It is contended by the learned counsel for the petitioner that Saee Muhammad respondent No. 1 is father of Munawar Bibi respondent No.3 while Allah Ditta respondent No.2 is second husband of Mst. Munawar Bibi respondent No.3. Respondent No.4 is Molvi Khaliim Hussain Nikah Khawan while Muhammad Bashir respondent No.5 is signatory to the said Nikahnama and brother-in-law of respondent No.3.

2. Learned counsel for the petitioner in support of this petition submits that Mst. Munawar Bibi was neither divorced by petitioner nor she had filed any suit for dissolution of marriage before any competent Court of law. He submits that she while showing herself bachelor entered into marriage with Allah Ditta respondent No.2 while already she was married with the petitioner. He further argues that Molvi Khadim Hussain has performed the Nikah and has mentioned Mst. Munawar Bibi as bachelor. Adds that Saee Muhammad is father of respondent No.3. He and Muhammad Bashir had signed the Nikhanama. Learned counsel submits that in the presence of marriage between Muhammad Sharif petitioner and Mst. Munawar Bibi both, the respondents Allah Ditta and Mst. Munawar Bibi are committing Zina with each other. Adds that learned Additional Sessions Judge had granted bail before arrest to the said respondents although, it was not a case of bail before arrest. Adds that Secretary Union Council had also appeared before the police and stated that no Talaqnama was received by his office which allegedly took place between Muhammad Sharif and Mst. Munawar Bibi. Lastly learned counsel for the petitioner submits that divorce deed has been fabricated by the respondents themselves because the witnesses Muhammad Bashir son of Muhammad Ramzan and Muhammad Hanif son of Sikandar Khan are sons-in-law of Saee Muhammad respondent and brothers in law of respondent No.3 Mst. Munawar Bibi.

3. On the other hand learned counsel for respondent No.4 Molvi Khadim Hussain submits that he does not deny the performance of Nikah between Allah Ditta and Mst. Munawar Bibi but what he wrote in the nikahnama it was on the instructions of respondent No.1 and that he has committed no offence. As far as respondents Nos.1, 2, 3 and 5 are concerned, he submits that it was Muhammad Sharif himself who had divorced Mst. Munawar Bibi respondent No.3. He submits that in fact it was a marriage of 'Watta Satta' as on the other hand sister of Muhammad Sharif was married to the brother of respondent No.3 Mst. Munawar Bibi. He submits that now Mst. Munawar Bibi is pregnant. He submits that Muhammad Sharif petitioner had himself sent a notice of Talaq to Mst. Munawar Bibi on 6-4-2003 and thereafter Mst. Munawar Bibi entered into marriage with Allah Ditta respondent on 7-4-2004. He submits that no illegality has been committed by the respondents and moreover the respondent Munawar Bibi had lodged a case against brother and father of the complainant under section 363 P.P.C. and the same is counterblast. He further submits that Mst. Munawar Bibi entered into marriage with Allah Ditta after the 'iddat period'. He submits that Munawar Bibi had also filed a suit for jactitation of marriage against the petitioner. He has relied upon 1995 CLC 724, 1992 SCMR 1273, 1994 SCMR 2098, 1995 PCr.LJ 1925 and PLD 2003 Lahore 747.

4. I have heard the learned counsel for the parties at a great length and also have gone through the record. In the instant case question is whether 'Talaq' allegedly given by Muhammad Sharif to Mst. Munawar Bibi was made by petitioner or not. Both the witnesses are brother-in-law of Mst. Munawar Bibi and son-in-law of respondent No.1 so prima facie it seems that this Talaq deed is forged document. Even otherwise they have never received the notice of Talaq allegedly issued by Muhammad Sharif petitioner and even as per certificate issued by Secretary Union Council Chak No.24/G.D District Okara, which is annexure 'G' on the record no proceedings in this regard before the Union Council has taken place as required under the law. Another thing which goes against the respondents is that the marriage between Muhammad Sharif and Mst. Munawar Bibi has not been denied. If for the sake of arguments it is accepted that the Talaq had taken place then why she claimed herself to be bachelor at the time of marriage with Allah Ditta on 7-4-2004.

5. After having heard the learned counsel for the parties and going through the record I am of the opinion that it was not a case of bail before arrest. In this view of the matter, this petition is accepted and bail granting order in favour of the respondents passed by the learned Additional Sessions Judge, Pakpattan is hereby withdrawn and their bail is cancelled. H.B.T./M-455/L Bail cancelled.