1995 PLP 865 (MLD)

Muhammad Sadiq Chughtai and Rana Muhammad Arshad, AA.‑G. for Respondents. Date of hearing: 23rd October, 1989. The petitioner in this Constitutional petition has called in question the legality of an enquiry set in motion on an application given by respondent No.3 Mumtaz Hussain before D.C./Controlling Authority, Multan regarding the authenticity of her marriage with Faiz Bux who entrusted the same to respondent No.2, Project Manager Rural for enquiry. Brief facts are that respondent No.3, Mumtaz Hussain moved an application before the Deputy Commissioner on the 3rd of July, 1986 making grievance that the petitioner was his legally‑wedded wife and Nikah was performed with her on 27‑3‑1984. Subsequently, it was alleged that the petitioner prepared a forged and fabricated Nikah Nama with Faiz Bux. This application was entrusted to respondent No.2, Project Manager by the Deputy Commissioner for enquiry. The petitioner objected to the holding of this enquiry by filing an application before respondent No.l. The same was rejected vide order, dated 13‑10‑1987. It is the case of the petitioner that she was abducted by respondent No.3 and others respecting which she has filed a private complaint on 25‑6‑1984 under section 506/342, P.P.C. read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which is pending adjudication before the learned Sessions Judge at Multan. It is also stated that to pressurise the petitioner, respondent No.3 also got a case registered against her and others vide F.I.R. No.222 at Police Station Makhdoom Rashid under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The aforesaid F.I.R, was cancelled after thorough investigation. Thereafter respondent No.3 filed a complaint on 10th of November, 1984 under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 494/380, P.P.C. against the petitioner and 10 others including Nikah Registrar anti witnesses of Nikah. This complaint is also pending adjudication before the learned Sessions Judge, Multan. The petitioner has also filed a suit for jactitation of marriage against respondent No.3 which is pending before the Family Court at Multan. With all this background the petitioner challenged the continuation of enquiry by respondent No.3 before the Deputy Commissioner who vide his order dated 13‑10‑1987 dismissed the application. Hence this Constitutional petition. It is argued by the learned counsel for the petitioner that in her suit for jactitation of marriage she specifically took her stance of her marriage with Faiz Bux and has totally denied her Nikah with respondent No.3. Learned counsel has argued that in this view of the matter, the continuance of the alleged enquiry would prejudice the case pending before the Family Court. He has argued that according to section 5 of the Family Courts Act, 1964 the Family Court has got exclusive jurisdiction respecting the matte mentioned in its schedule. Jactitation of marriage is one of such matters. He has also argued that there is no law empowering respondents Nos. 1 and 2 to hold enquiry in this regard. Learned counsel appearing for the respondent could not quote any provision of law by virtue of which the Deputy Commissioner or for that matter respondent No.2, Project Manager, was competent to hold enquiry into the validity of the marriage. I have considered the contentions. The Deputy Commissioner/ Controlling Authority has no power to initiate enquiry into the validity of a Nikah in this case. Counter‑complaints levelling allegations either side are pending adjudication before the learned Sessions Judge, at Multan. The petitioner's suit for jactitation of her marriage is also pending before the Judge, Family Court at Multan. In the impugned order respondent No.2 has given the findings that after the petitioner's marriage with respondent No.3, her Nikah with Faiz Bux is forged and fabricated. This observation of respondent No.l regarding the alleged marriage of the petitioner with respondent No.3 is clear cut interference in the suit for jactitation of marriage pending before the Family Court. In one case titled Mst. Hanifan v. Deputy Commissioner (PLD 1967 Kar. 165) a Full Bench set aside the order of Deputy Commissioner by which he corrected the entries made in the Nikah Nama. It was held that the Deputy Commissioner in his capacity as a Controlling Authority cannot correct entries made in the Nikah form. The respondents Nos.l and 2 have got no authority under the law to hold enquiry into the validity of petitioner's marriage with Faiz Bux when the criminal as well as Family proceedings are pending adjudication between the parties. In this background it is held that the initiation of enquiry into the validity of marriage of the petitioner with Faiz Bux is illegal and unlawful and accordingly the impugned order dated 13‑10‑1987 passed by the Deputy Commissioner Controlling Authority is unlawful having been passed without any legal authority. The writ petition is accepted and parties are left to bear their own costs. AA./M‑1865/L Petition accepted.