2005 P Cr (PLP)

Through this Constitutional petition the petitioner seeks quashment of F.I.R. No.620 of 2004 under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 Police Station Liaqatpur on the ground that he and Mst. Shumaila Bano daughter of Muhammad Hussain being sui juris have contracted marriage with free consent vide Nikah Nama dated 30-7-2004 without the consent or approval of said Mst. Shumaila's parents, hence, the said F.I.R. has been got registered against him which is illegal because under the Muslim Law it is a right of sui juris girl and boy to contract marriage even without the consent of girl's Wali as recently laid down by the Honourable Supreme Court of Pakistan in the case of Abdul Waheed Ropari v. Asma Jehangir PLD 2004 SC 219.

2. This writ petition came up for hearing for the first time on 22-12-2004 when this Court directed the petitioner to amend the petition by impleading Muhammad Hussain complainant and also directed the petitioner to produce Mst. Shumaila on the next date which was fixed as 14-1-2005, for which date notice to the S.H.O. was also issued. On 14-1-2005 the parties did not appear hence, the case was adjourned for today i.e. 31-1-2005.

3. Today, Muhammad Abbas, Mst. Shumaila and Muhammad Hanif father of Mst. Shumaila are present in Court. Mr. Muhammad Asif Rasheed, Advocate appearing on behalf of the complainant/father of Mst. Shumaila, has produced photo copies of Nikah Nama, one relating to Nikah of Mst. Shumaila's mother Mst. Nargis Parveen with her father Muhammad Aslam which took place on 6-4-1980 and second relating to Mst. Munawar Bano daughter of Muhammad Aslam maternal-aunt of Mst. Shumaila with Muhammad Abbas petitioner to show that alleged Nikah between Abbas petitioner with Mst. Shumaila is void, as according to Muslim Law no male person can simultaneously marry with females of prohibited degree being real maternal-aunt and daughter of her sister. The fact that Mst. Nargis mother of Mst. Shumaila is the real sister of Mst. Munawar Bano is admitted by the petitioner as well as Mst. Shumaila. It is also admitted by the petitioner that he married with Mst. Munawar Bano on 30-7-2004 although he claims to have divorced her. Nikah Nama between Abbas petitioner and Mst. Shumaila appended with this petition as Annexure "B" indicates that their marriage was contracted on 30-8-2004, meaning thereby that if the claim of Abbas petitioner that he had divorced Mst. Munawar Bano, is admitted even then his marriage with Mst. Shumaila, before the expiry of Iddat of Mst. Munawar Bano, her real aunt, cannot be considered as valid because till the period of Iddat is complete possibility of rapprochement between Mst. Munawar Bano with Muhammad Abbas, is very much there. Had the Talaq allegedly pronounced by petitioner to Mst. Munawar Bano effect of immediate termination of marriage between them, then Mst. Munawar Bano would also have been free to contract the marriage with any other person, without waiting for the expiry of period of Iddat because the Honourable Supreme Court of Pakistan in the case of Allah Dad v. Mukhtar 1992 SCMR 1273 has clearly held that marriage contracted during the period of Iddat is invalid) and not even irregular.

4. Even otherwise, one wonders what made the petitioner to allegedly divorce Mst. Munawar Bano after having married with her on 3-7-2004 and to contract marriage with Mst. Shumaila on 30-8-2004 i.e. within a span of one month and twenty seven days and neither the petitioner nor his learned counsel has been able to give any satisfactory explanation to the query made by this Court to this effect and the only conclusion which one can draw by this act is that Abbas and Mst. Shumaila had developed relations, without commenting upon their nature, earlier to 3-7-2004 and the marriage between Abbas and Mst. Munawar Bibi was just a camouflage to give cover of the relationship between Abbas and Mst. Shumaila. It is an established principle of law that this Court while sitting in Constitutional jurisdiction does not function in vacuum and must take due note of prevailing social and moral B environments prevailing in community, such as, tendency on part of some youngmen to abuse provision of section 491 in furtherance of their illicit love affairs, as held by the Honourable Supreme Court of Pakistan in case Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR

398. Though the said judgment was delivered in proceedings under section 491, Cr.P.C. yet the dictum laid down by the Honourable Supreme Court is universal and can be followed even while exercising Constitutional jurisdiction. It is also established from the record that Mst. Shumaila and Muhammad Abbas petitioner earlier had riled Writ Petition No. 19242 of 2004 (Lahore) and obtained a direction by this Court on 29-11-2004 to the S.H.O. Police Station Manga Mandi to act strictly in accordance with law and not to take any action against the petitioner not warranted under the law, without disclosing the fact that F.I.R. No.620 of 2004 already stood registered against them under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. Similarly, neither in the earlier writ petition nor in the present petition, Muhammad Abbas disclosed the factum of his being married with Mst. Munawar Bano real maternal-aunt of Mst. Shumaila nor the fact of alleged divorce given by him to Mst. Munawar Bano before entering into marriage with Mst. Shumaila. The mala fide of the C petitioner by concealing such important facts is writ large. Since the petitioner has concealed material facts from this Court and as held by the Honourable Supreme Court o Pakistan in case Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, the writ petition should be dismissed in case of concealment of material facts in the petition. The petitioner by filing this frivolous petition with the object of furtherance of his illicit affairs with Mst. Shumaila, has not only wasted the precious time of this Court but has also acted in a most unfair and immoral manner, hence, this writ petition is dismissed with costs of Rs.5,000 to be deposited with Additional Registrar of this Bench within fifteen days, failing which the Additional Registrar shall proceed against Muhammad Abbas petitioner for the recovery of said amount, in accordance with law. N.H.Q./M-1132/L Petition dismissed.