P L D 2008 Karachi 609 (PLP)

KHAWAJA NAVEED AHMED, J.

This is an application filed by Muhammad Nasir Khan for cancellation of bail. of his son-in-law Syed Usman son of Syed Mazhar, who was first granted interim pre-arrest bail vide order dated 9-10-2007, which was 'subsequently confirmed on the same terms vide order dated 30-10-2007 by a learned Single Judge of this Court. Brief facts of the prosecution case are that Muhammad Nasir Khan, complainant in this case, is father-in-law of respondent Syed Usman, who was married to his daughter Mst. Beena Nasir on 23-7-2005, according to Sunni Muslim Law. Complainant Muhammad Nasir Khan has lodged report at P.S. Shahrah-e-Faisal, Karachi, on 21-4-2006 that marriage of his daughter Mst. Beena Nasir, aged about 27/28 years, was arranged by him with Syed Usman son of Syed Mazhar on 23-7-2005. It is stated that due to matrimonial dispute Mst. Beena Nasir was divorced on 4-12-2005. Thereafter, she had gone to the flat of her cousin Khurram Fatimi, bearing No. 608, Block K, Rufi Lake Drive, Gulistan-e-Jauhar, Karachi, where she disappeared on the night of 17-4-2006. The complainant came to know that her ex-husband Syed Usman has taken her back. Police has registered the case under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. During investigation Respondent Syed Usman was granted interim pre-arrest bail on 9-10-2007, which was subsequently confirmed on 30-10-2007. The husband and wife are living happily while father of Mst. Beena is aggrieved on the ground that the respondent had divorced his daughter Mst. Beena on 4-12-2005 and thereafter she has started living with him in his house and the dowry articles of Mst. Beena were also returned by respondent Syed Usman to the father of Mst. Beena. The complainant further stated that a notice of divorce under section 7 of the West Pakistan Family Laws Ordinance, 1961 was given by respondent Syed Usman to Union Council No.3, PIB Colony, Gulshan Town, Karachi, for confirmation of the divorce. It is further stated that the Punchayat Committee had tried for reconciliation but respondent Syed Usman had declined the offer and all such formalities for confirmation of divorce were completed by the Union Council No.3 and such certificate was issued on 21-3-2006 in Reconciliation Case No.527 of 2005 (Syed Usman v. Mst. Beena Nasir). The main contention of the applicant is that as per the injunctions of Islam and Muslim Personal Law in Pakistan, the divorce becomes absolute upon expiry of Iddat period and thereafter "Raju" cannot take place. The applicant further stated that in such circumstances the spouse cannot reconcile or remarry with each other without intervening marriage (Halala), therefore, they are committing Zina as defined in Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He has prayed for cancellation of bail of respondent Syed Usman on the above mentioned grounds. I have heard Ch. A. Rasheed along with Ms. Shahida Nasreen, Advocate for the applicant, Mr. Qazi Ali Athar, Advocate for the respondent and Mst. Naheed Naz, Advocate for the State. The Court had requested Mr. Shafi Muhammadi, Advocate, to act as amicus curiae and assist the Court. Ch. A. Rasheed, learned counsel for the applicant, has relied upon the documents annexed with his application for cancellation of bail. He has drawn attention of the Court towards Nikahnama, which is dated 23-7-2005, divorce deed dated 4-12-2005, notice under section 7 of the West Pakistan Muslim Family Laws Ordinance to the Union Council dated 6-12-2005 and confirmation of divorce by Union Council on 21-3-2006. The F.I.R. has been lodged on 21-4-2006. The main arguments of the learned counsel are that once divorce has been confirmed by the union council or in other words the Iddat period is over, the spouse cannot resort to Raju (revocation of divorce), as according to him it is absolute. He has argued that the spouse cannot live together again as husband and' wife unless there is an intervening marriage. He further states that in case of Raju (revocation of divorce), according to Verse No.2, Surah Talaq, two witnesses are required for Raju (revocation of divorce). He stated that in the present case, the Raju (revocation of divorce), if any, has not been properly done and as such the couple is committing Zina, which is punishable under Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He has further argued that divorce is Mubarat and it cannot be revoked. He has produced Fatwa (religious verdict) from Jamiat-ul-Uloom-e-Islamia, Binnori Town, Karachi, which is reproduced hereunder: He has also produced another Fatwa (religious verdict) from Jamiat-ul-Uloom Naeemia, which is also reproduced hereunder:-- He has also produced an answer given by the University of Islamic Studies Trust, Karachi, which answers the question regarding proper procedure of Raju (revocation of divorce). It is also reproduced hereunder: -- Respondent Syed Usman has appeared in Court along with his wife Mst. Beena and his Advocate, Mr. Qazi Ali Athar. The learned counsel for the respondent submitted that marriage of Mst. Beena has taken place with respondent Syed Usman on 23-7-2005 and the latter had given divorce to the former on 4-12-2005, when she was at the house of her parents. However, he immediately realized his mistakes and had started consulting clerics for seeking Fatwa from them for Raju (revocation of divorce). The learned counsel has also annexed copies of letters addressed by him to the University of Islamic Studies Trust, Karachi, as well as to Darul Ufta, Madarsah-e-Arabia Islamia. The letters addressed by the respondent and replies given by the two Institutions are reproduced hereunder:-- It is mentioned in the Fatwa that if Raju (revocation of divorce) is being made within three menstrual cycles, there is no need for Halala (intervening marriage) and divorce can be revoked. Both the husband and wife have categorically stated that divorce has been revoked during three menstrual cycles, within the Iddat period. Respondent Syed Usman has submitted that he has not once appeared before the Union Council. The intimation under section 7 was sent by his father-in-law. The Raju (revocation of divorce) is admitted by both the parties but the dispute is over the period. The contention of the couple is that they have done Raju (revocation of divorce) within three months period while the stand taken by father of Mst. Beena is that it has been done after expiry of Iddat period. Be that as it may, the fact remains that the couple is still living together as husband and wife. Mr. Shafi Muhammadi, learned Amicus Curiae, has made reference to Tafseer-e-Ibne Kaseer. He has also relied upon starting Verses of Surah Al Nisa (IV), which covers the law of divorce. He has also relied upon Verses Nos. 228 to 231 of Surah Baqara. He states that words Talaq-e-Marah have been used, which means two divorces. He pointed out that in the Holy Quran there is no mention about third divorce. However, according to the learned Counsel, in Surah Baqra, Verse No. 228, there is mention of about Iddat period in case of divorce within three menstrual cycles while in case of death of husband it is four months and ten days. He submits that Moulana Abul Kalam Azad in. Tarjuman-ul-Quran has mentioned ninety days Iddat period. Mr. Shafi Muhammadi is not in agreement with Moulana Azad regarding period of Iddat, mentioned by latter in his book Tarjuman-ul-Qur'an. The learned Amicus Curiae states that people belonging to Hanafi School of Thought say that if someone has used/uttered word `Talaq' thrice orally, the Talaq is complete while Ahl-e-Hadith believe that there should be some period between the two divorces. The learned counsel has referred Io Surah Tauba, Verses Nos.101 to 126, which deals with this subject. He has drawn my attention towards Surah Ahzab (33), Verse No.31, Surah Qasas (54) Verse No.28 and Surah Bani Israel, Verse No.4. The learned counsel has submitted that word "Marah" has been used at four places and according to him, keeping in view the context when this word is used, the meaning is "distance" (Fasla). Mr. Shafi Muhammadi, argued that two divorces in one sitting are in violation of Quranic teachings as well as the Hadith. However, scholars of Hanafi School of Thought believed that in one sitting three divorces can be given though they say that it is unjustified (Najaez) and undesirable (Makrooh). In spite of these reservations they believe that last divorce is effective. According to Imam Shafae three divorces in one sitting are undesirable (Makrooh). Mr. Shafi Muhammadi further says that Imam Malik had followed Imam Abu Hanifa on this subject. He further states that Imam Ahmed Bin Hanbal in the beginning had same view but subsequently he had reviewed. Imam Ibne Timia has stated that if three divorces are made in one sitting it will be treated as one. In Hadith-e-Zakana, it is mentioned that three divorces were given in one sitting and the Holy Prophet (PBUH) had returned that. However, in Shia School of Thought unless "seeghas" are read-over in presence of two witnesses, the divorce is not complete. Mr. Shafi Muhammadi further submitted that there are three types of divorces, first is Talaq-e-Ahsan, which means announcing divorce once and thereafter remaining silent. This type of divorce can be confirmed after expiry of there menstrual cycles and in case parties want to rejoin they have to perform a fresh Nikah without intervening marriage. The second type of divorce is "Talaq-e-Hasan". This divorce can be announced to the woman when she is not in menses and one divorce is announced during each menstrual cycle. However, Imam Malik has termed this type of divorce as Bidat. The submission of the learned Amicus Curiae is that after pronouncing one divorce the woman is out of Nikah and is no more wife. Hence, there is no need for pronouncing divorce for the second time. He believes that one pronouncement of Talaq is enough. The learned counsel further submits that in Hidayat there is tradition of Hazrat Abdullah Bin Umar, who has used' the words "Dar Katni", which means that divorce should be pronounced during Taharat. However, in other books of Hadith, namely, Bukhari, Muslim, Abu Dawood, Nisae Tirmizi and Ibn-e-Maja, the tradition of "Dar Katni" is not mentioned. Mr. Shafi Muhammadi submits that third form of Talaq is "Talaq-e-Bidat". Mr. Shafi Muhammadi states that for Nikah as well as Talaq two witnesses are required. Regarding confirmation of divorce, the learned counsel submits that it is law of necessity, which is de facto and not de jure. The learned counsel stated that reconciliation is mentioned in Qur'an in which one arbitrator should be from each side. He further says that unless there is reconciliation the divorce does not become effective. I have heard the learned counsel as well as learned Amicus Curiae Mr. Shafi Muhammadi and have perused the law cited by the learned counsel for the parties. The authorities relied by the learned counsel for the applicant Ch. Rasheed are as under: (1) 1994 SCMR 2098, (2) 2006 CLC 1525, (3) 2000 MLD 173, (4) PLD 1993 SC 901, (5) 1991 MLD 1198 relevant page 1203/D, (6) 2003 YLR 2592 and (7) 1987 PCr.LJ 1976. These authorities basically deal with the confirmation of divorce by Union Council/Punchayat Committee and in respect of authenticity of the confirmation certificate issued by the competent authority. In the present case, the facts regarding confirmation of divorce are disputed. Respondent Syed Usman has stated before me that the application under section 7 was got signed from him by the applicant and he had submitted the same before Union Council. He has further stated that he had never attended the office of Union Council and has not even received the certificate of confirmation of divorce from the said Union Council. His case is that he had revoked his divorce within 74 days of signing of the divorce deed. His wife Mst. Beena Nasir also appeared before me and had confirmed that divorce was revoked and "Raju" was made prior to expiry of Iddat period. The couple is living happily as husband and wife and Mst. Beena has supported her husband's contention in the Court. As far as, complainant is concerned, he has moved application for cancellation of bail of Syed Usman. He has not moved any application against his daughter Mst. Beena though, the allegations against her are also similar to that of Syed Usman. Complainant has adopted a policy of pick and choose amongst the accused persons. This attitude on the part of the complainant makes his action mala fide which is the basic ground for grant of pre-arrest bail. I have re-produced arguments of the learned counsel for the parties as well as the arguments of learned Amicus Curiae in this order in the preceding paragraphs for knowledge and information of general public on this subject. However, at this stage I will refrain from giving any finding on the subject because any observation made by me at this premature stage of the case may affect the case of either party. I withhold my views on this subject for the time being and leave it open for the trial Court to decide the issue in the light of evidence produced before the Court in case the present case is challaned by the police in the Court of law. As far as, merits of present Criminal. Miscellaneous application for cancellation of bail is concerned, I am of the opinion that there is controversy over the facts as well as period of Raju between both the parties and as such this case requires further inquiry under section 497(2), Cr.P.C. and during pendency of the inquiry the accused is entitled to remain on bail. I, therefore, dismiss Criminal Miscellaneous Application. In the end I thank the learned Amicus Curiae and counsel for the parties for assisting the Court on this important subject. N.H.Q./M-124/K petition dismissed.