1995 PLP 1506 (CLC)

(v) Exh.D‑3 copy of the statement made by petitioner/plaintiff before Magistrate at Faisalabad, and (vi) Exh.D‑4 copy of the judgment dated 28‑1‑1989 passed by District and Sessions Judge, Bahawalnagar Camp at Chishtian whereby respondent/defendant was acquitted in case F.I.R. No. 254/88 under sections 11/10 (3) Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 P.S. Sadar Chistian.

5. The petitioner/plaintiff on the other hand, produced following evidence :‑‑ (i) P.W.1 Muhammad Yousaf (petitioner's uncle). (ii) P.W. 2 Muhammad Ali. (iii) P.W. 3 Mst. Ramzan Bibi (petitioner/plaintiff herself).

6. Learned counsel for the petitioner/plaintiff in support of his petition has made following submission:‑‑ (i) that the petitioner/plaintiff nowhere stated before the Civil Court that she was ever married to respondent/defendant and that her alleged statement before the Magistrate in a private complaint could have been made basis to non‑suit her; (ii) that the question of Nikah or its genuineness or otherwise could only be decided in a Civil Court of competent jurisdiction and both the Courts below have fallen into error in deciding the said question on the basis of a judgment of the criminal Court.

7. Learned counsel for the respondent/defendant while defending the impugned judgment has raised following pleas: (i) that this Court while sitting in writ jurisdiction cannot interfere into reappraisal of evidence; (ii) that respondent/defendant had proved the factum of Nikah beyond any shadow of doubt. (iii) that the findings of the learned Sessions Judge in Hudood case qua Nikah between the parties is conclusive as the same was never appealed against and has attained finality.

8. I have heard learned counsel for the parties and have gone through the record.

9. The onus to prove both the issues was on the respondent/defendant. To prove the factum of Nikah D.W. 1 Sufi Ali Muhammad was produced who stated that' he did not know either the petitioner/plaintiff or the respondent/defendant at the time he performed Nikah. He admitted that petitioner was clad in a veil and she was identified by Mst. Sardar Bibi but she was never produced in Court. He also stated in Court that he had asked the people as to what kind of Nikah was being performed. The witnesses before whom the alleged Nikah was performed were never produced during the trial and the trial Court itself had doubts about thumb‑impressions/signatures of petitioner/plaintiff as to page No.18 of the file the Court observed that the thumb‑impressions of petitioner/plaintiff over Nikah Register and Nikahnama were different. It was further observed by the learned trial Court that signature over Exh. D‑1 and on the register of Nikha which was brought by D.W.1 were different.

10. I am afraid the quality of evidence to prove Nikahnama was rather weak for following reasons:‑‑ (i) Petitioner/plaintiff was not admittedly known to D.W. 1 who performed Nikah. Her identity before him was never proved as Mst. Sardar Bibi who allegedly identified petitioner/plaintiff never appeared before the Court. (ii) The witnesses of Nikah were not produced during trial. (iii) The observations of the learned trial Court that her signatures on Exh.D‑1 and the Nikah Register were different. Notwithstanding the quality of the afore referred evidence, the learned trial Court as also the learned appellate Court were pursuaded to hold that Nikah did exist on account of observations given by learned District and Sessions Judge, Bahawlnager in his judgment. The said judgment was given in a criminal case which was got registered by father of petitioner/plaintiff about her alleged, abdution and that judgment could be relevant only for the purposes of criminal trial in which respondent/defendant was admittedly acquitted and P` could not be used by a Court of plenary jurisdiction/Civil Court which was seized of the suit for jactitation of marriage and suit for restitution of conjugal rights. The Civil Court had to decide the question of genuineness of Nikahnama in the light of the evidence which was led before it and not on the basis of a judgment delivered by the criminal Court. I am fortified in my view by a judgment of the Federal Shariat Court which is reported in 1993 PCr.LJ 850 Anwarul Haque v. The State wherein it was held:‑‑ "This Court in is criminal jurisdiction is not competent to determine the validity of the marriage between the appellant and Mst. Azra Perveen. It was for the parties to have established the same before the Civil Court." Similarly in 1971 SCMR 321 (Dil Muhammad and 2 others v. Iqbal Muhammad and 2 others, it was held:‑‑ "Civil Procedure Code (V of 1908) S. 115 (c)‑‑‑Use by trial Judge of judgment of a Criminal Court to descredit testimony of witness‑ Held, wholly unwarranted and trial Judge acted illegally‑‑High Court had jurisdiction to set aside judgment and decree of trial Judge." 11.' Coming to the arguments raised by learned counsel for the respondent/defendant about the scope of writ jurisdiction, in reappraisal of evidence, I would like to observe that this Court while sitting in writ jurisdiction can interfere with the findings of a tribunal if it finds that the said Court has either misdirected itself in the exercise of jurisdiction or has committed a material irregularity and has gone beyond its jurisdiction. It can also interfere if it finds that the judgment of the Court is capricious or perverse. Keeping in view this principle, I am of the view that the finding qua the genuineness of Nikah given by learned Courts below is solely based on an observation made by the criminal Court. The procedure adopted therefore by the Courts below was illegal and perverse and it amounted to non reading of material evidence produced by respondent/defendant wherein he had miserably failed to prove the factum of Nikah with petitioner/plaintiff.

12. For what has been discussed above, the judgments of the two Courts below are not sustainable in law as the same are arbitrary, perverse and against the weight of record. Therefore, this petition is allowed and both the judgments are set aside. Resultantly, the suit filed by petitioner/plaintiff is decreed and that of the respondent/defendant is dismissed with no order as to costs. AA./R‑188/L Petition accepted.