1987 PLP 1721 (MLD)

Sardar Muhammad Latif Khan Khosa for Petitioner. Malik Muhammad Saleem for Respondent No.6. Date of hearing: 8th April, 1987. The petitioner has moved this petition seeking direction of this Court for registration of case by respondent No.l and also for the recovery of Mst. Sughran Bibi the alleged wife of the petitioner for her production before this Court to be dealt with in accordance with law. On 4-3-1987 a copy of the writ petition was ordered to be sent to respondent No.l who was also directed to recover and produce Mst. Sughran Bibi in this Court. Anyhow subsequently. A father of Mst. Sughran Bibi undertook to produce her in the Court of his own. However, on his failure to produce her on two or three dates an order was passed on 25-3-1987 directing the Sub-Inspector who was present in-the Court to recover and produce her in this Court. Subsequently on 31-3-1987 Mst. Sughran Bibi was produced by her father who is respondent No.6 in this petition. The statement of Mst. Sughran Bibi was recorded on the same date. She stated that she had come from the house of her father and earlier she was living with her husband Pir Bakhsh, the petitioner to whom she claimed to have been married about a year ago. She expressed her desire to w o with the petitioner her alleged husband.

2. After the statement of Mst. Sughran Bibi was recorded, learned counsel for the petitioner submitted that she was duly married with the petitioner and her Nikah was duly performed and he produced before the Court hart Nikah which was allegedly issued to the petitioner by Ghulam Hussain Nikah Registrar who allegedly performed the Nikah ceremony. It was placed on the record.

3. On the other hand, respondent No.6 denied the performance of any such Nikah and he submitted that the Chairman Union Council had also issued a certificate that there existed no Nikah between the petitioner and Mst. Sughran Bibi. In the circumstances my learned brother Khizar Hayat, J. passed an order for examination of original record pertaining to this Nikah and Ghulam Hussain Nikah Registrar was, therefore, directed to appear in this Court on 7-4-1987 alongwith the relevant register pertaining to marriages of 1986. Ghulam Hussain Nikah Registrar has appeared today and his statement has been recorded. He has denied having performed any Nikah and has also denied his alleged signatures on Part Nikah marked "A" on the file. In cross-examination he had denied the suggestions made by the learned counsel for the petitioner that any proceedings have been initiated against him by Director Local Government. He also denied any of the persons, mentioned in Part Nikah mark "A" having signed in his presence.

4. Learned counsel for the petitioner has mainly contended that Mst. Sughran Bibi was previously married to some other person against whom she filed a suit for dissolution of her marriage which was decreed on 23-2-1986 and the alleged Nikah with the petitioner was duly performed on 19-3-1986. He has relied upon Muhammad Ramzan v. The State P L D 1984 F S C 93 and Arif Hussain v. State P L D 1982 F S C 42 to contend that Nikah could be proved merely if both alleged husband and wife acknowledge each other as husband and wife. He has also produced for the inspection of the Court an Identity Card issued to Mst. Sughran Bibi on 2-11-1986 in, which she has been shown to be the wife of the petitioner. He has also placed, on record affidavits of Ghulam Rasool and Ghulam Sarwar who were witnesses of 'Nikahnama' marked "A" in which they have deposed that the said 'Nikahnama was genuine and was signed by them and also by the Nikah Registrar Ghulam Hussain.

5. On the other hand-learned counsel for respondent No.6 has placed on record copies of FIRs. in order to show that the character of the petitioner is highly doubtful as he was involved in many cases including abduction of children. He has also produced certified copy of an application allegedly made by the petitioner before the Chairman Union Council Chhabari Bala for permission to contract another marriage as his present wife usually remained ill and nothing was stated in this application about the Nikah with Mst. Sughran Bibi. This application is dated 11-3-1987. Learned counsel for respondent No.6 has placed reliance on Ramzan v. Ch. Muhammad Aslam, MIC etc. P L D 1972 Lah.809; The State v. Ashfaq Ahmad Sheikh P L D 1967 Lah.1231; Shahida Parveen v. District Judge, Sialkot P L D 1980 Lah.7; Shaukat Ali v. Altaf Hussain Qureshi 1972 S C M R 398 and Shaukat Ali v. Altaf Hussain Qureshi P L D 1973 Lah.591 and has argued that in the facts and circumstances of this case it is not proper and legal to exercise discretion in favour of the petitioner to give him the custody of Mst. Sughran Bibi which would amount sallow the petitioner to pursue the undersirable liaison. He has contended that from the statement of Ghulam Hussain Nikah Registrar and other surrounding circumstances it is highly doubtful as to whether A. Sughran Bibi is legally-wedded-wife of the petitioner.

6. I have given my anxious consideration to this case and also gone through the case law relied upon before me. Nothing has beer; brought on record that after getting decree for dissolution of marriage; from her previous husband the same was given effect to in accordance' with Family Laws Ordinance, 1961 and the said dissolution became effective as required thereunder. Even otherwise in view of the statement of Ghulam Hussain the alleged Nikah of petitioner with; Mst. Sughran Bibi is not free from serious doubts. These proceedings are of limited scope and I would refrain from expressing any final view about the merits and de-merits of the case inasmuch as it would be for the competent Court to determine the rights of the petitioner based on alleged Nikah if the matter is brought before it.

7. It may be observed that it has continuously been held as is clear from the case-law referred to above that this Court is not bound to exercise its discretion in favour of following always the wish of the detenu to allow her to go with the person with whom she wants to live if in doing so it might result in serious legal complications: as also allowing her to lead immoral life and establish illicit relations.' Keeping in view the circumstances of this case I am of the considered view that serious complications may ensue if the custody of the detenu' is handed over to the petitioner. Learned counsel for the petitioner has not been able to pursuade me to hold that in these circumstances the custody of the detenu with her father in any manner could b held to be illegal and improper. Keeing in view the social environments in which our society exists the safest place for the detenu is the house of her father. It will, however, be open to the petitioner if is he so advised to persue his legal remedy in a Court of law enforce his rights as husband and the Court then shall be holding thorough enquiry and adjudicate upon the issues raised there. By order of this Court the detenu was sent to Darul Aman from where she has been produced today by Mr. Muhammad Hussain Assistan Darul Aman, Multan, before this Court.

8. So far as the prayer for a direction to register a case against respondent No.l is concerned, in these circumstances it cannot be granted, since the petitioner has got an alternate remedy to file complaint under the Criminal Procedure Code.

9. In the light of the above discussion I dismiss the petition, leaving the parties to bear their own costs with the result that the custody of the detenu Mst. Sughran Bibi shall be handed over to her father, respondent No.6. The Darul Aman Authorities where the detenu is being lodged shall implement this order as soon as possible. M.Y.H./P-14/L Petition dismissed.