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Official Citation: 1994 PCRLJ 1111
Court / Jurisdiction: Lahore High Court
Year of Decision: 1999
Decision Date: 1999-02-11
Parties: Mst. HUMAIRA MEHMOOD vs THE STATE and others
This judicial decision was delivered by the Lahore High Court on 1999-02-11. The matter involves proceedings between Mst. HUMAIRA MEHMOOD and THE STATE and others, officially reported as 1994 PCRLJ 1111. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1994 PCRLJ 1111
Court Name: Lahore High Court Judge(s): Tasaddaq Hussain Jillani Title: Mst. HUMAIRA MEHMOOD vs THE STATE and others Case No.: Writ Petition No.420 of 1999 Date of Judgment:1999-02-11 Reported As: PLD 1999 Lahore 494 Result: Petition allowed
JUDGMENT
JUDGMENT ' This judgment shall dispose of Writ Petitions Nos. 1472 of 1999 and 420 of 1999. The former petition was filed for production of Mst. Humaira who was granted pre-arrest bail by this Court but was arrested by respondents Nos.1 and 1-A from Karachi was not produced before any Magistrate and it was alleged that her life was in danger. In Writ Petition No.420 of 1999 filed by Mst. Humaira, it is prayed that as nobody had abducted her and as she is not wife of Malik Moazzam Ghayas Khokhar (respondent), the case registered vide F.I.R. No.601 of 1998 dated 25-12-1998 under section 16, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Police Station North Cann., Lahore on the statement of respondent Malik Moazzam Ghayas Khokhar be quashed wherein it is alleged that about two months prior to the registration of case on 29-10-1998 at 8-00 p.m. Complainant's wife Mst. Humaira (petitioner) was abducted from Fortress Stadium, Lahore by Mehmood Butt, his mother Mst. Zeb Naseem and two unknown persons who were armed with fire-arms, that the complainant made an abortive attempt to chase them but it was of no avail. It was further alleged that while leaving the house Mst. Humaira had taken away rupees two lac and jewellry weighing thirty tolas. 2. In support of the afore referred petitions Miss Hina Jilani learned counsel for Mst. Humaira (petitioner) has made following submissions:- (i) That the occurrence alleged in the F.I.R. Is dated 29-10-1998 whereas the F.I.R. Was lodged on 25- 12-1998. It is repellent to common sense that Malik Moazzam Ghayas Khokhar would wait for two months to report about the abduction of his alleged wife Humaira who happens to be the only daughter of a sitting Member of the Provincial Assembly in, the ruling party. The story itself,
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according to the learned counsel, is unnatural as nobody can abduct a thirty years* old woman from a busy shopping area of the Fortress Stadium, Lahore; (ii) that Humaira petitioner has herself disowned her marriage with Malik Moazzam Ghayas and the story of abduction; (iii) that another case was registered vide F.I.R. No.524/98 on 4-11-1998 on the statement of one Nazir Ahmad wherein the place of occurrence is the same and Mehmood Butt who is accused in the instant case is also an accused in the said case and the allegation in the said F.I.R. Was that on 2-11-1998 at about 6 p.m. Complainant Nazir Ahmad's niece named Rabia alias Nanni aged 18/19 years was abducted by Mehmood Butt and his brother Naeem Butt in a Pajero bearing No. LHY- 8301 (the same vehicle as in F.I.R. No.601 of 1998). The F.I.R. Has been found to be false and Abdul Rauf Dogar, S.P., C.I.A., Lahore has conceded that the case was registered to arrest Mehmood Butt and Huniaira both. Humaira's name was not mentioned in this F.I.R. Because they wanted to hide the factum of afore referred Nikah. The cancellation of this F.I.R. Proves beyond doubt that the whole subsequent story of abduction and the registration of case vide F.I.R. No.601/98, P.S. North Cantt., Lahore quashment of which is sought is also false and product of mala fides; (iv) that the petitioner married Mehmood against the wishes of her parents who were after her on that account. Apprehending danger to her life and the life of Mehmood Butt (her husband) they fled away to Karachi and sought protection in Edhi Centre in November, 1998. Brother of Humaira Ali Abbas Khokhar chased her there and made a Report No.23 dated 1-12-1998 at P.S. Nazimabad, Karachi (which is Annexure E in the connected Criminal Miscellaneous Nc440-B/98) to the effect that his sister Humaira after having a row with her mother left the house, was residing at Edhi Centre and that he be helped to recover her. There was no mention in the said report about her alleged Nikah with Malik Moazzam Ghayas or about her abduction by Mehmood Butt. This is further endorsed by a letter dated 1-12-1998 written by D.S.P., Nazimabad, Karachi to In charge "Appna Ghar" Edhi Centre wherein he requested for handing over the "possession" of Humaira's to her brother Ali Abbas. Even in this letter there is no reference to Humaira's Nikah with Malik Moazzam Ghayas. These documents, according to the learned counsel clearly indicate that whatsoever the nature of the alleged Nikah of Moazzam Ghayas she in fact was not his wife, the registration of case vide F.I.R. No.601/98 in the afore referred circumstances is clearly malicious; (v) that the so-called Nikah of Humaira with Moazzam Ghayas was not Nikah in the eyes of law as she was already married to Mehmood and that her thumb-impressions were obtained through force; that she never consented to it; that the "Nikah Khawan" shown in the video of the Nikah ceremony is Nazir Ahmed whereas on the Nikahnama Nikah Khawan is Maulvi Noor Muhammad; that as per the statement of Humaira Nikah ceremony was held somewhere in September, 1997 whereas Nikah Nama has been ante-dated and it was shown that the Nikah was performed on 14- 4-1997; that the said Nikah was registered in the Union Council on 28-7-1998 which proves that it was ante-dated with a view to make this Nikah prior in time to Humaira's genuine Nikah with Mehmood Butt to which she was a consenting party; (vi) that Humaira's Nikah with Mehmood Butt was voluntarily performed and its date of performance and entry in the register is the same. Nikah Khawan and the witnesses have made statements not only before this Court but also before the Investigating Officer about the veracity of the said Nikah, therefore, it has greater credence than the Nikah Nama on which the prosecution wishes to rely. (vii) In support of the afore referred submissions learned counsel for Humaira relied on the judgments reported as Muhammad Arshad v. Station House Officer and others (1997 PCr.LJ 928), Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304), Jairam and 8 others v. Jagdish and another (1980 PCr.LJ 243), Muhammad Bashir v. The State (1984 PCr.LJ 892) and Haji Imam Din v. S.H.O. And 4 others (1989 PCr.LJ 2016).
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3. Pressing her prayer in Writ Petition No.1472/99 (wherein petitioner is Ms. Shahtaj Qazilbash, a humam right activist), learned counsel for the petitioner prayed that the manner in which Humaira was arrested from Karachi by the Punjab Police despite the interim pre-arrest bail granted by the Court reflects mala fides on the part of respondents Nos.1 and 1-A i.e. Malik Muhammad Ashraf, Inspector/S.H.O. And Subah Sadiq, S.I., P.S. North Cantt. Lahore who have thereby committed cross contempt of this Court which warrants an action against them. 4. Ch. Muhammad Hussain Chhachhar, Advocate, learned counsel for respondent Malik Muazzam Ghayas filed no written statement either in W.P. No.1472/99 or W.P. No.420/99 (wherein quashment of the F.I.R. Was sought) while opposing the prayer for quashment of the F.I.R. Submitted as under:-- (i) that Humaira petitioner by contracting second Nikah with Mehmood Butt in the presence of her earlier Nikah with Malik Moazzam Ghayas and having eloped with the former has crossed the limits of God, is guilty of offence under the Hudood Laws and, therefore, is not entitled to indulgence by this Court in extraordinary writ jurisdiction. (ii) That the police did not go beyond the mandate of law as it merely investigated a case registered against Mehmood Butt and others who have been charged with serious offences. This Court, according to him, has jurisdiction to quash criminal proceedings but it has to be guided by certain broad principles laid down by this Court as also by the Hon'ble Supreme Court. The quashment can Only be made if there is no evidence on record connecting the accused with the alleged offence or the prosecution launched is tainted with malice. The registration of a case is first step whereby the machinery of law is set into motion and if the story of abduction as contained in the F.I.R. Is not proved the police is well within its right to challan the accused in other offences which come to light. Humaira petitioner having contracted second Nikah with Mehmood Butt in the presence of the earlier Nikah, is guilty of an offence under the Hudood Laws and prima facie a case is made out against her and others. Learned counsel however, conceded to a Court query that only the Family Court can give a conclusive finding qua the validity of the conflicting Nikahnama and not the police. ' In support of the afore referred submissions, learned counsel for the respondent relied on the judgments reported as Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary, Pakistan Secretariat, Islamabad and 2 others (PLD 1998 Lahore 287), Mst. Ishrat Bibi v. S.H.O. (1996 PCr.LJ 1019), Mst. Abida Perveen and another v. The State and 2 others (1997 PCr.LJ 880), Mst. Tahira Khatoon v. S.H.O., Factory Area, Sargodha (1998 PCr.LJ 1029), Qaisar Mahmood v. Muhammad Shafi and another (PLD 1998 Lahore 72) and Lubna and another v. Government of Punjab through Chief Secretary, Lahore and another (PLD 1997 Lahore 186). 5. Ch. Ali Muhammad, Advocate, learned counsel appearing for Malik Abbas Khokhar (father of Huthaira) adopted the arguments of Ch. Muhammad Hussain Chhachhar, Advocate and added that there is no chance of compromise as she has crossed the limits of God. 6. Mr. Ashtar Ausaf Ali, the learned Advocate-General, Punjab who appeared on Court call submitted that in cases where disputed questions of fact are involved which warrant recording of evidence, this Court may not give a conclusive finding on the issues raised. He, however, added that this Court can give a tentative finding qua the validity of conflicting Nikahnamas. In this regard he relied on the judgments reported in Hafiz Abdul Waheed v. Miss Asma Jahangir and another (PLD 1997 Lahore 301) and Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 Supreme Court 95). On the Court query as to whether in the instant case the Investigating Officer can give a finding qua the validity or otherwise of the conflicting Nikahnamas, learned Advocate-General conceded that the Investigating Officer cannot and it is only the Family Court which has the conclusive jurisdiction. He, however, added that the police on the basis of allegations levelled and the material produced can challan the accused. Coming to the question of pre-arrest bail and the manner in which Humaira was apprehended from Karachi he submitted that Humaira had
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misused the concession of bail as she was fleeing abroad and although he would not defend the police officer who conducted the raid to apprehend her yet he would not attribute mala fides to him. On a Court query the Investigating Officer (Abdul Rauf Dogar, S.P., C.I.A.) after some hesitation conceded that as per his investigation the story of abduction as alleged in F.I.R. No.601/98 is false. He further conceded that Nikah of Humaira with Mehmood Butt was registered in the relevant register the same day when the Nikah was performed i.e. On 16-5-1997 whereas in case of Malik Moazzam Ghayas's Nikah with Humaira it was performed on 14-4-1997 and was entered in the relevant register maintained by the concerned union council on 3-7-1998 i.e. After the lapse of more one year and two months. The Court further asked him as to whether he has made any entry of his opinion that the allegation of abduction as given in the F.I.R. Is false, the answer was in the negative and he gave no reason for not entering that finding in the case diary. The Court also asked him as to why the earlier case registered against Mehmood Butt vide F.I.R. No.524/98 P.S. North Cantt., Lahore was cancelled. He replied that the said case was cancelled as false on 29-12- 1998 as during the course of investigation it came to light that no girl by the name of Rabia was ever abducted and in fact it was Humaira who was abducted and that since the complainant Nazir Ahmed was friend of Malik Ali Abbas, a brother of Humaira, he got the case registered by mentioning a fake name of Rabia. 7. Having heard learned counsel for the parties and haviAg gone through the precedent case-law relied upon I am of the view that following questions have been mooted in these petitions:-- "(i) Can this Court give a finding conclusive or interim qua the conflicting Nikah Namas relied upon by the parties if so, to what extent? (ii) Whether Mst. Humaira was abducted as alleged in the F.I.R. No.601 of 1998, Police Station North Cantt., Lahore, if not, can this Court decide this question in these proceedings and quash the case registered vide the F.I.R. Referred to above? (iii) Did respondents Nos.1 and 1-A i.e. Malik Muhammad Ashraf Inspector/S.H.O. And Subah Sadiq, S.I., P.S. North Cantt., Lahore acted malafidely in chasing and apprehending Humaira, Mehmood Butt and his mother, if so, are they liable to any action by this Court in these proceedings? 8. Learned counsel for Humaira has disputed the factum of her Nikah with Moazzam Ghayas by stressing that her Nikah with Mehmood Butt was earlier in time; that the second Nikah with Moazzam was void ab initio, that the thumb-impressions were obtained through coercion and the video prepared purported to be a Nikah ceremony was-actually an attempt to fabricate evidence against the earlier Nikah and there being no date of Rukhsati in it, it does not in any manner advance the case of respondent Moazzam Ghayas qua his claim of earlier Nikah with Humaira. However, before entering into the said controversy it would be pertinent to understand the concept of "consent" and the Institution of Marriage in Islam. 9. It is a settled proposition of law that in Islam a sui juris woman can contract' Nikah of her own free will and a Nikah performed under coercion is no Nikah in law. Instances are not lacking from Hadith and the Islamic history that the consent of a sui juris woman was held to be a sine qua non for a valid marriage in absence of which marriage was declared void. In Tesrul Bari Sharah Sahi Bokhari by Allama Waheeduz Zaman published by Amjad Academy, Lahore at page 113 a case is quoted wherein a woman appearing before the Holy Prophet Muhammad (p.b.u.h.) complained that her marriage (Nikah) had been performed against her consent. The Holy Prophet (p.b.u.h.) annulled the marriage. The ratio laid down in Mohyuddin v. Khadija Bibi (41 Bombay LR 1020) is based on the afore referred command of the Holy Prophet (p.b.u.h.): Syed Ameer Ali, a celebrated Islamic Jurist in his book "The Spirit of Islam" goes on to say that even a King cannot marry his daughter without her consent. ' Another Muslim Scholar Nawab A.M.F. Abdur Rehman in his book "Institutes of Mussalman Law" which is based on Qadri Pasha Mussalman Codes, refers to Article 53 wherein mode of obtaining
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consent has been highlighted and it stipulates that when a girl weeps with sobs at the time of marriage it reflects lack of consent. ' Dr. Tanzil-ur-Rehman in his book "A Code of Muslim Personal Law" at page 67 says that "the second condition for constituting a marriage contract is the consent of the parties to the marriage contract. Marriage contract without the consent of parties is not valid". ' The term "consent" means a conscious expression of one's desire without any external intimidation or coercion. In Jowitt's Dictionary of English Law consent has been defined "Consent supposes three things--a physical power, a mental power, and a free and serious use of them". Similarly in Stroud's Judicial Dictionary (Fifth Edition Volume 1) consent has been defined as "Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance, the good and evil on each side". In the same dictionary it is defined as "It seems to be clear, that approbation subsequent to a marriage is not in general, a sufficient compliance with a condition requiring 'consent', but Lord Hardwick, in Burleton v. Humfrey, Amb. 256, took a distinction between the words 'consent' and 'approbation', holding the latter to admit subsequent approval, where coupled with the former disjunctively, but he decided the case principally on .Another ground--and in regard to the admission of subsequent consent the authority of the case has been questioned". 10. In situations where consent to a marriage is in dispute and a challenge is thrown to a Nikahnama which is being owned by a man and a woman who claim to he husband and a wife then the presumption of truth attaches to the Nikah Nama which is being acknowledged by both the spouses and not by the intervener. In Arif Hussain and Mst. Azra Perveen v. The State PLD 1982 FSC 42 the Court acquitted man and a woman who claimed to be husband and a wife and the only evidence led by them was their own statements and the statement of Nikah Khawan. The complainant in that case was father of the girl. Similarly in Mst. Nasreen Akhtar v. The State 1994 PCr.LJ 2016 the claim of a man and a woman being husband and wife and the Nikah Nama on the police file was found to be a complete defence and both were acquitted. In Hafiz Abdul Waheed v. Ms. Asma Jahangir and another PLD 1997 Lah. 3021) a Full Bench of this Court allowed a sui juris girl to go with the husband of her choice notwithstanding the fact that the father was complainant. Marriage with woman during the subsistence of her earlier marriage with some other man is illegal and void. Section 34 of the "Code of Muslim Personal Law" specifically caters to this situation. In a judgment reported in ILR 15 Allahabad page 396, a Nikah during the subsistence of an early Nikah was declared as void. 11. The material brought on record if examined in the light of the afore-referred principles of the Islamic Jurisprudence and the precedent case-law would prima facie indicate as follows:-- "(a) that as per the "Parat Nikah" (the document which is prepared when marriage takes place) and the register maintained for registration of Nikahs, the Nikah of Humaria with Mehmood Butt was performed on 16-5-1997 and is entered the same day at Serial No.414 of Register Nikah Halqa No.72, Model Town Lahore. Witnesses to the said Nikah including the Nikah Khawan have not only testified to the said fact before this Court but also before the Investigating Officer. As against the afore-referred Nikah Nama which admittedly is being owned by Mst. Humaira and Mehmood Butt the counter Nikah evidencing Moazzam Ghayas's Nikah with Mst. Humaira has following aspect which prima facie create a doubt in its authenticity of being prior in time or having been performed with Mst. Humaira's consent:-- (i) this Nikah as claimed by Moazzam Ghayas complainant was performed on 14-4-1997 but there is no corresponding entry in the Nikah Register of the said Union Council on the said date. In fact the registration of Nikah is one year and two months latter in time i.e. 3-7-1998 at Serial No.122, Union Council, Piplipahar; (ii) a video film of the afore-referred ceremony was produced by Ch. Muhammad Hussain Chhachhar, Advocate and on his request it was seen in the Chamber in the presence of learned
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counsel for both the parties, Humaira and the Investigating Officer. Humaira was seen weeping and sobbing during the ceremony and as per his statement before this Court her sobs and cries could be heard by the persons sitting around her. On a Court query she explained that her cries and sobs were manifestation of her lack of consent in the performance of Nikah.. This aspect of her statement was not challenged by the learned counsel for the respondent. When a woman cries and sobs as per Article 53 of the. Institutes of Mussalman Law referred to above, it reflects lack of consent on her part. She was not wearing any bridal jewellry and Moazzam Ghayas also appeared to be tense and without head-cover (Sehra) which is generally worn by the bridegrooms. The person who is shown to be performing Nikah is admittedly Maulvi Nazir Ahmad whereas in Nikah Register the Nikah is supposed to have been performed by Qari Noor Muhammad whose signatures are there on the Nikah Register. This fact was admitted even by the Investigating Officer present in Court. The "Nikah Khawan" in the video never signed the Nikah Nama; (iii) there is no scene in the video showing Humaira putting her thumb-impressions in token of her consent; (iv) according to Humaira her thumb-impressions were forcibly obtained prior to the ceremony under threat and coercion and she never signed the Nikah Nama. But the prosecution claims that the Nikah Nama which has been placed on record bears her signatures. According to the Investigating Officer he obtained her twenty-seven specimen signatures and a copy of which has been on record as Mark-A. This Court also directed her to give her specimen signatures which she did which have been placed on record as Mark-B. On a perusal of her specimen signatures with those of the signatures on the Nikah Nama there is apparent dissimilarity not only in , spelling but also otherwise. This question was specifically put to Mr.M. Iqbal Ithichi, Assistant Advocate-General who conceded about the apparent dissimilarity but suggested that the matter may be referred to the Handwriting Expert; (v) there is no scene in the video of her departure from her parents' house indicating 'Rukhsati'. No bridal room is shown to show husband and wife sitting together. This prima facie endorses her contention that no 'Rukhsati' took place as they could not persuade her to do that. According to her she had told her parents in clear terms that she was already married to Mehmood Butt and that even a copy of the Nikah Nama dated 16-5-1997 was given to her father through one of his friends named Azam but despite that according to her a drama was arranged to show her Nikah with Moazzam Ghayas and when at a latter stage she was being forced for a formal ceremony of 'Rukhsati' she left the aouse and joined her husband Mehmood Butt whereafter she was chased and a case was registered quashment of which is sought. (vi) during the video screening she had challenged Ch. Muhammad Hussain Chhachar, Advocate/learned counsel for Moazzam Ghayas to produce any Invitation Card to show any reception held by the bridegroom (Valima Reception) to which learned counsel had no answer. Prima facie, it does not appeal to reason that the marriage of the only daughter of a Member of the Provincial Assembly who is a local landlord should be held in such a simple manner without any invitation card, without the bride wearing any bridal dress or jewellery, a bridegroom without head- cover (Sehra) and a tension writ-large on his face and again it is surprising that the entry of the Nikah of the daughter of such a local political high-up should not be entered in the relevant register for a period of one year and two months. (b) As Mst. Humaira and Mehmood Butt have owned Nikah Nama dated 16-5-1997, a presumption of valid marriage would arise in their favour in view of section 268(c) of Mohammadan Law (by D.F. Mulla) as also in view of the law laid down by the Federal Shariat Court in Arif Hussain and Azra Perveen v. The State PLD 1982 FSC 42 which in terms of Article 203-GG of the Constitution is binding. If Moazzam Ghayas wishes to throw a challenge he has to go to the Court of plenary jurisdiction i.e. The Family Court to have a conclusive finding.
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(c) Writ Petition No.420 of 1999 was admitted to regular hearing and learned counsel for Moazzam Ghayas while accepting its notice undertook to file written statement/reply. In despondence to a challenge thrown by Mst. Humaira that Moazzam should appear to vouchsafe for his claim to be her husband, his learned counsel agreed that he will appear on the next date but neither the written statement was filed nor Moazzam Ghayas ever appeared to testify on Oath about the factum of Nikah. Learned counsel for the respondent even went to the extent of saying that he was present in Court premises but he prayed that he be excused from his appearance in Court. I was surprised at the stand taken by the learned counsel. However, as the learned counsel had not even filed written statement this Court was of the view, that let the law take its own course. If a party chooses not to file a written statement then the averments made in the petition are admitted to be true." ' In Muhammad Rashid v. Collector etc. PLD 1978 Lahore 1370 arguments of the counsel for the respondent were not even entertained in absence of a written statement or a counter-affidavit and the writ was allowed. The ratio laid down in the following case-law is to the same effect:-- (i) Haji Wali Muhammad v. M.B.R. (PLD 1984 Quetta 131) a DB Judgment, and (ii)…
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