W.P.No.

19045-2011 -1-

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Writ Petition No. 19045-2011

Muhammad Sher. Vs Addl.Sessions Judge/JOP,etc.

Date of hearing: 11.09.2015

Petitioner by: Ch. Ghulam Farid Sanotra, Advocate

State by: Ch. Iftikhar Iqbal Ahmad, A.A.G.

Respondents: Malik Muhammad Azam Awan, Advocate.

JUDGMENT

Hafiz Shahid Nadeem Kahloon, J: Through this writ petition

under Article 199 of the Constitution of Islamic Republic of

Pakistan, 1973, the petitioner has challenged the vires of order

dated 21.06.2011 passed by learned Ex-Officio Justice of Peace

(Addl: Sessions Judge) Khushab, whereby the application made by

the petitioner under Section 22-A & 22-B Cr.P.C. seeking direction

for registration of a case against respondents No.3 to 6 was

dismissed.

2. The brief facts as narrated in the petition under Section 22-A

& 22-B Cr.P.C. for the registration of criminal case against

respondents No.3 to 6 moved by petitioner before Ex-officio Justice

of Peace, Khushab, are that on 01.05.2011 they abducted Mst.

Farzana Bibi, daughter of the petitioner and also took away gold

ornaments weighing 5-tolas & net cash of Rs.50,000/- with them

from the house of the petitioner. It is note worthy that Mst. Farzana

Bibi was earlier married with one Muhammad Sarwar, who

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divorced her on 06.02.2011. Whereupon She contracted second

marriage with one Mujahid Iqbal (respondent No.3) without

observing the period of Iddat on 02.05.2011, therefore said Mujahid

Iqbal is committing zina with his daughter (Mst.Farzana Bibi), but

the learned Ex-officio Justice of Peace after procuring the report

from the police, dismissed the application of the petitioner vide

impugned order dated 21.06.2011. Hence, the instant writ petition.

3. The learned counsel for the petitioner submits that according

to the contents of petition filed before the learned Justice of Peace,

clearly cognizable offence was made out as during the period of

Iddat, no second marriage can be solemnized and as such Nikah

would not be valid rather void and the result of illegal cohabitation.

Further submits that it is settled law that when the information

regarding the commission of cognizable offence is given to police

officer, he is duty bound to register a case, but in this case, the

police officer has failed to perform his statutory duty and learned

Ex-officio Justice of Peace was erred in law by dismissing the

petition without any lawful justification, therefore, the same is not

sustainable in the eye of law and is liable to be set-aside. Learned

counsel for the petitioner in his support referred case law “Mst.

Sughran. Vs. Station House Officer,etc.” (2004 Y.L.R. 1229), “Fatima

Bibi. Vs. Station House Officer,etc.” (PLD 2005 Lahore 126) & “Mst.

Kundan Mai. Vs. The State.” (PLD 1988 Fedeeral Shahriat Court 89).

4. The learned Assistant Advocate General assisted by learned

counsel for the respondents has opposed the contention of learned

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counsel for the petitioner by arguing that no one had abducted Mst.

Farzana Bibi, who being sui juris contracted second marriage after

elapsing the period of Iddat as her first husband namely

Muhammad Sarwar divorced her on 06.02.2011 as is evident from

the Talaq-nama which is annexed with this writ petition. Further

argued that Mst. Farzana Bibi, the alleged abductee also got her

statement recorded on oath, whereby she negated the contention of

the petitioner and as such the lady who contracted the second

marriage knows better whether she is in a position to contract

marriage as per period of her menstruations, because three

menstruations are essential to fulfill the requirements of Iddat.

Therefore, learned Ex-officio Justice of Peace has rightly passed

the well reasoned order, which does not suffer from any illegality

and infirmity.

5. Arguments heard and record perused.

6. Perusal of record shows that allegedly on committing the

offence, the petitioner moved an application to local police, but

could not get the FIR registered. There-after he moved a petition

under Section 22-A & 22-B Cr.P.C. before learned Ex-officio

Justice of Peace, who after procuring the report passed the

following order:-

“Mst. Farzana Bibi is a sui juris has contracted marriage with

her free consent after obtaining a decree for dissolution of
marriage. So far as contention of the petitioner is concerned,
she contracted second marriage during the period of Iddat. In
this regard, there is conflict of vexes and the lady who
contracted the marriage knows better whether she is in a

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position to contract marriage keeping in view the period of her

menstruation. In view of above, this application having no
merit is hereby dismissed.”

7. It has been observed by this Court that no one has abducted

Mst. Farzana Bibi, daughter of the petitioner, who was divorced

lady and being sui juris contracted second marriage with her free

will & consent and against the wishes of her father as according to

alleged abductee, her father was forcing her to contract second

marriage with another person of his choice. As per alleged

abductee, she was not in a Iddat period, when she contracted second

marriage. On the other hand, according to the petitioner, Mst.

Farzana Bibi without completing the period of Iddat, contracted

second marriage, which is illegal and she is committing zina, but I

am of the view that according to Injunction of Islam, Holy Quran

and Sunnah, three menstruations are essential to complete the

period of Iddat and the divorcee lady is best judge, who has

knowledge or ascertain the same.

8. In Para No.2, Surah Al-Baqarah, Verses No.228 of Holy

Quran, it has been stated by Almighty-Allah as under:-

“The divorced women shall wait concerning themselves for

three menstrual periods and it is not lawful for them to hide
what Allah has created in their wombs, if they believe in
Allah and the Last Day. And their husbands have the better
rights to take them back during that period provided they
desire reconciliation. And women have rights similar to
those (of their husbands) over them (as regards obedience
and respect) in a just manner, but men have a degree (of
responsibility) over them. Allah is All mighty, wise about
all things.”

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9. It is settled Islamic law that the marriage entered into

divorced lady before the completion of Iddat period would be

irregular marriage and not void marriage as per law laid down in

Mullah’s Muhammadan Law. Marriage which is irregular cannot be

treated as void marriage. The union of husband & wife in irregular

marriage cannot be regarded against un-Islamic or Shariah. Alleged

female accused having been divorced by previous husband if

produced divorce-deed, would be valid when previous husband has

not come forward to deny or dispute the validity of “Talaq-nama”.

In this regard reliance can be placed in case reported as “Shaukat

Ali, etc. Vs. The State” (2004 Shahriat Decisions 190).

10. Even other-wise, Injunction of Islam with regard to the validity

of marriage shall prevail for the propose of ordinance, 1979 over the

existing law. Reliance can be placed in this regard “Allah Dad Vs.

Mukhtr and another.” (1992 SCMR 1273). Wherein it has been held

as under:-

“Remarriage of a woman requires a period of “Iddat”

for 39-days. The period of “Iddat” laid down by the Holy
Quran is not 90-days. It is rather three periods of
menstruations which do not necessary extend to 90-days.
According to Hanifi Jurists the minimum period of
menstruation is 3-days and the minimum period of “Tuhr”
(period of purity) is 15-days. In the light of these
principles, the minimum period of “Iddat” may 39-days
because this is the period in which it is possible for a
woman to have three menstruations with two intervening
period of purity.”

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It is, thus, clear that a marriage performed after 3-

menstruations period from the divorce, can be a valid marriage

according to Shariah.”.

11. Moreover, the learned counsel for the petitioner could not

point out any legal and factual infirmity in the impugned order

passed by learned Ex-officio Justice of Peace and also could not

refute what has been stated in the police report and parawise

comments furnished by the police. In such circumstances, learned

Ex-officio Justice of Peace has rightly passed impugned order after

considering the real facts on every aspect of the case and thorough

probe the matter. Citations referred above by the learned counsel

for the petitioner are not applicable to the facts and circumstances

of the present case.

Resultantly, the impugned order dated 21.06.2011 passed

by learned Justice of Peace is in accordance with law & same is

hereby up-held and instant writ petition being devoid of any merits

is hereby dismissed.

(Hafiz Shahid Nadeem Kahloon)

Judge
(Approved for Reporting)

Judge

*R.Yousaf