IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. / 2004

Muhammad Shoaib
S/o Mehmood-ul-Hassan,
Muslim, Adult, R/o House No. A-767,
North Nazimabad, Karachi.-------------------------------PETITIONER

VERSUS

1. Mst. Fouzia
D/o Umar Daraz Khan,
Muslim, Adult,
i) R/o H. No. 77-P,
Block 6, PECHS, Karachi.

ii) H. No. A-474, Block 5,

Gulshan-e-Iqbal,
Karachi.

2. Baby Javeria Shoaib

D/o Huhammad Shoaib,
Through her mother,
Mst. Fouzia

3. IInd Civil & Family Judge

Karachi, South.

4. District & Session Judge,

Karachi South.-------------------------------------RESPONDENTS

CONSTITUTIONAL PETITION UNDER ARTICLE 199 OF THE

CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN

That the petitioner abovenamed respectfully begs to

submit as under:--

1. That the petitioner has got no other alternate

affections, adequate remedy except to invite the

 extra ordinary Constituted Jurisdiction of this

Hon’ble Court.

2. That the abovenamed petitioner has not concealed or

suppressed any facts from this Hon’ble Court.

3. That the appellant and respondent No. 1 had married at

Karachi on 15-01-1994, according to Muslim

personal Law, to which dower the amount was fixed

Rs. 51000/- i.e. half deferred and half promts, and

the dower amount was paid by the appellant to the

respondent No. 1 Photocopy of Nikahnama is

attached herewith and marked as annexure “B”.

4. That after Rukhsati the appellant with respondent No.1

live together as husband and wife at the ohouse of

Appelant’s parents at House No. A-929, Block H,

North Nazimabad Karachi, happily.

5. That the appellant treated the respondent No. 1 with

care love and affection with core of his heart and

maintain the respondent No. 1 had liberty to move

and meet with her parents, relatives and friends at

all reasonable time and occasion from time to time.

6. That from the said wedlock one baby Javeria Shoaib

(Respondent No. 2) was born 02-03-1996, and now

she is at the age of nine years and

7. That the petitioner and the respondent No.2 are

husband and wife in violation where as the

 respondent No.1 is family Court who passed the

impugned order against the ______ facts which

admittedly on the facts and grounds is patently

illegal, unlawful, void, ultra-vires arbitrary without

affording any opportunity of hearing to the

petitioner.

8. That the respondent No.1 filed a family suit No.

965/2003 before the learned family Judge IInd

Karachi, East on 24-07-2003 for granting the Khula

to the respondent No.2, which is registered & then

after adjourn the case was fixed for hearing to 25-

08-2003.

Contd/3
 3

9. That the respondent No.2 did not filed proper postal

address of the petitioner, however on the direction

of the Court to file fresh address the respondent

No.2 filed fresh address of the petition as per diary

sheet dated 04-09-2003.

10. That according to the Diary Sheet the advocate of

the respondent No.2 filed a publication application

on 23-09-2003, which was fixed for 16-11-2003.

11. That the learned respondent No.1, granted time as a

last chance on 04-12-2003.

12. That as the written statement could not be filed on

16-12-2003, therefore the learned respondent No.1

order to file exparte proof to the respondent No.2

on 08-01-2004.

13. That on 16-12-2003 at 14 hours the petitioner ’s

advocate filed the written statement and the learned

trial Court ordered to be putt to 08-01-2004

alongwith exparte order.

Contd/4
 4

14. That according to the Diary Sheet dated 16-12-2003,

the written statement was taken on record and was

filed for 08-01-2004 when the exparte proof yet to

be filed on 08-01-2004, through the written

statement was submitted on 16-12-2004 in

compliance to the order of the learned trial Court on

16-12-2004 and the written statement was order by

the learned trial Court to be put off on 08-01-2004

when no exparte proof was available on the file of

the Court yet the trial Court failed to assess and

take notice of the fact that the written statement

was submitted on 16-12-2004, according to the

order of the trail Court and the trial Court herself

order to be place the written statement on 08-01-

2004 and the act of the Court must have taken the

written statement towards the Judicial process but

the Court has failed to exercise the Judicial power

and on the other hand arbitrary decreed the suit

instead of proceeding the case according to the

family Court Act.

15. That on 08-01-2004 the petitioner being aggrieved

and to get the proper and fair relief engaged fresh

Contd/5
 5

advocate and through their advocate filed an

application U/s 8 Sub Section 1(b) and Sub Section

6 of the Family Court Act 1964.

16. That the learned Trial Court taken the application

on record and ordered to issue to the process to the

other side on cost and the notices were issued to the

other side according to the Diary Sheet dated 10-02-

2004, 25-02-2004 and 17-03-2004.

17. That the petitioner had been deposited the cost

constantly and the respondent No.2 and her

advocate knowingly, deliberately, with ulterior

motive and intentionally did not choice to appear

before the Court as the respondent No.2 and her

advocate has been appearing in the Court before the

same Court further the petitioner has also moved an

application for consolidation of both the proceeding

in the interest of justice and fair play and in

requirement of law, but the learned presiding officer

did take notice of such legal aspect, which showed

had been taken by the Court, the respondent

Contd/6
 6

was appearing in the same Court in family Suit No.

__________ and service was good held upon the

respondent No.2 implied, but the respondent No.2

choice to remain absent to appear for hearing on the

above moved application and the learned trial Court

miserably failed to asses the above situation and

passed a arbitrary order on the above application of

the petitioner which available in the diary sheet of

dated 21-04-2004.

18. That the petitioner ’s advocate again filed another

application for restoration of order dated 21-04-

2004 on the same date bringing the actual facts

before the Court again the hasty and non heard

orders of the learned trial Court.

19. That through the family Suit No. ___________ was

proceeding on hearing in the same Court and the

instant suit was also proceeding for hearing in the

same Court and the plaintiff of suits Nos________

and ______________ was watching the proceedings

out of the Court to defeat the justice of learned trial

Court and it was in the knowledge the learned trial

Contd/7
 7

Court that plaintiff is appearing in one cse where as

avoiding to appear in the other case, deliberately,

intentionally even though the learned trial court did

not take notice and again dismiss the application of

the petitioner on 03-07-2004.

20. That the petitioner again filed another application

on 28-07-2004 for restoration of the first

application which was dismissed on 03-07-2004.

21. That the petitioner ’s advocate appeared before the

Court on 01-09-2004 and argument the case at

length in which the petition’s advocate argued that

the learned trial Court was failed to take into

consideration the W/S of the petitioner and

thereafter the learned trial Court has to arrange the

pretrial and then has to frame the issue and after

framing of issues the trial Court of issues the trial

Court has to proceed with the evidence and even

after all the above proceeding, a post trial has to be

proceeded by the learned trial and the most

important think which was brought in

the knowledge of the learned trial court, that other

Contd/8
 8

pending case No. ________ was to be fixed with

hearing of this application and family suit but the

learned trial Court failed take notice of the above

facts and law and pray much pleased to pass an

arbitrary order without hearing of the first two

application those should have been disposed after

hearing of the petitioner hence has left unheard on

the above two application and further the lastly

application is heard lastly without applying judicial

mind which was also dismissed, hence this petition

on the following grounds:

GROUNDS

1. That the petitioner is left unheard.

2. That the petitioner cannot be penalized by the act of

the Court.

3. That the improper order is arbitration without

applying the Judicial Mind.

4. That the impugned order requires that a pretrial and

post trial chance was to be given to the petition

which is admittedly not given to the petitioner.

Contd/9
 9

5. That whole proceeding is against the procedure, law

and rules and the learned trial Court has failed to

adopt the require procedure law while deciding the

decree.

6. That in any case, the impugned order / judgment are

bad in law and on facts being erroneous are liable to

be set aside in the interest of justice.

PRAYER

In the light of above facts and circumstances, it

is respectfully prayed on behalf of the petitioner

abovenamed that this Hon’ble Court may

graciously be pleased to set aside the impugned

order passed by the learned trial Court, in the

interest of justice:

Karachi:
Dated: -12-2004 PETITIONER

ADVOCATE FOR THE

PETITIONER

Contd/10
 10

V E R I FI CAT I O N

I, Muhammad Hanif S/o Haji Haroon, Muslim, Adult,

petitioner in the above titled petitioner, R/o Karachi

do hereby and state on this ___ day of January 2005,

at Karachi on Oath and verify the contents of the

above paras, say the same are true to the best of my

knowledge and belief.

Karachi:

Dated: -01-2005 DEPONENT

Identified by me.

AD V O CAT E

Sworn before me on Oath at Karachi by the deponent

abovenamed who is identified by me Mr. Merajuddin Ensare,

Advocate who is known to me personally.

COMMISSIONER FOR TAKING AFFIDAVITS

 IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. / 2006

Moin Ahmed ----------------------------------------------PETITIONER

VERSUS

Union Council No. 8,

Saddar Town, Karachi-----------------------------------RESPONDENT

AFFIDAVIT

I, Moin Ahmed S/o Syed Mehboob Shah, Muslim, Adult,

resident of Karachi, do hereby state on oath affirmation as

under:-

1. That I am petitioner as well as deponent of this

affidavit, as such am fully conversant with the facts.

2. That the accompanying Constitutional Petition is

drafted under my specific instructions, contents

whereof are true and correct to the best of my

knowledge and may be treated as part and parcel of

this affidavit for the sake of brevity.

3. That neither I have made any false statement nor has

concealed any fact from this Hon’ble Court.

Contd/2
 2

4. That whatsoever has been stated above is true and correct to the

best of my knowledge and belief.

Karachi

Dated: -07-2006 Deponent

Identified by me

Advocate

Solemnly affirmed before me at Karachi on this ____ day of

July, 2006 by the deponent abovenamed, who is identified to me by

Mr. Saathi M. Ishaque Advocate, who is known to me personally.

COMMISSIONER FOR TAKING AFFIDAVIT

 IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. / 2004

Muhammad Hanif ---------------------------------------PETITIONER

VERSUS

IInd Civil & Family Judge,

Karachi, East & another -------------------------------RESPONDENT

LIST OF LEGAL HEIRS OF PETITIONER

1.

2.

3.

4.

In case the death of the petitioner, the legal heir mentioned in

Sr.No.1, shall appear in this Hon’ble Court.

Karachi
Dated : / 01/2005 ADVOCATE FOR THE PETITIONER
 For immediate use in Court
On behalf of the Petitioner.

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. / 2006

Moin Ahmed ----------------------------------------------PETITIONER

VERSUS

Union Council No. 8,

Saddar Town, Karachi-----------------------------------RESPONDENT

APPLICATION FOR EXEMPTION

For the facts and reasons disclosed in the accompanying

affidavit, it is most respectfully prayed on behalf of the

Petitioner abovenamed that this Hon’ble Court may

graciously be pleased to exempt the petitioner for filing

original / Certified Copies of the Annexures ___ to ___

with the memo of petition, as few of the same are not

available at the moment and the same will be produced

before this Hon’ble Court.

The prayer is made in the interest of justice.

Karachi:
Dated: -07-2005 Advocate for the Petitioner
 For immediate use in Court
On behalf of the Petitioner.

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. / 2006

Moin Ahmed ----------------------------------------------PETITIONER

VERSUS

Union Council No. 8,

Saddar Town, Karachi-----------------------------------RESPONDENT

AFFIDAVIT

I, Moin Ahmed S/o Syed Mehboob Shah, Muslim, Adult,

resident of Karachi, do hereby state on oath affirmation as

under:-

1. That I am petitioner in the above titled suit and

deponent of this affidavit, as such am fully conversant

with the facts of the matter deposed to below.

2. That the accompanying application for exemption

from filing original / certified copies of the annexures

with the memo of plaint has been drafted and filed under

my instructions & on my behalf and the contents whereof

are true and correct and the same alongwith contents of

the memo of plaint may please be treated as part of this

affidavit for the sake of brevity.

Contd/2
 2

3. That I say that originals/certified copies of few

annexures of memo of plaint in my above titled suit are

not available with me and I will produce

originals/certified copies of the annexures ___ to ___
before this Hon’ble Court.

4. That I say that until and unless my accompanying

application is granted as prayed, I will be seriously

prejudiced and shall suffer irreparable loss.

5. That whatever stated above is true and correct to the

best of my knowledge and belief.

Karachi:
Dated: -07-2006 DEPONENT
Identified by me.

ADVOCATE

Sworn before me on Oath at Karachi by the deponent abovenamed

who is identified to me by MR. SAATHI M. ISHAQUE Advocate,

who is known to me personally.

COMMISSIONER FOR TAKING AFFIDAVITS

 IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. / 2006

Moin Ahmed ----------------------------------------------PETITIONER

VERSUS

Union Council No. 8,

Saddar Town, Karachi-----------------------------------RESPONDENT

APPLICATION U/O 9, CHAPTER 3-A, VOLUME –5,

HIGH COURT RULES AND ORDER.

For the reasons disclosed in the accompanying affidavit, It is

respectfully submitted on behalf of the petitioner abovenamed that

this Hon’ble Court may be pleased to take up the above petition as an

urgent motion and place the same in the Court or in the chamber on

or before _____________ in view of the urgency of the matter.

The prayer is made in the larger interest of justice.

Karachi:

Dated: -07-2006 Advocate for the Petitioner

 For immediate use in Court
on behalf of the petitioner.

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. / 2006

Moin Ahmed ----------------------------------------------PETITIONER

VERSUS

Union Council No. 8,

Saddar Town, Karachi-----------------------------------RESPONDENT

AFFIDAVIT

I, Moin Ahmed S/o Syed Mehboob Shah, Muslim,

Adult, resident of Karachi, do hereby state on oath

affirmation as under:-

1. That I am petitioner in the above titled suit and

deponent of this affidavit, as such am fully conversant

with the facts of the matter deposed to below.

2. That the accompanying Urgent application has drafted and

filed under my specific instructions, the contents whereof are

true and correct to the best of my knowledge and may be

treated as part and parcel of this affidavit.

3. That I say that unless the accompanying application is granted the

petitioner / accused shall be seriously suffer and irreparable

losses.

Contd/2
 2

4. That whatever stated above is true and correct to the best of my

knowledge and belief.

Karachi:
Dated: -07-2006 DEPONENT
Identified by me.

ADVOCATE

Sworn before me on Oath at Karachi by the deponent abovenamed

who is identified to me by MR. SAATHI M. ISHAQUE Advocate,

who is known to me personally.

COMMISSIONER FOR TAKING AFFIDAVITS

 IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. / 2004

Muhammad Hanif ---------------------------------------PETITIONER

VERSUS

IInd Civil & Family Judge,

Karachi, East & another -------------------------------RESPONDENT

INDEX

S.NO. PARTICULARS ANNEXURES PAGE

1. Memo of Petition.
Alongwith Affidavit
2. Copy of Application
Sent to the SHO
P.S. S.I.T.E., Karachi ‘A’

3. Copy of Misc. Appl.

U/s 22-A. ‘B’.

4. Certified Cop of
Call Report. ‘C’

5. Certified Copy of Order

Dated 05-11-2004 ‘D’

6. Copy of Affidavit
of Witnesses ‘E & F’

7. Urgent Application
Alongwith affidavit.

8. Exemption Application
Alongwith affidavit.

9. Vakalatnama.

Karachi:
Dated: -12-2004 Advocate for the Petitioner.
 IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. / 2004

Muhammad Hanif ---------------------------------------PETITIONER

VERSUS

IInd Civil & Family Judge,

Karachi, East & another -------------------------------RESPONDENT