IN THE HIGH COURT OF SINDH

AT KARACHI

Constitution Petition - S # /2003

Mst. Beenish Arif ………………………………….…………….Petitioner
VERSUS
Syed Mustafa saqib and another ………………….………Respondents

INDEX
S .No DESCRIPTION ANNEXED PAGES
From to
1. Memo of Petition 1-
2. Copy of Plaint A
3. Copy of W/S B
4. Copy of Order C
5. Exemption App. & aff
6. Stay App. & affidavit
7. Urgent App. & aff
8. Power of Attorney
9. Vakalatnama

Karachi.
Dated: 25-02-2003 Advocate for the petitioner
 IN THE HIGH COURT OF SINDH
AT KARACHI

Constitution Petition - S # / 2003

Mst Beenish Arif daughter of

Arif Hussain, Muslim adult,
resident of House # B-110,
Block-7, Gulistan-e-Johar
Karachi …………………………..………….petitioner

VERSUS
1. Syed Mustafa Saqib son
of Syed Ali Haider, Muslim
adult, Resident House # B-116,
Sector 11-B, North Karachi.

2. Civil and Family Judge

Court # I Karachi East
City Courts Karachi ………………………………………….Respondents

CONSTITUTION PETITION UNDER ARTICLE 199 OF THE

CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

The petitioner above named begs to submit as under:-

1. That the petitioner was married to respondent # 1 at Karachi in

the year 2001, against dower amount in the sum of RS. 1,00,000/-, as
deferred, still unpaid.

2. That after the Nikkah, no Rukhsati took place and the marriage
has not been consummated between the parties. The respondent # 1 is
serving in USA. The petitioner has also relative in USA and she has
been going there in order to see her aunt and during her stay there,
 the respondent # 1, having come to see the petitioner and both had
different meetings at different places. The petitioner during the
meeting with the respondent # 1, felt that he is man of suspicious,
proud and is man of immoral character as he has no respect for the
petitioner and specifically for her parents. The respondent # 1 is so
advance in disliking to the parents of the petitioner that on each and
every talk unnecessarily he abuses the brothers and sisters of the
petitioner.

3. That the petitioner filed a suit for dissolution of marriage bearing

Family Suit # 1349/2002 against the respondent #1 before respondent
# 2. The respondent # 1 filed written statement. (Photo state copy of
plaint and written statement are appended herewith and marked as
‘A’ and ‘B’).

4. That at pre-trial stage petitioner as well as respondent # 1

appeared before respondent # 2 along with their respective counsels.
The petitioner and respondent # 1 was called in chamber by
respondent # 2, but advocates were not allowed to be present at the
time of pre-trial.

5. That the respondent # 2 made efforts for reconciliation between

the parties but efforts could not succeed and pre-trial was declared to
be failed.

6. That the respondent # 2 in view of promulgation of proviso of

Section 10 of Family Courts Act, 1964 was bound to dissolve the
marriage and decree the suit forthwith but he has framed issues and
matter has been adjourned for recording evidence, hence this Const.
Petition . (Certified copy of order/dairy sheet dated 7-02-2003 are
appended herewith and marked as ‘C’).

GROUNDS.

1. That the impugned order passed by respondent # 2 annexed above

and marked as ‘C’ is capricious, whimsical, despotic, imperious,
arbitrary, on the point of law as well as facts and is exposed to be set
a side

2. That since pre-trial was failed respondent # 2 was supposed by law to

dissolve the marriage forthwith and framing of issues and adjourning
 the matter for recording evidence is illegal and without lawful
authority.

3. That the respondent # 2 has exercised power beyond the limit of law
and not allowing the advocates to be present at the time of pre-trial
as is violation of Section 10 (2) of Family Courts Act, 1964.

Section 10 (2) of Family Courts Act, 1964 read as under

“On the day so fixed the court shall examine the plaint, the written
statement(if any)and the precise of evidence and documents filed by
the parties and shall also, if so deems fit, hear the parties and their
counsels”

4. That order annexed with the petition marked as ‘C’ is impugned

order of this constitution petition

5. That the petitioner has not filed any other petition/proceeding against
the impugned order before any court including this Honorable Court.

6. That there is no other adequate remedy available to the petitioner to

set a side the impugned order and seeks declaration that not allowing
the counsel to be present along with their clients in pr-trial is illegal
except by way of this constitution petition as neither appeal nor
revision can be filed against any interlocutory order passed by
respondent # 2 .

7. That with the leave of this Honorable court other grounds shall urged
at the time of hearing of this constitution.

PRAYER

The petitioner therefore prays that this Honorable Court may be

pleased to issue writ / direction as under:-

a) To set a side the order dated 07-02-2003, annexed with the petition
amrked as ‘C’, passed by responded # 2 in Family Suit # 1349/2002
and declare that marriage between the petitioner and respondent # 1
as pre-trial failed stand dissolve and consequently decree Family Suit
# 1349/2002.

b) To declare that after pre-trial failed settlement of issues and calling

evidence in family Suit # 1349/2002 by respondent # 2 is illegal,
without lawful authority and having no legal affect.

c) To declare that the act of respondent # 2, not hearing the counsels of

the parties and only hearing of parties alone in pre-trial is illegal,
abio initio and without lawful authority. Or
 To direct the respondent # 2, to hold pre-trial again according to
Section 10 (2) ) of Family Courts Act, 1964 and dissolve the marriage
between the parties and decree Family Suit # 1349/2002 forth with if
pre-trail fails

d) Any other equitable relief (s) as this Honorable Court may deem fit
and proper under circumstances of this constitution petition.

Petitioner

Advocate for the petitioner

V E R I F I C A T I O N.

I Mst. Beenish Arif daughter of Arif Hussain, Muslim adult, resident

of House # 110, Block-7, Gulistan-e-Johar, Karachi / Petitioner do
hereby verify on oath that what ever stated above is true and correct
to the best of my knowledge, information and belief .

Deponent
The deponent above name is identified by me.

Advocate
Stated on oath before me by the deponent above named at Karachi, on this 22 nd
day of February, 2003, the deponent is identified to me by Mr. Muhammad Imran
Butt, advocate, who is personally known to me.

Commissioner for taking affidavit.

Documents filed upon : Document ‘A’ to ‘C’.

Documents relied upon : All necessary documents including
the above to prove the case of petitioners

Address of petitioners As given in the memo of petition

for service:

Address for service of Aashar Law Associates,

Petitioner’s counsel 19, 20, Mezzanine Floor, Al-
Burhan Center, Saddar, Karachi.
 7233100, 7236986, Fax-021-
7221264.
 IN THE HIGH COURT OF SINDH
AT KARACHI

Constitution Petition - S # /2003

Mst. Beenish Arif ………………………………..…………….Petitioner

VERSUS
Syed Mustafa saqib and another …………………………Respondents

C.M.A. # /2003

APPLICATION UNDER SECTION 151

CODE OF CIVIL PROCEDURE, 1908

On consideration of facts and grounds, incorporated in the

accompanying affidavit, it is most respectfully prayed on behalf of the

petitioners above named that this Honorable Court may kindly be

pleased to exempt the petitioner from filing certificate copies/originals

of documents annexed-A and B due to urgency and admitted

documents .

Prayer is made most earnestly in the interest of justice and equity.

Karachi Advocate for the petitioner.

Dated: 25/02/2003.
 IN THE HIGH COURT OF SINDH
AT KARACHI

Constitution Petition - S # /2003

Mst. Beenish Arif ……………………………… …………….Petitioner

VERSUS
Syed Mustafa saqib and another …………………………Respondents

AFFIDAVIT

I, Mst. Beenish Arif daughter of Arif Hussain, Muslim adult, resident

of House # 110, Block-7, Gulistan-e-Johar, Karachi, do hereby state
on oath as under: -
1. That I am petitioner in the above matter as such am fully conversant with the facts
there of and able to depose the same.
2. That the accompanying application under section 151 Code of Civil Procedure
has been drafted and filed by my counsel under my specific instructions, contents
there in are true and correct to the best of my knowledge, information and belief.
3. That presently original/certified copies of documents annexed A and B are not
available to me and matter is of urgent nature so exemption has been prayed in
the interest of justice and equity.
4. That I shall be seriously prejudiced and shall suffer an irreparable loss, until
accompanying application is allowed.
5. That whatever stated above is true and correct to the best of my knowledge and
belief.

Karachi
Dated: 25-02-2003. DEPONENT.

Identified by me.

Advocate.
Stated on Oath before me by the deponent above named at Karachi, on this 25 th
day of February, 2003, the deponent was identified to me by Mr. Muhammad
Imran Butt, Advocate, who is personally known to me.

Commissioner for taking affidavit.

 IN THE HIGH COURT OF SINDH
AT KARACHI

Constitution Petition - S # /2003

Mst. Beenish Arif ………………………………..…………….Petitioner

VERSUS
Syed Mustafa saqib and another …………………………Respondents

C.M.A. # /2003

APPLICATION UNDER ORDER XXXIX

RULE 1 & 2 READ WITH SECTION 151
CODE OF CIVIL PROCEDURE, 1908

It is submitted that this Honorable Court may kindly be pleased to

stay further proceeding of Family Suit # 1349/2002, subjudiced in the
Court of respondent # 2, as the matter is fixed for recording evidence
and from 24.02.2003 now case has been fixed fro recording evidence
for 27.02.2002 and recording evidence is sheer violation of law as at
present, pending disposal of this constitution petition. If injunction is
not granted the entire petition shall become in fractious.
An ad interim injunction is solicited meanwhile in terms of main
prayer in the greater interest of Justice and equity.

Karachi.
Dated: 25-02-2003. Advocate for the petitioner
 IN THE HIGH COURT OF SINDH
AT KARACHI

Constitution Petition - S # /2003

Mst. Beenish Arif …………………………….……………….Petitioner

VERSUS
Syed Mustafa saqib and another ……………………………Respondents

AFFIDAVIT
I, Mst. Beenish Arif daughter of Arif Hussain, Muslim adult, resident
of House # 110, Block-7, Gulistan-e-Johar, Karachi , do hereby state
on oath as under: -
1. That the accompanying application under order XXXIX Rule 1& 2 read
with section 151 Code of Civil procedure has been drafted and filed
by my counsel under my specific instructions, contents there in are
true and correct to the best of my knowledge, information and belief.

2. That I adopt the contents of accompanying application as well as main

petition as an integral part and parcel of this affidavit.

3. That I have good prima facie case, balance of conveyance lies in my

favor as the impugned order passed by respondent # 2 is prima facie
illegal and without lawful authority.

4. That I shall be seriously prejudiced and suffer an irreparable loss, until

accompanying application is allowed.

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

knowledge and belief.

Karachi
Dated: 25-02-2003. Deponent.

Identified by me.

Advocate.
Stated on Oath before me by the deponent above named at Karachi,
on this 25th February, 2003, the deponent is identified to me by Mr.
Muhammad Imran Butt, Advocate, who is personally known to me.

Commissioner for taking affidavit.

 IN THE HIGH COURT OF SINDH
AT KARACHI

Constitution Petition - S # /2003

Mst. Beenish Arif ………………………………… …………….Petitioner

VERSUS
Syed Mustafa saqib and another ……………………………Respondents

C.M.A. # /2003

APPLICATION UNDER RULE IX CHAPTER III-A

VOLUME V- SINDH CHIEF COURT RULES

It is submitted that this Honorable Court may kindly be pleased to

treat this matter as urgent motion and fix in Court on .02.2003,
as if immediate action is not taken, there is possibility that petition
will be come in fractious.

The prayer is made most earnestly in the greater interest of justice

and equity.

Karachi.
Dated: 25-02-2003. Advocate for the petitioner
 IN THE HIGH COURT OF SINDH
AT KARACHI

Constitution Petition - S # /2003

Mst. Beenish Arif ………………………………..…………….Petitioner
VERSUS
Syed Mustafa saqib and another …………………..………Respondents

AFFIDAVIT

I, Mst. Beenish Arif daughter of Arif Hussain, Muslim adult, resident

of House # 110, Block-7, Gulistan-e-Johar, Karachi, do hereby state
on oath as under: -

1. That I am petitioner in the above matter as such am fully conversant with

the facts there of and able to depose the same.
2. That the accompanying application for urgent hearing has been drafted
and filed by my counsel under my specific instructions, contents there
in are true and correct to the best of my knowledge, information and
belief.
3. That I shall be seriously prejudiced and shall suffer an irreparable loss,
until accompanying application is allowed.
4. That whatever stated above is true and correct to the best of my
knowledge and belief.
Karachi
Dated: 25-02-2003. DEPONENT.

Identified by me.

Advocate.

Stated on Oath before me by the deponent above named at Karachi,

on this 25th day of February, 2003, the deponent was identified to me
by Mr. Muhammad Imran Butt, Advocate, who is personally known to
me personally.

Commissioner for taking affidavit.