VS vss IMRAN KHAN NIAZI ETC. Dated: 03.02.2024 KHAWAR FARID MANEKA Private Complaint No. of 7096/2023 COMPLAINT UNDER SECTION 496 & 496(B)/34 PPC Khawar Farid Maneka son of Mian Ghulam Muhammad Khan Maneka, resident of House No.03, Street No.02, Bani Gala, Islamabad. COMPLAINANT, Versus 1. Imran Khan Niazi son of Ikram Ullah Khan Niaz, resident of Bani Gala Islamabad. 2. Mst. Bushra Bibi daughter of Riaz Khan Watto, resident of Bani Gala, Islamabad. 3. The State. RESPONDENTS Date of Institution: 25.11.2023 Date of Decision: 03.02.2024, JUDGMENT The criminal law in this matter was’set to motion by one Khawar Farid Maneka son of Mian Ghulam Muhammad Khan (complainant), through filing of 2 private complaint, wherein thevatea: vs.vz.2026 2 information of commission of offence by the respondents have been furnished. The brief facts as per complaint are that the complainant entered into wedlock with respondent No.02 in the year 1989; that the relation between the spouses was quite calm and peaceful till the Intrusion of respondent No.01 through sister of respondent No.02 during Islamabad Dharna; thet the complainant believes that sister of respondent No.02 who resides in UAE has strong connection with Jewish Lobby; that respondent No.01 entered in complainant's home / domestic fe under the gard of “Peeri Mureedi” and started visiting the complainant's house frequently, even in his absence; that it is important to mention that respondent No.01 used to remain present in the complainant house for hours which was not only undesirable but unethical and against the norms of Islamic Society that too under the guise of Spiritual healings; that with the passage of time respondent No.01 started intrusion in complainant's marital life, although he was admonished by the complainant and also ousted him in disgraceful manner from complainant's premises but he proved to be a shameless person; that it Is significant to mention that once complainant came to his house at unusual time and found Zulfigar Bukhari alone in his bedroom, who also kept onay Visiting respondent No.02 along with respondent No.01 for most of the times which act on their part was highly Un-Islamic and against the norms and trends of Islamic Society; that thereafter respondent No.02 started visiting the house of respondent No.01 in Bani Gala without permission of complainant, although complainant tried to stop her by force and during which hard words and even abuses were also exchanged but of no avail; that respondent No.02 used to remain in residence of respondent No.04 for multiple hours on the pretext of spiritual feelings and matter did not end on visitation only rather respondent No.01 used to call respondent No.02 at late hours; that the complainant visualize that respondent No.02 keep different cell phones and Sims which were provided by Farah Gogi at the instance of respondent No.01; that although, complainant protested very strongly on every occasions as conduct of both respondents was unbearable and against the Islamic standard and way of life; that whenever complainant tried to restrain respondent No.02, she used to come up with a cover up story of spiritualism; that both of them developed illicit relations with each other before their so called Nikah which fact was reported to complainant by his servant namely Muhammad Latif; that complainant tried his levelbest to reconcile situation and to bring respondent No.02 back in her normal life for the sake of her family, family name and children who were adults and having their own status in society but in vain; that ultimately the complainant divorced respondent No.02 half heartedly on 14.11.2017; that as it was in the mind of complainant to reconcile before February 2018 through his family members but premature Nikeh during “Iddah” between respondent No.01 & 02 frustrated his plans of reconciliation; that after almost a month silence, complainant was forced by Farah Gogi to change the date of divorce as per desire of respondent No.01 & 02 as both were having their own plans, respondent No.01 & 02 got married to each other on 01.01.2018 during “Iddah” and as per respondent No.02 above said date was a result of prophecy; that above said nikah and marriage ceremony was neither legal nor Islamic as it was solemnized without observing “Iddah” period and both of them established illicit relations with each other; that moreover the marriage ceremony was fraudulent on the pretext of some prophecy, however, respondent No.02 kept on lying about it throughout; that above said fact of marriage during “Iddat” came on surface and both of them again contracted Nikah in February 2018 through MuftiSaeed which fact is sufficient to establish that Nikah coupled with marriage ceremony was fraudulent and not lawful; that respondent No.01 has ruined complainant's entire life, stigmatized the complainant and his family just to achieve his unethical and immoral objects through intrusion in complainant peaceful marital life and hook the complainant's wife which act is totally Un-Islamic, unethical and betrayal of teaching of Islam; that heinous offence of fornication has been committed by respondent No.01 & 02 and drama of marriage was stage on 01.01.2018 knowing that “Iddah” period of respondent No.02 was not complete, yet they went through a fraudulent marriage ceremony which was not at all lawful, hence, both the respondents have committed a heinous offence wi in the meaning of section 496 / 496(8) PPC and complainant being aggrieved person has preferred the instant complaint; that both the respondents dishonestly and with fraudulent intention went to the ceremony of being married knowing that they were not thereby lawfully married on 01.01.2018 due to non completion of “Iddat” period, hence, this complaint and both of them remained in illicit relations with each other from Islamabad Dharma and onward; that both the respondents committed fornication inIslamabad and went through the above said fraudulent marriage in Lahore and as a result of that marriage both started living in Islamabad, thus consequences of fraudulent marriage ensued in Bani Gala, Islamabad, hence, this court has the jurisdiction to entertain and adjudicate upon the matter; that complainant avoided to report the matter by way of private complaint just to save his family from being ridiculed but since all these facts have come into the knowledge of everyone, hence, complainant has knocked at the door of this court for redressal of his grievances, as his family life, dignity, honour and respect has been ruined by both the respondents. 02. The complaint in hand was filed on 25.11.2023, the cursory statement of complainant was recorded on the same date in contemplation of section 200 Cr. PC. The case was posted for 28.11.2023 for recording statement of witnesses. Statement of Hafiz Muhammad Saeed son of Muhammad Hanif, Muhammad ‘Aun Saglain son of Allah Bakhsh were recorded as CW-02 & 03 respectively. The case was adjourned for 02.12.2023 for int. On 02.12.2023, recording remaining evidence of compla request for adjournment was made on the part of learned counsel for complainant which was acceded and the case was fixed for7 05.12.2023. On the said date, the statement of Muhammad Latif, the stated house servant of complainant was recorded as CW-04, ‘The matter was fixed for 08.12.2023 for remaining evidence of the complainant as well as preliminary arguments. However, again the matter was adjourned for 11.12.2023 on the request of learned counsel for complainant for reasons recorded in the order ibid. On 11.12.2023, the learned counsel for complainant adduced certain documentary evidence and also advanced his arguments over the maintainability of instant complaint within the meaning of section 203 Cr. PC. The inquiry as req id under section 202 Cr. PC was conducted by the court and pursuant to ‘said Inquiry the statement of as many as three witnesses referred to above were recorded beside the statement of complainant. 03. ‘The complaint was adjudged to be proceedable by this court through order dated 11.12.2023, for reasons recorded in detail in the said order and as such notice in contemplation of section 204 Cr. PC was issued in the name of respondents for 14.12.2023. As respondent No.01 was in jail, therefore, this court has ordered that he will be connected through Skype and the matter was adjourned for 14.12.2023.8 O, Om 24.12.2023, Muhammad Usman Riaz Gill advocate put in appearance on behalf of respondent No.02 and submitted his power of attorney, Similarly, Shakeel Mughal advocate submitted power of attorney on behalf of respondent No.01, However, neither respondent No.02 appeared nor respondent NO.O1 could be connected through Skype due to network problem. Exemption request on behalf of respondent No.02 was made which was granted and the case was adjourned for 18.12.2023, Needless to mention that on the said date Le, 14.12.2023 the copies of complaint and all the annexure appended thereto were provided to leamed counsel for respondents, Their signatures were obtained on margin of order sheets in this regard. On 18.12.2023, agaln request for exemption on the part of respondent No.02 was made, which was granted. Similarly, though production order of respondent No.01 was issued yet the Superintendent Central Prison Adyala Jail Rawalpindi has expressed his Inability to produce the respondent No.01 due to security reasons while basing his report on the information of Security Agencies. Resultantly, the order for holding trial of respondents In terms of proviso to Sub Sectlon-1 of Section 352 Cr. PC read with Rule-IIl in Part-A of Chapter,9 Volume-IIl of Lahore High Court Rules and Orders (as applicable) was passed on 18.12.2023. It was clarified in that the trial shall be an open one, wherein access must be given to learned counse| for the parties, family members of the respondents and adequate number of public as well as media personnel to attend the Proceedings. 0s. The approval of the Federal Government for conduct of trial in jail along with NOC from Superintendent Jail in this regard Was sought through proper channel, The Federal Government has been pleased to accord approval and similarly the Superintendent. Jall also expressed his commitment to provide adequate space at Jail along with no objection for holding the trial. Intimation in this regard was sent to Hon'ble Islamabad High Court as required by High Court Rules and Orders. The matter was adjourned. The copies were provided to the respondents on 02.01.2024, their signatures were obtained on margin of order sheet in this respect. The case was fixed for framing of formal charge on 10.01.2024, however, on the sald date the charge could not be framed due to absence of respondent No.02, on application of learned counsel for respondent No.02 she was exempted from Personal appearance on the day for reasons recorded in orderDated: 03.02.2024 10 dated 10.01.2024, The case was again fixed for framing of formal charge on 15.01.2024. 06. It is apt to mention that the order dated 11.12.2023 passed by this court (whereby the complaint was adjudged as Proceedable within the meaning of Section 203 Cr. PC and summoning of respondents in view of section 204 Cr. PC), was assailed by the respondents on variety of grounds including non- maintainability of the complaint, lack of jurisdiction of the court in the matter etc, through separate revision petitions filed on 09.01.2024 (by respondent No.01) and 11.01.2024 (by respondent No.02), before the court of Sessions, however, both the petitions were dismissed vide order dated 09.01.2024 & 11.01.2024 respectively. The order of Learned Additional Sessions Judge referred to above was assailed before Hon'ble Islamabad High Court, Islamabad through wit petition No.171 of 2024 by respondent No.02, however, the said writ petition too was dismissed vide order dated 31.01.2024. 07. The charge for an offence under section 496 PPC was framed against respondents on 16.01.2024 while the charge for an offence under section 496(B) PPC was omitted to be framed as not_met_by theu complainant. The charge was again read over to respondent No.02 and her signature was obtained on margin of orde sheet as a token of understanding the charge, Both the respondents denied the charge and claimed trial, hence, the complainant was: Tequired to lead evidence in support of allegations In the complaint, 08. Keeping In view the facts and circumstances of the case, as described in the complaint, this court Is of the opinion that the following points needs determination: ~ (1) Whether the respondents have gone through the marriage ceremony fraudulently and dishonestly knowing that they are not lawfully married to each other, (il) Whether the respondents have developed relation with each other prior to thelr Nikah on 01.01.2018 and were in frequent visit to each other houses and meeting therein for hours in isolation in the absence of complainant. (ili) Whether the complainant / prosecution proved Its case against the respondents beyond the shadow of reasonable doubts. — neil09. The complainant recorded statement of as many as four (04) witnesses in support of the allegations in the complaint. GIST OF PROSECUTION / COMPLAINANT'S EVIDENCE 10. PW-01; The complainant Khawar Farid Maneka, the ex-husband of respondent No.02 entered Into witness box as PW- 01. In his testimony before the court recorded on oath he relterated and seconded all the allegations leveled by him against the respondents. He categorically stated that he was merried to respondent No.02 back in the year 1989, they had a very ideal and peaceful family life until intrusion of respondent No.04 into their matrimonial life during Islamabad Dhara. It has further been stated by the complainant that both the respondents used to visit each other houses situated at Bani Gala, Islamabad very frequently. They were in habit of meeting each other In Isolation for hours and that too In his absence, He kept on narrating that the respondents had developed illicit relations with each other prior to solemnization of Nikah on 01.01.2018 and thus both the respondents have not only ruined his family life but has also stigmatized his entire family. It was also deposed by the complainant that due to unbearable conduct of respondents he Was compelied to pronounce divorce upon respondent No.02 on3B 14™ of November 2017. The divorce deed was produced as Ex. PD. He had the intention to reconcile his differences with respondent No.02 but such plan of reconciliation could not be materialized due to Nikah of respondents during "Iddah period” of respondent No.02. He has termed the marriage between the respondents as fraudulent and unlawful. 11. ‘The PW-01 was subjected to lengthy cross examination by learned counsel for respondents, however, nothing material could be brought on record through his cross examination touching material aspect of the issue. The fact that he has Pronounced divorce upon the respondent No.02 on 14.11.2017 vide divorce Deed Ex. PD and her solemnization of Nikah on 01.01.2018 prior to expiration of Iddat period were reiterated even during cross examination by PW-01. He was confronted with ‘@ video clip contained in USB Ex. PW-3/D1, wherein he has spoken about the character of both the respondents, declaring them as most pious and dignified person, though he admitted the giving of such interview, however, also came up with explanation that at the time of such interview the respondent No.02 was not divorced by him and that such admiration of her character was on the basis of her being wife of complainant.14 22, PW=02; Muhammad Saeed Khan son of Muhammad Hanif Khan testified before the court as PW-02, PW-02 has recited Nikah of respondents. He has testified to the effect that he was a close buddy of respondent No.01 and member of his core committee, He was contacted by respondent No.01 for recitation of Nikah with Bushra Bibl on 01,01.2018, At his Instance, the PW- 02 accompanied him and recited Nikah of respondents on 01.01.2018, Prior to solemnization of Nikah he inquired from respondent No.02 regarding her eligibility to enter Into Nikah as per Sharia and she through a lady, Introducing as herself as sister of respondent No.02, affirmed that all the formalities and fequirements as per Sharia are fulfilled and she Is able to enter Into Nikah with respondent No.2, He has also deposed that In fact this Nikah was never a valid one because as per his Information respondent No.02 was undergoing her “Iddah” by then and this drama of Nikeh was staged on the basis of prophecy, as respondent No,02 has made respondent No.01 to believe that he will become Prime Minister If Nikah was performed with her on 01.01.2018, The PW-02 further stated that as the first nikah was during Iddat period, therefore, he was asked by respondent No.01 to perform second Nikeh after expiration ofIddat Period of respondent No.02 and he performed the second Nikah of the respondents. 13. ‘The witness faced lengthy cross examination and even during said cross examination he reaffirmed his stance regarding solemnization of Nikah by respondents during “Iddat period’ of respondent No.02. He also relterated that the second Nikah was also performed by him between the respondents after expiration of Iddat period of respondent No.02 in February 2018. He came up with a statement even during his cross-examination that the Marriage between the parties was not valid due to respondent No.02 being undergoing “Iddat” at that time. The “Nikahnama” was produced as Ex. PF & Ex. PF/1 and the witness has verified hhis signature on "Nikahkhwa” Ex. PF & Ex. PF/1. The learned counsel for respondent confronted the witness with a video clip contained in USB as Ex.PW-3/D1 wherein he has expressed his opinion regarding status of a woman regarding her iddat period and asked as to whether he stands by such opinion. The witness In response to such question stated that though the statement of a lady is consider as reliable, however, if the facts and circumstances of the matter warrants otherwise, then it needs to be corroborated by other modes as well.16 14. PW-03, PW-03 is Muhammad Aun Saqlain son of Allah Bakhsh. His testimony is to the effect that he was political as well as personal secretary to respondent No.01 and due to such portfolio he was very close to respondent No.01. He has to look after all the affairs of respondent No.01 both personal and political. The respondent No.01 divorced Reham Khan in the year 2015 at the instance of respondent No.02 through an Email. He used to take respondent No.01 to the house of respondent No.02 for spiritual healings. On 31.12.2017 he was asked by respondent No.01 that on 01.01.2018 he has to solemnize Nikah with respondent No.02. He was surprised by such statement of respondent No.01 because respondent No.02 was a married lady, however, the respondent No.01 informed that she has already been divorced. PW-02 testified that the Nikah was performed on 01.01.2018 in his presence, he was one of marginal witnesses to the Nikah. The PW-02 has endorsed his signature over the Nikahnama Ex. PF & E. PF/1, PW-02 has further stated that second Nikah of respondents was recited by PW-02, in his presence in the month of February 2018, after expiration of iddat period of respondent No.02. Ct ahvereu: vous. cu2 a7 15. Despite lengthy cross examination conducted by learned counsel for respondents the PW-03 remained firmed in his stance and nothing of significance, capable of vani ing the liability could be brought on record through his cross examination. He reiterated that his statement is not the outcome of any pressure or coercion from any quarter whatsoever and it is also not because of his differences with respondent No,01, 16. PW-04: PW-04 Is Muhammad Latif, the house servant of complainant. In his deposition before the court the sald witness has testified that he has been serving at Complainent’s House for last 35 years. As he Is in their service since long, therefore, no one observes “Parda” from him. That the complainant was serving In Customs and he used to serve at different districts, The respondent No.01 started visiting complainant’s house situated at Bani Gala, Islamabad since 2015. The frequency of his visits accelerated during the year 2016/2017. The witness has further narrated that respondent No.01 used to visit complainant's house in his absence and will remain there in isolation with respondent No.02 for hours. He used to visit the respondent No.02 at night time. The respondent No.02 was in habit to switch off her mobile dusing visit of respondent No.01 and during this time theDated: 03.02.2024 18 complainant had to contact her through my phone, One day when he entered the room of respondent No.02 It was observed that both the respondents were committing "zina”, The witness has further stated that at many occasions he admonished the respondent No.01 on the direction of complainant and prohibited him to visit, however, he did not refrain. a7 The evidence of PW-04 also remained unshaken over the material aspect like visiting of respondent No.01 to the house of complainant, his meeting with respondent No.02 In isolation and in absence of complainant. 18. The complainant closed his evidence, The closure of evidence was followed by statement of respondents under section 342 Cr. PC. Giving them an opportunity to explain thelr position regarding the facts brought on record by the complainant, connecting them with commission of offence with which they are charged. Both the respondents pleaded thelr innocence and also wished to lead evidence In defense, however, they failed to highlight before the court the relevancy of intended evidence in defense and also did not offer themselves to record statement 140(2) Cr. PC, hence, their request for leadingDated: 03.02.2024 19 defense evidence was considered to be a delaying tactics, therefore, not allowed. 19. ‘Arguments of learned counsel for parties heard, 20. Raja Rizwan Abbasi advocate, the learned counsel for complainant submitted that the complainant has proved its case against the respondents through his reliable and confidence inspiring evidence. He pointed out that the allegations regarding unlawful and fraudulent marriage, knowingly gone through by the respondents Inter-se on 01.01.2018 stands established through the testimony of PW-01 to PW-03, He added that that the divorce deed produces before the court as Ex. PD would manifest that respondent No.02 was divorced by the complainant on 14.11.2017, this fact brought on record through a documentary evidence (divorce deed) and seconded by on oath statement of PW-01 could not be rebutted at all. He further submitted that the date of solemnization of fraudulent marriage on 01.01.2018 Is admitted and at that time the respondent No.02 has not completed her iddat period of 90 days In view of her divorce on 14,11.2017, rather the marriage was solemnized after 48 days of her divorce by the complainant. He pointed out that under the lay’ an the complainant has a right to have “Rujuh”to his wife, the respondent No.02 prior to expiration of her Iddat period but he was deprived of such right by the respondents ‘through their fraudulent and unlawful Nikah during Iddat period on 01.01.2018 and as such this act on their part ensued unlawful loss to the complainant. He also submitted that though the respondents have been denying the fact of solemnization of Nikah during Iddat period, however, such denial is misstatement on their part because If the respondent No.02 was not undergoing Iddat during her first Nikah then what was the need of solemnization of second Nikah in February 2018. The solemnization of second Nikah has been proved through the statements of PW-02 & PW-03 (Nikahkhwa and witness to the Nikah respectively). The learned counsel for complainant also Pointed out that the fact of respondent's objectionable interaction with each other under the guise of spiritual healings has also attained the status of an admitted fact because during the statement of accused the fact of interaction with each other has not been denied by either of the respondents, he pointed out, though they assert that It was mere for spiritual purposes, The learned counsel pointed out that under the norms of Islam and in ‘our social fabric the relations between a male and a female not CO. mna falling In prohibitory degree to each other Is consider as unethical and UneIsiamic, particularly In this case, where the facts and circumstances proves that their relations was not restricted only to spiritual healings. He while explaining his plea submitted that it Is very rear that a mother of five children will get rid of her husband, with whom she has spent 28 years in cordial and harmonious atmosphere, but if it so happens, then the Il will, element of dishonesty and fraud cannot be ruled out. The learned counsel for complainant also submitted that there Is no evidence on record to suggest that the respondent No.02 was abnormal in her menstruation courses rather the complainant, her ex- husband, with whom she has spent 28 years has stated cotegoricelly that she wes absolutely normal In this respect. This fact further finds support from the fact that the respondent went for solemnization of second Nikah, In the month of February 2018, considering thelr first Nikah dated 01.01.2018 as Invalld ‘and unlawful, The learned counsel submitted that the consistent and reliable evidence adduced before the court proves beyond doubt that the respondents have gone through an unlawful marriage ceremony, fraudulently and knowingly on 01.01.2018, when respondent No.02 was undergoing her Iddat Period and that2 such haste on thelr part was triggered by their pre-marriage objectionable relations with each other, it is, therefore, submitted that they may be convicted and sentenced for an offence under section 496 PPC as per law. 21. On the other hand, Mr. Salman Akram Raja & Usman Riaz Gill advocates, the learned counsel for respondents submitted that bare reading of the complaint and evidence ‘statements shows that no offence under section 496-8 PPC is made out. It was contended that one of the basic elements of the offence under section 496 PPC is the mens rea, which in the instant case, is dishonesty and fraudulent intention, whereas no ‘such assertion has been made, either in the complaint or in the testimonies of witnesses. Learned counsel for respondents took the court through definition of dishonesty as provided in section 24 PPC as well as fraud in section 25 PPC to substantiate that the referred ingredients are missing in the contents of complaint and evidence adduced by complainant. It was argued that if a court has to take cognizance and issue summons In a private complaint under section 200 Cr. PG, it has to keep in view section 190 as well as 196 Cr, PC and it is to be seen that complaint discloses offence and that complaint has to be made by some aggrievedDated: 03.02.2024 23 person. Learned counsel further argued that in light of the judgment of the Supreme Court in case reported as Allah Dad Vs Mukhtar and another (1992 SCMR 1273), the time period for iddat has been provided as thirty-nine (39) days, which in this case Is attracted inasmuch as Nikah was solemnized after about forty-eight (48) days, even if the divorce date of 14.11.2017 Is accepted as correct. The learned counsel further submitted that complaint has been filed with a delay of almost 06 years, which in itself, goes on to show that it is based on malafide and is tainted with ulterior motives, as one of the petitioner is a leading political figure of the country. Learned counsel submitted that Nikah was solemnized at Lahore, hence, this court has no territorial jurisdiction in the matter. It was also contended that even otherwise section 496 PPC is only attracted, where one of the parties to the marriage, had deceived the order through fraud ‘and dishonest Intention and no third person can take adventage of the same, It is, therefore, requested that the accused / respondents may be acquitted of the charges levelled against them, as22. In light of valuable assistance rendered at the bar by learned counsel for parties, 1 have carefully perused the record as well as the relevant Provision of law, 23. The perusal of record would reveal that the complainant has filed instant complaint under section 496 & 496(B) PPC. However, the charge against the respondents was framed by the court to the extent of section 496 PPC while the other section of law le. 496(B) was omitted in light of section 227 Cr. PC for reasons recorded In detall in my order dated 16.01.2024. 24, Prior to scrutinizing the evidence made available before court by the complainant, It would be in the fitness of the matter to highlight in brief the allegations against the respondents. 2&.. The gist of accusation of commission of offence is contained in Para No.03, 04, 06, 08 & 09 of the complaint Ex. PA, the said Paras are reproduced herein as a matter of ready reference: - PARA NO.03 That with the passage of time, respondent ini n_in__ complainant's a27 without observing “Iddah~ eriod and both of tablished _ illicit lati i! h__of moreove marriage ceremony was also fraudulent on th xt of some her wever, respondent No.02 kept on lying about it throughout. PARA NO.O8 That respondent No.01 has ruined entire life. just _to achieve his unethical and immoral objects through intrusion in complainant jeacet marital lif id__hook the complainant wife which act is totally Un- Islamic, unethical and betrayal of teaching of Islam: PARA NO.09 That heinou: fornication has been ted by jondent No.01 & 02 an {ra m si 01.204 knowing that “Iddah” period of respondent26. Dated: 03.02.2024 28 (No.02_was not complete, yet they went through _a_fraudulent marrlage ceremony which wos not at all lawful, hence, both the respondents have committed a __he/nous offence within the meaning of section 496 / 496(B) PPC and complainant being agarleved person has preferred the instant complaint, ‘As the charge against the respondents has been framed under section 496 PPC, therefore, in order to understand the Constituting elements of an offence under above section of law, I consider it significant to reproduce the said section of law as well. (47, As per section of law supra, the following are the Constituting elements of an offence prescribed there|n le. to say: 1). Going through marriage ceremony which Is not lawful; AND li), The person solemnizing such marriage must know that he is not lawfully married; AND iii). Such solemnization of marriage must have taken place dishonestly or with a fraudulent Intention. 28. In order to determine the status of marriage ceremony / Nikah solemnized by respondents, It Is expedient to ascertain definition of the marriage, kinds of marriage, Iddah period, the status of @ wife qua her relation with the husband during Iddat Period, ¢ivorce, different modes of Talaq and effectiveness of the divorce in light of provision of law as well as precedent of Hon'ble Superior Courts. a DEFINITION OF MARRIAGE; Marriage (Nikah) Is defined to be a contract which has for its object the procreation and legalization of children (Para 250 of Muhammadan Law by D.F. Mulla hereinafter referred to as the Muhammadan Law); b). (>. MUHAMMADAN LAW;Dates: us.u2.2029 30 A marriage may be valid (Sahih), or irregular (Fasid), or void from the beginning (Batil). °. A WOME 257: ‘A marriage with a woman before completion of her iddat is irregular, not void. 4). DIFFERENT MODES OF TALAQ: A talaq may be effected in any of the following ways; ( Talag ahsan, this consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by the abstinence from sexual intercourse for the period Of Iddat (section 257). When the marriage has not been consummated, a talaq in the ahsan from may be pronounced even if the wife Is In her menstruation, When the wife has passed the age for periods of menstruation the requirement of declaration during a tuhr is inapplicable; furthermore, this requirement only applies to an oral Givorce and not a divorce in writing. L\Dated: 03.02.2024 31 @ Talaq ahsan, this consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs. @ Talag-ul-bidaat or talaq-i-badai, this consists of --- @ three pronouncements made during a single tuhr either in one sentence, €.g., “I divorce thee thrice,” or in separate sentences; €.9. “I divorce thee, 1 divorce three, I divorce thee” or ii) @ single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage, €.g., “I divorce three irrevocably". 29. EFFE ESS OF Pi ROUGH AN’ 1 DES REFERI OVI ‘The statutory provisions contained in Section 7 (3) of Muslim Family Law Ordinance, 1961 reads, "save as provided 4 i r, expres or otherwise, shall_not be effective until the expiration of whi under sub- section (1) is delivered to the Chairman’.Dated) 09,02,9094 ” 40, ‘The same principle has heen augmented by Hon'ble Superior Court In number of te esteemed judgments, Meltance in (his regard can ba placed on the following Judgmanta: « (a) Mot, Naveada Kaunar and others Vo Muazeamn Khan and othore reported a8 2016 CLE 180) (b) Muhammad Rafique Vs Additional District & Sessions Judge Sialkot and others raportad my 2022 YL 2067; (c) Muhammad Afzal Khan Vs Ghaleman Arbitration Council and anothar reported me 2018 CLC 1125, nu Tt needs to ba clarified herein that as per dictum of Hon'ble Superior Courts the notiea to the Arbitration Counc ts not mandatory and talag will becom clive evan in absence of service of suich notice after expiry of 90 days, wa Verses of Holy Quran about “Iddah" of @ divorced wife, Command of Aah in the Holy Quran about Iddat of # divorced wife, Surah AleBagarah Ayat No.220 with English & Urdu Translation: » Sil gM GARY GP GH Gna Vy aN A) Spey at cabal ees33 ah Gaby Sask Sith aty SoS eal dy 5.8) 8 of bpd ily Says Sel ll Gh Sey Hey igi "6s ae ly “Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is ‘similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.” wean Bl DS et ad Gls fag HE Ce OK ale ol OBL ols Sth Sh 8h HB a big Om Sy SO tt ae nba ol oS ret A oats nt 8 8 te ot ist 60 asl Un FALL Ob ES Sm U8 ate BS Us al ose HEIN Cal 998 oy Ayah 5g NS 9938 39) cot 2} GFLIE(S OI) ese cot D> ot out Gilles Mice Mg Sn lb i sg) Jacl Surah Al-Bagarah Ayat No.230 with English & Urdu Translatio ch ual Bu ge 55 SE As Ss Ge dad ai 3H Us a 358 oak 5 ~a0 33 "230. Then if he divorces (for the third time), she will _~ Not be lawful for him until she marries some husband34 other than him. But if he (the latter) also divorces her, in such a case there shall be no sin on both of them (the former husband and the wife) if they return (once more to the wedlock), provided both of them (now) think that they would be able to observe the limits set by Allah. And these are the limits (prescribed) by Allah which He explains to those who have knowledge.” Boley Sol $e Db (ie see) ol Soe ted S Si she ES ast as) Sos oS Si lp hs SDE tg oi) Osi ob ot ot cs Dhl set (yr Lest) os SI oe: Sand AE ee) oy Sa hE eS oe (Soe ot ost st 28 dl age ey (Gl) S LS JB 2 Usp Sb Use Ch (Ue cS aly Ae ny Gaede Car ayse (02/8 he) OS tl aS OS Sy ta Se Surah Talag Ayah No.06 dis Ge GAgsuH JEG CAs A “teh Al A 2 usts Gee 2S js3le Al (Ue Ge A) S USE oe I" dea A oy) 9 SHS CIS SSS Sod Sade SNS cht 8 tia cM EAI IS Coe oe Bun oo (ee 2H cS CH) 23) py Soe Sol So F OBDY AIP E> CAS a35 FSS (ATE 3g) Be hl 8 Oy) WS) Calle oe Gb oan Dee cae as) BS AS (SH) Sot (8 SH) 8 English Transtatio! “Lodge them where ye dwell, according to your wealth, and harass them not so as to stralten life for them. And if they are with child, then spend for them till they bring forth their burden. Then, if they give suck for you, give them their due payment and consult together in kindness; but if ye make difficulties for one another, then let some other woman give suck for him (the father of the child). (6)" 33; In view of above, we have to look into the status of a wife prior to effectiveness of divorced qua her husband in light of Provision of law as well as Verses of Holy Quran. STATUS F__ Ivo! FE RE EFFECTIVENESS OF DIVORCE JER RELI WITH THE JAND _PRONOUNCING PON HER. (i) In view of Section 7 (3) of Muslim Family Law Ordinance; “7, TALAQ SUB SECTION (3) Save 2s provided in sub-section (5) @ talaq unless revoked earlier,expressly or otherwise, shell not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman” (ii) In view of her entitlement to receive maintenance during iddat period in light of Para No.279 of Muhammadan Law and verses of Holy Surah Talg Ayah No.06. (iii) Her right to receive share in the estate of deceased husband before effectiveness of divorce in light of judgment of Hon’ble Lahore High Court, Lahore. (a) 2017 cic 1431; (b) 2016 CLC 1522. (iv) Reconciliation / Rujuh between the spouses without intervening marriage by wards or conduct. (v) Status of divorce wife in light of section-7 (6) mustim Family Law Ordinance, 1961; ‘Section-7(6) “Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying in the same husband, without an intervening marriage with a third” person, unless such termination Is for the third time 50 effective,” m4. All these facts proves that a divorced wife Is considered to be In Nikah of her husband prior to completion of “iddat” or effectiveness of divorce and contracting of marriage with a woman prior to completion of her iddat would be considered as Nikah over Nikah, Involving In it the chances of deprivation of her husband from exercising his right of Rujuh and as such the Person causing such deprivation will be stated to have acted dishonestly within the meaning of section 24 of Pakistan Penal Code which defines the term dishonesty as "whoever does anything with the Intention of causing wrongful gain to one Person or wrongful loss to another person Is sald to do that thing dishonestly”, 35. In view of above legal position explained in light of verses of Holy Quran, prevailing law and judgment of Hon‘ble Supertor Courts, this case Is to be assessed. 36. As stated earller, the case of the complainant Is that respondents have gone through unlawful marriage ceremony, knowingly and fraudulently on 01.01.2018, at the time when the respondent No.02 was undergoing her Iddat period, she beingdivorced by complainant on 14.11.2017 through a written divorce Ex. PD. This assertion on the part of complainant is not only supported by a documentary evidence in shape of divorce deed Ex. PD but has also been seconded by on oath statement of the complainant recorded before the court as PW-O1. The gist of his evidence has been reproduced in Para supra. Though the complainant was subjected to lengthy cross examination, however, his testimony regarding pronouncement of divorce upon respondent No.02 on 14.11.2017 and her solemnization of Nikah ‘n 01.01.2018, fraudulently and dishonesty, remained unshaken, Similarly, the complainant has also adduced the testimony of (PW-03), Hafiz Muhammad Saeed, Nikahkhwa and Muhammad Aun Saqiain (PW-02), the witness to Nikah between the respondents, the said witnesses have categorically stated before the court that the first Nikah between respondents had taken place on 01.01.2018. The PW-03 has deposed before the court that he was contacted by respondent No.01 in the month of February 2018 for solemnization of his Nikah with respondent No.02 again because as per respondent No.01 the earlier Nikah was performed during iddat period of respondent No.02. The testimony of PW-03 with respect to solemnization of second lay39 Nikah has been supported by on oath statement of PW-02, the witness to first as well as second Nikah of respondents. The statement of accused was recorded under section 342 Cr. PC wherein this piece of evidence was specifically put to both the respondents, as the question and response to the same is of utmost significance, therefore, it would be in the fitness of matter to reproduce the same as a matter of ready reference: - tion No.08: itis also in the evidence that in order {0 foaatiz salier Nikah you entered Into second 1h in February 2048 at Bani Jamabad whet do vou say about it? Ans._tt lod that the second Nikan was entered into in February 2018 at Ban! Gala, Islamabad in order to legalize the sarlior nikah of 01.01.2018. As already Hain answer .02_ a publi ceremony and Dua was held in February 2048 after !had taken_my sors in London into confidence sbout mw Nikon f 2 01.01.2018, which was ont and valid, The_relevan ts_of my answer to question No.0? are reiterated. 37. The bear perusal of above response of respondents would manifest that they do not deny the fact of holding ceremony with respect to their Nikah In the month of February 2018 abut only terms. such ceremony 3s Dua" for publicaffirmation. This stance of the respondents coming through their own words suggests and proves that the on oath statement of PW-02 and PW-03 with respect to second Nikah between the respondents is trustworthy. Resultantly, it can safely be recorded that the respondents have entered into two Nikah, the first one was solemnized on 01.01.2018 while the second one in the month of February 2016. It is also proved on record that the first Nikah of respondents solemnized on 01.01.2018 before wes prior to expiration of 90 days’ period (Iddat Period of respondent No.02) as she was divorced by the complainant on 14.11.2017. In this regard the contention of learned counsel for respondents was that respondent No.02 was never in Iddat, as the marriage was solemnized after 48 days of the alleged divorce dated 14.11.2017, even if the same is admitted. His reliance was on the judgment of Hon’ble Supreme Court in the matter of Allah Dad Vs Mukhtar and another reported as 1992 SCMR 1273. Although the leamed counsel emphasized to much at the bar that the Hon'ble Supreme Court has fixed the period of Iddat as 39 days, however, I do not find myself in consonance with learned counsel for respondents in his interpretation of the esteemed judgment referred to above because in the said judgment authored by maa1 Hon‘ble Supreme Court it has not been held that the period of Iddat in all cases shall be 39 days. Besides, in the referred judgment the Hon’ble Supreme Court has expounded in Para No.22 that the Nikah entered into during Iddat period shall be void. The relevant part of the judgment i.e. Para Nos.22, 23 to 25, are reproduced as a matter of ready reference: - PARA NO.22 “The learned counsel has thereafter raised another point and submitted that even if it is conceded that Allah Dad had divorced Mst. Rashida Akhtar on 17.05.1981 as alleged by the respondents, even then the Nikah between the respondents cannot be held as valid because was admittedly performed on 05.08.1981 when 90 days had not passed after the alleged divorce. Here again the learned counsel referred to section 7 of the Family Laws Ordinance where the period of ‘Iddat’ has been given as 90 days. As the alleged Nikah, according to the learned counsel was performed during the period of“Iddat’ of Mst. Rashida Akhtar, the same cannot be a valid marriage even in the eyes of Shariah. This point was also raised before the Trial Court but was rejected on the ground that Nikah during the ‘Iddat’ of the former husband is only an irregular Nikah and is not void, but we do not agree with this finding of the Trial Court, because, firstly a marriage contracted during the period of ‘Iddat’ is not merely an irregular marriage, it has been re by lim_jurists as Batil (void). See Ibn Abidin: Raddul-Muhtar, Vol. 2, P.482 and secondly, because even if is held to be irregular, it is sti_an invalid marriage, for be the _irregular_(Fasie un I iL marriages fall_in_the category of ‘invalid marriage’ (See Ibn Ab Js supplied).he_real_perio« a é din. ol! uran_is ti i ri Al- Baqarah: (2:2: iz PARA NO.24 this verse, the of ‘dda’ laid down by the Holy Qura'n is not 90 days. It is ral it tion: whicl de not .cessarili extend to 90 days. ding to Hanafi Jurists inimum period of menstruation i: lay and the minimu: i = :: ri arity is. As days 1S Al-i awi Alp iri tat. and 37, Book I, Chapter 6). Para No.25 25. In the light of these principles, the minimum period of “Iddat' may be 39 days because this is_the period in which it is possible for a woman ve wit intervening periods of purity. It is thus cl that a marriage performed after 39 days from ree cal valid marriage accordin to Shariah if the woman ha: ih th riod of menstruations durit is period. In the instant case, the respondents married to each other after 79 days from the date38. of divorce given by Allah Dad, the petitioner. This period is sufficient for the completion of the period of “Iddat’ as mentioned in the Holy Qura'n because it is quite possible that Mst. Rashida Akhtar had passed through three periods of menses within 79 days, and there is nothing on the record to show that she did not complete three menses during these days. There Is no provision whatsoever in the Holy Qura'n or In the Sunnah of the Holy Prophet (Peace be Upon Him) which declares 90 days as ‘Iddat’ except for those women who either stopped menstruating due to old age, or did not start menstruating on account of their minority, only thelr ‘Iddat' has been mentioned in the Holy Qura'n as three (lunar) months; (See Alqure'n 65:4). Therefore; for- the reasons detailed in paras 14 to 24 of this judgment, If the respondents have contracted marriage after the completion of the period of ‘Iddat’ in accordance with Shariah, their marriage cannot be held as invalid nor can their cohabitation be termed as “Zina’, Thus, the order of acquittal of the respondents as recorded by the Additional Sessions Judge or the Federal Shariat Court Is fully justified and no interference by this Court is called for. (Emphasis supplied) The careful perusal of above paras of esteemed Judgment of Hon'ble Supreme Court would manifest that the ryperiod of Iddat has not been fixed 2s 39 days conclusively rather it has been augmented that it may be 39 days in certain ceses where a lady goes through three menstruation courses during 39 days. There is no denying the fact that the presumption of completion of Iddat period arises in favour of a lady after expiration of 39 days and needs to be rebutted by the complainant side, however, in this case the said presumption in favour of respondent No.02 has been rebutted. Firstly by the on oath statement of her ex-husband (complainant / PW-01) wherein he states that his ex-wife (respondent No.02) was absolutely normal in her menstruation courses during long period of 28 years which she spent with him as a spouse and secondly by the fact that second Nikah was performed by the respondents in February 2018, considering the first Nikah during Iddah, otherwise the second Nikah would have never been performed, hence, the respondents cannot be given benefits of the judgment relied upon by learned counsel for respondent. It may be added that the prevailing law on the subject is contained in Section 7 of Muslim Family Law Ordinance, 1961 which fixes the period of 90 days for effectiveness of divorce. As stated earlier, due to46 solemnization of Nikeh by the respondents on 01.01.2018, the complainant was deprived of his option to exercise right of “Rujuh” prior to expiration of Iddat period of respondent No.02, thus, wrongful loss was caused to the complainant in a sense that he was deprived of his wife and as such this act on the part of respondents was a dishonest Act within the meaning of section 24 of Pekistan Penal Code, I reproduce the said section of law at the cost of repetition: - ‘wi nything wit nti i ron in rson wrongful loss to another person is said to do thing dish f 39. The evidence on record also proves thet both the respondents acted fraudulently by establishing contacts with each other much prior to solemnization of fraudulent Nikah on 01.01.2018 under the guise of spiritual healings. The PW-01, who is not only the Ex-Husband of respondent No.02 but is also the father of five children from her, states on oath that respondent No.01 developed relation with respondent No.02, since Islamabad Dharna (2014/2015) and both of them were in habit of meeting each other, for hours in isolation and that too in his absence, this deposition on his part (PW-01) has not been denied by respondents i toto, Because when they were put to a questionDated: 03.02.2024 a7 with a view to seek their explanation in a statement under section 342 Cr. PC, both of them have admitted remaining in contact, though they have denied having any illicit relations inter-se. The fact of frequent visitation of respondents to each other houses stands admitted. It is also an admitted fact that respondent No.02 was the dully wedded wife of complainant (prior to 14.11.2017) and mother of five children, it is also an established fact that both the respondents and complainant are follower of Islam and the teaching of Islam, so the question before the court as to whether any sort of meeting of isolation by @ male with a female not falling within the prohibitory degree to him Is permissible under the Injunction of Islam, particularly when such meetings end with \d of marriage which the respondents have solemnized on 01.01.2018, the answer certainly is in negetive. The concept of “Mehram” and “Namehram” are the golden virtues of our religion Islam, requires to be followed by each Muslim. Even if for the sake of arguments, we agree that there were no illicit relations inter-se the respondents even then their meetings in isolation for hours in the absence of complainant were unwarranted, resultantly, It can be recorded safely that the ‘element of fraud persisted on the part of both the respondentsKHAWAR FARID MANEKA .. IMRAN KHAN NIAZI ETC, Dated: 03.02.2024 48 right from the day of establishing contacts by them with each other. Thus the solemnization of marriage by the respondents on 01.01.2018 can safely be termed as unlawful, fraudulent and dishonest in light of above observations and findings. 40, The plea of learned counsel for respondents was that the element of fraudulent marriage cannot be acitated by anyone except the spouses Inter-se in case of an offence under section 496 PPC, however, thls arguments of the learned counsel for respondent is not valid in view of provision of section 198 Cr. PC, wherein the term person aggrieved is used. Had it been the intention of legislature that the complaint shall be made by one of the spouses and none else, the language of 198 Cr. PC would have been different, Section 198 Is also reproduced as a matter of ready reference: 4198. Prosecution for breach of contract. defamation and offences against marriage. No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Paki fe or unde tions 4: 4 Inclusive) of me Ce except _upon_a complaint made by some jeved by such offer