Muhammad Sajid vs Adj etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P.No. 14557 of 2019

Mohammad Sajid. Vs. Addl. District Judge, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 27.09.2019. Malik Mohammad Usman Bhatti, Advocate for petitioner.

Through this constitutional petition, the petitioner has called in question the judgment and decree dated 22.10.2018 passed by learned Judge Family Court, Lodhran, whereby the suit for jactitation of marriage filed by respondent No.3 (‘respondent’) against the petitioner has been decreed and has also called in question the judgment and decree dated 17.09.2019 passed by learned Addl.

District Judge, Lodhran, whereby the appeal filed by the petitioner has been dismissed.

2.It has been argued on behalf of the petitioner that the judgments and decrees passed by both the courts below are against the facts of the case, evidence available on the record and law on the subject and, consequently, are liable to be set-aside.

3.Heard. Record perused.

4.It is observed that both the courts below have decreed the claim of the respondents by referring

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the report of Finger Print Bureau, wherein it has been clearly mentioned that Nikiah Nama did not bear the signatures of the respondent. The claim of the respondent in her plaint as well as her evidence as PW-1 is that she was studying in 8th class when she was abducted and raped by the petitioner for which a criminal case F.I.R No. 342/2012 dated 27.05.2012, offence under Section 365-B P.P.C, was registered at P.S. City, District Lodhran, in which she categorically denied having entered into any Nikah with the petitioner, therefore, it was for the petitioner to prove authenticity of the Nikah Nama when the same has been denied by the respondent. Although the counsel for the petitioner has argued that sole opinion of Finger Print Bureau could not be made basis for decreeing the suit for jactitation of marriage but it is settled proposition of law that when execution of a document is denied by one of the parties, it is for the other party that has to benefit from the said document to prove the genuineness of the same by producing cogent evidence in support of his/her claim. Although in support of petitioner’s claim of valid marriage, the counsel for the petitioner has relied upon statement of PW-2, who is stated to be uncle of the petitioner, wherein it is mentioned that Nikah had been entered

W.P.No. 14557 of 2019

into between the parties but the said statement cannot be read in piecemeal and has to be read as a whole, wherein he specifically stated that his niece had been abducted and had been forcibly subjected to Zina, where after a fabricated Nikah Nama had been prepared by the petitioner, therefore, the afore- referred argument raised by the counsel for the petitioner is without any substance. For proving the genuineness of the Nikah Nama the petitioner himself appeared in the witness box and only produced one witness of the Nikah Nama Muhammad Javed (DW- 2), who is real brother of the petitioner but the said Muhammad Javed is also one of the accused person in the afore-referred criminal case F.I.R registered by the respondent against the petitioner and his sole statement relating to the Nikah Nama is not sufficient to prove the genuineness of the same, especially when the Nikah Registrar and other witnesses have not been produced in evidence and presumption is to be drawn against the petitioner for withholding best evidence.

Besides the respondent herself appeared as PW-1, she categorically got recorded her statement that she is now married with one, Muhammad Naeem and has two children from this marriage and she again categorically denied the existence of Nikah with the

W.P.No. 14557 of 2019

petitioner and declared the same to be fake, fictitious and prepared on the basis of fraud in which her consent was not included. Hence, in view of the evidence available on the record, suit for jactitation of marriage was rightly decreed in favour of the respondent and against the petitioner.

5.The petitioner has raised the claim that earlier two suit filed by the respondent for the said purpose have been dismissed, therefore, the third suit is barred under Section 10 & 11 of the C.P.C, however, it is observed that both the court below observed that the afore-said suits were not dismissed on merits rather were dismissed due to technical reason due to non-filing of process fee, hence, Section 10 & 11 of the C.P.C would not be applicable to the present case.

6.The petitioner has not been able to show any misreading, non-reading of the evidence available on the record, illegality or erroneous exercise of jurisdiction in the afore-referred findings, whereby the suit for jactitation of marriage filed by the respondent has been concurrently decreed and it is held that the Family Court and the appellate court have properly exercised the jurisdiction vested in them.

W.P.No. 14557 of 2019

7.For what has been discussed above, this petition being devoid of any merit stands dismissed in limine.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan