' SHEIKH AZMAT SAEED, J.---Precisely, the facts giving rise to the filing of the captioned Constitutional Petition are that to begin with, Fateh Bibi, petitioner was alleged to have taken away by two ladies to the nearby fields on the pretext of casing themselves, from where she was abducted by respondent Muhammad Aslam and two others in a car and subsequently confined within unknown premises. In the wake of her disappearance, petitioner's relatives made desperate attempts to locate her, but their all-out efforts failed. At one point of time, petitioner is stated to have run away from the confinement of the respondent, and consequently, a criminal case vide F.I.R. No,396 dated 13-12-2003 under section 11 of the Offence of Zina (Enforcement of Hadood)
Ordinance, 1979 was got registered at her instance at Police Station Urban Area Sargodha. It is contended that police after usual investigation, submitted report section 173, Cr.P.C. Finding accused nominated therein, guilty of the commission of offence. During pendency of the trial, the accused side is stated to have filed an application in terms of section 265-K, Cr.P.C. Seeking their acquittal of the said charge, which is still pending adjudication. Whereafter, respondent Muhammad Aslam filed a suit against the petitioner for restitution of conjugal rights, whereas, petitioner also filed a suit against respondent for jectitation of marriage. Learned trial Judge seized of the suits dismissed respondent's suit for want of evidence, as well as petitioner's suit vide judgment impugned dated 19-3-2005.
2. Being aggrieved of dismissal of her suit for jectitation of marriage, petitioner filed an appeal which was dismissed by the learned Additional District Judge, in terms of order impugned dated 8- 8-2005.
3. Learned counsel for the petitioner contends that Nikahnama is a forged document as respondent despite repeated orders of the Court below failed to produce the witnesses to prove the factum of Nikah. Adds that a criminal case was got registered at the instance of the petitioner and subsequently suit for juctitation of her marriage was also filed. Further contends that in her statement before the trial Court, petitioner categorically denied to have married respondent or to have thumb-marked questioned Nikahnama. She reiterated that after her abduction, she was detained by respondent who procured her thumb-impressions on certain papers. She declined to have solemnized Nikah with respondent. Adds that petitioner herself got the criminal case registered against the respondent.
4. It is submitted by the learned counsel for the petitioner that onus to prove the factum of Nikah was wrongly placed on the petitioner, hence, the judgments impugned are liable to set aside. To support his contentions, learned counsel placed reliance upon 2000 YLR 577 Kausar Parveen v.
Additional District Judge Chichawatni District Sahiwal and another.
5. Whereas, learned counsel for the respondent controverts the assertions raised on behalf of the petitioner by saying that questioned Nikahnama stands proved in evidence, for which purpose, submission of its certified copy was sufficient without the production of its witnesses. Hence, two Courts below rightly dismissed petitioner's suit for jectitation of marriage. He relies upon a judgment reported as 2002 SCM R 1408 Jan Muhammad v. Mst. Salamat Bibi and others.
6. As regards judgment relied upon by the learned counsel for the respondent, it pertained to civil jurisdiction wherein suits had been filed claiming right of property by widow of deceased.
Nikahnana was produced in evidence whose execution was not denied by the executant but by a third party. In such eventuality, Nikahnama was allowed to be produced in evidence without witnesses thereof.
7. In the case reported as 1992 SCM R 1520 Rasool Bibi v. Waryam and 11 others, the Apex Court, observed as under:- "The appellant relied upon a written Nikahnama. The Courts below assumed that all the persons mentioned in the Nikahnama were not be examined in the Court as if the formality of Nikah had to be repeated. This is now settled that for establishing the Nikah, the Registrar ( ) or for that matter all the witneses need not appear. One or more of them and/or other witnesses can prove the Nikah."
8. In the instant case, petitioner who is the alleged executant of the questioned Nikahnama denied the execution thereof and made a categorical statement to this effect. She was never confronted with the Nikahnama. Evidently, no witness of the Nikah was produced except the respondent alone.
In this view of the matter, ostensibly the onus was upon the respondent to have proved the factum of Nikah and could not have been placed on the petitioner.
9. For the foregoing facts and reasons, this is a fit case for inference and invalidation of the judgments impugned dated 19-3-2005 of the learned Judge Family Court Sargodha and 8-8-2005 of the District Judge Sargodha. Accordingly, by setting aside the same, case is remanded back to the trial Court with direction to decide the crucial issue arising in this case afresh providing full opportunity of hearing and producing evidence to the parties concerned.
10. In terms of order dated 20-9-2005, proceedings in case F.I.R. No,396 dated 13-12-2003 were ordered to remain suspended. Said order is recalled with the consequence that the learned trial Judge shall continue to proceed with trial in accordance with law.
' Disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.