Through this Constitutional petition, a prayer for quashment of FIR No, 327 dated 24.7.2005 under Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) Police Station Jampur District Rajanpur, has been made on the ground that both the petitioners being sui-juris have married with their free will and right of marriage being protected by the Constitution, hence registration of FIR was not warranted by law. In support of this contention, reliance has been placed on the case "Hafiz Abdul Waheed Ropari versus Mrs. ASMA Jehangir and another" (PLD 2004 Supreme Court 219).
2. I am afraid the aforesaid contention of the petitioner is sustainable in the peculiar facts and circumstances of the case and the case law referred to above is applicable to the present case, being distinguishable. Kaleem Ullah Petitioner No, 2 was admittedly married with Mst. Rukhsana real sister of Petitioner No,
1. However, it is submitted that Kaleem Ullah contracted marriage with Petitioner No, 1 on 26.7.2005 after divorce given to Mst. Rukhsana on 23.7.2005. When questioned, whether any notice in terms of Section 7 of the Muslim Family Laws Ordinance, 1961 was given, learned counsel frankly conceded that no such notice was issued. He however, argued that it is now a declared law that any Tallaq given under Muslim Law shall not be rendered ineffective for want of notice and further that at the most a marriage between the parties before effectiveness of said Tallaq could be considered as irregular but not void.
3. I have considered arguments but am not persuaded to agree with the same. The fact that Petitioner No, 2 allegedly divorced his wife Mst. Rukhsana real sister of Petitioner No, 1 on 23.7.2005 and married Petitioner No, 2 just after three days i,e, on 23.7.2005, cannot be approved on any legal or moral consideration. I am of considered opinion that before the expiry of Iddat, Tallaq is not effective and since in the present case distinguishing feature is that Petitioner No, 2 married Mst.
Irfana Petitioner No, 1 who stood within the prohibited degree, before the expiry of Iddat period, hence, I A am not inclined to legalize such marriage on the touchstone of law declared by Hon'ble Supreme Court in the cited judgment by ignoring the distinguishable feature of present case. Even otherwise, Constitutional petition being equitable/discretionary relief, same cannot be extended/ exercised when grant of such relief is immoral, unfair or against the dictates of good conscience and fair play, as held in the case "Secretary to the Government of the Punjab versus Ghulam Nabi"
(P.L.D. 2001 Supreme Court 415). To me, the marriage between the parties just three days after the alleged divorce with the real sister of earlier wife is an unholy alliance which cannot be perpetuated by this Court through the relief sought in this Constitutional petition. Even otherwise, since the petitioners have not approached this Court with clean hands, no such relief can be granted to such persons. I am fortified in my view by the judgment of Hon'ble Supreme Court of Pakistan in Raunaq Ali's case (P.L.D. 1973 S.C. 236) and by this Court in "Nisar ul Haq versus Tehsil Municipal Administrator City" (P.L.D. 2002 Lahore 359). Lastly, it would not be out of place to observe that as held by the Hon'ble Supreme Court in "Shaukat Ali versus Altaf Hussain Qureshi and another"
(1972 S.C.M.R. 398) the Courts do not function in vacuum and must take due notice of social and moral environments prevailing in community, such as, tendency on part of some youngmen to abuse provisions of law in furtherance of their illicit love affairs. Although, the said observation of the Hon'ble Supreme Court was passed while deciding a habeas corpus petition under Section 491 Cr.P.C. yet the pronouncement of the Apex Court can be equally made applicable while exercising Constitutional jurisdiction, especially in the matter like the one in hand seeking enforcement of an unholy relationship between the petitioners.
4. The result of above discussion is that I find no substance in this petition which is accordingly dismissed in limine.