' KHURSHID ANWAR BHINDER, J.-Through the present constitutional petition, Musarrat Bibi and Muhammad Rafiq, petitioners have challenged the legality of order dated 22-1-2008, passed by the learned Additional Sessions Judge, Sialkot whereby he directed S.H.O. Police Station Phuklian District Sialkot to register a criminal case against accused persons and proceed further in accordance with law.
21- Briefly the facts leading to the filing of this constitutional petition are that the petitioners married each other on 3-11-2007 in accordance with Islamic Rites as they were earlier engaged to each other but after some time differences arose between both the families and petitioner No,l solemnized Nikah with petitioner No,2. Respondent No,2, father of petitioner No,l filed a petition under sections 22-A and 22-B, Cr.P.C, in the Court of leamed Additional Sessions Judge, Sialkot seeking a direction to respondent No,l for registration of a criminal case against the petitioners with the allegations of abduction of his daughter upon which the learned Additional Sessions Judge vide order dated 3-1-2008 directed respondent No,l to submit comments, in compliance whereof he .Submitted his report stating therein that petitioners married to each other legally and they are husband and wife and no case of abduction was made out. The learned Additional Sessions Judge vide order dated 21-1-2008 directed respondent No,l to register a criminal case against the accused persons and proceed fdrther in accordance with law, hence the present constitutional petition.
2. Learned counsel for the petitioners submits that the petitioners being sui juris have legally contracted nlarriage and they are living as husband and wife and have committed no offence, therefore, no case can be registered against them. He further submits that the leamed Additional Sessions Judge without applying his judicial mind has illegally passed a direction for registration of a criminal case and the order dated 22-1-2008 is liable to be set aside.
3. Learned counsel for respondent No,2 submits that the document on the basis of which both the petitioners got into marital tie is a forged and fabricated document and petitioner No,2 is already a married man and without seeking prior permission from his earlier wife has contracted second marriage. He further submits that petitioner No, 1 is the niece of first wife of petitioner No,2, as such, according to the Injunctions of Islam, petitioner No,2 could not have married petitioner No,l, niece of first wife of marital No,2.
4. Dr. Riaz ul Hassan ^lani. Advocate/Amicus Curiae subtlUfs that according to the Injunctions of Islam there are four categories of relations, firstly, "Real" when the parents are common, secondly, "Illati" when the father is common and mothers are different, thirdly, "Akhyafi" when the fathers are different and mother is common and fourthly, "Razai" when there is common milk. The instant case falls in the third category of relations, namely, Akhyafi, as the first wife of petitioner No, 2 and mother of petitioner No,l are sisters from common mother, as such, die Nikah of petitioners Nos.l and 2 is unlawful and as per Mahommedan Law by Syed Ameer Ali it is an irregular marriage. He has quoted the following Hadiths of Sahih Muslim, Sunan-e-Abu Daud:- "(3268) Abu Hurarira (Allah be pleased with him) reported Allah's Messenger (may peace be upon him) having said this: One should not combine a woman and her father's sister, nor a woman and her mother's sister in marriage."
' He also quoted references from Fatawa Usmani by Muhammad Mazhar-ul- Haq Ansari and 'Al- Hidaya' by Ghazi Ahmad:-
6. I have heard the learned counsel for the parties and have also perused the available record.
Admittedly, Mst. Nasreen Bibi and Mst. Saleeman Bibi are sisters having common mother and Mst.
Mussarat Bibi is daughter of Mst. Nasreen Bibi and Mst. Saleeman Bibi is the aunt of Mst. Mussarat Bibi, as such, both the petitioners fall within the prohibited degree and according to the Ahadiths quoted above they cannot marry each other in the presence of earlier marriage of petitioner No,2 with Mst. Saleeman Bibi. According to subsection (3)(e) of section 253 of Mahomedan Law by The Right Honourable Sir Danish Fardunji Mulla a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried, thus, both the petitioners have committed the offences which are cognizable by the police and penally punishable as such, the learned Additional Sessions Judge has rightly directed respondent No,1 to register a criminal case against both the petitioners.
7.. For what has been discussed above, I find no merit in this constitutional petition which is hereby dismissed.