CH. IJAZ AHMAD, J. -- The brief facts giving rise to this writ petition are that petitioner and respondent No. I solemnized marriage on 28.12.1997 in accordance with Injunctions of. Islam.
Petitioner sent divorce notice to respondent No. 1 on 23.5.1998; respondent No. 1 appointed one Muzaffar A.I her representative under the provisions of West Pakistan Muslim Family Laws Ordinance, 1961. Respondent No. 2 obtained legal opinion from Magistrate 1st Class who has given report in his favour that Talak has automatically effective after 90 days. Respondent No. 2 passed the impugned Order against petitioner that notice was not served upon respondent No. 1 in accordance with the provisions of Muslims Family Laws Ordinance, 1961 and the law laid down by this Court (PLD 1976 Lah. 1466) therefore, petitioner shall have to send fresh notice of Talak to respondent No. 1 in accordance with the provisions of the aforesaid Ordinance.
2. The learned counsel for the petitioner contended that respondent No. 1 appointed her representative on 3.7.1998, therefore, she is estoppel to wriggle out from this position that she did not receive the notice from the petitioner; that impugned order itself reveals that notice was received by respondent No. 1, therefore, impugned order is without lawful authority and is in violation of the mandatory provisions of Section 7 of Muslim Family Laws Ordinance, 1961. He further stated that findings of facts against the petitioner through the impugned order is the result of misreading and non-reading of record; that judgment cited by respondents' counsel is distinguished on facts and law.
3. Learned counsel for respondents stated that petitioner approached this Court with unclean hands as the petitioner has filed suit for jectitation of marriage against respondent No. 1 which is pending adjudication; para 7 of the aforesaid suit clearly reveals that cause of action arose in favour of the petitioner on 23.5.1998. This Court has no jurisdiction to usurp the powers of Family Court; that this Court has prescribed three conditions to give effect to notice of Talak issued by the petitioner to respondent No. 1; out of these conditions one of is service of notice must be effected upon respondent No. 1 in accordance with the provisions of Muslim Family Laws Ordinance, 1961; that respondent No. 2 has given findings of fact against petitioner and this Court has no jurisdiction-to substitute its own decision in place of findings of respondent No. 2; that petitioner has failed to produce any genuine postal receipt before respondent No. 2, therefore, findings of fact is based on proper appreciation of evidence.
4. In rebuttal the petitioner's counsel stated that it is admitted fact, respondent No. 1 has nominated her own representative before respondent No. 2 on 3.7.1998, therefore, question of non-service does not arise in this case; that respondent No. 1 has filed suit against the petitioner to restrain from solemnizing 3rd marriage which was dismissed; he summed up his arguments that impugned order is in violation of the mandatory provisions of Section 7 of Muslim Family Laws Ordinance, 1961 that talak must be effected after 90 days automatically.
5. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that respondent No. 2 has given findings of fact against the petitioner. It is also admitted fact that service of notice was not effected against respondent No. 1 in accordance with the provisions of Muslim Family Laws Ordinance, 1961. It is settled proposition of law that judgments of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. The impugned order is in accordance with the law laid down by this Court (PLD 1976 Lah. 1466). It is also settled proposition of law that this Court has no jurisdiction to substitute its own decision in place of the decision of Tribunal below as the principle laid down by this Court in Mussadaq's case (PLD 1973 Lah. 600). The contentions as well as contents of impugned order reveal whether service of respondent No. 1 has been effected in accordance with law or not?
This fact brings the case of the petitioner in the area of disputed question of facts; this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction as the principle laid down in (1993 SCM R 618). It is also admitted fact that the petitioner has concealed material facts from this Court that he has filed suit for jectitation of marriage against respondent No. 1, therefore, the petitioner is not entitled to get any discretionary relief from this Court as the principle laid down in the following judgments: Ronaq Ali's case (PLD 1973 SC 326) and Rana Muhammad Arshad's case (1998 SCM R 1462).
6. In view of the aforesaid discussion, there is no merit in this petition and the same is dismissed with no order as to costs. The petitioner if so, advised to avail alternative remedy before the Civil Court under the provisions of Muslim Family Laws Ordinance, 1961; in case the petitioner avails the remedy, then the competent forum shall decide the same without influencing by the aforesaid observation.