' Brief facts out of which the present writ petition arises are that petitioner filed a suit for conjugal rights before the Judge Family Court, Khushab against respondent No,2 on 28-5-1995. Respondent No, 2 also filed a suit for jectitation against petitioner on 24-7-1995, before the Judge Family Court Khushab. The Judge Family Court consolidated both the suits. Petitioner as well as respondent No,2 filed written statements in the respective suits.
2. Out of the pleadings of the parties, the Trial Court framed the following issues:
(i) Whether the plaintiff is entitled to the decree for restitution of conjugal rights as prayed for?
O.P.P.
(ii) Whether the defendant is entitled to the decree for jactitation of marriage on the grounds alleged in the plaint? O.P.D.
(iii) Whether the defendant has no cause of action and locus stand to file this suit? O.P.P.
(iv) Whether the suit of the defendant is liable to be dismissed in view of preliminary objection No,3 of the written statement? O.P.D.
(v) Whether the defendants are estopped by their words and conduct to file this suit?
(vi) Whether the suit of the defendant has been filed to counterblast of suit for restitution of conjugal rights by the plaintiff? O.P.P.
(vii) Relief.
' The Judge Family Court decreed the suit of the petitioner and dismissed the suit of respondent No,2 vide judgment and decree, dated 16-10-1997. Respondent No,2 being aggrieved filed appeal before the District Judge Khushab who accepted the same vide judgment and decree, dated 8-9- 1998.
2. Learned counsel for petitioner contended that judgment of the First Appellate Court is result of misreading or non-reading of the record. He further urged that judgment of both the Courts below are at variance learned First Appellate Court reversed the same without any justification. He further stated that respondent, No,2 filed Writ Petition No,3692 of 1995 for quashment of the F.I.R. The same was dismisSed as not pressed . Vide order. Dated 3-5-1995. Learned counsel for petitioner relied upon the statement of respondent No,2 in the aforesaid writ petition which reveals as under:-- "Accordingly her presence was secured from Darulaman and on her statement she was handed over to her parents who were present in Court. Today she has come in the Court alongwith parents and has stated that she was earlier given in Nikah to one Aslam for Rs,47,000. Subsequently, divorce was effected at the asking of her father from the forementioned Aslam and Nasrullah paid all the amount to Aslam demanded by him for releasing her. According to her she subsequently contracted marriage with. Nasrullah on 21-1-1995."
' He further stated that father of respondent No,2 also filed Writ Petition No,4125 of 1995 before this Court against the petitioner for registration of a case. Contents of para.2 reveal that on 21-1-1995 Nasrullah managed to abduct Mst. Imam Bive and took her to Chak Nos.33 and 35/DB, Tehsil and District, Khushab. Where with the help of Sayed Shadi Khan Nikah Registrar, and Mian Abdur Rashid Nikah Registrar executed a forged Nikahnama. The writ petition was disposed of vide order, dated 3-5-1995 with the direction to the S.H.O., to proceed on the application of father of respondent No,2 in accordance with law. Learned counsel for petitioner further stated that marriage of the respondent No,2 solemnised with one Muhammad Aslam on 3-6-1994 who allegedly divorced respondent No,2 according to the version of the petitioner on 20-12-1994 whereas Muhammad Aslam divorced her on 28-1-1995 according to the version of respondent No,2. He further stated that Nazar Muhammad D.W.1 stated that he asked from respondent No,2 whether she has executed any marriage with any person. She replied in negative. He further stated that report of the Finger Print supported the case of the petitioner that Muhammad Aslam divorced respondent No,2 on 27- 12-1994 and also gave positive report in favour of the Nikah executed by respondent No,2 with the petitioner (Exh P.0 ) whereas report is negative qua the divorce deed, dated 28-1-1995. He further stated that statement of D.W.4 also supported the case of the petitioner as she admitted that her statement was recorded in the High Court. Therefore, judgment of the first Appellate Court is result of misreading or non-reading of the record.
3. Learned counsel for the respondent stated that F.I.R. No,57 of 1995 was registered against the petitioner and five others on- 13-3-1995 as the petitioner along with his co-accused abducted the respondent No,2 on 11-3-1995. He further stated that in the investigation petitioner and another co- accused found guilty and challan has already been submitted before the competent Court. He further stated that P.W.2 admitted in cross-examination that he has seen defendant No,2 on the day of execution of Nikah with the petitioner. Muiammil Shah informed P.W.2 about the name of respondent No,2's father also admitted that she observed Pardah at that time. Muzamil Shah informed him that respondent No,2 is Mst. Imam Bive who executed nikah in Chak No,35/DB whereas her parents lived in the village Lukoo. This fact was duly proved by the oral as well as documentary evidence. He further stated that allegedly Nikah was executed by respondent No,2 with the petitioner in Chak No,35/D.B. Which allegedly situated in District Mianwali. He further stated that respondent No,2 explained that she has given statement before the High Court under the influence or under duress of petitioner. He further urged that out of the wedlock of respondent No,2 and Ramzan one daughter is born whose age is three years. He further stated that Constitutional jurisdiction, in matrimonial matter would be exercised in only rare circumstances as the law laid down by this Court in 1998 M LD 182.
4. Learned counsel for petitioner in rebuttal stated that Chak No,35/D.B. Is not situated in Mianwali but in fact is situated in District, Khushab. He further stated that judgment of the First Appellate Court is result of misreading or non-reading of the record. Therefore, this Court has jurisdiction to set aside the same.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that petitioner and respondent No,2 belong to Village Lukoo. It is also admitted fact that Nasrullah executed Nikah with respondent No,2 on 21-1- 1995 in Chak No,35/D.B. District, Mianwali which was witnessed by the following witnesses, as admitted by petitioner in cross-examination.
' Ahmad Nawaz, Muhammad Ramzan, Muhammad Pervaiz and Rabnawaz.
' The Nikah was performed by Abdur Rashid Shah P.W.2. It is pertinent to mention here that none of the witnesses including the Nikah Khawan belonged to village Lukoo. Nasrullah failed to produce witnesses of Exh.P-1, dated 21-1-1995. Respondent No,2 produced Ahmad Nawaz D.W.5 who denied the execution of Nikah between petitioner and respondent No,2. He also denied his thumb- impression on the Nikahnama. P.W.2 Abdur Rashid admitted in cross-examination that on the date of execution of Nikah respondent No,2 observed Pardah. Muzammil Shah informed him that she is Imam Bive. He also admitted that Muzammil Shah is involved in fraud cases. Parties are Muslim.
The question of their marriage is to be settled in the spirit of Muslim Law, marriage cannot be contracted in absence of witnesses and other relevant conditions. In present case, apart from satisfaction of other conditions which are not in dispute here, it is not proved that the alleged marriage of the parties was contracted by fulfillment of conditions of presence of witnesses. Even it is disclosed that the marriage was contracted in presence of the witnesses qualified as such, unless such witnesses appeared in the Court and testified in support of marriage, decree cannot be passed merely on admission of such marriage by the parties. I am fortified Hedaya volume I page 26 annunciated this principle of law in the following terms: "Marriage.---Where both the parties are Mussulmans cannot be contracted but in the presence of two male witnesses, or of one man and two women, who are sane, adult and Mussulmans; whether they be of established integrity of character or otherwise, or may ever have suffered punishment as slanderers. The comiler of this work observes that evidence is an essential condition of marriage the Prophet (p.b.u.h.) having declared 'no marriage is good without evidence. -- ' Respondent No,2 proved on record with sufficient evidence that she executed Nikah with Muhammad Ramzan and out of the wedlock of the same one daughter is born whereas she categorically stated in her statement that she did not contract marriage with the petitioner. Exh.II/1 was duly proved by the statements of D.W.1 Nazar Muhammad who performed the Nikah. D.W.4 Mst.
Imam Bive, D.W.8 Shehbaz, D.W.3 Muhammad Salim, D.W.5 Ahmad Nawaz and D.W.9 Muhammad Ramzan. Learned counsel for petitioner has emphasized much on the report of Finger Print Expert but the Finger Print Expert' did not appear in witness-box. Therefore, report of Finger Print Expert is inadmissible unless he is called a witness and subjected to cross-examined as the principle laid down by the superior Courts in the following judgments: ' AIR 1928 Lahore 427 (Wadhawa's case), ' 1974 SCM R 411 (Allah Dino's case), ' 1970 SCM R 506 (Muhammad Hussain's case).
' D.W.4 Mst. Imam Bive admitted in cross-examination that she appeared before this Court and she has given statement on account of fear of the petitioner. Therefore, learned First Appellate Court rightly rejected the same. Even otherwise her statement and other documents produced by the petitioner are not permissible in evidence by virtue of Articles 47 and 48 of Qanun-e-Shahadat Order, 1984. Petitioner failed to produce his counsel or any witness to prove these documents. It is also admitted fact on the basis of the finding of the first Appellate Court after proper appreciation of evidence that respondent No,2 and Muhammad Ramzan, D.W.9 executed Nikah between themselves. This fact was not denied by both of them. A daughter has also been born out of the wedlock whose age is approximately at present moment is three years, as observed by the First Appellate Court in para.27 in the following terms:-- ' Fact remains that Mst. Imam Bive is residing with Muhammad Ramzan as legally wedded wife for the last about 2-1/2 years. Original copy of birth certificate is available on record. It goes show that out of their wedlock, a daughter is alive. I fail to understand that when Mst. Imam Bevi has contracted Nikah of her own accord with Nasrullah then why she is residing with Muhammad Ramzan.
It is settled proposition of law that Court can take into consideration subsequent events. In case the petition is accepted then the child is to be declared as illegitimate which is not in accordance with the injunctions of Islam. It is the duty and obligation of the Courts to decide the cases in accordance with injunctions of Islam after the addition of Article 2-A in the Constitution. Courts are reluctant to stigmatize a child as illegitimate.
' I am fortified by the following judgments of the Hon'ble Supreme Court: ' PLD 1976 SC 767 (Shah Nawaz case).
' PLD 1975 SC 624 (Hameedan Begum's case) and observed as under: "the Muslim jurist-consults as also the Courts have generally been very reluctant to stigmatize a child as illegitimate and, therefore, as far as possible every presumption is made in favour of its legitimacy. Courts, therefore, have been reluctant to declare a child bastard and have generally refused to admit illegitimacy when legitimacy can be inferred from the surrounding circumstances."
I am also fortified by the judgment of the Hon'ble Supreme Court in ' Manzoor Hussain's case 1992 SCM R 1191. It is also settled principle of law that Muslim Law presumed in favour of marriage in the absence of direct evidence on the point provided other evidence exists to show that a man and woman have lived together as man and wife for a long time as the principle laid down by the Hon'ble Supreme Court in Mst. Hameedan Begum's case (supra) and section 222 Hand book of Muhammadan Law by Tayyab ice 1996 Edition. It is also admitted fact that the First Appellate Court after proper appreciation of evidence have given findings of fact against the petitioner and this Court has no jurisdiction to substitute its own decision in place of the decision of the Tribunal below while exercising in Constitutional jurisdiction as the principle laid down by the Division Bench of this Court in Mussaduq's case PLD 1973 Lahore 600 and in PLD 1949 PC 261.
' In view of what has been discussed above, this writ petition has no merit and the same is dismissed.