1. ' This Constitutional petition has been filed to call in question legality of judgment, dated 19-9-2000 passed by the learned Additional District Judge, Jhang whereby he reversed the judgment and decree, dated 22-5-2000 passed by the Family Court.
2. I have heard the learned counsel for the petitioner at length and perused the material on the record. In this unfortunate case one woman Mst. Naheed Bibi respondent No,3 is being claimed by the petitioner as well as Ghulam Hur respondent No,4 to be their legally wedded wife. The learned Judge Family Court held that respondent No,3 is the legally wedded wife of the petitioner whereas the Appellate Court held that she is wife of Ghulam Hur respondent No,4.
2. ' The case primarily involves a question of fact whether the Nikah of Naheed Bibi was performed with Ghulam Hur respondent No,4 in the first instance or not. In case of an affirmative reply, the second Nikah with the petitioner, even if proved, will be a nullity. The petitioner's learned counsel strenuously urged that the judgments of the two Courts below are at variance, therefore, the petition merits admission as a matter of course. This rule of practice may be relevant qua a regular second appeal and cannot be made applicable to the exercise of extraordinary Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. Even in the case of a R.S.A. The finding of the fact recorded by the First Appellate Court is to be preferred unless it is not supported by evidence on record or was reached by ignoring or misreading material evidence or no logical basis existed for differing from finding of the trial Court. In this connection reference may be made to the judgments in the case of Madan Gopal and 4 others v. Maran Bepari (PLD 1969 SC 617). The relevant part of the judgment is reproduced below: "If the finding of fact reached by the First Appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the Lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavored in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the First Appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
3. 'The above-quoted rule is applicable to a regular second appeal. In a Constitutional petition the petitioner has to show that the impugned order suffers from some jurisdictional defect or is without lawful authority and of no legal effect. The mere fact C that on reappraisal of the evidence another view can also be formed by this Court is hardly sufficient to justify admission of a Constitutional petition for regular hearing. The same view was expressed in the cases of Islam v. Mukhtar Ahmad etc. (PLD 1978 Lah. 994), Munawar v. Razia Begum etc. (PLD 1979 Lah. 300), Allah Din v. Habib (PLD 1982 SC 465), Alloo v. Sher Khan etc. (PLD 1985 SC 382) Riasat Ali etc. v. Rahim Bakhsh etc. (1992 CLC 2193), and Hafiz Muhammad Hussain and another v. Abbas Khan and another (1981 SCMR 1233). It is also laid down in the above-quoted judgments that a finding of fact recorded by an Appellate Court will ordinarily be preferred. The mere fact that Nikah of Ghulam Hur respondent No,4 is oral and that of the petitioner is written and registered, will not, per se, entitle the petitioner to a judgment in his favour. It is true that both the contesting parties have some evidence in support of their respective claims but the Appellate Court has learned in favour of respondent No,4 because Mst. Naheed Bibi has admitted the validity of her oral Nikah with him (respondent No,4) and her father Ahmad has corroborated her statement while appearing as P.W.2. Mst. Naheed Bibi appeared as P.W.1 and made a detailed statement in support of her marriage with Ghulam Hur respondent No,4. She stated that her Nikah was performed with Ghulam Hur when she was 7/8 years old but her Rukhsati took place about 2-1/4 years prior to 16-5-2001 (the date on which she made the statement before the Court). She further stated that she lived in the house of her husband for about one year and then some differences arose as a result of which she came back to the house of her parents and filed a suit for maintenance against Ghulam Hur which was decreed in her favour on 3-1-2000 (Exh. P-1). Ghulam Hur respondent No,4 filed a suit for restitution of conjugal rights against the petitioner which was decreed in his favour vide decree, dated 3-2- 2000 (Exh. P-2). Mst. Naheed firmly denied her Nikah with the petitioner and stated that Nikahnama held by him was forged and fictitious and that she never resided with him as his wife. She explained that during the period when she was living separately from her husband Ghulam Hur her maternal uncle had obtained her thumb-impressions on some papers for filing a suit against Ghulam Hur.
4. She denied her thumb-impression on the Nikahnama (Exh.D-1) and on the private complaint and her statement (Exh. D-2). D.W.2 Ahmad father of Mst. Naheed Bibi, D.W.3 Hakim Muhammad Anwar and D.W.4 Ghulam Hur have supported her statement. D.W.3 is an old man of 60/65 years and the mere fact that he did not remember the day, year and month of the Nikah which had taken place about 11/12 years before institution of the suit would not affect veracity of his statement. On the basis of the above evidence the Appellate Court has rightly recorded a finding of fact that Nikah of Mst. Naheed Bibi was performed with Ghulam Hur respondent No,4. The subsequent Nikah of the petitioner which is supported by D.W.1 Hafiz Noor Hussain, D.W.2 Ghulam Shabbir Nikah Khawan, D.W.3 Ghazafar Abbas (petitioner) and D.W.4 Haji Muhammad coupled with the factum of registration of the Nikahnama, cannot be treated as valid. It is true that under the provisions of section 5 of the Muslim Family Laws Ordinance, 1961, every marriage solemnized under the Muslim Law is required to be registered in accordance with the provisions of the Ordinance and non- registration can result in punishment with simple imprisonment for a term which may extend to 3 months or with fine which may extend to one thousand rupees or with both as provided under subsection (4) of section 5 of the Ordinance. However, the Nikah even if not registered under the law remains valid. The Appellate Court has erroneously observed that the registration of the Nikah is not necessary. In fact the Court intended to convey that validity of the Nikah is not dependent upon its registration. Before the Appellate Court, it was pointed out by the learned counsel for the plaintiff/Naheed Bibi that she was going to give birth to a child of Ghulam Hur and the petitioner's learned counsel had termed it as an illagitimate baby. The petitioner's learned counsel stressed that respondent No, 3 may be called before this Court to see whether she was carrying pregnancy from Ghulam Hur and ask her whether she was happily living with Ghulam Hur as his wife and added that in case she made a statement in favour of respondent No,4 then she would not press this petition. This exercise cannot be done at this stage. As mentioned above, Mst. Naheed Bibi had made a detailed statement before the Family Court and was cross-examined at length by the petitioner's learned counsel. However, nothing material was elicited to discredit her testimony. The findings of fact recorded by the Appellate Court are based on proper appraisal of evidence and sound reasoning. I do not find any valid ground to interfere in the same in the exercise of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
5. Hence the petition is dismissed in limine.