' The brief facts giving rise to this Constitutional petition are that the petitioner was statedly married to respondent No,4 Muhammad Sadiq son of Muhammad Din which was registered at Dabb, Tehsil Piplan on 2-11-1991. On 25-4-1992 she was allegedly married to respondent No,3 Muhammad Sadiq son of Umar Din which was also registered at Dabb, Tehsil Piplan, District Mianwali. Respondent No,3 lodged F.1.R. No, 230 of 1992 at Police Station Saddar, Sheikhupura on 18-5-1992 against the petitioner and respondent No,2 under section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 in which the petitioner and respondent No,3 were arrested on 23-5-1992 and the petitioner was given in the custody of her father on 23-12-1992. The petitioner filed a suit for jactitation of marriage against respondent No, 3 on 7-1-1993 at Mianwali. On her refusal to go with the father she was lodged in Darulaman by the Lahore High Court on 14-2-1993 and her suit was dismissed for non-prosecution. Respondent No,4 filed a suit for restitution of conjugal rights on 20- 2-1993 before respondent No,1 Judge Family Court, Lahore to which the petitioner filed a reply on 19-4-1993 conceding the suit of respondent No,4. However, in the meantime respondent No, 3 had also filed a suit for restitution of conjugal rights against petitioner on 9-3-1993. Both the above suits were consolidated alongwith the suit of respondent No,3, dated 13-5-1993 for declaration that the Nikahnama, dated 2-11-1991 between respondent No,4 and the petitioner is forged document which is liable to be cancelled.
2. Respondent No,2 Judge Family Court, Lahore vide judgment, dated 26-3-1995 dismissed the suit of respondent No,4 and decreed both the suits of respondent No,3. Consequently the Nikha of the petitioner Mst. Surayya Bibi with respondent No,4 Muhammad Sadiq son of Muhammad Din was held to be a fabricated document while her Nikah with respondent No,3 Muhammad Sadiq son of Umar Din was held to be valid. Appeals filed by the petitioner and respondent No,4 against the judgment of respondent No,2 were dismissed by respondent No,1 Additional District Judge, Lahore vide judgment, dated 16-12-1997. The petitioner has assailed the judgments of respondents Nos.1 and 2 through this Constitutional petition.
3. The learned counsel for the petitioner has argued that the petitioner and respondent No,4 had entered into lawful Nikah on 2-11-1991. His proposal had earlier been accepted by father of the petitioner Sardar Muhammad who had also received Rs,20,000 from respondent No,4 and had also obtained assistance of respondent No,4 in getting the petitioner a decree of divorce against her former husband Muhammad Jamil, but subsequently father of the petitioner had changed his mind and had agreed to give the hand of the petitioner in marriage to respondent No,3 to which the petitioner was not agreeable. A few days after the marriage, the brothers of the petitioners gave beatings to respondent No, 4 on 25-11-1991. About which occurrence, a report was lodged at Police Station Piplan. However, due to compromise no action was taken on the same. The father of the petitioner managed to fabricate a Nikahnama between the petitioner and respondent No,3 on 25-4-1994 on the basis of which F.I.R. *No,230 of 1992 was registered and the petitioner and her husband respondent No,4 were both arrested from their own home; that the petitioner had never signed the Nikahnama with respondent No,3 nor she had lived with him, and that in view of her conceding statement in the suit of respondent No,4, respondent No,2 should have decreed the suit of respondent No,4 but he illegally consolidated the suit of respondent No,3 with the suit of respondent No,4 even though the suit for restitution of conjugal rights of respondent No,3 was not maintainable in the presence of the petitioner's conceding statement in the suit of respondent No,4 and civil suit filed by respondent No,3 could not be consolidated with the family proceedings since respondent No,2 was Sitting as Family Court and had no jurisdiction in that case. Thus, the judgment of respondent No,2 was patently illegal and respondent No,1 had dismissed the appeals of the petitioner and respondent No, 4 without considering the facts and legal arguments in their favour and his judgment was without lawful authority.
4. The learned counsel for respondent No,3, while opposing the petition, submitted that conceding statement of the petitioner in the suit of respondent No,4 was of no consequence since an F.I.R.
Already stood registered against the petitioner and respondent No,4 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; that no marriage had taken place between respondent No,4 and petitioner and the Nikahnama, dated 2-11-1991 was fraudulently prepared by respondent No,4 after the registration of the aforesaid F.I.R. In order to escape prosecution that no witness from the petitioner's family was included in the alleged Nikahnama of respondent No,4 while the Nikahnama of respondent No,3 was duly witnessed by father of the petitioner and the brother of the petitioner who confirmed its validity and that the Nikah of respondent No,3 was duly proved by the Nikah Khawan Mangat Ali as well as Ghulam Ali who was witness to the Nikah and Sardar Muhammad father of the petitioner, while the alleged Nikah between the petitioner and respondent No,4 was disowned by Manzoor Shah the alleged Nikah Khawan as well as the Secretary of the Union Council Dabb, Tehsil Piplan who stated that the Nikahnama of the petitioner with respondent No,4 was not available on the record. It is further argued that the concurrent finding of fact of both the Courts below could not be interfered with in Constitutional jurisdiction and the petitioner should be restored to respondent No,3 who was her lawfully wedded husband.
5. In rebuttal the learned counsel for the petitioner submitted that some other Manzoor was produced instead of Manzoor Nikah Khawan. He has relied on Arif Hussain and Azra Perveen v. The State (PLD 1982 FSC 42) to argue that when Nikah is admitted by both the parties no other evidence is needed and Nikah could not be rendered invalid merely because copy of the Nikahnama was not present in the register.
6. I have heard the learned counsel for the parties and have also gone through the record.
7. The Nikahnama of the petitioner' with respondent No,4, dated 2-11-1991 is admittedly prior in time to the alleged Nikahnama of the petitioner with respondent No, 3, dated 25-4-1992. There is also a report Exh.P.A., dated 25-11-1991 regarding injuries caused to respondent No,4 by the brothers of the petitioner which is supported by medico-legal report regarding the injuries sustained by respondent No,4 on the same date. In the report it has been specifically stated by the complainant Muhammad Siddique that respondent No,4 was beaten up by the brothers of the petitioner in dispute regarding marriage of the petitioner to respondent No,4 in which subsequently compromise was effected between the parties. Therefore, there appears to he previous understanding of some kind between the family of the petitioner and respondent No,4 regarding the petitioner's marriage with respondent No,4. While subsequently father of the petitioner appears to have.Changed his mind and gave the hand of the petitioner to respondent No,3 against her will which Nikah is not acknowledged by the petitioner who conceded the Nikah with respondent No,4 in her written statement as well as her evidence before respondent No,2 wherein she clearly stated that she is legally wedded wife of respondent No,4 and has nothing to do with respondent No,3.
8. Today the petitioner has stated in this Court that she has been living with respondent No,4 ever since she was released from Darulaman and that she had never lived with respondent No,3 nor was she willing to go with him at any cost. She has also stated that she had a daughter named.
Aamna aged 2 years from respondent No,4 who is also present in Court. On the other hand respondent No,3 Muhammad Sadiq son of Umar Din, who is also present, insists that he wants to live with the petitioner who is his lawfully wedded wife. He has further stated that criminal proceedings are pending against respondent No,3 in which he is likely to be convicted in view of the judgment of both the Courts below.
9. Even though there is a concurrent finding of fact in favour of respondent No,3 by both the Courts below, this being a Court of equity I find it would be unjust to compel the petitioners to accept her Nikah with respondent No,3 when she has been living with respondent No,4 as his wife for past several years and there is an issue from the marriage who would have to face stigma of illegitimacy if the judgments of the Courts below are upheld. From the conduct of respondent No,3 it appears that he is inspired more by vindictiveness towards respondent No,4 rather than a genuine desire to have the petitioner as his wife, since he has been prosecuting both the petitioner and respondent No,4 since past almost 9 years. Therefore, while exercising equitable and discretionary jurisdiction I am inclined to accept the statement of the petitioner that she never contracted Nikah or lived with 'respondent No,3. Even if it were assumed that Nikahnama of respondent No,3 bears her thumb-impression, such a contract caused by coercion and without free consent would not be enforceable. I uphold the Nikah of the petitioner and respondent No,4 on the basis of their statement to the effect that they are legally married to each other as held in Arif Hussain's case (PLD 1982 FSC 42) which judgment is based on "Fatawa Qazi Khan" and "Fatawa Alamgiri", since this would foster the ends of justice and save the minor Aamna from stigma of illegitimacy and would save the petitioner from a hateful union with respondent No,3. Accordingly this petition is accepted and the impugned judgments of respondents Nos.1 and 2 are hereby declared to be without lawful authority and of no legal effect. The petitioner is declared to be the lawfully wedded wife of respondent No,4. There is no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.