KARAMAT NAZIR BHANDARI, J.--- This judgment will dispose of Criminal Appeal No,98 of 1997 titled: Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another and Civil Appeal No,563 of 1997 titled: Muhammad Iqbal v. S.H.O., Batala Colony, Faisalabad and others, as these involve common questions of law. The basic question is reflected in the leave granting order dated 3rd of April, 1997 and is whether consent of 'Wali' is essential to the validity of marriage of a sui juris Muslim girl. The question arises out of these facts.
2. Muhammad Iqbal-appellant in Civil Appeal No,563 of 1997, on 26-2-1996 married Mst. Shabina Zafar, a sui juris Muslim girl. Father of Mst. Shabina Zafar namely, Zafar Iqbal (respondent No,3) apparently did not approve of this marriage and lodged F.I.R. No,256 of 1996 on 29-6-1996 at Police Station Batala Colony, District Faisalabad under section 10(2) of Zina (Enforcement of Hadood)
Ordinance, VII of 1979 on the allegation that Muhammad Iqbal appellant seduced his daughter Mst.
Shabina Zafar and was having illicit sexual connection with her. On 7-7-1996 Mst. Shabina Zafar is claimed to have appeared before a Magistrate and made a statement under section 164, Cr.P.C., wherein she stated to be of 19 years of age and asserted that she had lawfully married Iqbal. Her affidavit to the same effect is also at pages 118-119 of the paper book.
3. On 10-7-1996 Mst. Shabina Zafar filed Writ Petition No,11995 of 1996 in the Lahore High Court seeking quashment of the F.I.R. On the ground that she having married Iqbal of her free-will, no offence was made out. Muhammad Iqbal-appellant also filed Writ Petition No,16561 of 1996 on 12-9- 1996 in the same Court and prayed for quashment of the F.I.R. On almost identical grounds. Both these petitions were heard together by a learned Single Bench and dismissed on 24-9-1996, with a direction to the police to challan the accused persons. The learned Judge held that as `Wali', of the girl did not consent to the marriage, the same was invalid.
4. Criminal Appeal No,98 of 1997 is filed by Hafiz Abdul Waheed father of Mst. Saima Waheed, a sui juris Muslim girl. She was a graduate from the Government Lahore College for Women, Lahore. She contracted marriage with respondent No,2 of her own free-will on 26-2-1996 and apparently without the consultation/approval of the appellant. The appellant claims that it was a surreptitious marriage and when he learnt of the same on 9-3-1996 he approached the family of respondent No,2 and in the meetings that followed, respondent No,2, it is claimed, surrendered his rights under the "Nikah Nama" and freed Mst. Saima Waheed from the marital bond. The appellant asserts that the situation remained the same for a month when, on 9-4-1996 respondent No,2 along with his sister induced Mst. Saima Waheed to leave the house of the appellant and she lodged herself in the institution known as "Dastak", run and managed, by respondent No,1, an Advocate of this Court and also an active human rights worker. It is claimed that a collusive Habeas Corpus Petition No,393/H of 1996 was filed by respondent No,2 claiming release of his wife from respondent No, 1.
This petition was dismissed by a learned Single Judge of the Lahore High Court on 16-4-1996 on the ground that petition was clearly mala fide and aimed to circumvent the law relating to the family matters. The order of dismissal was challenged in this Court through Criminal Petition for Leave to Appeal No,180/L of 1996 and as the two Hon. Judges hearing the petition differed in their opinion, the petition was referred to Hon. Chief Justice to constitute a new Bench. On the allegation that respondent No,1 was wrongfully confining her daughter, Mst. Saima Waheed, the petitioner also filed a Habeas Corpus Petition No,425/H of 1996. While proceedings in this petition were pending some more petitions, Writ Petition No,6468 of 1996 and Criminal Miscellaneous No,435/H of 1996 were instituted concerning the liberty of the alleged detenue. The Hon'ble Chief Justice constituted a Full Bench of three Judges to hear these cases and some other connected matters. Vide judgment dated 10-3-1997, the Full Bench by a majority of two to one held the marriage valid, even without the consent of 'Wan'. However, learned Judges individually proceeded to record their own views and the manner in which the marriages should be contracted. Thus aggrieved the appellant approached this Court and was granted leave to appeal on 3-4-1997.
5. The impugned judgment of a learned Single Bench of the High Court in Civil Appeal No,563/97, in addition to grounds which will be noticed hereafter has also been subjected to criticism or the ground that the Full Bench of three Honourable Judges of the same Court being seized of the question involved, learned Judge ought to have referred the same for hearing by the Full Bench and should not have himself hastily proceeded to pronounce his opinion on the question involved.
It has also been urged that learned Judge acted illegally and improperly in ignoring the pronouncements of the Federal Shariat Court on the subject which were brought to his notice during hearing but have been designedly not noticed.
5-A. In the impugned judgment in Criminal Appeal No,98 of 1997, one learned Member of the Full Bench (Malik Muhammad Qayyum, J. As he then was) held that the judgments of the Federal Shariat Court being in the field were binding on the High Court. We, therefore, directed the learned counsel appearing for the parties as well as learned Attorney-General for Pakistan to address the Court on this question of law which seemed preliminary and jurisdictional in nature. If this Court concludes that the pronouncements of the Federal Shariat Court are in the field and the same are binding on the High Court the controversy on merits can be avoided.
6. In Muhammad Imtiaz and another v. The State (PLD 4981 FSC 308), Arif Hussain and Azra Perveen v. The State (PLD 1982 FSC 42), Muhammad Ramzan v. The State (PLD 1984 FSC 93) and Muhammad Yaqoob and another v. The State and 3 others (1985 PCr.LJ 1064), the Federal Shariat Court has been consistently taking the view that a sui juris Muslim girl can contract marriage of her own accord and the consent of her Wali or other relations is not requisite to the validity of marriage.
Earlier in Mauj Ali v. Syed Safdar Hussain Shah and another (1970 SCM R 437), this Court had held that a Muslim girl attaining puberty is competent to marry of her own free-will and on this ground her custody was declined to her father and the order of the High Court permitting her to go and live with the husband was maintained. In PLD 1982 FSC 42 and PLD 1984 FSC 93 the Federal Shariat Court has even held that subject to other facts of a given case, an admission by a couple that they were married, would constitute sufficient proof of marriage.
7. In support of his contention that notwithstanding the judgments of the Federal Shariat Court, the High Court was competent to itself decide the same question, Mr.Gillani contends that these judgments are not binding on the High Court. In this connection, he has supported the view taken by one of the learned Judges of the Full Bench (Ihsan-ul-Haq Chaudhry, J. As he then was). Before us he has asserted that these judgments are not binding on the High Court as--
(i) the judgments have been delivered in appellate criminal jurisdiction of the Court and relied upon statement of law is not a "decision" within the meaning of Article 203GG of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred to as "the Constitution");
(ii) that the judgments are beyond the jurisdiction of the Federal Shariat Court as the matter pertained to the Muslim Personal Law upon which the Court could not make any pronouncement.
In this connection, he relied upon definition of the expression "Law" as contained in Article 203B (c) of the Constitution; and
(iii) Judgments in question having been delivered in exercise of criminal appellate jurisdiction, cannot be said to have been delivered under Chapter 3A and as such are outside the purview of Article 203GG.
8. Syed Iqbal Haider, learned Advocate Supreme Court for respondent No,1 has argued to the contrary and has maintained that the judgments of the Federal Shariat Court are binding on the High Court as also the Courts subordinate to the High Court whether given in revisional, appellate or original jurisdiction. He has cited cases holding that consent of 'Wall is nowhere provided as a pre-condition to the validity of marriage. Towards the end of his submission, he also prayed that scandalous and frivolous remarks contained in pleadings against respondent No,1 in the petition in this Court as well as in the petition in the High Court be ordered to be expunged as the same are baseless and not necessary to the decision of the case. Syed Hamid Ali Shah, learned Advocate Supreme Court for respondent No,2 in Criminal Appeal No,98 of 1997 has submitted that Mst.Saima and Arshad Ahmed are validly married, they are living abroad for the time being and have already been blessed with two children a son and a daughter. He has submitted that the Courts are extremely reluctant to illegitimate children. He has cited Zahur Textile Mills Ltd. v. Federation of Pakistan and others (PLD 1999 SC 880) to submit that the judgments of the Federal Shariat Court are binding on the High Court. He has also cited Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and-others (PLD 1992 SC 595), to rebut the argument of Mr.Gillani that the High Court and this Court in exercise of their general and Constitutional jurisdiction can hold a law or practice to be contrary to Injunctions of Islam. In the submission of Mr.Shah no law can be declared un-Islamic on the touchstone of Article 2A of the Constitution.
9. Learned Attorney-General appearing, on Court notice has maintained that the judgments of the Federal - Shariat Court on the question of requirement of consent of Wali have been validly given, have attained finality and are binding on the High Court. He has argued that at least two Members of the Full Bench have travelled beyond the realm of law and have entered the domain of desirability or morality of the controversy. He has emphatically urged that the Judges of the superior Courts should avoid such an exercise. He has contested the distinction created by Mr. Gillani as to the use of word "decision" in Article 203GG. He has urged that the word "decision" is comprehensive enough to include judgment, order and even sentence. He has criticized the approach of the High Court to the entire controversy by pointing out that the High Court was dealing with a petition of habeas corpus and in such a petition the High Court can only determine the legality of detention or confinement and if it came to the conclusion that the same was illegal, it could direct release of the detenue. Under this jurisdiction the High Court should not have proceeded to 'determine complicated questions touching validity or otherwise of the marriage. He supports Mr.Shah's argument that once Mst.Saima Waheed appeared in the Court and stated that she was living in 'Dastak' with her free-will, the habeas corpus petition should have been dismissed.
Learned Attorney-General has cited Ghulam Muhammad alias Gaman v. The State (PLD 1981 FSC 120) to submit that the expression "Muslim Personal Law" in Article 203B (c) of the- Constitution means codified or enacted law exclusively applicable to Muslim Citizen of Pakistan as distinguished from other religious communities. According to him, consent of 'Wali' is nowhere provided in any codified law and therefore, the Court could validly examine the proposition as to whether it is a requirement of Injunctions of Islam that 'Wali' must consent to the marriage otherwise it will be invalid.
10. As noted earlier, there are number of judgments of the Federal Shariat Court specifically holding that an adult sui juris Muslim girl can contract a valid 'Nikah' on her own and consent of Wali/guardian/ relations is not needed. The repeated pronouncements of Federal Shariat Court are required to be followed by the High Court, and by all Courts subordinate to a High Court by virtue of Article 203GG added in the Constitution, in the year 1982. For convenience of reference the said Article is reproduced below:-- "203GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court."
11. Mr. Riazul Hassan Gillani, learned Advocate Supreme Court has made valiant attempt to get out of the rigor of this Article. He has supported the view of Justice Ihsan-ul-Haq Chaudhry (as he then was) and has urged that we should uphold the same. His argument is that in order to be binding on the High Court, it has to be a "decision" and it has to be "in the exercise of its jurisdiction under this Chapter". He has explained that the judgments in Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308), Arif Hussain and Azra Perveen v. The State (PLD 1982 FSC 42), Muhammad Ramzan v. The State (PLD 1984 FSC 93) and Muhammad Yactoob and another v. The State and 3 others (1985 PCr.LJ 1064) were either delivered in exercise of the revisional jurisdiction conferred by Article 203DD of the Constitution or in appellate jurisdiction conferred by amendment in the Zina (Enforcement of Hudood) Ordinance, 1979. According to him, these judgments cannot be said to have been delivered by the Federal Shariat Court in exercise of its ?,jurisdiction under Chapter 3-A of the Constitution".
12. The argument is fallacious. The Federal Shariat Court is itself the creation of Chapter 3-A. Article 203D confers, what may be described as original jurisdiction on the Federal Shariat Court. Under this jurisdiction, the Federal Shariat Court, on its own motion or on the petition of any citizen of Pakistan or Federal Government or a Provincial Government, can examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). Article 203DD empowers the Court to call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by any such criminal Court. Sub- Article (3) of Article 203DD lays down that "the Court shall have such other jurisdiction as may be conferred on it by or under any law". It may be noted here, that right of appeal was provided to the Federal Shariat Court by adding second proviso to section 20(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be referred to as "the Ordinance"), in the year 1980.
13. Article 203GG says that any decision of the Federal Shariat Court in the exercise of its jurisdiction under this Chapter will be binding on the High Court. We have seen that this Chapter 3-A not only establishes Federal -Shariat Court but also specifies various jurisdictions of the Court. It is difficult to accept the contention that merely because the appeal against the judgment of the Federal Shariat Court has been provided by second proviso to section 20(1) of the Ordinance, the criminal appellate jurisdiction cannot be said to be the creation of Chapter 3-A of the Constitution.
Constitution is the fundamental law and all laws derive their validity from the same. While exercising the appellate jurisdiction, conferred by the Ordinance under the enabling provision of Article 203DD (3), the Federal Shariat Court in fact is exercising jurisdiction conferred by sub-Article
(3) of Article 203DD, a part of Chapter 3-A.
14. It is well-settled that the Court will lean in favour of harmonious interpretation of the statutes/various provisions, and would certainly avoid an .Interpretation which has the potential of conflicting judgments or pitching one Constitutional Court against another Constitutional Court. If Mr.Gillani's argument is accepted, technically the High Court can declare the judgments of Federal Shariat Court as without lawful authority in exercise of its writ jurisdiction under Article 199 of the Constitution. Such a situation could not have even been contemplated by law-maker. It certainly is a most undesirable situation and has to be avoided by appropriate interpretation. Further take the case of conflicting judgments, as in the present case. Which of the views that of the learned Single Judges or that of the Federal Shari at Court be held binding on Courts, authorities, tribunals and which should be followed by them? If option was left with them, the result would be utter confusion.
For this reason as well, the submission of Mr. Gillani merits to be rejected.
15. Mr. Gillani's next submission is that the judgments of the Federal Shairat Court on the question of consent of 'Wali' are not "decision" within the meaning of Article 203GG. He has explained that in the various Articles of Chapter 3-A different expressions like judgment, sentence, order or decision have been used. According to him, these are distinct expressions connoting something different from each other and as Article 203GG only makes a "decision" binding, the High Court has correctly not followed these judgments.
16. This argument has again to be rejected. Various expressions like judgments, decision, order or sentence have not been defined in Chapter 3-A nor in the Constitution. These expressions have, therefore, been used in their dictionary meaning. Particularly the expression "decision" in Article 203GG seems to have .Been used in a generic sense which would include and which may include the judgment i,e, reasons, an order say of confiscation of property, and/or an order of payment of compensation or sentence like that of imprisonment or fine. This view has again the merit of avoiding the potential mischief whereby the High Court can start scrutiny of the judgments, or orders or sentences imposed by the Federal Shariat Court. At the cost of repetition it may be stated that such an ugly situation has to be avoided.
17. The meaning of expression "decision" and "judgment" as given in "Black's Law Dictionary, Revised Fourth Edition, 1968" confirms the above conclusions. The words "decision" and "judgment" have been explained:-- "Decision". "A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.
' A judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it.
' A judgment given by a competent tribunal.
' The findings of fact and conclusions of law which must be in writing and filed with the clerk."
"Judgment". "A sense of knowledge sufficient to comprehend nature of transaction.
' An opinion or estimate. The conclusion in a syllogism having for its major and minor premises issues raised by the pleadings and the proofs thereon.
' The formation of an opinion or notion concerning something by exercising the mind upon it.
' The official and authentic decision of a Court of justice (underlining by me) upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination."
18. It is clear from the above that the two words "decision" and "judgment" are almost similar in meaning in the context of the present controversy. The expression "decision" in Article '203GG will include the judgment, order or the sentence if any passed by the Federal Shariat Court and all these will remain binding on the High Court and Courts subordinate to the High Court.
19. Mr. Gillani has also questioned the applicability and binding nature of the above judgments of the Federal Shariat Court on the ground that the Court had decided something which pertained to Muslim Personal Law, which has been kept out of scrutiny of the Court by Article 203B (c) of the Constitution which defines law. In this connection, he has relied on Dr.Mahmood-ur-Rahman Faisal v. Government of Pakistan through Secretary, Ministry of Justice, Law Parliamentary Affairs, Islamabad (PLD 1994 SC 607).
20. The difficulty in accepting this argument of Mr. Gillani is that the judgments were delivered by the Federal Shariat Court between 1981 and 1985. Clearly these have attained finality. The Federal Shariat Court is a Constitutional Court and it is at least undesirable and inappropriate, if not illegal that another Constitutional Court (like High Court) should hold the judgments as without jurisdiction. Even in normal course the point of jurisdiction has to be urged before the same Court and an adjudication obtained. The Constitution provides appeal to the Shariat Appellate Bench of this Court and the question of jurisdiction could have been urged and adjudication sought initially from the Federal Shariat Court and thereafter in appeal from the Shariat Appellate Bench. As noted, this course was never followed with the result that the judgments in question have attained finality.
During the course of hearing, it was suggested to Mr. Gillani that if parties were so keen the Federal Shariat Court may be asked to review their judgments. Mr. Gillani replied that the Federal Shariat Court has not been conferred the power of review. This response is factually incorrect. Under Article 203E (9) added through Presidential Order No,5 of 1981, the Federal Shariat Court has the power of review.
21. Notwithstanding the above, since the point of jurisdiction has been keenly raised and contested it is considered appropriate to adjudicate the same. In Federation of Pakistan v. Mst. Farishta (PLD 1981 SC 120) the expression "Muslim Personal Law" as used in Article 203B (c) came under consideration of this Court. In this case, Mst. Farishta by filing an application before the Shariat Bench of the High Court of Peshawar claimed a declaration that section 4 of the Muslim Family Laws Ordinance No, VIII of 1961, providing for the right of inheritance to the children of predeceased child of porosities be held as opposed to the Injunctions of Islam. The Shariat Bench of the High Court accepted the petition and granted the declaration. On an appeal by Federation of Pakistan, this Court held that the expression "Muslim Personal Law" has been used in the sense of statutory law applicable to the Muslims only as compared to other religious communities inhabiting Pakistan. This Court held that the Shariat Bench was not entitled to scrutinize section 4 of the Muslim Family Laws Ordinance, 1961. The appeal was allowed and the declaration set aside. This judgment was considered by Shariat Appellate Bench of this Court in the case reported as PLD 1994 SC 607 in Dr.Mehmood-ur-Rehman Faisal's case. In this case, Federal Shariat Court had rejected the petition seeking declaration of invalidity of certain provisions of Zakat and Ushr Ordinance, 1980.
The Shariat Appellate Bench of this Court re-considered the statement of law made in Mst.
Farishta's case and held:- "As we have reached the conclusion of that only by reasons of being a codified or statute law and applicable exclusively to the Muslim population of the country, a law would not fall in the category of 'Muslim Personal Law' unless it is also shown to be the personal law of a particular sect of Muslims, based on the interpretation of Holy Qur'an and Sunnah by that sect.". (Underlining by me).
' On this premise the Hon'ble Appellate Bench held that Zakat and Ushr Ordinance, 1980 was not outside the scope of scrutiny of Federal Shariat Court under Article 201D of the Constitution. It will be seen that the statement of law as contained in Mst.Farishta's case has not at all been recalled in the case of Dr.Mehmood-ur-Rehman Faisal. On the contrary this Court added one more condition to be present before ouster can exist. In other words, according to this Court, Muslim Personal Law cannot be examined by the Federal Shariat Court and Muslim Personal Law in Article 203B (c) means (i) statutory law of Muslims and (ii) it is personal law of a particular sect. If these two conditions are not present, the matter can be examined by the Federal Shariat Court.
22. In the case before us,. It is not the case of the appellant that any codified or statutory law provides that the consent of `Wali' is necessary or not necessary in the case of marriage of sui juris Muslim girl. The 1st of the conditions of ouster is not present. Therefore, such a declaration is clearly within the exclusive power and jurisdiction of the Federal Shariat Court. The argument of Mr. Gillani that the judgments in question being void are not binding on the High Court is repelled. It may be repeated that we would not have examined this argument but for the keenness and vehemence with which Mr. Gillani raised it. For purposes of this appeal it is enough for us to hold that it is inappropriate and undesirable that one Constitutional Court should avoid the judgments of another Constitutional Court, in collateral proceedings. The proper course, it is repeated is to raise the question in accordance with law before the Federal Shariat Court and obtain its adjudication.
23. There is force in the submission of the learned Attorney-General that the High Court has needlessly blown up the issue. The sole controversy before the High Court in Criminal Appeal No,98 of 1997 was whether Mst.Saima Waheed daughter of the appellant was being wrongfully confined in the place known as `Dastak', run by respondent No, 1 . On record, an application filed by Mst.
Saima Waheed to the effect that she was living in 'Dastak' of her free-will is available. She also appeared before learned Judge (Justice Malik Muhammad Qayyum, as he then was) on 18-4-1996 where again she asserted that she was living in 'Dastak' and would like to go there. Learned Judge, however, declined to accede to this request on the ground that another learned Judge (Justice Ihsan-ul-Haq Chaudhry, as he then was) had in another habeas corpus petition directed her recovery from 'Dastak' and her lodging in Dar-ul-Aman. Justice Malik Muhammad Qayyum notwithstanding her protest and apprehension of serious danger to her life, directed that order of Justice Ihsan-ul-Haq Chaudhry be complied with. He, however, directed Senior Superintendent of Police, Lahore to personally ensure safety of the detenue while in `Dar-ul-Aman'. The learned Judges of the High Court, with due deference, could have and ought to have avoided the needless controversy as regards the validity of M the marriage which subject in any .Ease falls within the exclusive domain of Family Court established under the West Pakistan Family Courts (Act XXXV), 1964.
24. The proceedings in the High Court originated from the petition of the appellant under section 491 of the Code of Criminal Procedure, 1898, praying: "For the recovery and release of Mst.Saima Whaeed, .The detenue from illegal detention/custody of the respondents."
' In the facts and circumstances of the case particularly in view of the stance of the alleged detenue that she was voluntarily putting up at Dastak', the High Court clearly transgressed its jurisdiction and by formulating the question of validity of marriage and then answering the same, assumed to itself the exclusive jurisdiction of the Family Court in such matter. The point need not be laboured further and may be concluded by observing that it was inappropriate and undesirable, if not illegal for the High Court to have determined the fate of the couple by adjudicating the validity of marriage on the touchstone of Injunctions of Islam, in proceedings under section 491, Cr.P.C.
25. In Civil Appeal No,563 of 1997, the learned Judge deciding the Constitutional petitions seeking quashment of F.I.R has not only ignored the above legal objections but, with due deference to the learned Judge, assumed to himself the adjudication of a question already being considered by the Full Bench of the same Court. The Full Bench concluded hearing, spread over weeks, on 23-10-1996 and delivered judgment on 10-3-1997. The learned Judge decided the writ petitions on 24-9-1996.
The normal and appropriate course was to either wait for the decision of the Full Bench or to have clubbed these cases with the cases 'under consideration of the Full Bench. The assertion of Ms. Aasma Jehangir, learned Advocate Supreme Court who was counsel of the couple before the learned Single Bench that she requested repeatedly sending the cases to Full Bench has not been contested. The Full Bench cases were otherwise being widely publicized in the media. The out of the way and abnormal course adopted by learned Single Judge has raised misgivings which could have been avoided in the larger interest of fairness and impartiality of the judiciary.
26. Mr. Gillani towards fag-end of his submissions also impeached the validity of the statement of law recorded by the Federal Shariat Court in Muhammad Imtiaz's case (supra). He wanted to show that the Court has placed reliance on references which are non-existent. Since I am holding that the subject falls to be determined by the Federal Shariat Court, the argument need not be examined in detail. The argument in any case ignores that there are at least three other judgments of the same Court, presided by different Honourable Judges of eminence including Alim Judges reputed for their command over the Islamic principles. Mr. Gillani offered no comment on these judgments. Additionally, it is an extremely undesirable exercise to collaterally impeach the judgments of a ,Constitutional Court which have in any case attained finality.
27. As regards the request of Mr lqbal Haider, learned Advocate Supreme Court for expungement of assertions made against the person of respondent No,1, suffice it to observe that there is no material on record to hold their validity, one way or the other. We will therefore, leave respondent No,1 to vindicate her position by resorting to appropriate proceedings, in accordance with law, and if so advised.
28. Mst. Shabina Zafar appeared before us in person and denied her marriage with Muhammad Iqbal appellant in Civil Appeal No,563 of 1997. This is contrary to her stance in the High Court. In view of the order proposed to be passed, we decline to determine this question of fact.
29. For what has been stated above, it is hereby held/declared/ ordered:--
(i) that as per judgments of the Federal Shariat Court, noted in para. 6 of this judgment, consent of `Wale is not required and a sui juris Muslim female can enter into valid `Nikah' marriage of her own free-will.
(ii) Statement of law contained in the judgments of the Federal Shariat Court, noted in para.6 of this judgment is binding on tiib High Court and Courts subordinate to the High Court.
(iii) Criminal Appeal No,98 of 1997 is dismissed with the declaration that marriage in question in this appeal is not invalid on the ground of absence of consent of appellant-Wali.
(iv) Civil Appeal No,563 of 1997 is allowed, impugned judgment of the learned Single Bench of the Lahore High Court dated 24-9-1996 is set aside. It is declared that the marriage in question in Writ Petition No,16561 of 1996 and Writ Petition No,11995 of 1996 is not illegal on account of the alleged absence of consent of 'Wan'. However, it will be open to the parties to seek adjudication as to existence and validity of marriage from the competent Court, in accordance with law. Writ Petitions Nos.11995 of 1996 and 16567 of 1996 stand disposed of, accordingly.
(v) Parties be left to bear their own costs.
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