' This be considered as an admitted case.
' The brief facts in the instant writ petition are . That a suit for jactitation of marriage was filed by the petitioner that she is the legally-wedded wife of respondent No,2 as she has performed her Nikah Exh.P.1 which is registered in the relevant record of Ward No,4 of the concerned Union Council and the claim of the respondent No,1 Saifullah is fabricated and unlawful one. This suit was resisted. The respondent No,1 Saifullah also brought a suit for jactitation of marriage against Mst. Taj Khatoon and alleged that Mst. Taj Khatoon was his legally-wedded wife, both suits were consolidated. The consolidated issues were formulated and the evidence was recorded and the learned Family Court Judge vide consolidated judgment and decree dated 18-7-2002 dismissed both the suits. On appeal vide consolidated judgment and decree dated 24-4-2003 the appeal was dismissed. Now, the judgments and decrees passed by both the learned Courts below are under challenge in the instant writ petition.
2. The argument advanced by the learned counsel for the petitioner is that the Nikah of the petitioner is registered with the concerned Nikah Registrar with Ghulam Qasim and a presumption of truth is attached to the document which is on record. This Nikah Exh.P.1 was performed by the petitioner who is sui juris with her free consent. The respondent Saifullah lodged the criminal complaint under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 claiming a Sharai Nikah with the petitioner. Both the learned Courts below have misread the evidence produced on record and gave a contradictory judgment.
3. Learned counsel for the respondents, from the very outset, acceded to the arguments advanced by the learned counsel for the petitioner that in fact the learned Courts below have wrongly dismissed the suit for jactitation of marriage and they decided Issue No,2 against Saifullah, respondent No,1, which is reproduced below:-- "Whether the defendant No,1 is previous husband of the plaintiff through an oral Nikah solemnized in accordance with Shariah? OPD-
4. In this way the learned Family Court Judge has decreed the suit but has inadvertently written the same as dismissed.
5. I have heard the learned counsel for the parities and have perused the record.
6. A suit for jactitation of marriage was filed by the petitioner claiming that she is the legally wedded wife of one Ghulam Qasim with whom she has solemnized registered Nikah Exh.P.1 and she sought a declaration to restrain the defendant No,1, Saifullah to claim her as his wife.
7. Mst. Mumtaz Bibi, the plaintiff herself appeared as P.W.1 in support of her version and she stated that her angry father got registered a case against her while she was living with Ghulam Qasim from the date of Nikah while prior to Nikah she was living with her father who wanted to sell her and she left the house one week before the Nikah. She was supported by Muhammad Akram Khan, the witness to Exh. P.1 and then Muhammad Ramzan who is also a witness to Exh.P.1 and both of them have unanimously supported the petitioner/ plaintiff that she married of her own accord and she thumb-marked the Nikahnama. Muhammad Ramzan P.W.3 is also the Nikahkhawan.
8. D.W.1 is Suleman, the father of the petitioner. He stated on oath that he solemnized Sharai Nikah of the petitioner on 23-3-2002 with his nephew. In cross-examination he admitted that Saifullah defendant resides in Union Council Shahbaz Kiwi while his Mauza is Ahmad Khanwala and Union Council is Shahbaz Khel. He stated in cross-examination that he does not know that Ghulam Qasim has solemnized Nikah with his daughter. It was a fabricated Nikah and he has got registered a case. He also admitted that his daughter has filed a suit for jactitation of marriage prior to the suit filed by Saifullah, the respondent No,1. D.W.2 is Saifullah. He stated that the petitioner is his paternal cousin, and his Nikah was solemnized prior to the petitioner's Nikah with Ghulam Qasim. He also admitted that the elder sister of the petitioner is still unmarried and she is of his age and the plaintiff is three years younger than the elder sister. He was supported by D.W.3 Ahmad Nawaz who admitted in cross-examination that the petitioner/ plaintiff is 27/28 years old and he is not a witness to Nikah. D.W.4 is Hafiz Ghulam Hussain. In cross-examination he stated that he has never seen the plaintiff. The Nikah was Sharai and the consent of the plaintiff was not taken. D.W.5 is a Nikah Registrar. He stated on oath that he is the Nikah Registrar of Mujahid Town, Mianwali. Maulvi Muhammad Ramzan came to his house in his absence. He took the Nikah Register and after three days he retuned the Nikah Register. When he checked the same the Nikah of the petitioner was found with Ghulam Qasim and he cancelled the same being fictitious. In cross-examination he admitted that Muhammad Ramzan is Nikah Khawan of Mujahid Town and he was the Nikah Registrar. He also admitted that in the Nikahnama Exh.P.1 his stamp is affixed and he also admitted that it carries his signatures but he does not remember who got this Nikah signed by him and voluntarily sought that Ramzan must have got his signatures through fraud.
9. After perusing the evidence on record this Court has found out that the findings of the learned Family Court Judge on Issue No,1 are entirely the result of misreading of evidence on record. Even on Issue No,2 there is positive speaking judgment of the learned Family Court Judge that the Nikah with the respondent Saifullah does not stand proved. The petitioner had appeared as her own witness. She has produced the witnesses of Nikah. The D.Ws. Have admitted their signatures on Exh.P.1 which is sacred document and carries an evidentiary value and the learned Appellate Court has not even bothered to read the evidence. It seems that both the learned Courts below are influenced by a criminal case pending against the petitioner and her husband. The criminal prosecution cannot affect the adjudication of a civil matter. A Family Court being a Civil Court has to decide the case on material issues, in accordance with the evidence on record. This Court is of the view that both the learned Courts below have not applied their judicial mind rather discussed the registered case against the petitioner and they have not read the evidence on record which was trustworthy and material witnesses to the Nikah were produced and cross-examined by the learned counsel for the defendant and nothing exists on record not to believe them. They have also misread the evidence in respect of the D.Ws. Nikah Registrar has admitted that he had signed Exh.P.1. The petitioner successfully has proved her case that she is the legally-wedded wife of Ghulam Qasim as she was sui juris and she had given her free consent and the Nikah was a registered Nikah.
10. Under above circumstances instead of decreeing the suit of the plaintiff the learned Courts below dismissed the same under sheer influence of criminal prosecution without applying their mind judiciously to the evidence on record. In this way the learned Courts below failed to decide the case within their lawful jurisdiction. Therefore, I accept this writ petition and set aside both the judgments and decrees passed in the suit for jactitation of marriage in favour of the petitioner and decree the suit for jactitation of marriage and dismiss the suit of the defendant/ respondent. No,1