ASMA BIBI Versus SUPERINTENDENT OF POLICE, GUJRANWALA
ORDER
Seeks quashment of case F.I.R. No.240 of 2002 dated 14‑8‑2002 under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII, 1979 registered at Police Station Wando, District Gujranwala. This F.I.R. was got registered by Muhammad Nazir son of Muhammad Yousaf about the abduction of his daughter namely Mst. Asma (petitioner) by Muhammad Arif and six other respondents for the purpose of fornication.
2. Through this petition, prayer has been made for the quashment of abovesaid case F.I.R. on the grounds that she was neither abducted nor subjected to Zina‑bil‑Jabr by anybody; that the petitioner being sui juris had contracted marriage with Muhammad Arif (respondent No.4) with her own free‑will and consent on 9‑8‑2002 and this Nikahnama was duly registered at the relevant office; that the impugned F.I.R. was got registered malafidely, by the father of the petitioner after distorting the true facts. In support of her plea, petitioner has also filed her affidavit alongwith this petition.
3. On the other hand stand of the complainant party is that Muhammad Arif (respondent No.4) is real uncle of the petitioner and during the existence of his marriage with the aunt of the petitioner' he cannot contract second marriage with the petitioner who is niece of his wife; that Nikah contracted by the petitioner with the said Muhammad Arif (respondent No.4) is not a valid marriage and the sexual intercourse committed under the said pretext amounts to commission of Zina punishable under section 10 of the Offence of Zina, (Enforcement of Hudood) Ordinance NO.VII, 1979.
4. Learned counsel for the parties have been heard at some length and with their assistance I have gone through the relevant law on the subject.
5. The facts which stand established from the record are that Mst. Azra Bibi who is real sister of Mst. Zafra Bibr is still in the Nikah of Muhammad Arif (respondent No‑4). The said Mst. Zafra Bibi is real mother of the petitioner thus the petitioner (Mst. Asma Bibi) is real niece of the wife of Muhammad Arif (respondent No.4). Muhammad Arif (respondent No.4) has contracted second marriage with the petitioner during the existence of his first marriage.
The question whether a person can contract second marriage with the niece of his wife who is still in his Nikah and that consummation of said marriage would make them guilty of offence falling within the ambit of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance NO.VII of 1979, needs careful study of Holy Qur'an, the sayings of the Holy Prophet Muhammad (p.b.u.h.) and opinions of scholars of the Islamic Jurisprudence. The relevant portion of the Holy Qur'an to answer the question is Verse No.23 of Surah Al‑Nisa. The English translation of 3ie said Verse is as under:‑‑
"Forbidden to you for marriage are: Your mothers, your daughters, your sisters, your paternal‑aunts, your maternal‑aunts, daughters of your brothers, daughters of your sisters, your foster mothers, your foster sisters, the mothers of your wives, your step‑daughters under your guardianship from those wives with whom you have consummated your marriage, but there is no blame on you in marrying your step‑daughters if you have not consummated your marriage with their mothers, whom you have divorced, and the wives of your own real sons; and you are also forbidden to take in marriage two sisters at one and the same time except what happened prior to this commandment, surely Allah is Forgiving, Merciful."
For our purpose, the relevant portion of, the verse has been underlined. It is clear from this part of the Holy Qur'an that two real sisters cannot stay in the Nikah of one person at the same time. The next point to be looked into is whether other women falling in the same blood stream/relation in different degree would also fall within the category of Forbidding Women? To find the answer for this question, we can seek guidance from the sayings of the Prophet Muhammad (p.b.u.h.) and the opinions of the scholars. In Sahih Bukhari Sharif Vol.III, translated by Hafiz Qari Muhammad Adil Khan Naqshbandi and Qari Muhammad Fazal Qureshi, we find the answer to the said proposition as well as to the question under consideration. Chapter No.57 of the said book reads as follows:‑‑
Many scholars of Islamic Jurisprudence while interpreting the above mentioned portion of the Holy Qur'an has also opined that second Nikah with the niece of the wife during the existence of first marriage is not valid Nikah. While explaining the said particular portion of Holy Qur'an, Maular: Mufti Muhammad Shafie in his book Maarf‑ul‑Qur'an, Volume II, page 362 has opined as under:‑‑
Maulana Abdur Rehman, Sheikhul Tafseer Wal Hadis, Jamia Ashrafia, Lahore in his book Nukaat‑ul‑Qur'an Vol.II, page 1077 has opined as follows:‑‑
Hazwat Maulana Abul A,'la Maudoodi in his book Tafheem‑ul -Qur'an Vol.II, page 339 while interpreting the abovsaid portion of Holy &ur'an opined as under:‑‑
In Dars‑ul‑Qur'an by Idrara Islaaho Tableegh, Lahore at page 528 while interpreting the abovesaid portion of Holy Qur'an, the view of Jurist is:‑‑
In Al‑Qur'an Kareem printed by Shah Fehd Qur'an Kareem Printing Complex, Kingdom of Saudi Arabia, against the relevant portion of Qur'an we find following interpretation/Tafseer:‑‑
Similarly, in Kunz‑ul‑Eiman Fil Tarjmat‑ul‑Qur'an complied by Maulana Ahmad Raza Khan Qadri, the interpretation of relevant portion of Qur'an is at page 817 which reads as follows:‑‑
6. In book titled Mahomedan Law by D.F. Mulla, under section 263 i.e, unlawful conjunction, we find the following definition:‑‑
"Unlawful conjunction.‑--‑A man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either of them had been a male, they could not have lawfully intermarried as for instance two sisters, or ant and niece. The bar of unlawful conjunction renders a marriage irregular, not void."
7. From the study of Holy Qur'an, Sunnah and the opinions of the scholars about the matter under consideration, the answer to the question is that "It Is unlawful for a man to have as his wives at the same time two' women" so related to each other that if one of them were supposed to be a male (a marriage between them would be) unlawful.
8. In the present case, as observed earlier petitioner is real niece of Mst. Azra Bibi who is still in the Nikah of Muhammad Arif (respondent No.4) and applying same formula if one of the said ladies is presumed to be a male then obviously Nikah between both of them would be invalid. Thus the marriage of the petitioner with Muhammad Arif (respondent No.4) which is later in time is not a valid marriage. In this view of the matter, prima facie, the act of sexual intercourse committed by the petitioner and Muhammad Arif in lieu of said Nikah is nothing but commission of Zina falling within the purview of section 4 read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII, 1979. In these circumstances, grounds taken up by the petitioner seeking quashment of said F.I.R: have no force. Resultantly, instant petition stands dismissed with the direction to the parties to bear their own costs.
It is made clear that trial Court or the Court dealing with the bail matters in this case shall decide the case independently without being influenced by the observation of this Court.
9. On 1‑11‑2002, vide short order this petition was dismissed. This detailed order shall be read as part and parcel of said order.
S.M.A.H./A‑648/L Petition dismissed.