Open Merit & Transparency in Educational Institutions

PLJ 2018 Peshawar 26 (DB)

Present: Yahya Afridi, C.J. and Muhammad Ayub Khan, J.

AHMAD DANYAL--Petitioner

versus

ISLAMIA COLLEGE, PESHAWAR through Registrar and others--Respondents

W.P. No. 3011-P of 2016, decided on 18.5.2017.

Constitution of Pakistan 1973--

----Arts. 22, 25, 25-A, 27 & 199--Fixation of self finance & special quotas by public sector educational institutions--Violation of Open merit and transparency--Constitutional petition--Petitioner applied for admission in FSC Pre-Medical and Pre-Engineering for both Islamia College and University College for boys Peshawar, but he could not get admission as open merit seats were restricted to 150, while 250 seats were allocated for self finance and about 120 seats through special quotas for different categories--Pleads violation of Article 25 & 27 of Constitution of Pakistan 1973--Validity--Under Constitution, through 18th Constitutional Amendment, Article 25A has been added, which identifies education, as one of fundamental rights of people--In a successful life of an individual, education plays an important role--It is considered to be foundation of society, which brings economic wealth, social prosperity, political stability and maintaining healthy population--Allowing quota to employees/teachers son of universities shows arbitrariness and authoritarianism--These universities are public universities and never belonged to its employees or its administration--Provincial Government has also shown its displeasure over reservation of quota for teachers or employees son and considered it as disproportionate and injustice to deserving candidates--Cases of disable persons and candidates from backward and under developed districts/FATA is altogether different, as per clear dictates of Article 22 and 27 of Constitution, which permits reservation of quota to students hailing from socially and educationally backward areas--By allowing constitutional petition, Court declared quotas as illegal and without lawful authority.                                       [Pp. 30, 33 & 34] A, B, C, D & E

Mr. Muhammad Isa Khan Khalil, Advocate for Petitioner.

Qazi Jawad Ihsanullah, Advocate for Respondents.

Date of hearing: 18.5.2017.

Judgment

Muhammad Ayub Khan, J.--Through this writ petition, the petitioner has called in question the quotas allocated to different categories of students in admission to the Islamia College, University of Peshawar and University of Peshawar and different Boards of this Province. His prayer in the writ petition seeks:--

“In view of the foregoing, it is, therefore, prayed that, on acceptance of this petition, this august Court may be pleased to issue an appropriate writ, thereby:--

(i)       declaring the impugned paras/parts of the prospectus, 3026 of ICP regarding the quota seats, fee structure, self finance scheme and the consequent admissions/actions as illegal, unlawful and of no legal effect;

(ii)      directing the ICP authorities to re-process the admissions in the intermediate classes (FA, F.Sc) forthwith on open merit against all the seats with no allocation of reserved seats to any category except that of the disabled students, and to form a fee structure for all on equality and parity basis;

(iii)     directing the Respondents No. 1 to 2 to grant admission to the locals of nearby villages on preferential and priority basis, like that being done in Govt. College, Peshawar and other areas/districts of the Province;

(iv)     directing the concerned authorities to restrain the in-service teachers at all levels from teaching tuitions individually or in private academies, and to take action against those academies which are owned by/or where the in-service teachers (professor, lectures, etc) are teaching for monetary gain;

(v)      directing the Respondents 10 and 11 to take immediate steps for centralization of the BISEs and uniform marking of examination papers through out the province, preferably before the forthcoming matric and intermediate examinations; and

(vi)     granting any other remedy to which the petitioner is found fit in law, justice and equity”.

2.  The relevant facts leading to this writ petition are that the petitioner applied for admission in the F.Sc Pre-Medical and Pre-Engineering for both Islamic College and University College for Boys, Peshawar. According to the petitioner, he could not find his admission in any of the Colleges as the open merit seats were restricted to 150, while 250 seats were allocated for self finance seat and about 120 seats through special quotas for different categories. It was vehemently contended how self finance seats can be allowed in the Government Funded Educational Institution. It was further asserted that all the allocation of these reserved quota seats run counter to the Articles 25 and 27 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”), besides violative of the judgment of the Apex Court reported in 2001 SCMR-1161.

3.  The respondents have filed their comments. The Islamic College, Peshawar filed their separate comments and submitted that since the petitioner was too low in the merit list; therefore, he could not qualify for admission. It is alleged that the allocation of quota to different categories has not effected the open merit; that there is no concept of earning profit on education and the fee structure is subsidies; that there is employees children quota, which is over and above the open seats, therefore, it cannot be said that employees children are benefited at the cost of others.

4.  The comments filed by the Respondents No. 5 to 9, different Boards of the Province have summarized in Para-17 as follows:--

“Under the Board of Intermediate and Secondary Education Act, 1990, the creation of BISEs is the mandate of the Government and the Government by exercising such power has created 08 boards in the Province to facilitate the public. After establishment of further boards in the province, so many steps have been taken by the authorities to prepare common papers and to standardize the marking in all the Boards. For ensuring uniformity in awarding marks the BISEs in KP used to prepare/set the question papers by single subject expert and for this purpose every year the different papers are allocated to different boards for preparation of question papers. Similarly, after examination the answers books are marked/checked through groups, wherein each Scorer is allotted one question for marking under the strict vigilance of Head Examiner etc. Furthermore, marking Scheme/rubrics are framed prior to the start of marking process, which are shared with the Head Examiners for onward communication to sub-examiners. The Boards have also started the Optical Marking Recognition (MOR). Due to these steps the examinations and marking system are very much improved and curtailed the chances of cheating etc. It is totally incorrect that there is a run amongst the BISEs for awarding more and more marks without looking at the quality of the education. It is also incorrect that decentralization of BISEs has badly damaged the quality of education. Due to population increase and far flung areas the centralization of BISEs is not possible. The decentralization was adapted to facilities the peoples/students on their door steps. It would not be out of place to mention here that it has always been the endeavour of all the BISEs and Government to bring about further improvements in the Examinations and Education system and to bring uniformity”.

5.  The Provincial Government has also filed their comments on behalf of Respondents No. 10 and 11. They admitted the stance of the petitioner and submitted the comments as follows:--

“3. Pertains to the Respondents No. 1, which is a public university and the petitioner personal record. However, the reservation of 120 seats out of 150 seats for special quota seems extremely disproportional. The reservation of quota for teachers’ son with almost no fee as compared to exorbitantly charged 250 seats allocated to self-finance scheme is also not justified. The Higher Education Department Khyber Pakhtunkhwa in its Admission Policy 2014-15 has also reserved 5% seats for the children of its employees on provincial basis, which is purely filled on merit only. There is no fee exemption for them at all (copy of the Admission Policy as Annex-A). The claim of the petitioner against the Respondent No. 1 appears alarmingly exploitative and uncalled for. The reservation of seats for teacher’s son in the Respondent No. 1 University should be filled on merit.

4. There should be no double standards for those who come on merit and those who do not come on merit despite the conducive environment of the university. The reservation of quota for those who belong to backward areas may be justified but for the children of the University employees in a very favourably environment cannot be justified. There should be minimum standard even for the sons of the teachers of the Universities. The poor standard 506 marks for the Admission in F.Sc is unwarranted. Islamia College University is indeed the most sought after institutions of this province. Teacher’s son’s quota should have been filled from the children of all the public sector universities in Khyber Pakhtunkhwa. There should not be any concession in fees structure for them alone. The fees structure of self-finance and those candidates filled on merit is too high, which needs rationalization. It is further submitted that universities are under sub-section (6) of Section 3 read with sub-section (3) of Section 12-A of the Universities Act, 2012, have financial and administrative autonomy therefore, the Respondent No. 11 cannot interfere in their autonomy. The Respondents No. 10 and 11, fully rely on the wisdom of this Hon’ble Court to judicially review the claim of the petitioner in accordance with law.

11.  The merit fixed for ICP Employees children is 560 as compared to the merit fixed for open merit is 1004, as claimed by the petitioner, seems exploitative and monopolistic. The scheme of the autonomy for the universities, does not envision such a monopolistic approach which needs review by this August Court”.

6.  Arguments heard and record perused.

7.  Under the Constitution through 18^th Constitutional Amendment, Article 25-A has been added, which identifies the education, as one of the fundamental rights of the people, the Article reads as under:--

“25-A. Right of education. The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.”

8.  In the successful life of an individual, the education plays an important role. Generally, it is considered to be the foundation of society which brings economic wealth, social prosperity, political stability and maintaining healthy population. Article 25 of the Constitution secured rights of equality amongst the citizens, it is reproduced for convenience:

“25. (1) Equality of citizens. All citizens are equal before law and are entitled to equal protection of law.

(2)  There shall be no discrimination on the basis of sex;

(3)  Nothing in this Article shall prevent the State from making any special provision for the protection of women and children “.

9.  The issue involved in this case is provisions of quotas in different Universities and Colleges. The determination of quota finds is mentioned in Article 27 of the Constitution which reads as under:--

“27.  Safeguard against discrimination in services.--(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth.

Provided that, for a period not exceeding [forty] years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan:

Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex [:]

Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament).]

(2) Nothing in clause(1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority “.

10.  Finally, the most pertinent provision relating to providing special status for students hailing from socially and educationally backward class has been expressly ordained in sub-article (4) of Article 22 of the Constitution, which provides;

“Nothing in this article shall prevent any public authority from making provisions for the advancement of any socially or educationally backward class of citizens.”

11.  We, while examining the prospectus for Intermediate, B.Sc, Master in Higher Studies, 2016 of the Islamia College, Peshawar found Admission Regulations that prescribed the following quotas for different categories which are either area specific or for the employees of Universities. The admission regulation providing quota to different categories are reproduced for ready reference:--

QUOTA SEATS

Category	Seats	Discipline			Eligibility
1. Triabal Agencies (Male)
a. Khyber Agency	1/1	Pre-Med/Pre-Engg			Domicile & School located within Khyber Agency
b. Kurram Agency	1/1	Pre-Med/Pre-Engg			Domicile & School located within Kurram Agency
c. Aurakzai Agency	1/1	Pre-Med/Pre-Engg			Domicile & School located within Aurakzai Agency
d. Mohmand Agency	1/1	Pre-Med/Pre-Engg			Domicile & School located within Mohmand Agency
e. Bajaur Agency	1/1	Pre-Med/Pre-Engg			Domicile & School located within Bajaur Agency
f. South Waziristan Agency	1/1	Pre-Med/Pre-Engg			Domicile & School located within SW Agency
g. North Waziristan Agency	1/1	Pre-Med/Pre-Engg			Domicile & School located within NW Agency
2. F.R Areas (Male)
a. F.R Peshawar	1	Pre-Med or Pre-Engg			Domicile & School located within F.R Peshawar
b. F.R Kohat	1	Pre-Med or Pre-Engg			Domicile & School located within F.R Kohat
c. F.R Bannu	1	Pre-Med or Pre-Engg			Domicile & School located within F.R Bannu
d. F.R Dera Ismail Khan	1	Pre-Med or Pre-Engg			Domicile & School located within Dera Ismail Khan
e. F.R Lakki Marwat	1	Pre-Med or Pre-Engg			Domicile & School located within F.R Lakki Marwat
f. F.R Tank	1	Pre-Med or Pre-Engg			Domicile & School located within F.R Tank,
3. Sports (Male)	9/8/3/3/7	Pre-Med/Pre-Engg/GS-I/GS-II/Arts
4. Sports (Female)	2/1	Pre-Med/Pre-Engg (in case of tie/draw preference shall be given to individual performance)
5. UET Employees Children reciprocal	12	Pre-Med or Pre-Engg
6. University of Agriculture Peshawar Employee’s sons on reciprocal basis			1/1	Pre-Med/ Pre-Engg
7. University of Peshawar Employee’s real sons including Federal Centres on the Camps.			15/15/5/5/15/5	Pre-Med/Pre-Engg/GS-I/GS-II/Arts/Theology
8. ICP employee’s real children			As per Actual
9. Physically Challenged (Male & Female)			2/2/1	Med/Engg/GS
10. Islamia Collegiate School Students (Male)			6/6/2/1	Med/Engg/GS-I/GS-II
11. Balochistan (Male)			2/2/1	Med/Engg/GS
12. Senior Alumni (Male & Female)			3	Pre-Med or Pre-Engg
13. Afghan Nationals (Male)			4/4/1/1	Med/Engg/GS-I/GS-II
14. O Level (Self Support) (Male & Female)			2/2	Pre-Med/Pre-Engg
15. Foreign Students				As per Recommendation of the Ministry concerned

12.  Unfortunately, the above table shows a completely sorry state of affair, the allocation of quota has out classed the open merit. Allowing quota to employees/teachers sons of the Universities shows the arbitrariness and authoritarianism. These Universities are public Universities and never belonged to its employees or its administration.

13.  The Hon’ble Federal Shariat Court in Nusrat Baig Mirza vs. Government of Pakistan and another PLD 1992 FSC 412 commented upon the quota system in the following words:

“The Holy Quran and Sunnah should form the basis of all our directions for all our spiritual as well as worldly endeavours as they provide us a guidance not only towards the good in the Hereafter but also to attain a good life in this world. Quota system in disregard of merit makes the place of domicile as the criteria and this has, unfortunately, been so woven and institutionalized in our socio-political fabric that unless we return to the original message of the Holy Qur ‘an we will be further away from the righteous and straight path.

14.  It may be noted that allocation of quota to different categories remained an issue before the Superior Courts in the history of this country. In the case of Attiya Bibi Khan vs. Federation of Pakistan PLD 2001 SC-1161, the august Supreme Court of Pakistan has discussed in detail the allocation of seats in the Medical Colleges. This judgment has in fact dealt with all categories that were given quota in admission to the Medical Colleges. In this Judgment, the allocation of seats for FATA, disabled and under development areas were considered to have constitutional backing, while the rest either that the employees sons, doctors sons, defence personnel sons etc. were not considered as having any constitutional protection and the apex Court has in this judgment decided a point of law and under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 is binding on all the educational institutions of this country, but unfortunately that was considered as specifically for the admission to the Medical Colleges. The judgment in Attiya Bibi case has since been implemented in the Medical Colleges and we have noted in many cases that the prospectus prescribed that quota only which has constitutional backing.

15.  The Provincial Government has also shown its dis-pleasure over the reservation of quota for teachers or employees sons and considered it as disproportionate and injustice to the deserving candidates. According to the learned AAG in view of Section 12 (a) of the University, 2012 since these Universities have administrative and financial autonomy; therefore, the Government cannot interfere.

16.  We also found that the merit fixed for the open merit has gone up to the candidate who got 1004 out of 1100, while the University employee’s children, who have 560 marks, had entered these Institutions through the impugned quotas.

17.  The cases of disable persons and candidates from backward and under developed districts/FATA is altogether different, as per clear dictates of Articles 22 and 27 of the Constitution, which permits reservation of quota to students hailing from socially and educationally backward areas.

18.  One of celebrated case of the Apex Court reported in 1991 SCMR-1041 titled “I.A. Sherwani vs. Government of Pakistan”, which has laid down the principle on the equal protection of law and equal treatment before law and discussed the reasonable classification, as contained in Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973:--

“(i)     that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii)      that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii)     that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes;

(iv)     that no standard of universal application to test responsibilities of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v)      that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary

          and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi)     that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii)    that in order to make a classification reasonable, it should be based:--

(a)      on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left our;

(b)      that the differentia must have rational nexus to the object sought to be achieved by such classification”.

19.  On the touch stone of the above principles, we find that reservation of quotas for all categories in Islamia College, Peshawar, is illegal and without lawful authority except for disabled students or under privileged class of students or students from FATA or under developed districts of the Province. This Court further directs that the Public Educational Institutions in Khyber Pakhtunkhwa shall follow the law and provide no quotas for admission except for disabled students or under privileged class of students or students from under developed/backward areas of the Province or FATA.

20.  For the reasons discussed above, this writ petition is allowed in the above terms.

(Z.I.S.)            Petition allowed

Concurrent findings cannot be interfered within writ Petition

PLJ 2012 Lahore 183
[Multan Bench Multan]

Present: Kh. Imtiaz Ahmad, J.

Mst. RUQIA BANO--Petitioner

versus

JUDGE FAMILY COURT KAROR PAKKA, LODHRAN and 2 others--Respondents

W.P. No. 5108 of 2004, decided on 26.10.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Concurrent findings cannot be interfered with in writ petition--Pronouncement of talaq was necessary--Dismissal suit for jactitation of marriage and decreed the suit for restitution of conjugal rights--Consolidated judgment--Question of--Whether previous husband had ever divorced plaintiff and if it was proved that he had not divorced plaintiff then even if plaintiff had contracted marriage with defendant even then she could not be said to be legal wedded wife--If talaq nama had been obtained then why the talaq nama had not been produced in evidence--In fact no talaq nama was ever executed--Statement of petitioner does in no way establish that her husband had divorced her--If it is left to discretion of the wife that whenever she would say that she had been divorced by her husband then talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against principle of law, since talaq is to be pronounced by husband and mere statement of wife is not enough to prove that she had been divorced--Courts below had infact misread evidence and had dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so divorce stands established and thus committed material irregularity while declaring plaintiff to be legally wedded wife of defendant--Normally Courts in a writ petition do not interfere with concurrent findings but when there was clear cut misreading of evidence and material irregularity in impugned judgments High Court has jurisdiction to interfere even if findings are concurrent--Suit was filed by plaintiff for jactitation of marriage stands decreed while suit for restitution of conjugal rights stands dismissed.          [Pp. 189 & 190] A, B, C, D & E

Mr. Muhammad Ramzan Khalid Joya, Advocate for Petitioner.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 25.10.2011.

Judgment

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, consolidated judgment and decree dated 10.12.2003 passed by the learned Judge Family Court, Kahroor Pakka whereby the suit filed by the present petitioner for jactitation of marriage was dismissed while the suit filed by the Respondent No. 3 herein namely Mureed Hussain for restitution of conjugal rights was decreed and consolidated judgment of learned Additional District Judge, Kahroor Pakka dated 14.5.2004 whereby both the appeals filed by the present petitioner were dismissed, have been challenged.

2.  The relevant facts for the disposal of this writ petition are that Mst. Ruqia Bano the present petitioner filed a suit on 19.6.2003 for jactitation of marriage against Mureed Hussain-Respondent No. 3 herein. The claim of the plaintiff was that on 19.5.2003 she was abducted by the defendant along with his companions and during this period the defendant committed Zina with her and thereafter the police recovered her on the order of learned Sessions Judge, Lodhran but during the period of abduction the defendant forcibly obtained her thumb impression on different papers and her husband Qurban Hussain also got the criminal case registered against the defendant and his companions Bearing FIR No. 190-2003 under Sections 10(3) and 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 at Police Station Saddar Kahroor Pakka. It was further alleged that the accused of said criminal case in their bail petition took the plea that the plaintiff was legally wedded wife of defendant and defendant also claimed the plaintiff to be his legally wedded wife, though, the plaintiff never entered into marriage with the defendant nor she was wife of defendant Mureed Hussain nor she ever signed any Nika Nama, though, during the period of her abduction the accused forcibly obtained her thumb marks and signatures. Thus, it was prayed that the plaintiff was not legally wedded wife of Mureed Hussain and decree for jactitation of marriage was sought for by the plaintiff. The suit was resisted by the defendant who filed the written statement wherein it was alleged that Qurban Hussain had divorced the plaintiff with his free consent and after the period of iddat the plaintiff contracted Nikah with the defendant but after the marriage the ex-husband of the plaintiff namely Qurban Hussain who had divorced the plaintiff, enticed away the plaintiff and took her to his home and while leaving the plaintiff also took jewelry and cash of the defendant and thereafter the false case registered against the defendant and with due planning the plaintiff and her husband Qurban Hussain filed a petition under Section 491 Cr.P.C. in the Court of learned Sessions Judge, Lodhran. It was further alleged that the marriage of plaintiff with the defendant took place on 19.3.2002. The defendant also filed a suit for restitution of conjugal rights and both the suits were consolidated and out of the pleadings of the parties, the following consolidated issues were framed :--

1.         Whether the plaintiff has no cause of action to file this suit? OPD

2.         Whether the suit is based on mala fide intention? OPD

3.         Whether the plaintiff is legally wedded wife of the defendant? OPD

4.         Whether the plaintiff is entitled to the decree for jactitation of marriage? OPP

5.         Whether the defendant is entitled to the decree for restitution of conjugal rights? OPD

5-A.     Whether Qurban Hussain has divorced the plaintiff? OPD

6.         Relief.

3.  The parties produced their evidence and after hearing them the learned trial Court decided Issues No. 1 & 2 against the defendant. Issues No. 3 & 5-A were decided in favour of defendant Mureed Hussain. Issue No. 4 was decided against the plaintiff. Issue No. 5 was decided in favour of the defendant and resultantly vide impugned judgment and decree dated 10.12.2003 dismissed the suit for jactitation of marriage and decreed the suit for restitution of conjugal rights. Feeling aggrieved the present petitioner filed two separate appeals, one against the dismissal of her suit for jactitation of marriage and the other against the decree for restitution of conjugal rights passed in favour of the defendant and both the appeals through consolidated judgment were dismissed by the learned Additional District Judge, Kahroor Pakka vide judgment and decree dated 14.5.2004. Hence this writ petition.

4.  Learned counsel for the petitioner contended that it is an admitted fact that both the parties belong to Shia sect and according to Shia Law, the pronouncement of Talaq is necessary but both the Courts below had ignored this fact and from the evidence it is not established that Qurban Hussain husband of the plaintiff had ever pronounced the Talaq. He further contended that according to the defendant Qurban Hussain has executed a written Talaq Nama but strangely enough the said Talaq Nama was not produced in the evidence nor there is any evidence to show that in whose presence Qurban Hussain had ever pronounced the Talaq. He further contended that even if for argument sake it be presumed that the plaintiff had entered into a marriage with Mureed Hussain even then it does not imply that she was divorced by her husband Qurban Hussain and both the Courts below had misread the evidence and had decided the case merely on presumptions and conjectures while ignoring this important aspect of the case that from the evidence it is not established that Qurban Hussain has ever divorced the plaintiff. He further contended that the plaintiff is now residing with Qurban Hussain and has one child out of the wedlock and she is 9 months pregnant and at this stage even the paternity of said child is at stake.

5.  On the other hand, learned counsel for the respondent supported the impugned judgments and decrees of both the Courts below and contended that the evidence produced by the plaintiff clearly shows that plaintiff was divorced by Qurban Hussain and documentary evidence also established this fact. He contended that concurrent findings of both the Court below can not be interfered with in writ petition. He placed reliance upon "Peter John and others Vs. Syed Ali Imam and others" (1986 MLD 1008), "Liaquat Hussain and others vs. Abdul Majid and others" (1986 SCMR 1906), "Shahid Raza Vs. Dr. Fauzia Shaheen etc" (NLR 2005 Civil 235), "Muhammad Nawaz and another Vs. Inayat Muhammad and another" (1990 SCMR 1027) and "Abdul Rahim Vs. Maqbool Ahmad" (NLR 1988 SCJ-126).

6.  Arguments heard. Record perused.

7.  Infact Issues No. 3 & 5-A are the material issues on the basis of which the fate of present controversy rests. As has been mentioned above that in the written statement the defendant alleged that Qurban Hussain had divorced the plaintiff and thereafter she contracted marriage with the defendant. Now the moot point is that whether Qurban Hussain had divorced the plaintiff and if it is proved that she was never divorced by the Qurban Hussain then even if the plaintiff had contracted marriage with Mureed Hussain, even then the said marriage is absolutely void so the determining factor in this case is that whether Qurban Hussain had ever divorced the plaintiff. In this respect Mst. Ruqia Bano herself appeared as PW-1. She deposed that she was married with Qurban Hussain on 22.2.2002 and she was never divorced by Qurban Hussain nor she contracted marriage with Mureed Hussain but she was abducted by Mureed Hussain and her thumb marks were obtained on papers forcibly. In the cross-examination she deposed that she had filed a suit for maintenance against Qurban Hussain but thereafter the compromise was affected. She was questioned by the Court that whether she appeared before the Family Court, Mailsi and made the statement to which she replied that she was forcibly taken away to the Court and her statement was got recorded. She denied that she was ever divorced by Qurban Hussain. She admitted her picture Ex.D-I with Mureed Hussain but deposed that it was forcibly taken in order to blackmail Qurban Hussain. Now from the statement of PW.1 at least it is established that she had denied that she had ever been divorced by Qurban Hussain. Bilal Hussain appeared as PW-2. This witness was brother-in-law of Qurban Hussain and he also deposed that Qurban Hussain had never divorced the plaintiff. Zameer Hussain who was also brother-in-law of Qurban Hussain appeared as PW-3 and he also denied that plaintiff was ever divorced by Qurban Hussain. Qurban Hussain PW-4 deposed that plaintiff was married with him on 22.2.2002 and he had never divorced the plaintiff. The statement of PW-2 also reveals that he admitted that the plaintiff after the alleged marriage with Mureed Hussain remained at the house of father of plaintiff but he denied the suggestion that on 20.12.2002 Qurban Hussain had divorced her. Now this statement at the most suggest that plaintiff married with Mureed Hussain but in no way it proves that she was divorced by Qurban Hussain.

8.  As has been mentioned above that PW-4 Qurban Hussain himself denied that he ever divorced the plaintiff. In the cross-examination he denied that on 12.2.2002 he had purchased the stamp paper and handed over it to Irshad Hussain father of plaintiff. He also denied that on 12.12.2002 he had divorced Mst. Ruqia Bano. He also admitted that the plaintiff had filed a suit against him at Mailsi and appeared before the said Court and made the statement. He denied that Mst. Ruqia Bano before the said Family Court at Mailsi had made the statement that Qurban Hussain had divorced her. Besides this oral evidence a copy of FIR Ex.P-1 and copy of Nikah Nama mark "A" was produced by the plaintiff in evidence. On the other hand Shamshad Ahmad appeared as DW.1. This witness is very much material since on the basis of statement of this witness and other DWs both the Courts below had come to the conclusion that Qurban Hussain had divorced the plaintiff. This witness deposed that on 12.12.2002 Qurban Hussain, Niaz Shah, Zafar Abbas, Bashir Shah, Irshad Shah and Mushtaq Shah after Maghrab came to him and Mureed Hussain got executed Talaq Nama on the stamp paper of value of Rs.85. Qurban Hussain got it written with his consent and he thumb marked the same and that Qurban Hussain was previously known to him and after writing the said Talaq Nama he handed it over to Qurban Hussain and also made entry in the register of stamp paper and Qurban Hussain also thumb marked and signed his register and this stamp paper was entered at Serial No. 1126 of the said register dated 12.12.2002. He further deposed that Qurban Hussain got executed another Iqrar Nama which was executed between Irshad Hussain father of plaintiff and Qurban Hussain and this stamp paper was also signed by Qurban Hussain and 4 others. Iqrar Nama was entered at Sr.No. 1127 dated 12.12.2002 and this Iqrar Nama is Ex.D-2. Now if we go through the statement of this witness, this clearly shows that allegedly on 12.12.2002 two stamp papers were executed by Qurban Hussain, one was Talaq Nama which was handed over to Qurban Hussain and other was Iqrar nama. Iqrar Nama has been produced as Ex.D-2 but strangely enough the said written Talaq Nama has not been produced in evidence. At the most it implies that Talaq Nama was got executed by Qurban Hussain but no where statement of this witness shows that Qurban Hussain had pronounced the Talaq. Until and unless the Talaq is pronounced, it cannot be presumed that Qurban Hussain had divorced the plaintiff.

9.  There is yet another aspect which must be kept in mind that as to when allegedly Qurban Hussain had divorced the plaintiff. When PW-4 Qurban Hussain himself appeared as a witness the suggestion was put to him that he had divorced Mst. Ruqia Bano on 12.12.2002. However, when PW-2 appeared as witness a suggestion was put to him that Qurban Hussain had divorced Mst. Ruqia Bano on 20.12.2002 but when the plaintiff herself appeared as PW. 1 no date was put to her that on the said date i.e. on 12.12.2002 or 20.12.2002 Qurban had divorced her. It may also be mentioned here that Ex.D-2 stamp paper of Iqrar Nama was not issued in the name of Qurban Hussain but in the name of Irshad Hussain and entry is available on the back of Ex.D-2. Niaz Hussain appeared as DW.2. He narrated entirely different story. He submitted that Qurban had filed a suit for restitution of conjugal rights on 23.11.2002 and notice was received at the house of Irshad Hussain and both the parties on 12.12.2003 (and not on 12.12.2002) assembled at his house and he asked Irshad Hussain not to get the criminal case registered but they would get executed the Talaq Nama from Qurban Hussain and on the same day Qurban Hussain executed the Talaq Nama. Now according to this witness the Talaq nama was executed on 12.12.2003. This also negates the version of defendant that on 12.12.2002 Qurban Hussain had executed Talaq Nama. At the cost of repetition it may be mentioned here that said Talaq Nama has never been produced in the Court. Now this witness is also silent that Qurban Hussain had ever pronounced the Talaq orally as is the case of DW.1. The third witness is Mushtaq Hussain, who is DW-3 and he is father of Mureed Hussain defendant. He deposed that father of plaintiff had obtained Talaq from Qurban Hussain through Punchayat and Qurban had divorced the plaintiff with his free consent. He has not uttered even a single word that Qurban Hussain had pronounced the Talaq or had ever executed any Talaq Nama so his statement also does in no way imply that Qurban had ever pronounced the Talaq. In the cross-examination also he admitted that at the time of Talaq he was not present. He also admitted that even in the Punchayat he was not present. In the cross-examination he further deposed that Seghaz (           ) of Talaq were recited by Zulfiqar Shah at the house of Irshad Hussain but strangely enough the said Zulfiqar Shah has not been produced as a witness. He admitted that it was his uncle who informed him that plaintiff had been divorced. Mureed Hussain himself appeared as DW-5. He deposed that plaintiff was divorced by Qurban Hussain. He admitted that Qurban Hussain got criminal case registered against him for abduction of plaintiff and he remained in jail. He has not uttered even a single word that in whose presence Qurban Hussain had ever pronounced the Talaq.

10.  As far as documentary evidence is concerned, Ex.P-1 is the copy of FIR No. 190 dated 4.6.2003 wherein Qurban Hussain had got the criminal case registered against Mureed Hussain for the abduction of his wife Mst. Ruqia Bano. Ex.D-1 is the photograph of Mureed Hussain and plaintiff but as has been mentioned above that the main controversy is that whether Qurban Hussain had ever divorced the plaintiff and if it is proved that he had not divorced the plaintiff then even if the plaintiff had contracted marriage with Mureed Hussain even then she could not be said to be legal wedded wife of Mureed Hussain. Ex.D-2 is the Iqrar nama allegedly executed between Irshad Hussain and Qurban Hussain. In this Iqrar nama it is mentioned that Irshad Hussain through Punchayat had obtained the Talaq nama dated 12.12.2002. Even in this Iqrar Nama it is nowhere mentioned that Qurban Hussain had pronounced  the  Talaq.  If  the Talaq Nama had been obtained by Irshad Hussain as is mentioned in Ex.D-2, then why the said Talaq Nama has not been produced in evidence. This apparently also shows that infact no Talaq Nama was ever executed. Had it been so executed, this would have been the most material document. Ex.D-3 is the copy of plaint which shows that on 17.2.2003 the plaintiff had filed a suit for maintenance against Qurban Hussain. The order sheet shows that on 25.4.2003 the defendant Qurban Hussain made the statement that he was ready to pay Rs.500/- per month as maintenance provided the plaintiff resides with him. On this statement the plaintiff was summoned by the Family Court, Mailsi. The plaintiff appeared before the Court on 3.6.2003. It may be mentioned here that this was not the date fixed in the main suit and file was requisitioned on the written application of Mst. Ruqia Bano wherein she made the statement that Qurban Hussain had divorced her and she had not filed the suit and she had contracted marriage with Mureed Hussain and that the suit be dismissed. Now strangely enough on the same statement the case was adjourned for the fixed date wherein only order was passed that since the plaintiff had refused that she had filed the suit so it be dismissed. The said Court had not summoned Qurban Hussain to verify this fact that whether he had divorced the plaintiff or not in this way this statement of Mst. Ruqia Bano does in no way establish that Qurban Hussain had divorced her. If it is left to the discretion of the wife that whenever she would say that she had been divorced by her husband then the Talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against the principle of law, since Talaq is to be pronounced by the husband and mere statement of wife is not enough to prove that she had been divorced. Ex. D-5 is a petition moved by Irshad Hussain against Qurban Hussain for harassment and this document is as no help for reaching at the conclusion that Qurban Hussain had divorced the plaintiff. Thus, after going through the entire evidence, it stands established that no where from the evidence it is proved that Qurban Hussain had ever divorced the plaintiff Both the Courts below had infact misread the evidence and has dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so the divorce stands established and thus, committed material irregularity while declaring the plaintiff to be the legally wedded wife of Mureed Hussain.

11.  As far as the contention of learned counsel for the respondent with regard to concurrent findings of both the Courts below are concerned, suffice it would be to say that normally the Courts in a writ petition do not interfere with the concurrent findings but when there is clear cut misreading of evidence and material irregularity in the impugned judgments, this Court has the jurisdiction to interfere even if the findings are concurrent. On this principle the case law cited by the learned  counsel  for  the respondent  is distinguishable. Resultantly, the findings of learned Trial Court and learned appellate Court on Issues No. 3, 4, 5 & 5-A are set aside. Issue No. 3 stands decided against the defendant. Issue No. 4 stands decided in favour of the plaintiff. Issues No. 5 and 5-A stands decided against the defendant. Resultantly, the judgments and decrees of both the Courts below are set aside and the suit filed by the plaintiff for jactitation of marriage stands decreed while the suit filed by Mureed Hussain for restitution of conjugal rights stands dismissed. Since the complicated questions of fact and law were involved, so the parties are left to bear their own costs.

(R.A.)  Petition allowed