2023 C L C 143
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
BEHZAD HUSSAIN ----Petitioner
Versus
Bibi ANSA and 2 others ----Respondents
Constitution Petition No.1183 of 2022, decided on 3rd August, 2022.
(a) Family Courts Act (XXXV of 1964) ---
----S.5, Sched. ---Suit for recovery of dowry articles ---Scope ---Petitioner assailed judgments
and decrees passed by courts below whereby respondent's suit for recovery of dowry articles
and maintenance was allowed ---Validity ---Fact that dowry articles were brought by
respondent with her at the house of petitioner had been proved ---Gold (Jewellery) receipts
were produced and exhibited through representative of the jeweler's shop ---Objection that
gold receipts pertained to the dat e before the solemnization of the marriage was not worthy
of credit as it was normal practice that often the parents purchased gold ornaments for their
children early for upcoming marriage ---Respondent had successfully proved the claim,
entitling her for t he relief sought pursuant to maintenance and dowry articles as concluded by
the Family Judge, endorsed by the appellate court as well ---Constitutional petition was
dismissed.
(b) Constitution of Pakistan ---
----Art.199 ---Constitutional jurisdiction ---Writ of certiorari ---Scope ---While adjudicating a
constitutional petition of writ of certiorari, High Court shall exercise jurisdiction sparingly
and seldom, particularly, when there are concurrent findings of facts rendered by the
subordinate courts in origi nal jurisdiction as well as exercising appellate jurisdiction.
(c) Constitution of Pakistan ---
----Art.199 ---Constitutional jurisdiction ---Findings of fact ---Scope ---Constitutional
jurisdiction is an extraordinary jurisdiction, thus, High Court can neither substitute the
evidence recorded by the trial court nor can render opinion regarding quality and advocacy of
the evidence as appraisal of the evidence is the task of the trial court, however, the appellate
court may see and do reappraisal of the evidence, if the evidence is grossly mis -read, found
to be inconsistent with the testimony of the other witnesses or the evidence is found to be
shocking and contrary to the pleadings ---If the trial and appellate courts after thrashing the
factual controversy arriv e at the conclusion, then the high Courts are always reluctant to
interfere while exercising jurisdiction under Art.199 of the Constitution, unless compelling
reasons are shown, such as mis -reading and non -reading of the evidence visible on record.
Haji W ajdad v. Provincial Government 2020 SCMR 2046 rel.
(d) Family Courts Act (XXXV of 1964) ---
----S.17 ---Provisions of Qanun -e-Shahadat, 1984 and Code of Civil Procedure, 1908 not to
apply ---Scope ---Bare reading of S.17 of the Family Courts Act, 1964, clearly heralds the bar
contained under Qanun -e-Shahadat, 1984, in stircto sensu as the spirit and design of the
Family Courts Act, 1964, is to expeditiously settle and dispose of the family disputes and
redress the grievances of the spouse swiftly, avoiding unne cessary technicalities impeding
the course of justice.
Shafiq Sultan v. Asma Firdous and others 2017 SCMR 393 rel.
Ajmal Khan Kakar for Petitioner.
Date of hearing: 28th July, 2022.
ORDER
SHAUKAT ALI RAKHSHANI, J .----Behzad Hussain, petitioner has preferred the
titled constitutional petition to overturn the judgment and decree dated 24th December 2001
drawn by Family Judge -I, Quetta ("Family Judge") as well as judgment and decree dated
12th May 2020 authored by Additional District Jud ge-X, Quetta ("Appellate Judge"),
pursuant to a suit for recovery of dower articles and maintenance to the tune of Rs.20,000/ -
per month since marriage till Iddat period.
2. Bibi Ansa, respondent filed a suit for recovery of dowry articles and maintenance
before the learned Family Judge, narrating therein that on 26th January 2016 she got married
with Behzad Hussain, the petitioner; her parents gave dowry articles comprising of jewelry,
crockery and other household articles; after the wedlock two twin sons, Ruhaab and Gulfam
were born on 19th October 2016 whereas their son Yawar was born on 17th September 2017
after separation of the spouse; initially, both the spouse lived cordially at Quetta but when
they shifted to Lahore and started residing with the fam ily of the petitioner, the relation
between the spouse became strained day by day; allegedly according to respondent she was
mentally and physically tortured besides not being provided maintenance, thus, the
respondent was turned out of the house on 3rd da y of Ramadan 2018 in wearing apparels
after beating her and withholding the custody of the minor twins; on 28th July 2018 through
a written divorce the tie between the spouse unfortunately ended.
Conversely, the petitioner put in his written statement, ve hemently contesting the
facts narrated by the respondent; he disputed the receipts of the dowry articles for being
tampered dated before solemnization of the marriage and urged that father of the respondent
could not purchase gold ornaments worth of Rs.9,1 5,600/ - as he was jobless; he denied
agonizing the respondent and stated that he has maintained the respondent very well
throughout and blamed her for being cause of their separation and maintained that on her
request, the petitioner has divorced her; more -so the custody of the twins were retained with
her consent.
3. Diverging pleadings of the parties, culminating in casting following issues, which are
reproduced hereunder;
"1. Whether the plaintiff is entitled to receive the past maintenance allowance and
onward till Iddat period from defendant? If yes, at what rate? (OPP)
2. Whether the dowry articles and gold ornaments were provided to plaintiff as per her
list? If yes, whether same are lying in possession of defendant? (OPP)
3. Whether the plaintiff is entitled to the relief claimed for?
4. Relief?
4. Respondent (plaintiff) produced four (04) PWs and got recorded her statement,
whereas on the other hand, the petitioner (defendant) produced three (03) DWs as well as
stepped into the witnesses box as witne ss in his defence, following the judgments and
decrees impugned herein by both fora.
5. Learned counsel for the petitioner inter alia made submission that both the courts
below have misread the evidence and have failed to appreciate the testimonies of the
witnesses in its true perspective. He vehemently disputed the dowry receipts for being
tempered; he vigorously argued that the dowry receipts are dated long before solemnization
of the marriage, which fact alone suggests that the same are not genuine but b oth the courts
below have not considered such aspect of the matter, making the judgments and decrees
impugned herein a nullity within the spectrum of law. He maintained that although the
respondent has failed to perform her matrimonial obligation, but even then he had maintained
her and paid an amount exceeding her claim of maintenance, but both the courts below have
not appreciated such fact, thus, seeks to set aside both the impugned judgments and decrees
herein.
6. Adversarial parties have been heard and record vetted thoroughly.
7. Aware of the legal proposition, while adjudicating a constitutional petition of writ of
certiorari, this Court shall exercise jurisdiction sparingly and seldom, particularly, when
there are concurrent finding of facts rendere d by the subordinate courts in original
jurisdiction as well as, exercising appellate jurisdiction. We are also cognizant of the rule
expounded by the apex Court and followed by the Hon'ble High Courts time and again by
means of various judgments that the constitutional jurisdiction is an extraordinary
jurisdiction, thus, this Court can neither substitute the evidence recoded by the trial Court nor
can render opinion regarding quality and advocacy of the evidence as appraisal of the
evidence is the task of the trial Court, however, the appellate Court may see and do
reappraisal of the evidence, if the evidence is grossly mis -read, found to be inconsistent with
the testimony of the other witnesses or the evidence is found to be shocking and contrary to
the pl eadings. More -so, if the trial and appellate Court after thrashing the factual controversy
arrive at the conclusion, then the High Courts are always reluctant to interfere while
exercising jurisdiction under Article 199 of the Constitution of Islamic Repub lic of Pakistan,
1973, unless compelling reasons are shown, such as mis -reading and non -reading of the
evidence visible on record and impugned judgments. Rule of law lay in case of "Haji Wajdad
v. Provincial Government", (2020 SCMR 2046) is helpful for ref erence.
8. Emphasis has largely been made by learned counsel for the petitioner that the
respondent has failed to prove the factum of dowry, verbally and otherwise; the purported
receipts of the list of dowry articles is tempered and has also not been esta blished through
tangible evidence. We have scanned the evidence on record, which transpires that the fact
that the dowry articles were brought by the respondent with her at the house of petitioner has
been proved. Statement of Abdul Wahab (PW -1) affirmed t he correctness of list of dowry
articles besides reiterating the contentions made in the plaint. Although, he was cross -
examined but nothing fruitful could be extracted in favour of the petitioner. Similarly, the
testimony of PW -2 Muhammad Saleem, uncle of the respondent is also worth of
consideration as he has remained firm and consistent to his deposition contained in the
affidavit and during lengthy cross -examination, his statement was not shattered at all. He
supported the claim of the respondent with r egard to the dowry articles taken by respondent
at the time of Rukhsati to the house of petitioner. His statement with regard to maltreatment
by the petitioner and expelling her from his house has been found to be confidence inspiring.
The respondent broug ht on record the gold receipts of Singaar Jewelers, which were
produced and exhibited through Faisal Mehmood (PW -3) representative of the said jeweler's
shop as Ex.P/3 - A to Ex.P/3 -E; despite being cross -examined from various angles to disprove
the questio ned gold receipts, but he miserably failed as the said witness remained firm
enough, rebutting the suggestions made by the learned opposite counsel. Muhammad Aslam
(PW -4) produced receipt dated 23rd December 2015 issued on the letter pad of his shop titled
as "Zia Refrigeration and Air -condition" which was tendered by him in court. He was cross -
examined but nothing favourable could be extracted in favour of the petitioner.
9. Per the burden of proof of issue No.2 was upon the respondent which she has
undoub tedly discharged by producing aforesaid witnesses and receipts. Respondent testified
in line with her pleadings, suffering from no infirmity at all, while on the other hand, the
testimony of the petitioner as well as his witnesses Jan Muhammad (DW -1) Abdul Latif
(DW -2) and Syed Ahmed Aftab (DW -3) neither have been found by us to be consistent nor
confidence inspiring.
10. Admissibility of receipts was questioned by the petitioner on manifold counts. Firstly,
that the gold receipts pertain to the date before the solemnization of the marriage, which
objection seems to be not worthy of credit as it is normal practice that often the parents
purchase gold ornaments for their children for early for upcoming marriage. Secondly, the
petitioner objected that on a gol d receipt the name of father of the respondent was rewritten,
which objection too has no substance as the representative of Singaar Jewelers (PW -3) has
rebutted such assertion made by learned counsel for the petitioner and offered plausible
explanation. La st but not the least, the admissibility of receipts was brought under challenge
as the same had not been produced, exhibited and proved as per the Qanun -e-Shahadat Order,
1984 ("Order of 1984"). Conscious of the conditions to prove a document as enunciated
under the Order of 1984, we may observe that the provisions of law ibid are not stricto sensu
applicable in the instant case. For ease of understanding section 17 of the West Family
Courts Act, 1964 ("Act of 1964") is reproduced herein below;
"S. 17. Pro visions of Evidence Act and Code of Civil Procedure not to apply. (1) Save
as otherwise expressly provided by or under this Act, the provisions of the Qanun -e-
Shahadat, 1984 (P.O. No.10 of 1984) and the Code of Civil Procedure, 1908 [except
Sections 10 and 11] shall not apply to proceedings before any Family Court, [in
respect of part i of Schedule].
(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the
Family Courts."
Bare reading of section 17 ibid, clearly heralds the b ar contained under Order of 1984
in stricto sensu as the spirit and design of the Act of 1964 is to expeditiously settle and
dispose of the family disputes and redress the grievances of the spouse swiftly, avoiding
unnecessary technicalities impeding the c ourse of justice. Fortified by the ratio expounded in
the case of "Shafiq Sultan v. Asma Firdous and others", (2017 SCMR 393), the excerption of
relevant portion of para -6 of the reported order ibid is reproduced herein under;
"6....Even otherwise, the provisions of Qanun -e-Shahadat Order, 1984 are not stricto
sensu applicable to family matters. As such, the argument of learned counsel for the
petitioner regarding proof of receipts and the effects of non -production of authors of
such recei pts, in the specific facts and circumstances of the present case is
misconceived. "
11. As far as beating the respondent on the fateful day and expelling her by her husband
in wearing apparels is concerned, the petitioner has vigorously denied such assertions.
According to him, the petitioner on the pretext of marriage ceremony of his sister went to
Quetta, whereof the fare of airline was also arranged by him and that later on the respondent
refused to join him and ask for divorce, as such, being dis obedient wife, the respondent
cannot claim maintenance. The claim of maintenance @ Rs.20,000/ - was albeit not acceded
thereto, however, the learned trial Judge allowed maintenance @ Rs.10,000/ - per month
since 21st May 2018 up till expiry of her Iddat peri od, which decision was though assailed
before the appellate Court, but it met the same fate after a thorough analysis and scrutiny of
the evidence.
12. In wake of the above discussion, we are of the considered opinion that the respondent
had been successfu l to prove the claim, entitling her for the relief sought pursuant to
maintenance and dowry articles as concluded by the learned Family Judge, endorsed by the
appellate Court as well.
Thus, we have failed to find out any infirmity, perversity, illegality, misreading and
non-reading of the evidence by both the courts, therefore, we are reluctant to interfere and
upset the concurrent findings arrived at by both the fora.
Petition being bereft of merits stands dismissed in limine.
SA/156/Bal. Petition dismi ssed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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