P L D 2025 Balochistan 43
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
SAJJAD AHMED and 3 others ---Petitioners
Versus
GUL SIMA and 5 others ---Respondents
C. P. No. 1105 of 2021, decided on 20th November, 2023.
Family Courts Act (XXXV of 1964) ---
----S. 5, Sched.--- Constitution of Pakistan, Art. 199 ---Constitutional petition---
Maintainability ---Dower, claim of ---Concurrent findings of facts by two Courts below ---
Respondent/widow claimed to be owner of house given to her in lieu of her dower money
(Haq Mehr) ---Petitioners/sons of deceased contended that Kabeen Nama was a forged
document and their father had divorced respondent in his life time ---Validity ---Family
matters were quasi judicial proceedings and findings arrived at by Family Court and Lower Appellate Court must not be overturned, more particularly in Constitutional petition, unless the findings arrived at by the fora below were found to be arbitrary, perverse, in violation of law or if error was so obvious that it would not be acceptable ---High Court declined to
interfere in concurrent findings of facts by two Courts below in favour of respondent/widow,
as the same did not suffer from any error of law and facts ---Constitutional petition was
dismissed, in circumstances.
Arif Fareed v. Bibi Sara 2023 SCMR 413; M. Hamad Hassan v. Mst. Isma Bukhari
2023 SCMR 1434 and Mst. Tayyebaa Ambareen and another v. Shafaqat Ali Kiyani and
another 2023 SCMR 246 rel.
Muhammad Saleem Lashari, Salman Langove and Umar Babar for Petitioners.
Habib -ur-Rehman Qambrani for Respondents Nos.1 to 4.
Date of hearing: 6th November, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The instant matter stems from a family matter,
which carries the following relief;
"It is accordingly respectfully prayed that the impugned judgment dated 26.02.2021 passed by learned respondent No.5 and Judgment dated 15.06.2021 passed by learned respondent No.6 may kindly be set aside and the suit so filed by the respondents be dismissed, in the interest of justice, equity and fairplay. "
2. Facts germane to the lis in hand are that respondents filed a suit for maintenance,
possession of a house measuring 50x100 square feet ("house in question") given to respondent No.1 by her husband namely Abdul Razzaq (late) in lieu of Haq Mehr and house hold articles and Rs.306,000/ - against the petitioners in the court of learned family judge
Kharan ("Trial Court"), which was contested by them on legal and factual premises, contending therein that respondent No.1 was divorced by her husband, therefore, she had subsequently made a forged Kabin Nama dated 01.01.2009 in order to usurp the house in question, thus the suit merits dismissal.
3. Out of the pleadings of the parties, the Trial Court framed the following issues;
"1-Whether a residential house, situated there in Kharan, admeasuring 50 x 100
square feet, surrounded as on or toward East Side: Char Diwari wa Maqanat Abdul Razzaq Shah, West Side: Shaila war Char Diwari, Maqanat Ghulam Mehmood, North Side: Char Diwari, Maqanat Dr Ajmal Qambrani, and South Side: Char Diwari Abdul Razzaq Shah wa Masjid Sharif, along with constructed room was given to plaintiff as
her Haq -e-Mehr (dower) and now the same has been usurped and taken over by the
step-children of plaintiff (hereinafter referred as defendants Nos.1 to 4) and the same
be handed over to plaintiff?
2-Whether the plaintiff is entitled for custody of her children, namely Sunya Gul Age
7 years and Nisba Gul age 6 years?
3-Whether the plaintiff after the death of her husband; is entitled to receive her as
well as her three children's maintenance @ Rs.5000/ - PKR (Rupees five thousand) per
month and per head from her step children (defendants Nos. 1 to 4) if they have been
earning from the left properties (shops and shopping Center, situated in Kharan) of Abdul Razaq deceased/husband of plaintiff?
4-Whether an amount of Rs.300,6000/ - PKR (Rupees three lac and six thousand) of
plaintiff along with her other dowry- articles as listed in the plaint have been usurped
and taken away by the defendants Nos. 1 to 4 and the plaintiff is entitled to receive the same from the said defendants?
5-Whether the cause of action accrues to the plaintiff against the defendants?
6-Whether the plaintiff is entitled for the relief claimed for?
7-Relief?"
4. In order to establish the case, respondent No.1 produced Sayed Noor uddin Shah
(PW -1), Muhammad Jan (PW -2) and got recorded her own statement, whereas on the hand,
petitioners produced Muhammad Ilyas (DW -1), Abdul Ghyas (DW2), Altaf Hussain (DW -3)
and lastly petitioner No.3 as an attorney got recorded his statement recorded in rebuttal.
5. On conclusion, the Trial Court pronounced the judgment and decreed the suit in favor
of respondents on 26- 02-2021, against which an appeal was filed before the learned District
Judge, Kharan ("appellate Court"). The appellate Court after hearing the parties, dismissed
the appeal vide judgment and decree dated 15.06.2021 and upheld the impugned and decree
passed by the family court.
6. Heard. Record pondered upon with the able assistance of learned counsel for the
parties.
7. Respondent No.1 being a widow of Abdul Razzaq Shah (late) filed a suit on her
behalf as well as on behalf of her minor daughters namely Bibi Masooma aged 7 and Mina Gul aged 5 years for maintenance, recovery of the house in question given to her in lieu of her Haq Mehr and house hold articles coupled with Rs.306,000/ - against the petitioners
contending therein that in the year 2009 she got married with Abdul Razzaq (late) and a house measuring 50x100 square feet with boundaries mentioned in para No.1 of the plaint was given to her as Haq Mehr, whereas the remaining half belongs to the first wife and children's of Abdul Razzaq (late), whereof a Kabin Nama dated 01.01.2009 was also executed. She further contended that there are numerous properties including a jewelry shop and a gifts center, wherein businesses are being run, which are in the possession of the petitioners, whereof not a penny has been received by respondents and that Rs.200,000/ -
,which was given to her by her husband for daily expenses and Rs.106,000/ - of a neighbourer
namely Ameerzadi kept in a box by her were also taken away by the petitioners.
The petitioners, while contesting the suit mainly urged that the Nikkah of respondent
No.1 with Abdul Razzaq (late) was solemnized on 26.12.2008 against Haq Mehr of Rs.50,000/ -, which was paid and subsequently a fake Kabin Nama dated 01- 01-2009 has
been prepared. The petitioners also came up with the plea that respondent No.1 was woman of easy virtue, having illicit relations, thus on 12.04.2020 Abdul Razzaq (late) divorced her, thus, she is not entitled for any relief claimed.
8. The family court, after due and proper appraisal of the evidence decreed the suit of
the respondents vide judgment and decree dated 26- 02-2021, in the following terms;
"i. It is declared that the dower of plaintiff No.1 was fixed a residential house, situated in Kharan, admeasuring 50 x 100 square feet, surrounded as on or toward
East side: Char Diwari wa Maqanat Abdul Razzaq Shah, West Side: Shaila war Char
Diwari, Maqanat Ghulam Mehmood, North Side: Char Diwari, Maqanat Dr Ajmal
Qambrani, and South Side: Char Diwari Abdul Razzaq Shah wa Masjid Sharif, along with constructed room was given to plaintiff as her Haq- e-Mehr. Defendants Nos.1 to
4 are directed to hand over the same residential house to the plaintiff No.1.
ii. It is declared that the custody of minors Namely Sunya Gul age 7 years and
Nisba Gul age 6 years lies to their mother on the bases of rule of Hizanat till their age
of puberty.
No order as to cost. Decree sheet be drawn".
9. The appellate Court, while attending each aspect of the matter and after due scrutiny
of the evidence in view of the reasons drawn by the family court dismissed the appeal filed
by the petitioners.
10. The apex Court, in the case titled as "Arif Fareed v. Bibi Sara" (2023 SCMR 413)
observed that family litigations directly or indirectly causes long term effects on the emotional health of the parties, especially the children who becomes silent victim of differences and disputes between contesting adults and when a child comes to interact with the judicial system the response must be facilitative, cooperative, backed and driven by child rights henceforth, the technicalities and trappings of the normal procedure are not suitable to the cases where young children's are the party.
11. Moreover, it is a trite law now that the family matters are quasi judicial proceedings
and the findings arrived at by the family court and the appellate Court must not be overturned, more particularly in a constitutional petition, unless the findings arrived at by the fora below are found to be arbitrary, perverse, in violation of the law or if the error is so
obvious that it would not be acceptable, which is not the case. In the case of "M.Hamad
Hassan v. Mst. Isma Bukhari" (2023 SCMR 1434), the Supreme Court held that the
constitutional jurisdiction cannot be invoked as substitute for revision or an appeal and the High Court in its capacity under Article 199 of the constitution lacks the jurisdiction to re -
examine or reconsider the facts of the case already decided by the lower courts as its role is limited to correcting jurisdictional errors and procedural improprieties, ensuring the proper administration of justice and not otherwise. For ease of reference, the relevant excerpt of Hamad's case supra is reproduce herein below;
"Thereafter, in 2001, in the case of Muhammad Lehrasab Khan v. Mst.Aqeel -Un-Nisa
(2001 SCMR 338), this Court further stretched the powers of high court under Article 199 stating that while, ordinarily, the High Court, does not re -examine evidence or
disturb findings of fact, it can interfere if the findings are based on non- reading or
misreading of evidence, erroneous assumptions, misapplication of law, excess or abuse of jurisdiction, and arbitrary exercise of powers, especially when the district court is the final appellate court which has reversed the findings of the trial court on unsupported grounds, the High Court can correct such errors using a writ of certiorari. It was held that the High Court's constitutional jurisdiction is meant to supervise and serve justice, allowing it to correct any wrongs committed contrary to evidence and the law. Subsequently, in Shajar Islam v. Muhammad Siddique (PLD 2007 SC 45) this Court revisited this issue and clarified that the High Court should not interfere in findings on controversial questions of facts based on evidence, even if those findings were erroneous. It was emphasized that the scope of judicial review under Article 199 of the Constitution in such cases was limited to instances of misreading or non-reading of evidence or when the finding was based on no evidence, leading to miscarriage of justice and that the High Court should not disturb findings of fact through a reappraisal of evidence in its constitutional jurisdiction or use this jurisdiction as a substitute for a revision or appeal and that an interference with the lower courts' findings of fact was beyond the scope of the High Court's jurisdiction under Article 199 of the Constitution"
12. In the case of Mst. Tayyebaa Ambareen and another v. Shafaqat Ali Kiyani and
another (2023 SCMR 246), the apex Court observed that appraisal of evidence is primarily and exclusively the function of the family court alone and the findings of the learned trial judge and appellate Court cannot be interfered with by the High Court unless the reasons drawn are perverse, arbitrary and contrary to law and facts, which we could not find in the
impugned judgments and decrees of the fora below. For the sake of convenience, the relevant
excerpt of Mst. Tayyebaa Ambreen's case supra is reproduced hereunder;
"....In constitutional jurisdiction when the findings are based on mis -reading or non-
reading of evidence, and in case the order of the lower fora is found to be arbitrary, perverse, or in violation of law or evidence, the High Court can exercise its jurisdiction as a corrective measure. If the error is so glaring and patent that it may not be acceptable, then in such an eventuality the High Court can interfere when the finding is based on insufficient evidence, misreading of evidence, non -consideration
of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where an unreasonable view on evidence has been taken."
13. We have critically analyzed the evidence on record in view of the concurrent findings
and reasons drawn by the family court as well as by the appellate Court in favor of the respondents, and have irresistibly arrived at the conclusion that the findings and reasons drawn by the both the fora below are based upon proper appraisal of evidence, suffering from no error of law and facts, which needs not to be meddled with.
14. Corollary, the petition being devoid merits is dismissed.
MH/15/Bal. Petition dismissed.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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