2025 Y L R 1
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
Mst. ZAINAB BIBI ---Petitioner
Versus
MUHAMMAD RIZWAN and another ---Respondents
C.P. No. 1021 of 2024, decided on 12th September, 2024.
Family Courts Act (XXXV of 1964) ---
----S.5, Sched.--- Constitution of Pakistan, Art. 199--- Suit for recovery of dower, dowry
articles and maintenance---Concurrent findings of fact recorded by the Family Court and
Appellate Court ---Interference by the High Court in its constitutional jurisdiction--- Scope ---
Once the matter has been adjudicated on facts by the Trial and Appellate Courts, the High Court should not re -evaluate the facts or substitute the findings of the Appellate Court with
its findings, thus, it is essential to achieve closure in legal proceedings and prevent unnecessary litigation--- Findings arrived at by the trial and appellate courts were based on
proper appraisal of evidence by attending all the material points and also did not suffer from wrongful or excessive exercise of jurisdiction, thus, the same required not to be meddled
with---Constitutional petition was dismissed, in circumstances.
M. Hamad Hassan v. Mst. Isma Bukhari 2023 SCMR 1434 rel.
Syeda Tehmeena for Petitioner.
Date of hearing: 4th September, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---The instant constitutional petition has been
filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") by the petitioner, which carries the following relief;
"It is therefore respectfully prayed that the petition may be allowed and while set
aside the Judgment and decree dated 14.09.2023 passed by Family Judge III Quetta and judgment decree dated 27th June 2024 passed by Hon'ble Additional Session Judge X Quetta to the extend of not granting gold ornaments stated in issue No.1 and further prayed to decree the suit of plaintiff in toto in the interest of justice fair play and equity."
2. Relevant facts for disposal of the instant petition are that the petitioner filed a suit
before the learned Family Judge -III, Quetta ("Trial Court") for recovery of dower, dowry
articles and maintenance, averring therein that the petitioner got married to respondent No.1 on 07.02.2019 against Haq Mehr of 3 Tola gold and 5 Marla residential house situated at Hurnarran Abbottabad, which is still payable and out of wedlock minor Ayat Noor aged two years was born, however, after few months of marriage their relation become strained and respondent No.1 expelled the petitioner from his house, whereafter she took shelter in the house of her maternal's aunt along with minor Ayat Noor, subsequently, respondent No.1 sent Talaqnama on 26.10.2021 to petitioner, thus, the petitioner filed a family suit for recovery of dower, dowry articles and maintenance.
Respondent No.1 contested the suit by filing written statement, wherein the
allegations were strenuously repudiated.
3. The Trial Court, out of divergent pleadings framed seven issues, whereafter the
parties led their respective evidences and also recorded their statement before Trial Court.
After due appraisal of evidence, the Trial Court vide judgment dated 14.09.2023 partially
decreed the suit of petitioner against which the petitioner filed an appeal before the learned Additional District Judge -X Quetta ("Appellate Court") to the extent of 3 Tola gold,
however, the same was dismissed vide judgment dated 27.06.2024, hence this petition.
4. Heard. Record perused with the able assistance of learned counsel for the parties. The
petitioner filed suit for recovery of dower, dowry articles and maintenance with the following prayer;
"a) Defendant be directed to pay the dower of plaintiff as per Nikahnama and in default thereof to pay Rs.800000/ - for house and present price of Gold.
b) Defendant be directed to pay maintenance for plaintiff Rs.10000/ - from 24.11.2020
to expiry of Iddat period.
c) Defendant be directed to hand over the dowry articles of plaintiff and in default thereof to pay Rs.402400/ -
d) Defendant be directed to pay maintenance allowance Rs.10000/ - per month to the
kid. Defendant be also directed to continue maintenance of kid till such time."
5. The Trial Court decreed the suit of the petitioner in the terms below;
"19. In the light of my findings in above issues; the Family Suit No. 51/2022 filed by plaintiff/Mst. Zainab Bibi "Suit for Recovery of dower, Dowry Articles and Maintenance" is partially decreed, in her favour. The plaintiff/Mst. Zainab Bibi is entitled for recovery her unpaid dower; i.e; 05 marla house situated at Hurrnarra in
Abbottabad and the defendant is bound to transfer the same on the name of plaintiff/ Mst. Zainab Bibi as her dower or in alternate the present market value thereof in lieu of the said dower. The plaintiff/Mst. Zainab Bibi is entitled for her maintenance from 24th November, 2020 at the rate of Rs.5,000/ - (five thousand) per month till
expiry of her iddat period of 90 days (three months). The minor girl Ayat Noor is entitled for recovery of her maintenance from 24th November, 2020 defendant/ Muhammad Rizwan from at the rate of Rs.5,000/ - (five thousand) per month with
10% increment per annum after passing one year in future. The plaintiff/ Mst. Zainab Bibi is also entitled for recovery of her dowry articles as per two pages of her list ExP/5 -C(1-2) total 54 items subject to wear and tear and natural decay.
The claims of plaintiff/ Mst. Zainab Bibi to the extent of dower of 03 tola gold and recovery of gold ornaments allegedly given by her mother as per list stand dismissed."
6. The Trial Court except gold ornaments decreed the suit of the petitioner as prayed,
however, the petitioner being dismayed with the judgment and decree dated 14.09.2023 passed by the Trial Court preferred an appeal under section 14 of the West Pakistan Family Courts Act, 1964 before the Appellate Court, which heard both the parties and after due appraisal and scrutiny of the evidence dismissed the appeal vide judgment dated 27.06.2024 by upholding the impugned judgment dated 14.09.2023 rendered by Trial Court.
7. We have critically gone through the impugned judgments, which suffer from no
perversity or misreading of evidence. The Trial Court at para Nos. 10 and 16 of its judgment, whereas the Appellate Court in its judgment at para No. 12 has dealt with the evidence elaborately, referring to the statement of PW -1 and PW -5 and other aspect of the matter,
which appraisal of evidence seems to have been done in accordance with the settled principle of law.
8. Besides above, the apex Court in the case of the "M. Hamad Hassan v. Mst. Isma
Bukhari" (2023 SCMR 1434) held that Article 199 of the Constitution empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. It was also held that if the High Court continues to entertain constitutional petition against order of the appellate court, it would open floodgates of litigation, thus, it closure is essential for fair and efficient
legal system, therefore, once a matter has been adjudicated on facts by the trial and appellate courts, the High Court should not re -evaluate the facts or substitute the findings of the
appellate court with its findings, henceforth, it is essential to achieve closure in legal proceedings and prevent unnecessary litigation. For ready reference, relevant paras Nos.6
and 7 of the M. Hammad's case supra are reproduced hereunder;
"6. The objective of Article 199 of the Constitution is to foster justice, protect rights
and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re -examine or
reconsider the facts of a case already decided by lower courts. Its role is limited to correcting jurisdictional errors and procedural improprieties, ensuring the proper administration of justice. In the present case, the Petitioner pursued his case through the family court and its appeal in the district court and then also invoked the High Court's constitutional jurisdiction to reargue his case amounting to a wrongful exercise of jurisdiction whereby the High Court upheld the factual findings of appellate court after making its own assessments on the same. Allowing a re -
argument of the case constituted to arguing a second appeal which should not have been entertained regardless of the outcome of the case.
7. The right to appeal is a statutory creation, either provided or not provided by the legislature; if the law intended to provide for two opportunities of appeal, it would
have explicitly done so. In the absence of a second appeal, the decision of the
appellate court is considered final on the facts and it is not for High Court to offer
another opportunity of hearing, especially in family cases where the legislature's intent to not prolong the dispute is clear. The purpose of this approach is to ensure efficient and expeditious resolution of legal disputes. However, if the High Court
continues to entertain constitutional petitions against appellate court orders, under
Article 199 of the Constitution, it opens floodgates to appellate litigation. Closure of
litigation is essential for a fair and efficient legal system, and the courts should not
unwarrantedly make room for litigants to abuse the process of law. Once a matter has been adjudicated upon on fact by the trial and the appellate courts, constitutional
courts should not exceed their powers by re -evaluating the facts or substituting the
appellate court's opinion with their own - the acceptance of finality of the appellate
court's findings is essential for achieving closure in legal proceedings conclusively
resolving disputes, preventing unnecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms."
9. For the foregoing reasons, we believe that findings arrived at by both the courts below
are based on proper appraisal of evidence by attending all the material points and also not suffering from wrongful or excessive exercise of jurisdiction, thus, the impugned judgments require not to be meddled with.
10. Corollary, the petition being bereft of merits is dismissed with no order as to cost.
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