Atta Ullah Khan Vs Mst Musarat and others

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JTIDGMTNT SHEET

IN THE PESIIAWAR HIGH COURT a (Judicial Department)

Atta Ullah Khan Vs.

Mst. Musarat and others.

Jt]DGMENT

Date of hearing: 05.5.2025

For Petitioners: Mr: Alamgir Khan Mandan. Advocate.

For Respondents: Mr. Zarzaman Durrani. Advocate.

ABDUL FAYAZ. J.--- Through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioner has sought the following prayer:

"On acceptance of the instant writ petttion, this Hon'ble Court may very gractously be pleased to set astde judgment & decree dated 01.11.2022 passed by the learned Civil Judge- ruI/JFC Bannu in Famtly Suit No.3I/FC of 2022. Whereas by Family suit of plaintiff was partially decreed and judgment & decree dated 12.01.2023 passed in Family Appeal No.107/FCA of 2023 by the learned Additional District Judge-II/MCAC Bannu whereby appeal of petitioner was dismissed.

2 Brief facts of the case are that respondenUplaintiff, Mst. Musarat, instituted a family suit against the petitioner/defendant, seeking :

2.Recovery of 15 tolas gold ornaments in lieu of dower.

3.Recovery of past maintenance of Rs.200,000/- for the period of 4 one yeff and months and

Rs.10,0001- per month for one year and 8 months as Iddat period.

4.Recovery of dowry articles as claimed in Mad "Jeem" of the plaint.

3.The petitioner/defendant put his appearance before the trial Court and contested the suit by submiuing written statement, wherein he raised several legal and factual objections. He further contended that he has divorced the respondent/plaintiff. The learned Family Court, after framing issues and recording evidence, partially decreed the suit in favour of the respondent/plaintiff on 01.11 .2022, granting the following reliefs:

o Decree for recovery of 15 tola gold omaments as dower or its market value prevalent on the date of ,/,, decision as alternate relief.

a Decree for recovery of maintenance for period of 03 months being Iddat period maintenance @ Rs.5000/- per month total become Rs.15000/-. o Decree for recovery of dowry articles mentioned at serial No.1,3 to 12 in the same used condition lying in the house of defendant or Rs.20,0001- as alternate relief.

4.Both the parties filed appeals before the learned Additional District Judge-II, Bannu, who vide judgment dated 12.01.2023, dismissed both the appeals by maintaining the judgment and decree of the trial Court.

Aggrieved by the judgments of both courts below, the petitioner has filed this constitutional petition.

5.I have heard the arguments of learned counsel for

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the parties and the record was gone through with their valuable assistance.

6.Before going into the merit of the case, this court deems it necessary to examine the scope of writ jurisdiction under Article 199 of the Constitution, invoked against the appellate decisions specially in family matters. The Hon'ble Apex Court in Muhammad Hussain Munir Vs Sikandar (PLD 1974 SC 139), has held that High Court in such cases is only concerned with whettrer or not the courts below acted within its jurisdiction or not if such a court has the / jurisdiction to decide a matter, it is considered

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competent to make a decision, regardless of whether the decision is right or wrong and even if the said decision is considered to be incorrect, it would not automatically render it as being without lawful authority so as to invoke High Court's constitutional jurisdiction. The Hon'ble Apex Court deviated from its view in the case of Utility Stores Corporation of Pakistan Limited Vs Punjab Labour Appellate Tribunal (PLD 1987 SC

447)wherein it was held that where the lower fora makes an error of law in decidingamatler, it becomes a jurisdictional issue since the same is only vested with the jurisdiction to decide a particular matter rightly,

therefore, such decision can be quashed under constitutional jurisdiction as being in excess of law as in terms of Article 4 of the Constitution, and thus, becomes a case proper for interference by a High Court in exercise of its constitutional jurisdiction. This powers of High Court under Article t99 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, elroneous assumptions, misapplication of law, excess or abuse ofjurisdiction, 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. Subsequently, the apex Court revisited this issue in Shajar Islam Y.

Muhammad Siddique @LD 2007 SC 45) 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 further held 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 miscariage of justice and that the high court should not disturb findings of fact through a reappraisal of evidence

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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. The apex Court in its recent judgment further elaborated on this view, in Mst.

Tayyeba Ambareen and another Vs Shafqat Ali Kiyani and another (2023 SCMR 246), wherein it was held as under:

"8. The object of exercising jurisdiction under Anicle 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") is to foster justice, preserve rights and to right the wrong. The appraisal of evidence is primarily the function of the c Trial Court and, in this case, the Family Court which has been vested with exclusive jurisdiction. 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, mis-reading of CP.1418 of 2023 - 4 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."

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Similarly, in Arif X'areed Vs Bibi Sara and others Q023 SCMR 413) that:

'07. The legislature intended to place a full stop on the family litigation after was it decided by the appellate court. However, we regretfully observe that the High Courts routinely exercise their extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as a substitute of appeal or revision and more often the purpose of the statute i.e., expeditious disposal of the cases is compromised and defied. No doubt, there may be certain cases where the intervention could be justified but a great number falls outside this exception. Therefore, it would be high time that the High Courts priorities the disposal of family cases by constituting special family benches for this purpose." d

7.Thus, the legal position is that the constitutional jurisdiction cannot be invoked as a substitute for a revlslon or an appeal and the High Court in constitutional jurisdiction cannot reappraise the evidence and decide the case on its facts. Interference is on limited grounds is an exception and not the rule. In the latest judgment of the Hon'ble Supreme Court of Pakistan in case of Hammad Hassan Vs Mst. Isma Bukhari and 02 others (CP No. 1418 of 2023), wherein it has been held as under:

"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 fural 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 unwarantedly 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 reevaluating the facts or substituting the d 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 umecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms."

8.Coming to the facts of the present case, perusal of the record reveals that respondent/plaintiff in her plaint claimed that her dower was fixed as 15 tolas of gold ornaments, which is still outstanding, whereas the petitioner alleged that it was Rs.15,000/- cash, which had already been paid. No documentary evidence, including Nikah Nama, was produced by either par:ty. The Nikah Khawan, Molvi Gul Mir Khan, was stated to be dead.

However, the respondent produced supporting witnesses

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(PW-3, PW-5, and PW-6), who consistently testified that 15 tolas of gotd were agreed upon as dower at the time of engagement and solemnization of Nikah. Their depositions remained unshaken in cross-examination. In contrast, the petitioner neither stated the alleged dower amount during his own testimony nor did his supporting witresses (DW-l, DW-3, and DW-4) provide any cogent evidence on the fixation or payment of Rs.15,0001- as dower. Instead, they focused primarily on the respondent's character and conduct. The oral testimony led by the respondent stood unchallenged and inspired d confidence. The petitioner failed to discharge the burden ,f of proof regarding the fixation and payment of Rs.15,000/- as dower. On the contrary, the respondent sufficiently proved that her dower was fixed at 15 tolas of gold ornaments, which remained unpaid. Hence, both the courts below, after properly appraising the evidence, have concurrently held that dower of the respondent was fixed as 15 tola gold omaments which is unpaid, which needs no interference. No misreading or non-reading of evidence, nor any legal infirmity or jurisdictional defect has been pointed out that would justify interference by this Court in its constitutional jurisdiction.

9.With regard to stance of the respondent/plaintiff for the recovery of dowry articles, petitioner in his

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written statement denied the dowry articles but during cross examination, he admitted few articles of the respondent and also stated that he is ready to return the same to her, as such, the petitioner has deviated from his written statement by admitting the claim of respondent regarding dowry articles during cross examination. On perusal of the list/lvlad "Jeem" of dowry articles, it appears that the articles at serial No.l and 3 to 12 consist of articles of daily use which are generally given to brides at the time of their mariages, besides the articles at serial No.l and 3 to 12 do not show lt any item which could be beyond the financial resources d of the respondent's family. Hence, the learned courts below have rightly appreciated this aspect of the case, which wa:rants no interference.

10.So far as the fixation of maintenance allowance is concerned, the learned Courts below have rightly appreciated the pleadings and evidence brought on record by the parties and correctly reached to the conclusion that petitioner is entitled for Rs.5000/- per month total 15000/- for lddat period.

11.The cumulative effect of what has been discussed above, is that no illegality, material irregularity, misreading or non-reading has been pointed out by learned counsel for the parties in the impugned judgment

and decree passed by the learned courts below. In the result the impugned judgments passed by learned lower courts are confirmed and the writ petition being devoid of merit is dismissed.

Announced.

0s.5.2025 Ihsan -Sd- { Judge

JUDGE

(S.n) Uon'ble Mr. Justice Abdul Fayaz.

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