Mst Nasreen Akhtar vs Adj

Stereo H.C.J.D.A 38 Judgment Sheet

IN THE LAHORE HIGH COURT MULTAN BENCH

MULTAN

(JUDICIAL DEPARTMENT)

Writ Petition No: 724 of 2020 (Mst. Nasreen Akhtar Vs ADJ, Chichawatni, etc.)

JUDGMENT

Petitioner by: Mr. Abdul Rehman Khan Khand, Advocate.

Respondent No.3 Hafiz Muhammad Zeeshan Saleem, Advocate. by:

Date of hearing: 11.02.2026

SYED AHSAN RAZA KAZMI, J.- Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality and jurisdictional correctness of the consolidated judgment and decree dated 14.11.2019 passed by the learned appellate court, whereby the appeal of respondent No.3 was allowed and the petitioner’s suit for recovery of dowry articles was dismissed, reversing the judgment and decree dated 06.05.2019 passed by the learned Family Court.

2.Briefly stated, the petitioner instituted a suit for dissolution of marriage on the basis of Khula along with recovery of dowry articles, including gold ornaments. Initially, the suit was decreed ex-parte on 21.05.2014. Subsequently, on application of respondent No.3, the ex-parte judgment was set aside on 18.10.2017. After full trial, the learned Family Court decreed the suit partially on 06.05.2019 and awarded recovery of dowry articles to the extent of Rs.200,000/-. Both parties preferred appeals. The learned appellate court, vide judgment dated 14.11.2019, allowed the appeal of respondent No.3 and dismissed the petitioner’s suit in toto, primarily on the ground that the father of the petitioner declined to take a special oath offered by respondent No.3.

3.Learned counsel for the petitioner contends that the appellate court gravely erred in law by drawing an adverse inference from the refusal of the

petitioner’s father to take special oath, thereby non-suiting the petitioner.

4.Record has been perused and arguments heard.

5.The sole question requiring determination is whether refusal to take a special oath practically by a non-claimant(father) can, by itself, form the basis for dismissal of a suit.

6.It is settled law that while a court may decide a matter on the basis of special oath, refusal to take such oath does not warrant drawing an adverse inference against the refusing party. The provisions of the Oaths Act, 1873 do not mandate that denial of special oath conclusively proves the opposite party’s assertion. At best, such refusal may be considered as one circumstance among others; it cannot override independent appraisal of evidence already available on record. This Court in the judgment reported as Shamshad Ali vs. Muhammad Ilyas (PLD 2005 Lahore 301) held as under:- ....It is true that while the respondent was in the witness box as PW-2, it was suggested to him towards the fag end of his cross- examination if he is ready to take oath on Holy Qur'an and he refused. Now by virtue of section 12 of the Oaths Act, 1873, in such an eventuality, the Court is only required to record as part of the proceedings the nature of the oath or affirmation proposed and that it was refused and in case some reasons are reasons are assigned the said reasons are also to be recorded. However, there is nothing in the said law which enables the Court to compulsorily draw an inference against a person refusing to take oath. I may refer here a DB judgment of this Court in the case of Jumma Khan v. Allah Bakhsh (AIR 1932 Lahore 25) and some observations of Goldstream. J., appearing at page 26 of the report are being reproduced as under:-- "A party may have perfectly true case and yet for peculiar failed to rebut the same. Further contends that apart from the said admission, execution of the document and payment of consideration was duly proved. Regarding refusal to take special oath, the content on is that no adverse inference is to be drawn.”

Further reliance is placed upon the judgments reported as Mst.Asifa Sultana vs. Honest Traders Lahore and another (PLD 1970 SC 331), Colony Textile Mills Ltd. through its Manager vs. Noor Muhammad (1986 PLC 1146) and Muhammad Asif vs. Muhammad Idrees (2013 MLD 1395).

7.In the present case, the learned Family Court, after framing issues and recording oral and documentary evidence, returned a well-reasoned finding regarding partial entitlement of the petitioner to dowry articles. The appellate court reversed those findings solely on the basis of refusal by the

petitioner’s father to take special oath, without independently reappraising the evidence in its true perspective.

8.Furthermore, the offer of special oath was extended to the father of the petitioner, who was not himself a claimant. His refusal could not legally extinguish the substantive rights of the petitioner. The appellate court thus misdirected itself in law by treating such refusal as conclusive proof that the dowry articles had already been received.

9.It is trite law that appellate court’s interference must be grounded upon misreading or non-reading of evidence, or a patent error of law. In the instant matter, the learned appellate court fell into legal error by substituting a presumptive inference in place of judicial evaluation of evidence.

10.For the foregoing reasons, the impugned judgment and decree dated 14.11.2019 passed by the learned appellate court are declared to have been passed without lawful authority and are set aside. Consequently, the judgment and decree dated 06.05.2019 passed by the learned Family Court are restored.

11.This constitutional petition is allowed in the above terms.

(SYED AHSAN RAZA KAZMI)

JUDGE

Approved for Reporting.

JUDGE

Saeed