Mst. Sana Saeed Vs Ibrar Ali

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

W.P No.3804/2026 along with CM No.1977/2026.

Mst. Sana Saeed and another (Petitioners)

VS

Ibrar Ali and another (Respondents) For Petitioner (s): Mr. Tanveer Minhas, Advocate For Respondent(s): Mr. Mukhtar Ahmad Maneri, Advocate.

Research Assistance: Riaz Aslam Daavi, SRO PHCP Date of hearing: 23.10.2026

JUDGEMENT

IJAZ ANWAR, J. The instant writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer: - “Therefore, keeping in view the above- mentioned circumstances and grounds. The instant writ petition may graciously be accepted and the impugned order & judgment dated 21.01.2026 passed in appeal No.35/FCA by respondent No.2/Court of Additional District Judge-IV, Swabi, of accepting the appeal of respondent No.1/judgment debtor and allowing him to pay the market value of Five Tola Gold at the rate prevailing on the date of decree i.e. 18.04.2022 may kindly be set aside and the order dated 16/10/2025 passed by the executing Court/Judge Family Court, Swabi may kindly be restored and any other relief which has not been specifically asked for by the petitioners and seems adequate may kindly be granted and obliged”.

2.The Petitioner Mst. Sana Saeed has assailed the impugned judgment and order dated 21.01.2026 passed by the learned Additional District Judge-IV, Swabi in Family Appeal No. 35/FCA of 2025. By virtue of the said impugned order, the learned Appellate Court set aside the order dated 16.10.2025 passed by the learned Executing Court (Senior Civil Judge / Judge Family Court, Swabi) in Execution Petition No. 49/10 of 2022, and permitted the Respondent No. 1 (Judgment Debtor) to satisfy the dower decree by paying the cash equivalent of 05 tolas of gold at the market rate prevalent on the date of the trial court's decision (i.e., 18.04.2022) rather than delivering the gold in specie or paying its current market value at the time of actual payment.

3.Brief facts of the instant writ petition are that the petitioner/plaintiff filed a suit No. 141/FC on 17.04.2019, for dissolution of marriage etc. The respondent was summoned, but he did not turn up before the Court and was placed ex-parte and the petitioner was directed to produce ex-parte evidence,

and after doing so, an ex-partee decree was passed in her favour on 02.10.2019. Thereafter, the respondent has submitted an application for setting aside ex-parte decree, which was accepted vide order dated 06.04.2021. The respondent/defendant submitted his written statement. The learned Judge, Family Court, after recording pro and contra evidence, has partially decreed the suit of petitioner vide judgment and decree dated 18.04.2022. Thereafter, the respondent filed an appeal which was dismissed vide the appellate Court judgment dated 22.06.2023. Being aggrieved, he filed W.P No.3344/2023, which was also dismissed vide judgment dated 22.03.2024. The petitioner/decree holder filed execution petition; however, during the pendency of the execution proceedings, the respondent moved an application seeking permission to pay the market value of the decretal five tola gold, as determined in accordance with the rate prevailing on the date of decision, in installments. The respondent contended that the decree for five tolas of gold ornaments, or

their market value, was executable at the rate prevailing on the date of decision, i.e., 18.04.2022, rather than the current market rate. The said application was contested by the petitioner through filing a written reply. After hearing the arguments, the learned executing Court, vide judgment and order dated 16.10.2025, dismissed the application filed by the respondent. Being aggrieved, the respondent filed an appeal, which was allowed vide the impugned judgment and order dated 21.01.2026. Hence, the instant writ petition.

4.Arguments heard, record perused.

5.The core question for determination in this petition arises from the terms of the decree dated 18.04.2022 passed by the learned Family Court, which awarded 'recovery of 05-tola gold or market value prevalent on the date of decision as dower of plaintiff No. 1'. The specific legal issue is whether a family court decree conferring alternative modes of satisfaction (delivery of gold in specie or payment of its monetary equivalent) entitles the judgment debtor to insist on paying cash at the historical rate prevalent on the date of the trial

court's decision (18.04.2022), or whether the election between the alternate modes rests exclusively with the decree holder, with any cash substitution reflecting the prevailing market rate at the time of actual payment.

5.The law on this subject is no longer res integra. The Supreme Court of Pakistan and this High Court have repeatedly ruled that where a decree grants alternative modes of satisfaction, the option belongs to the decree holder, not the defaulting judgment debtor. Furthermore, the alternative monetary value mentioned in a decree represents the market value at that point in time for immediate satisfaction; it cannot remain static endlessly while gold prices surge and currency depreciates. In the landmark decision of the Supreme Court of Pakistan in Mst. Ayesha Shaheen v. Khalid Mehmood (2013 SCMR 1049), the Court explicitly settled the distinction between a money decree simpliciter and a decree for recovery of gold ornaments, holding that the decree holder can be fully compensated in terms of money only if paid the current market value at the time of payment/execution. The relevant part is reproduced for reference:

“This part of the decree can be satisfied either upon the handing over by the judgment debtor/respondent to the appellant gold ornaments weighing 17 tolas and in case he is not in a position to provide the same the appellant can be appropriately and fully compensated in terms of money only if she is paid an amount that would enable her to purchase the same from the open market. She can do that only if she is paid the current market value of gold. Unlike other property, moveable or immoveable determination of the market value of the gold does not pose any difficulty as the same is fixed by the gold market on daily basis and is readily exchangeable for cash. The case of Mst. Mehbooba v. Abdul Jalil (1996 SCMR 1063) is distinguishable as there the plaintiff wife had not claimed the recovery of gold ornaments or its value but only its value specified in the plaint...

The Court thus held that the petitioner before it was entitled to the market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as "no decree for delivery of ornaments had been passed." The petitioner was granted a simple money decree. In the present case not only the relief claimed was for the recovery of gold ornaments or in the alternative its market value but the decree so granted was for the recovery of the gold ornaments. The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decree can become fully satisfied.”

6.This principle was reaffirmed by a three-member Bench of the Supreme Court of Pakistan in Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321). The Court held that providing current market value at the time of payment does not constitute going beyond the decree, and that delay by the judgment debtor cannot be allowed to defeat the decree under principles of equity, justice, and fair play. The relevant part is reproduced for reference:

“3... We are not convinced with such submission, as grant of requested relief regarding payment of price of gold ornaments at the prevalent market rate, in case the golden ornaments are not returned, is fully justified and it cannot be said that it amounts to going beyond the terms of decree by the executing Court. For this purpose, the ratio of judgment in the above cited case of Ayesha Shaheen (supra) is also fully applicable to the facts and circumstances of the present case...

2... Having been expressed in the alternative, the decree does not become a decree for money simpliciter for the amount stated therein. This because the price of dowry articles fixed in the alternative by the decree under execution represents their market value as on the date of decree. Such market value of the decretal dowry articles cannot remain static endlessly, therefore the alternative monetary direction in the decree cannot remain fixed after lapse of reasonable time. In terms of law, the proceedings of the learned Family Court, whether as a trial court or an executing court, are governed by the general principles of equity, justice and fair play. The circumstances of the present case, namely, delay of more than 12 years in the execution of the decree on the basis of an inapplicable objection cannot under the principles of equity, justice and fair play be allowed to defeat the decree under execution by the petitioner's refusal to both deliver the dowry articles and also to pay their corresponding market value as on the date of payment.”

More recently, the Supreme Court of Pakistan, in Shafqat Ali v. Mst. Zaib Un Nisa (2026 SCMR 494), while affirming the judgment of the Lahore High Court reported as 2025 CLC 1048, directly addressed the very question involved in the present case. The august Court held that the decree-holder retains the right to elect between the return of gold ornaments in specie and payment of their prevailing market value. It was further held that, where the gold ornaments are not returned, the Executing Court is obliged to enforce the decree by directing

payment of their prevailing market value. The relevant observations are reproduced hereinbelow:

“10... High Court correctly appreciated the scope of the judgment and decree, the conduct of the parties, and the settled principle that, where a decree expressly afforded alternate modes of satisfaction, the decree-holder retained the liberty to exercise her choice...

11.Most importantly, the legal principle relied upon by the learned counsel for respondent No. 1 is directly applicable. A three-member bench of this Court in Haji Muhammad Nawaz (supra) has settled that an executing court can direct payment of the current market value of gold ornaments if their return is not possible.”

7.In Mst. Humaira Majeed v. Habib Ahmad and

others (PLD 2012 Lahore 165), it was held that a judgment- debtor cannot insist upon payment of the monetary value of gold ornaments instead of their actual delivery. Where the gold ornaments are not returned, payment of an outdated and illusory amount, insufficient to purchase the decreed quantity of gold at the prevailing market rate, would result in gross injustice to the decree-holder. The relevant observations are reproduced hereinbelow:

“4... Being the judgment debtor, respondent No.1 had no option to insist that he be allowed to pay the price of the gold ornaments instead of delivering the same...

6... As such, the petitioner is entitled to seek recovery of the gold ornaments instead of their value which has given rise to this controversy on account of the dispute as to the market rate applicable. However, it would result in gross injustice to the petitioner if respondent No.1 does not return the gold ornaments but is allowed to make payment of an amount

which is illusory, being not at all equivalent to the price of 16 tolas of gold ornaments...

7... I hold that respondent No.l is liable to return 16 tolas of gold ornaments or gold to the petitioner failing which respondent No. I shall make payment of the price as would fetch 16 tolas of gold at the time of payment subject to adjustment or return of any money paid during execution proceedings by respondent No.1 to the petitioner.”

In Mst. Farzana Iqbal v. District Judge and others (2014 LHC 685),1 the Lahore High Court held that where a specified quantity of gold is decreed as dower, the monetary value mentioned in the Nikahnama does not constitute an independent alternative mode of satisfaction of the decree.

Rather, the judgment-debtor is required to deliver the decreed quantity of gold or, in lieu thereof, pay its prevailing market value at the time of satisfaction of the decree, and cannot insist upon payment of its historical value. The relevant observations are reproduced hereinbelow:

"10. The nikah between the parties was solemnized on 18.03.1999 and at that time, the value of five tola gold was mentioned as Rs.35,000/- meaning thereby the price of the gold on 18.03.1999 was Rs.7,000/- per tola. The learned trial court while passing the decree in favour of the petitioner-plaintiff mentioned that she is inter alia entitled to 5 tola gold ornaments valuing Rs.35,000/-. It appears that the learned trial court decreed the suit of the plaintiff for five tola gold ornaments mentioning value of the gold as it was given in the nikahnama and did not mention it as alternative of five tola gold. By no stretch of imagination, it can be presumed that the value of the gold would have been the same on 11.03.2006 when the decree was passed after about seven years of nikah of the parties. In our country and globally as well, WP No 2838/2009 dated 29.01.2014, Per Justice Atir Mahmood. https://sys.lhc.gov.pk/appjudgments/2014LHC685.pdf

the gold price has constantly been increasing with some ups and down, therefore, the respondent in order to satisfy the decree will have to pay gold ornaments weighing five tola or its market value and he cannot be allowed to pay value of the gold as it was in the year 1999, as such, the learned District Judge was not justified to say that the executing court’s decision adding words market value in place of Rs.35,000/- is against law. The learned District Judge has not applied his judicious mind while passing the impugned judgment which is even not tenable at law."

Similarly, in Umer Naseem v. Additional District & Sessions Judge, Lahore (2016 CLC Note 117), the High Court observed:

“12. Now coming to the question that on which date the alternate price of the gold ornaments is to be determined. There is a plethora of judgments of this Court as well as the Hon'ble Apex Court that in case of a decree of gold ornaments the alternate price is to be determined at the time of its execution, so, that on failure of return of gold ornaments the decree holder would be able to fetch equal weight of the gold. Learned Judge Family Court while awarding alternate price of the gold ornaments at the rate which was prevailing at the time of filing of institution of suit, relied upon the judgment of the Hon'ble Supreme Court of Pakistan reported as Mst. Mehbooba v. Abdul Jalil (1996 SCMR 1063). The facts and circumstances of the said case are distinguishable. In the said case plaintiff/wife had not claimed recovery of gold ornaments rather she specifically claimed alternate value of the gold ornaments specified in the plaint. Therefore, it was held by the Hon'ble Apex Court that she was held entitled to market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as no decree for delivery of gold ornaments had been passed”

Furthermore, this Court in Muhammad Rizwan v. Mst.

Rubina Kanwal (2018 MLD 734 Peshawar) held that:

“10. In the instant case, the 05 tola gold ornaments remained unpaid for the last about eight years, the execution of the decree to that extent remained delayed. Market value of the gold will not remain static endlessly and market value will be considered at the time when it is actually paid to the decree holder, particularly in family matter. This Court has been informed that the prevalent market value of the 05 tola gold ornaments have since been deposited with the Nazir of the Senior

Civil Judge at D.I.Khan, therefore, I restrain myself from ordering regarding payment of the market value of the gold when it is actually paid.”

Likewise, in Muhammad Zahid v. Mst. Ghazala Mazhar (2014 CLC 895 Lahore), it was held:

“13... A decree for recovery of 12 tolas gold jewelry was passed by the learned appellate Court in favour of respondent No.1. The petitioner, therefore, has the option either to hand over the 12 tolas gold jewelry to respondent No.1 or in case he is not in a position to do so then to compensate respondent No.1 in terms of money equal to an amount that would enable her to purchase 12 tolas gold from the open market. I am fortified in my view on the basis of "Mst. Ayesha Shaheen's case" (supra) wherein whilst distinguishing "Mst. Mehbooba's case" (supra)...”

8.The cumulative effect of the principles laid down in the judgments referred to above is that a decree for recovery of gold ornaments, or their alternative monetary value, is not merely a money decree simpliciter, but primarily contemplates delivery of the decreed quantity of gold in specie. Where alternative modes of satisfaction are provided, the choice ordinarily rests with the decree-holder, and the judgment- debtor cannot insist upon payment of an outdated monetary value in lieu of the decreed gold. The judgment-debtor is, therefore, required to deliver the gold in specie or, where such delivery cannot be effected, pay an amount sufficient to enable the decree-holder to purchase an equivalent quantity of gold at the prevailing market rate at the time of actual payment. In the

present case, this would mean delivery of five tolas of gold or payment of its equivalent prevailing market value. Any contrary interpretation permitting the judgment-debtor to discharge the decree at a historical rate, despite a substantial increase in the price of gold, would deprive the decree-holder of the fruits of the decree and offend the principles of equity, justice and fair play. Moreover, where two interpretations are reasonably possible in family matters, the interpretation favouring the wife ought to be preferred unless cogent evidence establishes otherwise. A similar principle was recognized by the Supreme Court in Muhammad Yousaf v. Huma Saeed and others (2024 SCMR 1078), wherein it was held that any ambiguity regarding the terms or entries of a Nikahnama ought to be resolved in favour of the wife, unless it is established, on the balance of probabilities, that she was duly informed of her rights, understood the relevant terms and had freely consented thereto. Applying this principle by analogy to the present controversy, where ambiguity arises as to whether the decree is to be satisfied through delivery of gold in specie or payment of its monetary value, the interpretation favouring the decree- holder wife, namely, delivery of the decreed gold in kind, ought

to be preferred. However, if, for any reason, the judgment- debtor is unable to deliver the decreed gold in specie, he may, with the permission of the Executing Court, be allowed to satisfy the decree by paying an amount sufficient to purchase gold of the same quantity and quality at the prevailing market rate at the time of actual payment.

9.Applying these legal principles to the case at hand, the error committed by the learned Appellate Court in its impugned order dated 21.01.2026 becomes glaringly transparent. Granting market value at the rate prevalent on the date of decision (18.04.2022) would only have been equitable if the Judgment Debtor had paid that amount immediately on that very date. However, the judgment-debtor preferred an appeal before the learned Additional District Judge, followed by a writ petition before the High Court, resulting in a delay of approximately four years in the execution of the decree, during which the market price of gold increased substantially.

Allowing the Judgment Debtor now, in the year 2026, to pay the obsolete cash price of April 2022 would yield an amount capable of purchasing hardly 2 tolas of gold today. This would

penalize the decree holder for the judgment debtor's protracted litigation, grant an unearned financial windfall to the defaulting husband, and reduce the wife's statutory dower to an illusory fraction.

10.There is yet another aspect of the matter which merits consideration. The family suit instituted on 17.04.2019 contained the specific prayer for " وتہل وسان۵ "دوعی دالاپےن قح رہم. It reveals that the decree-holder had specifically sought recovery of five tolas of gold as dower, without claiming its alternative monetary value. Similarly, the dower deed, exhibited and admitted during trial as Ex. PW-1/1, expressly stipulates “05 tola gold” without mentioning any monetary equivalent. It is pertinent to mention that the suit was initially decreed ex parte on 02.10.2019, which decree was subsequently set aside, and the matter was finally decided on 18.04.2022. It thus appears that while decreeing the suit for “recovery of 05 tola gold or its market value prevalent on the date of decision as dower of plaintiff No.1”, the learned Family Court, of its own accord, incorporated the alternative mode of monetary satisfaction, apparently to facilitate compliance with the decree. Since the

decree-holder had neither claimed such alternative relief nor agreed to receive the monetary value in lieu of gold, the concession so extended for the convenience of the judgment- debtor ought to be construed strictly. Had the judgment-debtor satisfied the decree by paying the prevailing market value on 18.04.2022, the alternative mode of satisfaction could have been availed of. However, having failed to make such payment at the relevant time and allowing the matter to remain unsettled until the decree attained finality, he cannot insist upon satisfying the decree at the historical rate prevailing on 18.04.2022. To permit such an interpretation would effectively convert a decree primarily intended for delivery of gold in specie into a money decree at an outdated valuation, thereby depriving the decree-holder of the substantive benefit of the decree and resulting in a miscarriage of justice. Thus, having failed to avail himself of the concession at the relevant time, the judgment-debtor cannot now claim its benefit to the prejudice and detriment of the decree-holder, particularly when satisfaction of the decree through delivery of gold in specie, rather than its outdated monetary equivalent, is manifestly more beneficial to her.

11.Last but not the least, the decree primarily obligated the judgment-debtor to deliver five tolas of gold, with an alternative stipulation for payment of its market value. Had the judgment-debtor satisfied the decree on the date of its pronouncement, the question of any subsequent fluctuation in the market value of gold would not have arisen. However, having failed to discharge the obligation at that stage and having pursued appellate remedies while the decree remained unsatisfied, the judgment-debtor cannot claim the benefit of the historical market value without regard to the considerable lapse of time. To permit satisfaction of the decree at a valuation prevailing several years earlier, notwithstanding the continued non-delivery of the gold itself, could defeat the substantive object of the decree and operate inequitably against the decree- holder. Viewed from this perspective, it may reasonably be contended that the reference to the market value "prevalent on the date of decision" was not intended to confer upon the judgment-debtor an indefinite right to discharge the obligation at a fixed historical valuation, irrespective of when actual satisfaction takes place. Rather, the stipulation may be

examined in the light of the principles of equity, justice and fair play, with particular regard to whether its literal application would frustrate the original intention of the Court. Indeed, a literal interpretation of the stipulation would, on the one hand, frustrate the intention of the learned trial Court in decreeing five tolas of gold as dower and, on the other, offend the principles of justice, fair play and common sense. This Court, therefore, considers such an interpretation to be neither just nor reasonable.

12.In view of the foregoing, this Court is of the considered view that, having failed to satisfy the alternative monetary direction at the rate prevailing on 18.04.2022, the judgment-debtor cannot now insist upon payment at that historical rate to the detriment of the decree-holder. Neither the dower deed (Ex. PW-1/1) nor the plaint contemplated payment of monetary value in lieu of gold; rather, both specifically referred to five tolas of gold as dower. The learned Family Court, while incorporating the alternative mode of satisfaction in its decree, apparently intended to facilitate its enforcement without prejudicing the substantive entitlement of the decree-holder. Thus, the reference to the market value

prevailing on the date of decision cannot be construed as conferring an indefinite right upon the judgment-debtor to discharge the decree at that rate, notwithstanding his failure to satisfy it at the relevant time. Consequently, the decree-holder is entitled to receive five tolas of gold in specie, and the judgment-debtor cannot compel her to accept its outdated monetary equivalent.

13.For the reasons discussed above, the instant writ petition is allowed. The impugned judgment and order dated 21.01.2026 passed by the learned Additional District Judge-IV, Swabi in is hereby set aside, and the order dated 16.10.2025 passed by the learned Executing Court is restored. The learned Executing Court is directed to proceed with the execution forthwith and ensure the recovery of 05 tolas of gold in specie from Respondent No. 1, or in case of non-delivery, its market value prevailing on the date of actual payment, without granting unnecessary adjournments. There shall be no order as to costs.

Announced Dated. 23.10.2026.

Senior Puisne Judge *Amir Shehzad* (SB) Hon’ble Mr. Justice Ijaz Anwar