--Art. 199--Producing of original divorce deed--Entitlement for recovery of maintenance allowance to extent of iddat period and recovery of dowry articles except articles mentioned at serial No. 47, 48, 49 of list or alternate price-

 PLJ 2021 Lahore 446

Constitution of Pakistan, 1973--

----Art. 199--Suit for maintenance and recovery of dowry articles--Partially decreed--Appeals--Dismissed--Producing of original divorce deed--Entitlement for recovery of maintenance allowance to extent of iddat period and recovery of dowry articles except articles mentioned at serial No. 47, 48, 49 of list or alternate price--Concurrent findings--Challenge to--In constitution petition, no convincing arguments were advanced by counsel for Petitioner to convince this Court that both Courts below have committed any illegality while fixing maintenance: allowance according to financial status of petitioners and assessing price of dowry articles--Both Courts below have passed impugned judgments and decrees after fully appreciating evidence on record, which this Court has also examined--When a factual controversy had been settled by two Courts below unless and until there were compelling reasons shown for mis-reading and non’ reading of evidence in order passed by Courts below, was without jurisdiction or there was a visible irregularity while deciding same, High Court might interfere--No illegality or irregularity had been pointed out in concurrent findings of fact recorded by two Courts below and impugned judgments and decrees do not suffer from any legal discrepancy or infirmity--Petition was dismissed. [Pp. 448 & 449] A, B & C

PLD 1981 SC 522, 2003 YLR 3097, 2003 CLC 400, 2003 CLC 702,
2009 SCMR 1243 ref.

Mr. Zabi Ullah Nagra, Advocate for Petitioner.

Ch. Ishtiaq Ali, Advocate for Respondents.

Date of hearing: 20.9.2017.

 PLJ 2021 Lahore 446
Present: Jawad Hassan, J.
SHAHID FAROOQ--Petitioner
versus
ADDITIONAL DISTRICT JUDGE SHAH KOT, DISTRICT NANKANA SAHIB and 2 others--Respondents
W.P. No. 3732 of 2017, decided on 20.9.2017.

Judgment

Through this Constitutional Petition, the Petitioner has called in question judgments and decrees dated 5.5.2016 and 21.10.2016 passed by Respondents No. 1 and 2.

2. Facts briefly for the disposal of this Constitutional Petition are that as a consequence of suit for maintenance and recovery of dowry articles judgment decree dated 05.05.2016 was passed by learned Judge Family Court, Shah Kot, whereby Respondent No. 3, was not held entitled to recover the past maintenance allowance from the Petitioner but was entitled to recover Rs. 20, 000/- on account of maintenance for the period of her Iddat. The Respondent No. 3 was also held entitled to recover the dowry articles except the articles mentioned at Serial No. 46, 47, 48 and 49 from the Petitioner as per list or in alternate its price Rs. 3, 50, 000/-. The said judgment and decree was assailed by both the parties by filing their respective appeals before the learned Additional District Judge, Shah Kot, which were dismissed vide judgment and decree dated 21.10.2016. Hence this petition.

3. Learned counsel for the Petitioner has argued that impugned judgments and decrees are against law and facts of the case. He argued that controversy between the parties was with regard to the dowry articles. It is claim of the Respondent No. 3 that the dowry articles are still with the Petitioners, whereas the Petitioner had denied this fact and stated that the dowry articles were fetched by the Respondent No. 3. Over the said divergent pleadings, the issue was required to be framed but the Respondent No. 2 had committed serious illegality by not framing the issue. He further argued that the Respondent No. 3 has badly failed to prove the dowry articles left in the custody of the Petitioner, but both the Courts below have passed the impugned judgments and decrees which are based on surmises and conjectures, therefore, are not sustainable in the eye of law and liable to be set aside.

4. On the other hand counsel for the Respondent No. 3 has supported the impugned judgments and decrees, as view taken by both the Courts below is concurrent therefore, no exception can be taken to it in constitutional jurisdiction. Lastly, he prayed for dismissal of the writ petition.

5. Arguments heard and record perused.

6. It is evident from perusal of record that the Petitioner is contesting his case over the dowry articles. The Respondent No. 3 in order to prove her case appeared herself as PW-1 and filed her affidavit as Ex.P-1 and produced list of dowry articles Exh.P-1. The Respondent No. 3 got recorded statements of Tariq Mahmood and Maqsood Ahmad (PW-2) and (PW-3) and they tendered their affidavits as Exh.P-3 and Exh.P-4 respectively. Whereas Amjad Farooq special attorney of the Petitioners, appeared a DW-1 and tendered his affidavit as Exh.D-1. Morever, the Petitioner produced Mian Arif Rasool as DW-2, who submitted his affidavit as Exh.D-2. DW-3 was given up. The record shows that an original divorce deed was produced as Exh.D-E, photocopy of divorce deed as Mark-1, copy of application for registration of FIR as Mark-2, copy of report as Mark-3 and closed his evidence. Consequently, the learned Judge Family Court, Shah Kot, after recording issue-wise findings decreed the suit of the Respondent No. 3 vide judgment and decree dated 5.5.2016. The said judgment and decree was up-held by the learned Addl. District Judge, Shah Kot and appeals preferred by both the parties were dismissed vide judgment and decree dated 21.10.2016. At this stage, in the constitution petition, no convincing arguments were advanced by the learned counsel for the Petitioner to convince this Court that both the Courts below have committed any illegality while fixing the maintenance: allowance according to financial status of the petitioners and assessing the price of dowry articles. From the perusal of impugned judgments it reveals that both the Courts below have passed the impugned judgments and decrees after fully appreciating evidence on record, which this Court has also examined.

7. The Hon’ble Superior Courts have held in numerous judgments that the High Court in its extra ordinary jurisdiction can neither substitute findings of facts recorded by Judge Family Court, nor can give its opinion regarding quality or adequacy of the evidence. The assessment and appraisal of evidence is the function of the Family Court, which is vested with exclusive jurisdiction in this regard. Reliance in this regard is placed upon the case of Abdul Rehman Bajwa vs. Sultan and 9 others (PLD 1981 SC 522) Perveen Umar and others vs. Sardar Hussain and others (2003 YLR 3097) Muhammad Ashiq vs. Addl. District Judge Okara (2003 CLC 400) and Aqil Zaman vs. Mst. Aza Bibi and others (2003 CLC 702). Furthermore when a factual controversy had been settled by the two Courts below unless and until there were compelling reasons shown for mis-reading and non reading of evidence in the said order passed by Courts below, was without jurisdiction or there was a visible irregularity while deciding the same, the High Court might interfere. Regarding concurrent findings reliance is also placed upon Waqar Haider Butt vs. Judge, Family Court and others (2009 SCMR 1243), wherein it has been held as under:

“Suit filed by wife and minor children was decreed in their favour and appeal filed by husband was partly allowed by Lower Appellate Court and monthly maintenance of minors was reduced. High Court in exercise of constitutional jurisdiction declined to interfere in judgment and decree passed

by Lower Appellate Court. Validity. Petition under Art. 199 of the. Constitution was not maintainable against concurrent findings of Tribunals below. Both the Courts below had given findings of fact against husband, therefore, High Court was justified to dismiss constitutional petition and the same was in accordance with law laid down by Supreme Court. Normally Supreme Court did not meddle with findings of fact reached at by primary Courts or High Court when it was satisfied that finding of Courts below were reasonable and were not arrived at by disregarding any. of the provisions of law or any accepted principle concerning appreciation of evidence, notwithstanding that a different view might also was possible. The High Court, while exercising constitutional jurisdiction had rightly refused to interfere with findings of fact recorded by Courts of competent jurisdiction. Supreme Court did not find any infirmity or illegality or any misreading of evidence on record by the Courts below. Leave to appeal was refused.”

No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by two Courts below and impugned judgments and decrees do not suffer from any legal discrepancy or infirmity.

8. In view of above, this writ petition being devoid of force is dismissed.

(Y.A.)  Petition dismissed