PLJ 2010
Present: Shahid Anwar Bajwa, J.
Mst. MUSSARAT and 2 others--Petitioners
versus
MUHAMMAD NAEEM and another--Respondent
C.P. Nos.S-107 and 13 of 2008, decided on
2.10.2009.
----S. 5--Constitution of
2004 YLR 2541; 1992 CLC 1940; 2006 MLD
563; PLD 2004 Lah 249; NLR 1985 SCJ 128; NLR 1992 Civil 542; 1990 CLC 1011 and
PLD 1997 Lahore 633 ref.
Constitution of
----Art. 199--Constitutional
petition--Maintainability--Questions of fact--Scope--High Court, in exercise of
constitutional jurisdiction, should be reluctant to enter upon questions of
fact--Where it appears to be clear misreading of evidence and non-reading of
evidence by First Appellate Court and propositions of law with respect to
nature of proof being not in accordance with dictates of law and Constitution,
jurisdiction under Art. 199 of the Constitution can be exercised. [P. 153] C
Mirza Sarfraz Ahmed, Advocate for Petitioner (in C.P. No.S-13 of
2008) and for Respondent (In C.P. No.S-107 of 2008).
Syed Fazal Hassan Jillani, Advocate for
Petitioner (in C.P.No.S-107 of 2008) and for Respondent (in C.P. No.S-13 of
2008).
Date of hearing: 2.10.2009.
Order
By this order I intend to decide
Constitutional Petition No. S-13 of 2008 (Muhammad Naeem v.
Mst. Musarrat and others) and Constitutional Petition No. 107 of 2008 (Mst.
Musarrat v. Muhammad Naeem). Both these petitions have arisen out of the
same order.
2.
Mst. Musarrat is petitioner in C.P.No.S-107/2008 and Muhammad Naeem is
Respondent No.l in that petition. Although this order shall decide both the
petitions I shall refer Mst. Musarrat as the petitioner and Muhammad Naeem as
the respondent.
3.
Brief facts not disputed between the parties are that a marriage was
contracted between the petitioner and respondent on 22.2.1998. Very soon
thereafter relationship between the parties turned sour and it is stated by the
petitioner, that she was turned out of her husband's house in July 1999.
Eventually petitioner filed suit for Khula bearing Suit No.489/2000. The said
suit was decided in favour of the petitioner by IIIrd Family Judge
4.
During second round of litigation an application for permission to
produce original documents was filed by the petitioner. It was stated in the
application that either instead of original duly signed list, photocopies of
unsigned duplicate of the list were filed. It was sought through the
application to place on record the signed copies of the first six pages of list
of dowry articles. Counter-affidavit to this application was filed. Vide order
dated 23-9-2005 while 7th page of the list was held to be a list of gift items
and not dowry articles. Consequently first six pages were brought on record.
Thereafter on 26-11-2007 the suit was decided as follows:--
"In light of the above discussion
made on Issues Nos. 1, 2,3 & 4 are that the plaintiff is entitled to
receive back her dowry articles as per list annex `P1 to P6' discussed,
alternatively she shall be entitled to receive the valuation of her mentioned
dowry articles in annex `P1 to P6' amounting to Rs. 150,000 only."
5.
Appeal was filed and the learned Appellate Court vide order dated
26-11-2007 accepted the appeal in the following terms :--
"Hence in view of
above my humble opinion that the respondent has failed to prove that her
parents given her dowry articles as per list Exh.P/24. However, the appellant admitted that some
articles were given as dowry and he is ready to return the same and the page of
list of dowry written in handwriting was duly signed by Yasin therefore,
respondent is entitled only for the recovery of her dowry articles as per page
of list which is written in handwriting and is signed by one Yasin. The
impugned judgment is therefore modified to the extent of above."
6.
The learned counsel for the petitioner has assailed the order of the
Appellate Court on primarily four grounds, (i) According to him the learned
appellate Court has held that the petitioner has not been able to show any
source of income from which the said dowry articles were purchased by her
father, (ii) No independent witness has been produced to prove of purchase of
dowry articles, (iii) While 7th page of the list of dowry articles (which is
handwritten page) bears signature of uncle of the respondent, the first six
pages which are typed pages do not bear any signature. The learned Appellate
Court in this regard has failed to take into consideration the documents
produced with the application referred to earlier. (iv) That
evidence was led by the petitioner. However, witnesses of the petitioner was
not cross-examined and no evidence whatsoever in rebuttal was led. It is
contended in that view of this situation the trial Court has rightly accepted
the evidence.
7.
In support of his contention that it is not a requirement that an
independent witness be produced in family related matters, the learned counsel
relied upon Muhammad Saleem Akhtar v. Judge, Family Court and others 2004 YLR
2541. He further relied upon Zubair Akbar v. Mst. Mehreen Hayat and others 1992
CLC 1940. In support of the contention that unchallenged evidence should have
been accepted, the learned counsel relied upon Saifur Rehman v. Anarkali and 2
others, 2006 MLD 563. In support of his contention that the Family Court can
award compensation in lieu return of dowry articles, the learned counsel relied
upon Muhammad Akram v. Mst. Shahida Parveen and others PLD 2004 Lah 279, Major
Milton Godwin Shamas v. Mst. Crenza Samuel, NLR 1985 SCJ 128 and Ashiq Ali v.
Mst. Rasoolan Bibi, NLR 1992 Civil 542. The learned counsel consequently prayed
that the order of the learned Family Court is in accordance with the evidence
and the law and therefore order of the Appellate Court be set aside and order
of the Family Judge be up-held.
8.
Learned counsel for the respondent in rebuttal primarily raised the
following points:--
(i) That
in the first round of litigation the appellate Court had directed the trial
Court, while remanding the matter for passing fresh judgment keeping in view
all the evidence available on the record.
(ii) The
trial Court could not have taken into consideration documents submitted
afterward. He further submitted that the order dated 23-9-2005 passed by the
learned Family Judge on application for permission to produce the original
documents clearly stated that P7 is not a dowry item and PI to 6 were taken on
record. In spite of this the learned Appellate Court, in its order allowed
return of dowry items mentioned in the same P 7. Thus, though the trial Court
had held the items mentioned in P 7 were not dowry items but were gift items,
the Appellate Court without recording any reason had rendered the findings that
the petitioner is entitled to return of items stated in P7.
(iii) The
learned counsel relied upon Manzoor Hussain Khan v. Mst. Asia Begum and 21
others, 1990 CLC 1014 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lahore
633 to contend that petitioner had to stand on her own legs and just cannot
carry the case on account of no cross-examination and no evidence in rebuttal
by the respondent.
9.
I have considered the arguments advanced by the learned counsel and have
also gone through the record as well proceedings of the case. Before I proceed further a few words about the judgments cited by the
parties.
10.
In Muhammad Saleem Akhtar's case decided by an Honourable Single Judge
of Lahore High Court, it was a suit for recovery of dowry articles and the
amount was stated in the suit. It was contended by the petitioner/respondent in
that matter that since no one had appeared to prove the preparation of that
list, the solitary statement of the plaintiff was incorrectly believed by the
learned Family Judge. The High Court held the list of dowry articles if
exhibited in evidence without its scribe, no grievance could be made as to its
inadmissibility or its having not been brought on the record in accordance with
provisions of Qanun-e-Shahadat Order, 1984. It was further held that it was not
necessary in all cases that more than one witness should be produced to prove
the case. Siafur Rehman's case was decided by the Division Bench of Peshawar
High Court. It was against a suit arising out of family matter and for recovery
of dowry articles. In that matter the plaintiff appeared as her own witness and
also produced her father and maternal uncle who had fully substantiated her
claim. Since evidence had gone un-rebutted, Division Bench of Peshawar High
Court did not interfere with findings arrived at by the lower forums. In the
third mentioned Zubair Akbar's case, it was a suit for dissolution of marriage.
A Single Judge of
11.
The case law cited by the respondent in rebuttal is in respect of
provisions of the Qanun-e-Shahadat Order, 1984. They pertain to execution of
documents and proof regarding execution of such documents. The learned counsel
very frankly conceded that under Section 17 of the Family Courts Act, 1964,
provisions of Qanun-e-Shahdat Order, 1984 are not applicable to proceedings
before the Family Court. Therefore the case law is distinguishable.
12.
The bone of contention between the parties is 7 pages of documents
produced by the petitioner as Exhibit P/24. When these documents were
originally produced the copies did not bear signature of any recipient. When
the matter was remanded to the trial Court by the Appellate Court, through an
application signed copied of first 6 pages were submitted and they were taken
on record vide order dated 23.9.2005 whether the signed copies were genuine or
were a forgery or a subsequent manipulation is a question of fact. The onus to
prove such forgery etc, could have been discharged
only by the respondent because it is the respondent who alleged forgery and the
respondent did not lead any evidence in this regard. Contention of counsel for
the respondent is that it was responsibility of the petitioner to prove and the
petitioner should stand on her own legs and cannot carry her with her merely on
the ground of lack of evidence or no evidence heaving been led by the
respondent. There cannot be any cavil with the proposition that the plaintiff
has to make her case stand on its own legs and cannot rely upon weaknesses or
lack of evidence of the defendant. However, in this case petitioner in her
evidence clearly stated as follows:--
"At the time of my marriage my
parents given me dowry articles worth of Rs.5,00,000.
I produce my original vouchers and receipt of my dowry articles."
13.
The petitioner's father appeared as supporting witness and stated that
at the time of her marriage he had given his daughter dowry articles worth more
than 5,00,000. He further stated that brother-in-law of the defendant Muhammad
Yaseen Khan had received the same. Having asserted these two facts the
petitioner discharged her onus to prove and it was for the respondent to lead
evidence in rebuttal or to shake evidence of the petitioner through
cross-examination. The respondent failed to, or at least chose not to, do so
and therefore, must bear consequences.
14.
Family matters need a certain degree of sensitivity. Be the matter
relating to child custody, dower, dissolution of marriage or any respect the
Court should demonstrate due degree of sensitivity and should attempt to decide
the matter at the earliest. It is unfortunate that subject matter of these
Constitutional Petitions has dragged on for almost 10 years. Mandate of
Constitution of the Islamic Republic of Pakistan is that where under Article 25
of the Constitution equality of all citizens is ordained it is provided that
special provisions for the protection of women and children may be made. That
should be the spirit in deciding family matters and interpreting family laws.
15.
Learned Appellate Court had held that the petitioner has not been able
to show any source of income from which the said dowry articles were purchased
by her father. Unless a Court comes to the conclusion that the value claimed in
the dowry articles is so disproportionable to the known sources of income of
family of the bride or the items are so out of syne(sic)
with the situation and standard of living of the family, in my opinion it would
not be reasonable for the Family
Court to require the applicant/wife before it to
produce proof of income of her family. Since it is not alleged, and even if it
were alleged, since the respondent has not produced any evidence, in my opinion
no such burden of proving income of parents of the bride can be lumped at the
door of the helpless woman. The same principle will hold true regarding an
independent witness regarding purchase of dowry articles. I fully subscribe to
the view expressed by Honourable Division Bench of Peshawar High Court in
Saifur Rehman's case (supra) where the complainant in her own evidence had
stated value of dowry articles and had also produced her father who had fully
substantiated her claim, as far as, the complainant is
concerned she has discharged her burden to prove. Nothing further should be
required from her and then it was for the defendant to discharge his burden.
16.
As far as, 7th page of the list of dowry articles is concerned, the
learned counsel for the petitioner frankly conceded that these articles cannot
be included in the dowry. I have gone through the list and list includes baby
clothes and baby toys. I do not think it would be un
reasonable to come to a conclusion that a person would give in dowry baby's
clothes and baby's toys to his daughter. Having regard to the common course of
natural events and human conduct I think I would be justifying in presuming and
coming to the conclusion keeping in view Article 129 of the Qanun-e-Shahadat
Order 1984 that document page 7 is a list of gift items and is not included in
dowry.
17.
The learned counsel for the respondent has firstly relied upon the order
passed by the appellate Court in the first round of litigation where the
Appellate Court ordered the trial Court to pass fresh judgment keeping in view
all the evidence available on record. The learned counsel stated that
originally six pages were filed which were not signed and after remand the signed
copies were produced. Explanation offered by the petitioner is that copies of
duplicates were filed and on pointation signed copies were submitted. I have
looked at those documents and they are computer print outs and keeping in view
all the other evidence. I do think there was reason for the Courts below to
disbelieve these documents. I am conscious of the fact that in exercise of
constitutional jurisdiction the High Court should be very reluctant to enter
upon questions of fact but in this case there appears to be a clear misreading
of evidence and non-reading of evidence by the lenrned Appellate Coiirt as well
as the propositions of law stated by the Appellate Court with respect to the
nature of proof in such like matters do not appear to me to be in accordance
with the dictates of law and the Constitution.
18.
The trial Court has decreed that either the goods be returned or an
amount of Rs.4,50,000 be paid. The marriage took place
in 1998 and suit for Khula' was filed in 2000. It seems fair to allow
depreciation of 20% for a period of two years i.e. 10% per year. It would be
unfair after a lapse of more than 10 years to hold petitioner only entitled to
recovery of the articles because 10 years is a long period of time and many of
the articles might not have been left with any value in them therefore, in my
opinion, it would be fair and reasonable if an amount of Rs.400,000 is ordered to be paid by the petitioner/husband to the
respondent/wife. Both the constitutional petitions are disposed of in the above
terms. The parties are left to bear their own costs.
(R.A.) Order
accordingly