2019 y L R 1900

2019 Y L R 1900 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
2019 Y L R 1900
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
SABIR ALI---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
Writ Petition No. 19061 of 2018, decided on 24th December, 2018.
(a) Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Suit for recovery of dowry articles---Trial Court partially
decreed the suit and appeals filed by both the parties were dismissed---Validity---
Husband while appearing in the witness box had admitted that wife was given
dowry articles, which he returned to her before panchiat---Husband admitted that
no receipt was written regarding return of dowry articles---Husband further
deposed that no panchiat was held before return of dowry articles nor return of
dowry articles was settled through panchiat---Husband's witness asserted that five
days prior to return of dowry articles he had decided in panchiat about the same---
Return of dowry articles through a third person was required to be in written
form---Holding of panchiat and the return of dowry articles through the said
panchiat was doubtful---Husband failed to point out any misreading, non-reading or
illegality in the judgment of Family Court---Constitutional petition was dismissed
accordingly.
(b) Family Courts Act (XXXV of 1964)---
----Ss. 17, 18, 5 & Sched---Suit for recovery of dowry articles---Non-appearance of
wife in witness box in person---Appearance through agent---Scope---Trial Court
partially decreed the suit and appeals filed by both the parties were dismissed---
Plea of husband was that wife did not appear in witness box to prove her stance---
Validity---Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 were not
applicable to the family suits besides wife had been duly represented by her brother
as her attorney, who appeared in the witness box on her behalf and stood the test of
cross-examination---Non-appearance of wife in person in the witness box, was not
fatal to her case.
(c) Constitution of Pakistan---
---Art. 199---Constitutional petition---Findings of fact---Scope---High Court while
exercising constitutional jurisdiction did not ordinarily reappraise the evidence
produced before the courts below to substitute findings of facts recorded by the
courts below nor did it give its opinion regarding quality or adequacy of the
evidence merely on the ground that another view was possible.
Abdul Khaliq Dogar for Petitioner.
ORDER
1 of 4 4/27/2024, 1:05 PM
MUZAMIL AKHTAR SHABIR, J.---Through this constitutional petition, the

petitioner has challenged the judgments and decrees dated 17.10.2018 and
25.06.2018, whereby both the courts below have partially decreed the claim of the
plaintiff-respondent (No.3 'respondent').
2. Briefly stated facts of the case are that marriage between the parties was
solemnized on 28.05.2010 and the couples remained issueless. On 15.07.2016, the
respondent instituted a, suit for recovery of dowry articles worth Rs. 6,74,720/-,
which was contested by the petitioner. On conclusion of the trial, the learned trial
court partially decreed the claim of the respondent and she was held entitled to
recover dowry articles except articles reflected at Sr. Nos. 22, 23, 24 and 25 or their
alternate price Rs. 1,50,000/-. Feeling dissatisfied, both the parties went in appeal.
The appeals were consolidated. The learned appellate court, vide judgment and
decree dated 17.10.2018, dismissed both the appeals. Hence, this petition.
3. Learned counsel for the petitioner has argued that the impugned judgments
and decrees are based on conjectures and surmises. Further argues that the
respondent herself did not appear in the witness box to prove her stance; that the
marriage between the parties was as a result of 'watta satta' marriage and the dowry
articles have been returned to the respondent through panchaiat. Finally argues that
the impugned judgments and decrees are liable to be set-aside.
4. Heard. Record perused.
5. The claim of the respondent was pursued by her brother namely Ghulam
Farid, who appeared in the witness box as a special attorney on behalf of the
respondent. It was admitted by the prosecution witnesses that marriage was on the
basis of exchange as sister of the petitioner was also married to brother of the
respondent. It is the stance of the petitioner that after arising of differences between
both the families, dowry articles were returned from both the sides on the
intervention of respectable of families. The PWs in their evidence have deposed
that dowry articles as reflected in the plaint were given to the respondent at the
time of marriage. The petitioner while appearing as DW-1 in the witness box has
admitted that the respondent was given safe almirah, 02-petties, 02 trunks, floor
container etc., which he claimed were returned to her on 25.11.2015 at about 04.00
p.m before a 'panchiat'. He, however, admitted that no receipt was written regarding
return of dowry articles and he himself divorced the respondent. He denied that the
respondent was given gold ornaments by her family. It has been admitted by the
DW-1 that the dowry articles were shifted through trolley. DW-1 has deposed in
evidence that no 'panchiat' was held before return of dowry articles nor return of
dowry articles was settled through 'panchiat' while DW-2 has very specifically
asserted that 05-days prior return of dowry articles he had decided in 'panchiat'
about the same. DW-2 has not participated in the marriage and knows nothing
about dowry articles which were given to the respondent. The return of dowry
articles through a 3rd person was required to be properly in written form. In view
of the evidence of the DW-1, the holding of 'panchiat' and return of dowry articles
through the said 'panchiat' is doubtful. The marriage between the parties remained
intact for almost 5-1/2 years and with the passage of time, some of the items might
2 of 4 4/27/2024, 1:05 PM
have destroyed or lost their utility. The learned trial court partially decreed the
claim of the respondent with regard to alternate price of dowry articles excluding
certain items as mentioned above keeping in view the period of subsistence of
marriage and wear and tear factor and fixed the same as Rs. 1,50,000/-. The learned
appellate court has also rightly upheld the findings of the learned trial court.
6. As regards the objection raised by the petitioner that respondent herself did not
appear in witness box in support of her claim is concerned, suffice it to say that the
C.P.C. and Qanun-e-Shahadat Order, 1984, are not applicable to family suits
besides the respondent has been duly represented by her brother as her attorney,
who appeared in the witness box on her behalf and stood the test of cross-
examination, hence, non-appearance of the respondent in person in the witness box
would not be fatal to her case. Learned counsel for the petitioner has failed to point
out any misreading, non-reading or illegality in the impugned judgments. The
assessment and appraisal of evidence is the function of the Family Court, which is
vested with exclusive jurisdiction in this regard. This Court while exercising
constitutional jurisdiction does not ordinarily reappraise the evidence produced
before the courts below to substitute findings of facts recorded by the courts below,
nor does it give its opinion regarding quality or adequacy of the evidence merely on
the ground that another view may also be possible. Consequently, there is no ground
to set-aside concurrent findings of fact.
7. For what has been discussed above, this petition being devoid of any merits
dismissed.
SA/S-20/L Petition dismissed.
3 of 4 4/27/2024, 1:05 PM
4 of 4 4/27/2024, 1:05 PM

2019 y L R 1900

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2019 y L R 1900

Uploaded by

Copyright:

Available Formats

2019 Y L R 1900 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...

MUZAMIL AKHTAR SHABIR, J.---Through this constitutional petition, the

You might also like