SAKHI ZAMAN vs Mst. SHAZIA and 3 others

ORDER

IJAZ-UL-HASSAN KHAN, J.---Shortly narrated the facts leading to the filing of instant writ petition are that Mst. Shazia, respondent No,1 instituted suits against her husband Sakhi Zaman, petitioner on 17-4-2002 before Judge Family Court, Bannu for

(a) dissolution of marriage and recovery of dower in the sum of Rs,50,000 in cash and ten tolas gold ornaments.

(b) recovery of dowry articles, and

(c) recovery of maintenance allowance both for herself as well as for her minor daughter Mst.

Kiran, respondent No,2. The petitioner also instituted suit on 19-4-2002 against respondent No,1 for restitution of conjugal rights. Suits were consolidated. The learned trial Judge after framing issues, recording pro and contra evidence of the parties, by means of his judgment dated 25-5-2003, decreed suit for recovery of dower amount to the extent of Rs,50,000 only while suit for recovery of dowry articles was decreed as prayed and suit for maintenance allowance was decreed to the extent of Rs,1,000 per mensem jointly from the date of institution of suit. Counter suit of Sakhi Zaman petitioner for restitution of conjugal rights was also decreed subject to payment of dower and maintenance amount. Feeling discontent, both the parties filed appeals before learned District Judge, Bannu which were entrusted to learned Additional District Judge, Bannu for disposal. The appeals were decided by common Judgment dated 18-6-2003. The Judgment and decree of trial Court to the extent of suit No,13/FC was modified and besides a sum of Rs,50,000, ten tolas of gold ornaments was accepted as part of the dower claim. The appeal of petitioner was dismissed.

2. Mr.Gauhar Zaman Khan Kundi, Advocate for the petitioner confined his arguments to the finding of learned Appellate Court regarding fixation of ten tolas gold ornaments as part of dower amount and attempted to argue that finding so rendered is in complete oblivion of the evidence on record and that the learned Appellate Court has proceeded on wrong premises to hold that ten tolas of gold ornaments also formed part of the dower of respondent No,1 and she was entitled to receive the same. The submission of the learned counsel is not tenable. There is sufficient material on the file in the shape of statements of Mst.Shazia, respondent No,1, her mother Mst. Bibi Sahibzadi and Hafizullah P.Ws to prove that at the time of marriage, in addition to Rs,50,000 in cash, ten tolas of gold ornaments were also fixed as dower amount of respondent No,

1. The witnesses have not been cross examined on this material aspect of the case. By now it is well settled that a material part of the statement if not questioned in cross-examination, A shall be deemed to be accepted and admitted by the opposite party.

3. Adverting to the question, regarding appreciation of evidence, it is not denied that appraisal of evidence is the function of the Family Court which is invested to it with the exclusive jurisdiction.

Finding of fact recorded by it cannot be interfered with in writ jurisdiction where it is not shown to be based on misreading or non reading of material evidence and reasons have been given in support of the conclusion arrived at. An order passed by the Court below cannot be interfered with in writ jurisdiction unless the same is mala fide, arbitrary, perverse or the Court has acted in excess of its jurisdiction. Khalil Ahmed v. Allah Rakhi and another (1994 M LD 119 Lahore) and Abdul Faheem v. Mst. Shahnaz Begum and another (2003 CLC 1450 Peshawar).

4. The impugned order passed by learned Additional District Judge is speaking order containing reasons for passage of the same and we have not been able to take any legitimate exception to the said reasons. Apart from that no jurisdictional infirmity, illegally of approach, irregularity of procedure or perversity of reasoning on the part of the District Judge has been pointed out by the learned counsel so as to warrant interference in the matter by this Court through exercise of its Constitutional jurisdiction.

5. For the foregoing reasons, we are of the considered opinion that it is not a fit case for interference in exercise of Constitutional jurisdiction, with the result that the petition stands dismissed in limine.