M. Hamad Hassan vs Mst. Isma Bukhari and 2 others

AYESHA A. MALIK, J-. This Civil Petition for Leave to Appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan (Constitution) is directed against judgment dated 16.12.2022 passed by the Peshawar High Court, Peshawar (High Court) whereby Writ Petition No.3885-P of 2019 filed by the Petitioner was dismissed.

2. Brief facts of the case are that Respondent No.1 was married to the Petitioner on 07.02.2014 and out of this wedlock, a male child, Muhammad Umar Hamad (Bilal) was born. On 14.03.2015, Respondent No.1, along with her minor son filed a suit for recovery of dower, maintenance allowance and dowry articles, etc. before Judge Family Court, Kohat. The Judge Family Court, Kohat, on 24.11.2018 decreed the Suit holding that Respondent No.1 was entitled to recovery of Rs.300,000/- as dower and half of the share in the house along with 5 Marla land, as specified in the Nikhahnama and was also entitled to receive maintenance with effect from September 2014 until the dower is fully paid, and as long as the marriage is intact. Additionally, the minor was entitled to receive maintenance allowance, increasing it annually by 10%, with effect from February 2015 until he reaches the age of majority. Respondent No.1 was also entitled to recovery of dowry articles and recovery of medical expenses incurred at the time of her delivery. The Petitioner challenged the judgment and decree dated 24.11.2018 before the District Judge, Kohat, which appeal was dismissed vide judgment dated 24.05.2019, being meritless. The Additional District Judge-I, Kohat increased the annual increase of the maintenance for Respondent No.1 and the minor from 10% to 20%. Being aggrieved, the Petitioner filed a Writ Petition under Article 199 of the Constitution before the High Court claiming that various findings of the trial court, which were maintained by the appellate court, were misconceived and were a result of misreading of the evidence, thus, the judgment and decree dated 24.11.2018 of the Judge Family Court, Kohat and judgment dated 24.05.2019 of the Additional District Judge-I may be set aside. The grounds taken by the Petitioner before the High Court were purely factual and did not challenge any error of law or jurisdiction. However, the High Court, despite invocation of its constitutional jurisdiction, treated these factual grounds as an appeal and decided the dispute on the facts. Nevertheless, the Writ Petition was dismissed vide impugned judgment dated 16.12.2022, being devoid of any merit.

Hence, this Petition.

3. Heard and the relevant record perused. The issue before us pertains to the findings of the High Court in a petition whereby the constitutional jurisdiction of the High Court was invoked.

Constitutional jurisdiction of the High Court, as provided in Article 199 of the Constitution, is well- defined and its invocation is limited in scope against appellate decisions. The extent to which it can be invoked has been assessed by this Court over the course of several decades. In Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139), this Court held that High Court in such cases is only concerned with whether or not the courts below acted within its jurisdiction. If such a court has the jurisdiction to decide a matter, it is considered competent to make a decision, regardless of whether the decision is right or wrong and even if the said decision is considered to be incorrect, it would not automatically render it as being without lawful authority so as to invoke High Court's constitutional jurisdiction. However, in 1987, this Court deviated from its view in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447) where it expressed that where the lower fora makes an error of law in deciding a matter, it becomes a jurisdictional issue since the same is only vested with the jurisdiction to decide a particular matter rightly, therefore, such decision can be quashed under constitutional jurisdiction as being in excess of law as in terms of Article 4 of the Constitution, it is a right of every individual to be dealt with in accordance with law and when law has not been correctly or properly observed below, it becomes a case proper for interference by a High Court in exercise of its constitutional jurisdiction. Thereafter, in 2001, in the case of Muhammad Lehrasab Khan v. Mst. Aqeel-Un-Nisa (2001 SCMR 338), this Court further stretched the powers of high court under Article 199 stating that while, ordinarily, the high court, does not re-examine evidence or disturb findings of fact, it can interfere if the findings are based on non-reading or misreading of evidence, erroneous assumptions, misapplication of law, excess or abuse of jurisdiction, and arbitrary exercise of powers, especially when the district court is the final appellate court which has reversed the findings of the trial court on unsupported grounds, the High Court can correct such errors using a writ of certiorari. It was held that the High Court's constitutional jurisdiction is meant to supervise and serve justice, allowing it to correct any wrongs committed contrary to evidence and the law.

Subsequently, in Shajar Islam v. Muhammad Siddique (PLD 2007 SC 45) this Court revisited this issue and clarified that the High Court should not interfere in findings on controversial questions of facts based on evidence, even if those findings were erroneous. It was emphasized that the scope of judicial review under Article 199 of the Constitution in such cases was limited to instances of misreading or non-reading of evidence or when the finding was based on no evidence, leading to miscarriage of justice and that the high court should not disturb findings of fact through a reappraisal of evidence in its constitutional jurisdiction or use this jurisdiction as a substitute for a revision or appeal and that an interference with the lower courts' findings of fact was beyond the scope of the high court's jurisdiction under Article 199 of the Constitution. The recent judgments of this Court further elaborated on this view, in Mst. Tayye ba Ambareen and another v. Shafqat Ali Kiyani and another (2023 SCMR 246) and held: "8. The object of exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") is to foster justice, preserve rights and to right the wrong. The appraisal of evidence is primarily the function of the Trial Court and, in this case, the Family Court which has been vested with exclusive jurisdiction. In constitutional jurisdiction when the findings are based on mis-reading or non-reading of evidence, and in case the order of the lower fora is found to be arbitrary, perverse, or in violation of law or evidence, the High Court can exercise its jurisdiction as a corrective measure. If the error is so glaring and patent that it may not be acceptable, then in such an eventuality the High Court can interfere when the finding is based on insufficient evidence, mis-reading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where an unreasonable view on evidence has been taken."

It was also observed by this Court in Arif Fareed v. Bibi Sara and others (2023 SCMR 413) that: "7. ... The legislature intended to place a full stop on the family litigation after it was decided by the appellate court. However, we regretfully observe that the High Courts routinely exercise their extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as a substitute of appeal or revision and more often the purpose of the statute i.e., expeditious disposal of the cases is compromised and defied. No doubt, there may be certain cases where the intervention could be justified but a great number falls outside this exception. Therefore, it would be high time that the High Courts prioritise the disposal of family cases by constituting special family benches for this purpose."

4. Upon reviewing the relevant case law, it is evident that the powers of the High Court in its constitutional jurisdiction and appellate jurisdiction are misconstrued despite the judgment of this Court. This Court had, initially, in Muhammad Hussain Munir (supra) held that the High Court, in its constitutional jurisdiction, can only interfere with findings of the lower courts in cases of a jurisdictional defect. However, a divergence from this view was later seen in the case of Utility Stores Corporation of Pakistan Limited (supra) whereby it was held that when a lower court decides a matter in error of law, it shall be viewed as a jurisdictional defect so as to invoke the constitutional jurisdiction of the High Court. Later on, in Muhammad Lehrasab Khan (supra) High Court's constitutional scope was explained, allowing it to interfere when the factual findings were based on non-reading or misreading of evidence, erroneous assumptions, misapplication of law, excess or abuse of jurisdiction, and arbitrary exercise of powers. However, in Shajar Islam (supra) this view was revised, stating that the high court could not interfere in findings on facts unless there was a misreading or non-reading of evidence, or if the findings were based on no evidence resulting in a miscarriage of justice and that the constitutional jurisdiction of the High Court could not replace a revision or an appeal. This view has been reiterated by this Court in its recent judgments. In Mst. Tayyeba Ambareen and another (supra) it was clarified that while the trial court is primarily responsible for assessing facts, the High Court can intervene as a corrective measure when actual findings are based on misreading or non-reading of evidence, or if the lower court's order is arbitrary, perverse, or in violation of the law or if the error is so obvious that it may not be acceptable, for example, when the finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumptions, clear legal errors, considering inadmissible evidence, exceeding or abusing jurisdiction, and taking an unreasonable view of evidence. Similarly, in the case of Arif Fareed (supra), this Court held that it is while some cases justify interference by the High Court, however, most do not. Thus, the legal position is that the constitutional jurisdiction cannot be invoked as a substitute for a revision or an appeal. This means that the High Court in constitutional jurisdiction cannot reappraise the evidence and decide the case on its facts. Interference is on limited grounds as an exception and not the rule.

5. In respect to the facts before us, Respondent No.1 and her minor son filed a suit before the family court for recovery of dower, maintenance allowance and dowry articles, etc.. The suit was decreed on 24.11.2018 and later upheld by the appellate court. Subsequently, the Petitioner filed a writ petition before the High Court challenging the factual determinations of the lower courts in respect of the quantum of maintenance allowance, dower amount, recovery of dowry articles amongst other grounds. Regrettably, the High Court fell in error and adjudicated upon the case on facts which falls outside the mandate of Article 199 of the Constitution. In terms of the aforementioned case law, the High Court could have interfered to prevent miscarriage of justice, which is not established in the instant case. In fact the High Court substituted and adjudicated on the facts and tendered its opinion, which amounts to having an appeal out of the Appellate Court's judgment.

6. The objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts. Its role is limited to correcting jurisdictional errors and procedural improprieties, ensuring the proper administration of justice. In the present case, the Petitioner pursued his case through the family court and its appeal in the district court and then also invoked the High Court's constitutional jurisdiction to reargue his case amounting to a wrongful exercise of jurisdiction whereby the High Court upheld the factual findings of appellate court after making its own assessm ents on the same. Allowing a re-argument of the case constituted to arguing a second appeal which should not have been entertained regardless of the outcome of the case.

7. The right to appeal is a statutory creation, either provided or not provided by the legislature; if the law intended to provide for two opportunities of appeal, it would have explicitly done so. In the absence of a second appeal, the decision of the appellate court is considered final on the facts and it is not for High Court to offer another opportunity of hearing, especially in family cases where the legislature's intent to not prolong the dispute is clear. The purpose of this approach is to ensure efficient and expeditious resolution of legal disputes. However, if the High Court continues to entertain constitutional petitions against appellate court orders, under Article 199 of the Constitution, it opens floodgates to appellate litigation. Closure of litigation is essential for a fair and efficient legal system, and the courts should not unwarrantedly make room for litigants to abuse the process of law. Once a matter has been adjudicated upon on fact by the trial and the appellate courts, constitutional courts should not exceed their powers by reevaluating the facts or substituting the appellate court's opinion with their own - the acceptance of finality of the appellate court's findings is essential for achieving closure in legal proceedings conclusively resolving disputes, preventing unnecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms.

8. In view of the foregoing, this petition is dismissed and leave declined.