SHER ALAM KHAN Versus Mst. FOZIA TABBASUM AFRIDI
MUSARRAT HILALI, J.--- This Civil Petition for Leave to Appeal is directed against the judgment dated 22.03.2024 passed by the Peshawar High Court, Peshawar in Writ Petition No.2566-P/2020 (along with Writ Petition No.2581-P/2020), whereby the writ petition filed by the present petitioner was dismissed and the concurrent findings of the learned Family Court as well as the Appellate Court were maintained. Through these judgments, the suit of respondent No.1 was decreed, inter alia , to the extent of recovery of dower comprising Rs.5,00,000/-, gold ornaments and one kanal plot situated at Yasrab CNG Pump, Ring Road, Peshawar ( hereinafter the Plot ).
2. Briefly, the marriage between respondent No.1 Mst. Fozia Tabassum Afridi and the son of the petitioner namely Sahibzada Muhammad Ali (present respondent No.2) was solemnized on 27.01.2009, while rukhsati took place thereafter on 25.04.2009. Subsequently, a document styled as Kabeen Nama was allegedly executed on 24.02.2009, wherein the plot was mentioned as a part of the dower. The present controversy is confined to the inclusion of the plot as a part of the dower.
3. Arguments heard. Record of the case perused.
4. It is the case of the petitioner, who is the father-in-law of respondent No.1, that the plot was exclusively owned by him and not by his son. He further asserts that he was neither a signatory to the Nikahnama nor did he ever consented to the inclusion of the plot as a dower. Reliance, however, has been placed by respondent No.1 upon the Kabeen Nama dated 24.02.2009, allegedly executed after the marriage to establish that the plot formed part of the dower.
5. The petitioner has categorically denied the execution of the Kabeen Nama and his signatures as a witness thereon. Once such denial was made, the burden squarely shifted upon respondent No. 1 to prove its execution through cogent, reliable and legally admissible evidence. The record, however, reveals that no meaningful effort was undertaken to discharge this burden in accordance with the law. The Kabeen Nama was neither proved through direct evidence of execution nor the signatures of the petitioner were subjected to forensic examination despite his specific denial.
6. The evidence led in support of the Kabeen Nama is equally deficient and does not inspire confidence. The two marginal witnesses, namely PW-4 Noor Khan Afridi (father of respondent No.1) and PW-5 Jalal-ud-Din, failed to establish due execution of the Kabeen Nama. Significantly, PW-4, in his cross-examination, admitted that PW-5 was not present at the time when the parties allegedly signed the Kabeen Nama. PW-5, on the other hand, admitted that the parties had not signed the document in his presence. Thus, there is no direct or unequivocal evidence on record to prove that the petitioner executed the said document.
7. Another important aspect which has been overlooked by the Courts below is that even according to the contents of the Kabeen Nama, son of the petitioner is shown as the owner of the plot on the basis of mutation No.3604 dated 07.10.2003. No documentary evidence was produced to substantiate such ownership. This inherent contradiction strikes at the root of the respondent s claim and renders the Kabeen Nama itself doubtful. Moreover, the said mutation along with the relevant revenue record, as brought on record through the evidence of DW-3 (Halqa Patwari), clearly reflects the contrary position, showing the present petitioner as the recorded owner of the plot and not his son. This material piece of evidence has neither been properly appreciated nor even adverted to by the Courts below, thereby vitiating their findings on this crucial question of ownership.
8. It is settled that a property owned by a third person cannot be made part of dower unless there is clear, unequivocal and proven consent of such owner. In the present case, not only is the petitioner not a signatory to the Nikahnama, but the alleged subsequent consent as witness through the Kabeen Nama also remains unproved. In such circumstances, the inclusion of the plot in the dower cannot be sustained.
9. We are mindful of the well-settled principle that concurrent findings of fact recorded by the Courts below, particularly in family matters, are not to be interfered with lightly. However, this Court has consistently held that such findings may be set aside where they are the result of misreading or non-reading of evidence or are otherwise against the law. In the present case, the Courts below failed to properly appreciate the evidence relating to the execution of the Kabeen Nama and ignored material aspects concerning ownership of the property. The findings, therefore, suffer from patent legal infirmity. In Mushtaq and others v. Mst. Fatima and others PLD 2025 SC 434 , this Court has held that the High Court, in exercise of its constitutional jurisdiction through a writ of certiorari under Article 199(1)(a)(ii) of the Constitution, is competent to interfere where the Courts below have acted in disregard of law or have based their conclusions on legally unsound reasoning. It was further emphasised that an error of law apparent on the face of the record, particularly one affecting the proper application of legal principles, cannot be allowed to perpetuate merely on the basis of concurrent findings. Although, in the cited case, the execution of the Kabeen Nama was found to be duly proved through consistent, cogent and confidence-inspiring evidence, however in the instant case, the Courts below have proceeded on assumptions and have recorded findings despite the absence of direct evidence regarding execution of the Kabeen Nama and ownership of the plot, thereby rendering their conclusions legally unsustainable.
10. The High Court, despite the presence of these patent legal infirmities, failed to exercise its constitutional jurisdiction. Instead of examining whether the conclusions of the Courts below suffered from misapplication of law or were based on legally unsound reasoning, it declined interference solely on the premise of concurrent findings of fact. This approach is inconsistent with the well-settled scope of certiorari jurisdiction, which mandates interference where findings are vitiated by apparent error, misreading of evidence, or violation of law, as was clearly the case in the present matter.
11. The High Court ought to have examined whether the findings of the Courts below were sustainable in law, particularly in light of the disputed execution of the Kabeen Nama and absence of proof regarding ownership of the property. Its failure to do so resulted in perpetuation of an illegality apparent on the face of the record. We are of the considered opinion that the respondent No.1 failed to prove that the plot formed part of the dower. Consequently, the concurrent findings of the Courts below to this extent cannot be sustained.
12. In view of the above, this petition is converted into an appeal and partially allowed to the extent that the grant of one kanal plot situated at Yasrab CNG Pump, Ring Road, Peshawar, as dower in favour of respondent No.1 is set aside. The remaining findings of the Courts below are maintained.
13. Above are the reasons for our short order of even date, which is reproduced below:
For the reasons to be recorded later, this petition is converted into an appeal and partially allowed in terms that the judgment of Senior Civil Judge Peshawar dated 23.06.2016, passed in Case No.02/FC of 2010; the judgment of learned Additional District Judge-X, Peshawar, dated 05.03.2020, passed in Civil Appeal No.01/FCA of 2018 and the impugned judgment dated 22.03.2024, passed by learned Peshawar High Court, Peshawar in W.P.2566-P/2020 are set aside to the extent of grant of one Kanal plot, situated at Yasrab CNG Pump, Ring Road Peshawar, bearing Khata No.571/1441, with reference Mutation No.3604, as dower to Respondent No.1. Stay application (C.M.A.No.570-P of 2024) is disposed of accordingly.
MH/S-23/SC Order accordingly.