Mian NASIR SHAH Versus Mst. HOOR MALIK

KAMRAN HAYAT MIANKHEL, J.--- Through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed as following:-

2.Brief facts of the case are that Mst. Hoor Malik along with her two minor children filed a family suit on 21.07.2018 against Mian Nasir Shah seeking dissolution of marriage, recovery of dower (Rs. 500,000 and 10 tolas of gold), maintenance for herself and the minors, recovery of dowry articles, and custody of minors. During the proceedings, upon failure of the first reconciliation, the learned trial court dissolved the marriage on the basis of khula vide order dated 15.10.2018, and a decree was granted in favour of the plaintiff in lieu of dower. On 10.01.2019, the plaintiff withdrew her claim for maintenance, and on the same date, the defendant expressed willingness to return the dowry articles in his possession. The remaining controversies were then settled through framing of the following issues by the learned trial court.

3.Thereafter, the learned trial court directed both parties to produce their pro and contra evidence, which they duly did.

4.After hearing the case, the learned trial court decreed the suit of the plaintiff/respondent No.1 through the impugned judgment and decree dated 20.04.2022 in the following manner:-

5.The petitioner and respondent No.1, both being aggrieved by the impugned judgment and decree dated 20.04.2022 passed by the learned trial court, filed their respective appeals before the Court of the Additional District Judge-XVII, Peshawar. The appeal bearing No. 11/FCA of 2022, filed by the respondent/plaintiff (Mst. Hoor Malik), was accepted and modified to the extent that the claim regarding dowry articles was decreed as prayed for, except for the items already received by the plaintiff before the trial court. The appeal filed by the petitioner/defendant (Mian Nasir Shah) was dismissed. Hence, the instant writ petition.

6.Arguments of learned counsel for the petitioners heard and record has gone through.

7.First, addressing the issue of whether the dowry articles of Respondent No.1 are lying in the house of the petitioner/defendant: A perusal of the record reveals that Plaintiff No.1 stated that at the time of Rukhsati, substantial dowry articles, as per the list annexed with the plaint, were handed over to her, which still remain in the possession of the petitioner/defendant. On this basis, she sought a decree for recovery of the said dowry articles. The petitioner/defendant initially denied this assertion in his written statement. However, during the proceedings, petitioner/defendant's attorney/his real mother appeared before the Court and admitted the presence of several specific dowry articles at their residence. Her statement was recorded on 10.01.2019, wherein she identified and marked the articles, as per the dowry list, that were available at the petitioner's home. Upon a careful examination of the dowry list consisting of 81 articles, it appears that the petitioner/defendant's attorney admitted possession of Articles Nos. 02, 03, 05 to 16, 18 to 29, 32 to 34, 56, 57, and 59 to 70. This indicates that the remaining articles specifically Articles Nos. 01, 04, 17, 31, 35 to 55, 58, and 71 to 81 remain disputed between the parties, as their possession has not been acknowledged by the petitioner/defendant.

8.The case proceeded, and warrants for possession of dowry articles were issued by the learned trial Court. In compliance, the Court Bailiff submitted his first report dated 04.09.2019, wherein it was stated that Plaintiff No.1 had received most of the admitted articles. However, the articles mentioned at Serial Nos. 03, 05, 12, 16, 18, 28, 65, and 70, along with a room cooler and a hair dryer, were found missing. Subsequently, after issuance of repeated warrants of possession, the Bailiff submitted his second report dated 19.03.2021, reporting that the plaintiff/respondent had received only the dowry articles listed at Serial Nos. 03 and 12 on that occasion. No further admitted articles were recovered thereafter.

9.From the above facts, it is evident that despite the issuance of multiple warrants, a number of admitted dowry articles still remain unrecovered from the petitioner/defendant. Therefore, without any hesitation or ambiguity, Respondent No.1/Plaintiff is legally entitled to the recovery of the outstanding admitted dowry articles, namely Articles Nos. 05, 16, 18, 28, 65, and 70, or in the alternative, their market value as specified in the dowry list annexed with the plaint. The law is settled that once the possession of certain dowry articles is admitted by the defendant or his representative, the obligation to return the same becomes absolute.

10.Turning to the remaining disputed dowry articles: During the course of evidence, Respondent No.1 appeared as PW-1 and original list of dowry articles, which was exhibited as Ex.PW1/1, comprising four pages. Her testimony was subjected to extensive cross-examination, particularly with respect to the gold ornaments and the receipts relating thereto. During cross-examination, PW-1 conceded that she did not have the original receipts of the gold ornaments in her possession, stating that the same were with her mother. This portion of her testimony is reproduced verbatim in the trial Court record. Her admission indicates that while she maintained her stance regarding the receipt of gold ornaments at the time of marriage, she lacked supporting documentary proof on the spot; however, the absence of receipts is not fatal to her claim, as dowry articles are often purchased and handed over in the presence of family members rather than documented formally. Additionally, her father, appearing as PW-2, corroborated her version and affirmed the contents of the dowry list, strengthening the evidentiary value of the plaintiff's claim.

11.Moreover, during her cross-examination, respondent No.1 candidly admitted that she does not personally know the exact details, specifications, or weight of the gold ornaments mentioned in the list of dowry articles, and that her parents are better aware of such particulars. She further deposed that some of the gold ornaments were purchased by her parents from D.I. Khan, while others were bought from Peshawar. The relevant portion of her evidence, reflecting these admissions, is reproduced as under:

12.During the recording of evidence, PW-1/respondent was specifically confronted with Article No.01 (Car), allegedly given to her at the time of marriage. In her reply, she admitted that a black-coloured car was given to her on the occasion of marriage. However, she did not bring any documentary proof such as registration book, transfer letter, token tax receipts, or any evidence regarding the payment allegedly made for purchase of the said vehicle.

13.PW-2, who is the father of the plaintiff/respondent No.1, reiterated in his examination-in-chief the facts already deposed by PW-1. For establishing his financial means, he produced a certificate issued by Facto Sugar Mills, exhibited as Ex.PW2/1. He further produced one receipt pertaining to gold ornaments, exhibited as Ex.PW2/2, and also placed on record two additional receipts for dowry articles, exhibited as Ex.PW2/3 and Ex.PW2/4. However, during cross-examination, PW-2 candidly admitted that he had received most of the articles mentioned in Ex.PW2/3 and Ex.PW2/4. The core of his cross-examination reflects that prior to Rukhsati he allegedly paid an amount of Rs.11,00,000/- to the defendant for the purchase of a car. Despite this assertion, he did not produce any corroborative evidence such as bank transactions, withdrawal slips, or any documentary acknowledgment from the defendant/petitioner to substantiate the alleged payment.

14.Upon meticulous appraisal of the entire evidence available on record, it emerges that the respondent/plaintiff sought recovery of Articles Nos. 01, 04, 17, 31, 35 to 55, 58, and 71 to 81, treating them as disputed dowry articles. Article No.01 (Car) stands out as an unusual and uncustomary dowry item, allegedly given at the time of marriage. The respondent/plaintiff No.1 also claimed recovery of gold ornaments listed at Serial Nos. 71 to 81, allegedly weighing around 23 tolas. With respect to Article No. 01, the plaintiff/respondent pleaded in her plaint that prior to Rukhsati her parents handed over Rs.11,00,000/- to the defendant/petitioner for the purchase of a car, who thereafter purchased a golden-colour Honda car and registered it in his own name. The defendant/petitioner denied these assertions in totality and termed the claimed dowry as exaggerated and fabricated. It is a matter of common knowledge and social custom that the bride's family generally arranges normal dowry articles for the bride's new household, often within their financial means. However, providing a car is neither customary nor commonly practiced in ordinary families, unless specifically proven through convincing and substantial evidence. In the present case, the alleged car being an extraordinary dowry item, the burden to prove its existence, purchase, and ownership lay heavily upon the respondent/plaintiff No.1. Yet, she did not produce the car's registration details, purchase invoice, ownership documents, or any independent and impartial witness to support her version. She also failed to explain the mode, manner, and channel of the alleged payment of Rs.11,00,000/-. In the absence of reliable oral or documentary evidence, a mere unsubstantiated verbal claim carries no evidentiary weight in the eyes of law.

15.Coming to the claim regarding gold ornaments (Serial Nos. 71 to 81), PW-1/respondent admitted during cross-examination that the receipts pertaining to the alleged ornaments were in the possession of her mother. However, her mother never appeared before the Court to support her stance or to produce the original receipts. PW-2 merely produced one receipt marked as Ex.PW2/2, but the said document was never proven through its proper custodian. Therefore, it lacks evidentiary value. Significantly, the said receipt (Ex.PW2/2) was introduced at a belated stage during the appellate proceedings and was placed on record merely with the permission of the Appellate Court. The respondent/plaintiff neither annexed the document at the time of filing the suit nor even mentioned any detail of the receipt in her plaint. This omission amounts to a clear violation of the mandatory requirement under Section 7 Clause 3(1) of the Family Courts Act, 1964, which obligates parties to submit all reliance documents along with their pleadings. Moreover, a major contradiction surfaced when PW-1 stated in her cross-examination that the gold ornaments were purchased from Peshawar and D.I. Khan, whereas Ex.PW2/2 was issued by Waqas Mehboob Jewellers located in District Layyah. This glaring inconsistency severely dents the credibility of the respondent/plaintiff's version and renders the claim doubtful. By introducing a contradictory document, the respondent/plaintiff herself undermined her case, which proves fatal to her claim recovery of the alleged gold ornaments.

16.As far as the remaining dowry articles i.e. Articles Nos. 04, 17, 31, 35 to 55, and 58 are concerned, the record is absolutely silent regarding their existence, delivery at the time of marriage, or possession by the defendant/petitioner. The respondent/plaintiff /No.1 failed to produce any cogent, credible, or corroborative evidence to substantiate their delivery or subsequent retention by the defendant. Neither any independent witness was produced nor any receipts, photographs, or lists were supported through admissible evidence. Hence, the respondent/plaintiff could not discharge her burden of proof under the law.

17.In light of the foregoing discussion and reasons elaborated hereinabove, the instant petition stands allowed. As a consequence, the impugned judgment and order dated 24.11.2022 , passed by the learned Appellate Court, is hereby set aside as the same suffers from material irregularities, misreading, and non-reading of evidence. The findings of the learned Trial Court, being well-reasoned, properly appreciated, and firmly grounded in the evidence on record as well as the relevant legal provisions, ure hereby upheld and restored. The learned Trial Court had correctly analyzed both the factual matrix and legal aspects of the matter and arrived at a just, fair, and lawful conclusion. Conversely, the Appellate Court failed to consider the mandatory procedural requirements, overlooked material contradictions, and misapplied the law, which resulted in an erroneous reversal of the Trial Court's judgment. Such interference was unwarranted and legally unsustainable. Accordingly, the judgment and decree dated 20.04.2022 of the learned Trial Court shall stand revived and shall hold the field.

UN/105/P Petition allowed.