Mst. FAIZA FIRDOUS vs GHULAM SABIR

' Brief facts in the instant writ petition are that petitioner filed suit for recovery of articles of dowry, which was contested by the respondent-defendant, certain documents were exhibited, documents consisted list of dowry articles, receipt of dowry Exhs.P.1 to P.20 as part of record of the case. An application was made by respondent No,1 to de-exhibit the said documentary evidence produced by the petitioner. This application was resisted by filing reply by the petitioner. The learned Judge, Family Court vide order, dated 3-12-2001 accepted the application of respondent No,1 and de- exhibited the documents Exhs.P.2 to P.20. The instant writ petition is filed by the petitioner being an order illegal and without jurisdiction and in arbitrary manner the learned trial Court de-exhibited the documents Exhs.P.2 to P.20 which is based on non-reading and misreading of documentary as well as oral evidence produced by the petitioner in Court as list of documents was produced when the suit was filed and the petitioner has also submitted "reliance form" duly mentioned in the said receipt in the form which was necessary according to Muslim Family Courts Act, 1964 and the application was wrongly decided by de-exhibiting Exhs.P.2 to P.20 although the scriber of documents submitted his affidavit in Court that he had prepared the list of articles of dowry, handover to the father of respondent No,1 who duly received the same and had given the receipts.

Hamayun Babar P.W.3 had seconded the affidavit of the Iftikhar-ul-Hassan but the learned trial Court did not consider this fact of the case hence the order is liable to be set aside being void ab initio.

2. Learned counsel for the respondent submitted that these documents were exhibited, the maker of the documents was to be examined necessarily and the respondent had to be given a chance to cross-examine.

3. I have heard the learned counsel for the parties and perused the record. Following issues were formulated out of pleadings of the parties:--

(i) Whether the plaintiff was provided the dowry articles mentioned in the list attached as Annexure "A" and the same are in possession of the defendant, if so, whether the plaintiff is entitled to the recovery of the same or in lieu the price thereof? OPP

(ii) Whether the suit is based upon mala fides and the same is not maintainable in view of preliminary objections? OPD

(iii) Relief.

' A direction was given to the parties for certificate for readiness to produce evidence within seven days and the case was fixed for evidence on 1-12-1999. The petitioner exhibited list of articles of dowry Exh.P.I and receipts Exhs.P.2 to P.20. An affidavit was given by Hamayun Babar that in his presence Iftikhar-ul-Hassan prepared the list of articles, which was consistent on Serial Nos.1 to 59, which were all the usary articles and the value of the articles of dowry was Rs,2,00,000. Cross- examination was also conducted on Hamayun Babar. While petitioner P.W.1 appeared as her own witness and in her statement produced Exh.P.1. She was cross-examined. P.W.2 is Muhammad Sohail. P.W.3 is Hamayun Babar. Another affidavit was given by Iftikhar-ul-Hassan P.W.4. He was also subjected to cross-examination.

4. As the list has not been de-exhibited the receipts which are co-relative with list stand de- exhibited by the learned Court, which is entirely an action without lawful authority and jurisdiction.

As the Family Court sits as Family Court under section 2 of the Family Courts Act, 1964 the provisions of Evidence Act do not apply to the proceedings of the Family suits neither C.P.C. Applies to the proceedings in family suits. Section 7 of the Family Courts Act makes it mandatory upon the parties to give the schedule of witnesses giving summary of evidence and also production of all the documents in possession of the parties. Under section 7, proviso the Family Court is possessed with the power to allow any witness to produce any document on record and order which it thinks expedient and just for the fair administration of justice. This means that reasons by the learned Judge Family Court while de-exhibiting is completely new anomaly put forwarded by the learned Judge Family Court where she reviewed her earlier order. As the remedy of review is also not available under the provisions of Family Courts Act and when one document is exhibited by the learned Judge, Family Court, it can never be de-exhibited through review of earlier order. The impugned order is patently illegal and without jurisdiction, the High Court in the exercise of Constitutional jurisdiction has the power to set aside such order, Anwar Masih v. Wilat and 2 others 1983 CLC 2365 and Mst. Zainab Khatoon v. Mian Ghulam Shabbir and others PLD 1965 SC 55.

5. Writ petition is .Accepted and the impugned order passed by the learned Judge, Family Court is hereby set side. No order as to costs.