2020 C L C 910

[Peshawar]
Before Muhammad Naeem Anwar, J
USMAN KHAN----Petitioner
Versus
Mst. SHEHLA GUL and 2 others----Respondents
W.P. No.1639-P of 2019, decided on 7th October, 2019.
(a) Family Courts Act (XXXV of 1964)---
----S. 5, Sched---Suit for recovery of dower---Entries in nikahnama alleged to
be forged---Scope---Husband had alleged the nikahnama to be forged for the
reasons that entries made in columns Nos. 15, 16, 17 & 21 were filled later on
and that the alleged nikahnama was registered much earlier than the
solemnization of nikah---Validity---Written statement filed by husband did not
contain a single word about nikahnama having been forged rather it was
admitted, however, its contents were attacked---Evidence showed that
nikahnama was registered after solemnization of nikah---Husband himself had
admitted nikahnama in his examination-in-chief, so it was required to be taken
as a whole and not as per his whims and wishes---Husband could not be
allowed to admit a portion of nikahnama as correct and the other as incorrect---
Constitutional petition was dismissed.
(b) Family Courts Act (XXXV of 1964)---
----S. 5, Sched---Suit for recovery of dower---Scope---Husband assailed the
findings of courts below whereby wife's claim of 5-1/2 tolas gold as
outstanding dower was decreed---Validity---Husband himself had admitted
outstanding dower as 5-1/2 tolas against him while cross-examining the Nikah
Registrar---Appellate Court had rightly held that the wife was entitled to the
outstanding dower of 5-1/2 tolas of gold---Constitutional petition was
dismissed.
(c) Family Courts Act (XXXV of 1964)---
----S. 5, Sched---Suit for recovery of dower---Failure to cross-examine on
specific issue---Effect---Husband assailed the findings of courts below whereby
wife's claim of four marla plot as dower was decreed---Husband had admitted
the nikahnama in his examination-in-chief--- Wife, through her attorney, had
categorically stated that it was agreed between the parties that four marla plot
would be given to her as dower---Husband, during cross-examination, had not
specifically questioned about the plot nor had he put any suggestion to her, as
such the unchallenged/uncrossed portion of the statement had to be considered
as admission of the husband---Constitutional petition, being devoid of merit,
was dismissed.
Javed Khan v. Mst.Fozia Azam PLD 2005 Pesh. 89 rel.
(d) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Suit for recovery of maintenance allowance---Failure to cross-
examine on specific issue---Scope---Husband challenged the decrees passed by
courts below whereby wife's claim of maintenance was allowed---Contention of
husband was that wife herself had deserted him---Validity---Wife, through her
attorney, had stated in explicit terms that she was ousted by the husband and
such statement was not cross-examined---Husband had contracted second
marriage and when the wife was questioned she had showed her willingness to
live with the husband but the husband had straightaway refused to live with
her---Husband was legally bound to maintain his wife in order to meet daily
needs like food, clothes, medicines, etc, which was his duty to bear from the
date when she was ousted till she was in his nikah---Constitutional petition,
being without merit, was dismissed.
(e) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Suit for recovery of dower---Cross-examination---Double-
edged weapon---Scope---Fundamental purpose of cross-examination is to sort
out the truth by disclosing or clarifying the matter, for such purpose no
mathematical procedure is prescribed and it is not necessary that witness should
only reply question according to the whims of counsel who is cross-examining,
as it is a double-edged weapon and a witness while replying the question can
explain the matter for clarifying the question of dispute.
(f) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Qanun-e-Shahadat (10 of 1984), Art.133(2)---Suit for
recovery of dower---Cross-examination---Failure to cross-examine on specific
issue---Scope---Portion of statement which remains unchallenged in cross-
examination is deemed to be admitted.

(g) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Jurisdictional defect---
Effect---High Court, in exercise of its extraordinary constitutional jurisdiction
can neither substitute findings of the facts recorded by the appellate court nor
can give its opinion regarding adequacy and quality of evidence as the
assessment and appraisal of the evidence is the function of lower court, which
is vested with exclusive jurisdiction in this regard---Petitioner is required to
show any illegality or jurisdictional defect committed by the lower courts in
order to make his case entertainable by High Court, while exercising
constitutional jurisdiction.
Muhammad Arif Khan for Petitioner.
Muslim Khan for Respondent.
Date of hearing: 7th October, 2019.
JUDGMENT
MUHAMMAD NAEEM ANWAR, J.----This judgment in the instant
petition shall also decide W.P. No.1651-P of 2019 not because parties in both
the matters are the same but also these have been arisen out of common
judgment dated 13.02.2019 of learned Additional District Judge-II, Takht Bhai.
2. Brief facts of the case are that respondent No.1 filed suit for dissolution of
marriage, recovery of 5 1/2 tolas gold ornaments along with recovery of plot
measuring 04 marlas (as dower), share of petitioner/defendant in joint property
situated in Babu Khan Mohallah, Hathyan, recovery of amount of
Rs.50,00,000/- and the amount of Rs.10,000/- per month as maintenance from
24.01.2015 till decision of the case and onward as well as recovery of dowry
articles as per list or its market value worth Rs.2,95,870/-.
The suit was contested by petitioner/defendant by filing written statement.
During pendency of suit, respondent/plaintiff preferred an application for
withdrawal of her claim to the extent of dissolution of marriage. Said
application was accepted and the learned trial court vide order dated
09.04.2018 dismissed the prayer of respondent/plaintiff for dissolution of
marriage. After framing of issues and recording of evidence, the suit was
partially decreed in favour of respondent/plaintiff vide judgment and decree
dated 13.09.2018 rendered by learned Judge Family Court/Civil Judge-III,
Takht Bhai. Dissatisfied therewith, the petitioner preferred appeal whereas the
respondent/plaintiff filed objection petition. After hearing the parties, the
learned Additional District Judge-II, Takht Bhai held that the finding of learned
trial court on issues Nos.1 and 5 were well reasoned requiring no interference
whereas those on issues Nos.2, 3 and 4 were modified to the extent that the
respondent/plaintiff was held entitled for recovery of 5 1/2 tolas gold
ornaments, plot measuring 04 marlas situated at Babu Khan Mohallah, Hathyan
and the amount of Rs.10,000/- per month as her maintenance from past 10
months prior to institution of suit till now and onwards with an annual increase
of 10% whereas cross objection filed by petitioner/defendant was dismissed
being not maintainable, hence this and the connection petition.
 3. Main focus of arguments of worthy counsel for petitioner was that
"Nikahnama" regarding which he contended that nikahnama was forged,
fabricated, manipulated, concocted and against the fact for two fold reasons;
firstly, that Nikah of parties solemnized on 08.06.2014 while the nikahnama
was registered on 06.11.2011, secondly, the entries of nikahnama to the extent
of column Nos.15, 16, 17 and 21 were wrong, to have been filed later on, as
such no reliance could be placed on nikahnama (Ex.PW1/1). He also added that
(Ex.PW1/1) was not signed by petitioner. Moreover, the dower was fixed as 10
tolas gold, which was given to respondent No.1, now nothing was outstanding
against petitioner. In addition to above, he maintained that as respondent No.1
was not entitled for maintenance being willful self deserted lady. He also
termed the findings of both the learned lower courts as against the law.
4. Worthy counsel for respondent No.1, submitted that in constitutional
jurisdiction reappraisal of evidence was not permissible, because the facts were
properly determined by the learned Judge Family Court and learned appellate
court. Moreover, the execution of nikahnama and its registration was admitted
by the petitioner before lower forums, hence this petition deserves dismissal.
5. Arguments heard and record gone through.
6. Substantially, the main grievance of the petitioner was the execution of
nikahnama and its registration. Thus, it requires proper consideration. Written
statement filed by the petitioner/defendant did not contain a single word about
forged nikahnama rather it was admitted, however, its contents at serial Nos.15,
16, 17 and 20 were attacked as to have been filled later on. Statement of
Maulana Haneefullah, Nikah Registrar was recorded as PW1, in whose cross-
examination by petitioner, it was brought on record that;

Petitioner produced Nikah Khwan Fawad Ali as DW1, who in his

examination-in-chief deposed that;

Petitioner himself appeared as DW3 and in his examination-in-chief in

respect of nikahnama he deposed that;
 7. Scanning the evidence to the extent of first objection of learned counsel
for petitioner, it can safely be held that undoubtedly, undeniably and admittedly
the Nikah was solemnized on 08.11.2014, while nikahnama was registered on
06.11.2016. Second objection was to the decree of 5-1/2 tolas gold on the plea
taken in written statement by petitioner/defendant that 10 tolas gold was fixed
as dower and the same was paid, nothing was outstanding. Plaintiff/respondent
No.1 produced PW1 Nikah Registrar in his cross-examination, it was placed on
record by petitioner that;

8. Similarly, in the statement of PW2, petitioner/defendant had admitted the

factum of 5-1/2 tola gold such as;

9. Petitioner himself admitted outstanding dower as 5 1/2 tola against him,

while cross-examining the witness of respondent/plaintiff. Fundamental
purpose of cross-examination was to sort out the truth by disclosing or
clarifying the matter, for this no mathematical procedure was prescribed and it
was not necessary that witness should only reply question according to the
whims of counsel who is cross-examining, as it was a double edged weapon
and a witness while replying question, could explain the matter for clarifying
question of dispute. From the witness of opposite party in cross-examination,
admission was brought against him, which was disputed earlier, so it was
rightly held by the learned appellate court that respondent/plaintiff was entitled
for recovery of 5-1/2 tola gold, against petitioner.
10. Third objection was of four marla plot as claimed by respondent/plaintiff
on the basis of Nikahnama (Ex.PW1/1). As discussed above, the petitioner
himself admitted nikahnama (Ex.PW1/1) in his examination-in-chief, so it
should be taken as whole and not as per the whims and wishes of
petitioner/defendant. Respondent/plaintiff when appeared as PW5 through
attorney had categorically stated that it was agreed that 4 marla plot would be
given to her as dower, when she was cross-examined, neither any specific
question about plot was asked nor any suggestion was put to her, as such the
unchallenged/uncrossed portion of the statement shall be considered as
admission of petitioner. Reliance is placed on the case titled Javed Khan v.
Mst.Fozia Azam (PLD 2005 Peshawar 89), wherein, it was held that;
"It transpired from the record that at the time of marriage, gold ornaments
weighing four tolas were given by the petitioner-husband to respondent-
wife in lieu of dower which were subsequently taken back by the
 petitioner-husband. The statement of respondent-wife in this respect has
remained unchallenged".
11. As the portion of the statement of respondent/plaintiff for four marla plot
remained un-crossed then on the basis of general principle to the effect that
portion of statement of a witness, which remained unchallenged in cross-
examination, was to be deemed to have been admitted. Petitioner was not
allowed to admit a portion of nikahnama as correct and the other as
incorrect/wrong. The learned appellate court considered the matter from all the
angles and has reached to correct conclusion that respondent/wife was entitled
for recovery of 04 marla property as dower.
12. Insofar as the factum of maintenance allowance of respondent / plaintiff
(wife) is concerned, when the statement of plaintiff-wife was recorded through
attorney, wherein, she has stated in explicit term that she was ousted from the
house by petitioner some one and half year ago, this portion of the statement
was not cross-examined, which tantamounts to an admission on the part of
petitioner/husband, however, he himself admitted that he had never paid
Rs.10,000/- per month as maintenance to his wife. Indeed the respondent/wife
is still in the Nikah of petitioner, who had also contracted second marriage,
respondent/wife when asked as to whether she could live with
petitioner/defendant, showed her willingness, however, the petitioner/husband
had refused straightaway despite the fact that wife had withdrawn her claim for
dissolution of marriage. Thus, in accordance with the injunctions of Islam, the
petitioner is legally duty bound to maintain respondent/wife in order to meet
daily needs like food, clothes, medicine, etc, which was his duty to bear from
the date when she was ousted till she is in his Nikah.
13. Learned counsel for petitioner/husband has failed to point out any
misreading and non-reading of evidence available on record to set aside the
judgment and decree of learned appellate court. Even, otherwise, High Court in
its extra ordinary jurisdiction can neither substitute findings of the facts
recorded by the learned appellate court nor can give its opinion regarding
adequacy and quality of evidence as the assessment and appraisal of the
evidence was the function of lower court, which was vested with exclusive
jurisdiction in this regard. The petitioner was required to show any illegality or
jurisdictional defect committed by the learned lower courts in order to make his
case entertainable by this court, while exercising constitutional jurisdiction.
14. For the reasons mentioned above, this and the connected petition, being
without any merit, are dismissed with no order as to cost.
SA/285/P Petitions dismissed.