Instant Constitutional petition seeks judgments dated 23-1-2004 and 5-6-2004 passed by respondents Nos.3 and 2, whereby respondent No.1 was granted a decree for an amount of Rs.70,500 as her dower amount and appeal of the petitioner thereagainst failed, respectively, to be declared illegal, void and of no legal consequence.
2. Precisely, relevant facts are that petitioner married respondent No.1 on 23-4-1998 through a registered Nikahnama according to Muslim rites. Relations between the spouses did not remain cordial and ultimately ended in divorce on 3-10-2002. Respondent No.1 filed a suit for recovery of her dower of Rs.500 plus gold ornaments weighing 10 toals, value of which was worked out by her at R.70,000. She pleaded that her dower amount remained unpaid in spite of repeated demands.
3. Petitioner being defendant in the suit contested it, by filing his written statement, wherein he asserted that respondent No.1 relinquished her dower by executing an affidavit to this effect on 8- 12-2000. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. T1ie learned Judge Family Court, who was seized of the matter after doing the needful, granted respondent No.1 decree as prayed on 23-1-2004.
4. Petitioner aggrieved of the decision of the trial Court dated 23-1-2004 filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed vide judgment and decree dated 5-6-2004. Petitioner has now filed instant Constitutional petition for the relief noted above.
5. Learned counsel for the petitioner submitted that he had proved due execution of the affidavit dated 8-12-2000 by respondent No.1, whereby she had relinquished her dower mentioned in the Nikahnama, hence suit by her was not competent. He further submitted that in view of provisions of Article 17 of the Qanun-e-Shahadat Order, 1984, only one witness to prove the affidavit of respondent No.1, was enough but a contrary view taken by the respondents Nos.2 and 3 is not in accordance with law applicable. According to his submissions, after proof of the affidavit there was no necessity of comparison of thumb-impression of respondent No.1 appearing on the affidavit and the observation in the impugned judgment that petitioner did not resort to comparison of thumb-impression is superfluous and unwarranted.
6. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record, appended herewith. Undisputedly, the affidavit dated 8-12-2000 was allegedly executed after promulgation of Qanun-e-Shahadat Order, 1984 and it was to be proved according to the provisions thereof. This affidavit involved financial and future obligations and thus was required to be attested by two men or one man and two women under Article 7 of the Order (ibid). Meaning thereby the affidavit relied by the petitioner was a document required to be attested by two witnesses. Now such document, execution of which had been denied by respondent No.1, was to be proved according to Article 79 of the Order of 1984. Relevant part of Article 79 is reproduced for convenience, as under:-- "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence."
' In view of this clear provisions, there is no substance in the argument of the petitioner that he by producing one marginal witness of the affidavit has proved its due execution by respondent No.1.
After denial of execution of the affidavit by respondent No.1, onus heavily shifted on the shoulder of petitioner to prove not only the execution of the affidavit in accordance with law, through positive and consistent evidence but also to prove the transaction reflected therein. The witness produced by the petitioner D.W.2. Muhammad Arshad and his own statement as D.W.1 are absolutely silent about the fact of relinquishment of right of dower by respondent No.1. In absence of any positive evidence in support of the affidavit or the relinquishment itself, suit of the respondent No.1 has rightly been decreed. The other factors which go in support of the judgments impugned, are that respondent No.1 at the time of marriage signed the Nikahnama and petitioner being her husband was well aware that his wife is literate enough to sign and in spite of this knowledge, no reason whatsoever has been given as to why the affidavit was thumbmar ked. Petitioner from the very inception of suit was aware that respondent No.1 has denied execution of the affidavit but he at no stage of the proceedings, ever attempted to have comparison of thumb-impression by getting her sample thumb-impression. Reliance of the petitioner on relinquishment by respondent No.1, which is not proved on the file, is an admission in itself that the dower as claimed by respondent No. 1 was fixed at the time of marriage and was not paid.
7. For what has been discussed above, the judgment and decrees of both the respondents Nos.2 and 3 are proved to be in accordance with the evidence on the file and they have committed no illegality in deciding the lis. Under law, a justifiable view taken by the Courts, within the ambit of jurisdiction conferred on them, cannot be substituted in Constitutional jurisdiction of this Court. This petition has no merit in it and is accordingly dismissed in limine.