Ijaz-ul-Hassan, J.--Umer Farooq (petitioner in W.P. No, 1577/2004), instituted suit against his wife Mst. Mehnaz Iftikhar (petitioner in W.P. No, 822/2005), for restitution of conjugal rights, alleging that he entered into a tie of marriage with Mst. Mehnaz Iftikhar, on 26.5.2000 in consideration of dower amount of Rs, 1,00,000/- 30 tolas gold ornaments and portion of residential house in village Shewa, Swabi. The relations between the spouses in the early few months of the marriage were cordial but due to unnecessary interference of the parents of Mst. Mehnaz Iftikhar, relations between the spouses started deteriorating. Mst. Mehnaz Iftikhar on 13.1.2001 left the house of the petitioner in his absence, taking alongwith her garments, gold ornaments and a color television set. The petitioner sent number of Jirgas to secure her return but all in vain.
2. Mst. Mehnaz Iftikhar, also filed suit for dissolution of marriage and recovery of maintenance, dower and dowry articles etc, on the ground that the petitioner deprived her of her belongings, treated her with cruelty and made her left miserable which forced her to abandon the house of the petitioner and take abode in the house of her parents. Both the suits were consolidated and in view of the pleadings of the parties, following consolidated issues were framed:--
1. Whether the parties in their respective suits have got cause of action?
2. Whether the dower was fixed as Rs, 1,00,000/- cash gold ornaments of 30 tolas and a house situated in village "Shewa" Swabi.
3. Whether the dower has been paid to the defendant/wife?
4. Whether the behaviour of the pltff/husband towards the defdt/wife was harsh and cruel and he usually subjected her to mental and physical torture?
5. Whether, during the period of ghair abadi the pltff/husband paid any maintenance to defdt/wife and whether the pltff/husband approached the defdt/wife to patch up the matter?
6. Whether the defdt/wife was disobedient to pltff/husband and her behaviour towards pltff/husband and his family members was cruel and torturous?
7. Whether the defdt/wife left the house of the pltff/husband on 13.2.2001 at her own will and took alongwith her color T.V., gold ornaments weighing 50 tolas and his dresses to her parents house?
8. Whether the pltff/husband is entitled for the decree for restitution of conjugal rights?
9. Whether the defdt is entitled for dissolution of marriage on the grounds of cruelty and physical assault, disposal of defdt/wife's immovable property (money and gold ornaments), nonpayment of prompt dower, non-payment of maintenance or in the alternative on the basis of khula?
10.Whether the defdt/wife is entitled for the recovery of prompt dower of Rs, 1,00,000/-, gold ornaments of 30 tolas or its price, house situated in village "Shewa" Swabi or its price?
11.Whether the defdt/wife is entitled for the recovery of maintenance allowance Rs, 5000/- PM since Feb: to October 2001 and till the completion of her period of Iddat?
12.Whether the defdt/wife is entitled for the recovery of dowry articles as per list attached with the plaint?
13.Whether the pltff/husband is entitled for the decree as prayed for?
14.Whether the defdt/wife is entitled for the decree as prayed for?
15.Relief.
3. After taking into account, the material available on the record, learned Judge Family Court, Peshawar, by means of her judgment and decree dated 31.1.2003, dismissed suit of the petitioner/husband for restitution of conjugal rights and partially decreed suit of petitioner/wife for dissolution of marriage on the basis of Khula', and recovery of maintenance allowance @ Rs, 3800/- per month with effect from March 2001.
4. Both the parties, feeling aggrieved, preferred appeals there against, before the District Judge, Peshawar, which were entrusted to Additional District Judge, Peshawar, for adjudication. By judgment dated 31.7.2004, the appeal filed by Umer Farooq was dismissed, while appeal filed by Mst. Mehnaz Iftikhar was partially accepted to the extent of recovery of dowry articles valuing Rs, 2,00,000/-.
5. Still not satisfied, the parties have approached this Court by way of filing instant writ petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which are before us for consideration.
6. Malik Jarar Hussain, Advocate for Umer Farooq, petitioner mainly contended that both the Courts below have failed to appreciate the evidence of the parties in its true perspective and reached to the conclusion not warranted by law. The learned counsel reiterated that the trial Court while announcing the impugned order and the appellate Court while dismissing the appeal filed by Umer Farooq and partially accepting the appeal of Mst. Mehnaz Iftikhar, have totally overlooked the expressed provisions of law that an appeal against the dissolution of marriage is not competent in terms of Section 14 of West Pakistan Family Courts Act, 1964. The learned counsel also contended that there is no iota of evidence available about the mal-treatment on the part of petitioner/husband, or retention of dowry articles by him and thus impugned judgments and decrees of the Courts below suffer from the vice of misreading and non-reading of evidence and are not sustainable.
7. Mr. Ghafoor Ahmad Qureshi, Advocate for the petitioner wife also maintained that Courts below have drawn a wrong inference from the facts of the case and acted in violation of natural justice.
Respondent No, 3 i,e, Additional District Judge, Peshawar committed a manifest error of law with regard to the relief of dowry articles granting Rs, 2;00,000/- as the value of the said articles, because the petitioner never prayed for the grant of value of the said articles, which are still lying with Respondent No,
1. To support the contentions, reliance has been placed on Karimullah, petitioner vs. Shabana and two others respondents (PLD 2003 Peshawar 146), Khalid Mahmood, petitioner vs. The Additional District Judge Ahrnad Pur East, District Bahawalpur etc. respondents (2000 CLJ 176 Bahawalpuf), Abdul Latif Khan and another plaintiffs vs. Gul Rehman and two others defendants (1993 M LD 643 Karachi), Wilayat Khan and 12 others appellants vs. Muhammad Yousaf and 15 others respondents (PLD 1995 Supreme Court (AJK) 41), Abdul Manan and another petitioners vs. Mir Nawaz Khan and 4 others respondents (1989 CLC 2277 Peshawar), Sohail Muhammad petitioner vs. Mst. Mizna Roomana and others respondents (1998 M LD 182 Karachi) and Masood Sarwar appellant vs. Mst. Faradeeba respondent (NLR 1988 Civil, 682).
8. There is no denial of the fact that Umer Farooq married Mst. Mehnaz Iftikhar on 26.5.2000 at Peshawar in lieu of dower, gold ornaments and a portion of residential house. The relations between the spouses in the early few months of the marriage were cordial but subsequently differences arose between them and they drifted apart. Mst. Mehnaz Iftikhar brought suit on 22.10.2001 for dissolution of marriage and recovery of maintenance and dower etc, while Umer Farooq filed suit on 26.1.2003 for restitution of conjugal rights. Suit of Umer Farooq was dismissed and suit of Mst. Mehnaz Iftikhar was partially decreed. Appeal preferred by Mst. Mehnaz Iftikhar was partially accepted to the extent of Rs, 2,00,000/- as value of dowry articles and appeal of Umer Farooq was dismissed.
9. After having attended to the submissions made by learned counsel from both the sides and going through the evidence on record, we find force in the submission of learned counsel for Umer Farooq, petitioner that learned appellate Court, proceeded on wrong premises to hold that Mst.
Mehnaz Iftikhar was entitled for recovery of Rs, 2,00,000/- value of dowry articles. The dowry list attached with the plaint has not been proved at all. The finding returned by the learned appellate Court on Issue No, 12 betrays lack of proper application of mind and cannot be allowed to remain intact. Though a number of grounds have been taken in the writ petitions, but the same were not agitated during course of arguments. The same are affirmed. Resultantly, Writ Petition No, 1577/2004, filed by Umer Farooq, is partially accepted whereas Writ Petition No, 822/2005, instituted by Mst. Mehnaz Iftikhar is dismissed, with no order as to costs.