' SARDAR TARIQ MASOOD, J.---The petitioner has moved this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against the order dated 10-2-2010 passed by learned Additional District Judge, Kabirwala, whereby, he dismissed the appeal of the petitioner and upheld the order of the Judge Family Court, Kabirwala dated 14-11-2009.
2. The brief facts of the case are that Mst. Zulaikhan Mai respondent No, 2 along with Imran, respondent No,3 her real son (minor) filed a suit for recovery of maintenance allowance and recovery of dowry articles against petitioner/defendant. The learned trial Court after going through the entire evidence vide order dated 14-11-2009 decreed the suit of the plaintiffs by holding that since plaintiff No, 2 is a legitimate child and he is entitled to recover Rs,2,000 per month maintenance allowance from the petitioner/defendant for the past as well as future maintenance allowance till his majority. Whereas, suit for recovery of dowry articles was also decreed in favour of plaintiff No, 1 to the extent of articles mentioned at Sr. Nos.2, 3, 6 to 8 in the List Exh. P-1. It was observed that in case of non-availability of said articles, plaintiff would be entitled to receive Rs,30,000 as alternate price of said articles.
3. Being aggrieved of judgment and decree dated 14-11-2009, the petitioner filed an appeal before the learned ADJ, Kabirwala whereby the appeal filed by the petitioner was dismissed vide judgment dated 10-2-2010.
4. The petitioner impugns the judgment/decree dated 10-2-2010, whereby, the maintenance of the minor was awarded to Rs,2,000 per month for the last past six years and at the same rate for the future maintenance allowance till he attains the majority.
5. Learned counsel for the petitioner contended that the Appellate Court/respondent No, 1 passed the impugned judgment and decree without assessing the evidence in its true perspective and without application of judicious mind. He further contended that learned Appellate Court did not discuss about the DNA Test although the petitioner offered to pay all expenses of said test to ensure the legitimacy of the minor Imran/respondent No,3. Also contended that both the Courts below did not discuss the documents which were not attached at the time of filing of the suit and later on respondent relied upon said documents. He prayed that the impugned judgment and decree dated 10-2-2010 may be declared to be without lawful authority.
6. I have heard the learned counsel for the petitioner and perused the record.
7. It is noteworthy that the petitioner has not challenged the judgment and decree, passed by the learned trial Court. In his petition he has impugned only the judgment dated 10-2-2010 passed by the learned A.D.J., Kabirwala.
8. Learned counsel for the petitioner has failed to point out any jurisdictional defect and illegality in the concurrent findings of fact of both the Courts below or the judgments having been passed without lawful authority. I have scanned the evidence as well as pleadings of the parties. There is no misreading or non-reading of evidence by both the Courts below. Respondent No,2 specifically stated in her examination-inchief that respondent No,3 was born as a result of her marriage with the petitioner in his house and after 2-years of birth of the minor, the petitioner ousted her from his house and contracted second marriage and thereafter divorced respondent No,2. Furthermore, she specifically stated that the dowry articles as per list Exh.P1 are in possession of the petitioner and all these facts remained un-rebutted during cross examination. Furthermore, the petitioner did not even cross examine respondent No,2 on these points, whereas during his own evidence the petitioner has admitted in cross examination that on 10-8-1997 minor Imran/respondent No, 3 was born and that Muhammad Nawaz was Chokidar of the village and perusal of Exh.P2 reveals that Muhammad Nawaz Chokidar had reported about the birth of Imran nad/respondent No, 3 and he has admitted that he has got no proof as when he divorced respondent No,2 and further admits that in his Shajra Nasab, the Halqa Patwari has written Imran/respondent No,3 as his son and also admits that on Mark-B copy of mutation with the name of Imran/respondent No,3 he has affixed his thuthb impression and signed the same. All these facts lead to one conclusion that the version of the petitioner qua the legitimacy of his son is not only false, but also afterthought just to avoid maintenance, as it was petitioner's own case that he divorced respondent No,2 in the year 1998, whereas, respondent No,3 was born on 10-8-1997 and petitioner has failed to rebut this fact through any documentary or any cogent evidence. As per Article 128 of Qanun-e-Shahadat Order, 1984 the birth during marriage is conclusive proof of legitimacy. I am fortified in this behalf by law laid down in the case of Bashir and others v. Illam Din and others (1988 SCM R 8) and Aftab Ahmad v. Judge Family Court and others (2009 M LD 962).
9. So far as objection of the counsel for the petitioner regarding the documents is concerned that is also not tenable as the documents which were annexed as per list produced by respondent No, 2 with the suit has been perused. Respondent No,2 has relied upon copy of school certificate of the minor, receipts along with other documents. It was after the denial to accept respondent No,3 as his son in his written statement by the petitioner, respondent No,2 produced the copy of the birth certificate, which is otherwise is a public document and presumption of truth is attached to it, therefore, no exception to the admissibility of the same can be taken.
10. Now I would like to dilate upon the question of conducting the DNA Test. DNA Test is not to be directed as a matter of routine in cases where the father refuses to acknowledge his child born during lawful wedlock, for the reason that otherwise the presumption under Articles 117, 118, 119 and 128 of Qanun-e-Shahadat Order, 1984 that a child born during the continuance of a valid marriage and within two years after its dissolution, provided the mother remaining unmarried during this period, shall be conclusive proof that he is legitimate child of that man, unless the man denies the same. In this case the petitioner himself admitted that he divorced respondent No,2 in the year 1998 whereas respondent No,3 was born in the year 1997. The fact by itself indicated that respondent No, 3 was born during the subsistence of the valid Nikah. Then under Article 128 of Qanun-e-Shandadat, 1984 it could safely be presumed that respondent No,3 is the legitimate child of the petitioner.
11. It has been observed by this Court that it has become a common practice that when the relationship between the parties become strained after marriage and even extreme hatred is developed between the spouses and the same is dissolved, the parties do not spare each other and even go to this extent that often father refuses to acknowledge the child for the reason either to evade maintenance or to deprive the child from inheritance of in case of his second marriage at the insistence of his second wife or pressure of the elders of the family and this trend is not only damaging but also very dangerous for the society and in such a, situation request for DNA test is not proper.
' Although the medical science has developed a lot in this modern era, but unfortunately at the same time it has not attained the level of accuracy, competence of persons associated with these test and fairness in our society and prevailing system as it is being applied in the developed societies like USA and Europe, either due to lack of skilled persons, tools to perform this test and human error in judgment in conducting of this test cannot be ruled out in our system. If due to, the negligence in conducting the said test wilfully or due to some pressure, it results in a disaster not only to the affectee but also by and large for the entire society. If due to any of above mentioned reasons a wrong result is obtained then the life of the child would become miserable for non fault on his part and he would never come out of this dilemma and there would be no place for him in the society and will be called as an illegitimate child. Furthermore, the DNA test as per information available in text books, medical science and various authoritative writings on the point available on Internet, possibility of error cannot be excluded. Therefore, referring to such a test would not fulfil the requirements of justice and would jeopardize the future of a child.
12. In these circumstances, I am of the humble view that the same should not be allowed to be done as a matter of routine and attending circumstances must be taken into consideration as to be at what point of time father denied to acknowledge the child is also a very relevant factor. The birth of a child is not a phenomenon which takes place within days or which is not known to the father, when the child was conceived F and it takes about 9 long months for conversion of the fetus into a child and if such a plea is adopted after a considerable delay then this should not be permitted to have been done. In the instant case the petitioner has denied this fact after about more than eleven years of birth of child i,e, respondent No,3 and the petitioner failed to produce any cogent evidence that there was no possibility of cohabitation with respondent No,2 by him, therefore, such a prayer cannot be acceded to.
13. Concurrent findings of learned Judge Family Court and the learned Appellate Court could not be successfully assailed in the constitutional jurisdiction of this Court unless said Court had exceeded jurisdiction, acted without jurisdiction or findings were based on no evidence. Even constitutional petition also would not lie to challenge the order on ground that the evidence in case was not correctly appreciated because finding of fact recorded by the Court of competent jurisdiction could not be disturbed on' the ground that the other view could be possible on the same evidence.
' The perusal of both the judgments reveals that no illegality, material irregularity, misreading and non-reading of evidence has been found in the impugned judgments rather plausible reasons have been given therein in support of the conclusions arrived at.
' Learned council for the petitioner has failed to draw my attention to the portion of evidence which was allegedly overlooked or misread by any of the Courts below. Neither their evidence was misread nor material piece of evidence appeared to be overlooked by the Courts below.
14. For what has been discussed above, this writ petition is dismissed being devoid of any force.