'HAFIZ ABDUL REHMAN ANSARI, J.---Through this Constitutional Petition the petitioner seeks setting aside of judgment and decree dated 28-9-2009 passed by learned lower appellate Court/ Additional District Judge, Burewala District Vehari.
2. The brief facts of the instant case are that respondent No,1 Aneela Nazir daughter of Nazir Ahmad filed a suit on 20-4-2008 for recovery of dowry articles and for recovery of her maintenance. The petitioner/defendant vehemently contested the suit, filed written statement, the learned Judge Family Court in the light of divergent pleadings of the parties framed following issues, ' ISSUES.
(1) Whether the plaintiff is entitled for the recovery of dowry articles from the defendant? OPP
(2) Whether the plaintiff is entitled for the maintenance allowance as prayed for? OPP
(3) Whether the plaintiff is entitled for gold ornaments 5 Tolas as per list? OPP
(4) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD 'After failure in pre-trial reconciliation proceedings the learned Judge Family Court directed both the parties to produce their respective evidence.
3. Mst. Aneela plaintiff/respondent No,1 appeared as P,W.1 and stated that at the time of marriage dowry articles as per list Exh.P.1 were given to her and the same are in possession of the petitioner/ defendant. In cross-examination she stated that the list of dowry articles was prepared by her sister Nabila Ahmad at the time of her marriage. P.W.2 is Sana Ullah who stated that dowry articles as per list were given to plaintiff/respondent No,1 and the same are in possession of the petitioner!
Defendant. In cross-examination he stated that he has no knowledge whether it was settled between the parties that defendant/ petitioner is living abroad and will not take any dowry articles.
In addition to oral evidence plaintiff/respondent No,1 also produced receipts of dowry articles Exh.
P.1 to Exh.P.5.
4. On the other hand D.W.1, special attorney of defendant appeared in the witness-box and stated that defendant/ petitioner is his real brother and is living abroad. He stated that he is special attorney of defendant/petitioner and has produced the said power of attorney mark-A. He stated that he attended the marriage of the parties, no dowry articles and gold ornaments were given to plaintiff/ respondent No,1 at the time of marriage. D.W.2 Muhammad Saleem stated that no dowry articles were given to plaintiff/ respondent No,
1. Abdul Rashid appeared as D.W.3 and stated that he is owner of the shop which is named as Data Furniture Mart. About the receipt Exh.P.5 he stated that no furniture was purchased from him and he only prepared receipt Exh.P.5 just for estimation.
The learned trial Court decided issues Nos.1 and 3 against the plaintiff/respondent No,1.
5. Learned counsel for the petitioner contends that respondent No,1 filed an appeal on 1-6-2009 before the learned Court of Additional District Judge, Burewala which was accepted on 28-9-2009, by the learned Additional District Judge and decree for Rs,200,000 was passed in favour of respondent No,1 which is now assailed throug this writ petition. Learned counsel for the petitioner contended that list of dowry articles Exh.P.1 was not signed by anybody even the scriber of list was not produced before the Court. The list P.2 was fictitious document and was product of afterthought; that the petitioner is in Saudi Arabia and the suit was contested through special attorney, his brother Muhammad Arshad so the findings of the learned appellate Court for accepting the appeal on the basis that petitioner herself did not appear is of having no value; that the statement of the special attorney is on the file which will be deemed the statement of the petitioner/defendant. Learned counsel submitted that impugned judgment passed by lower appellate Court is based on misreading or non-reading of material evidence which is not sustainable in the eyes of law, Learned counsel submitted that D.W.3 Abdul Rashid denied that he issued the receipt of furniture amounting to Rs,52,600, no other witness with regard to the receipt Exh.P.2 to Exh.P.5 has been produced. Learned counsel submitted that it cannot be considered that case has been proved by the respondent, lady. Learned counsel submitted that Exh.D.2 did not bear the signatures of the owner of Cloth House. The articles of electronics were allegedly purchased from Messrs Dogar Brothers Electronics, Burewala on different dates but it has not been explained why these items were not purchased on one and the same date. Learned counsel contended that the learned trial Court has rightly held that the respondent No,1 has failed to prove her case as far as dowry articles are concerned. He further contended that the learned lower appellate Court has exceeded its jurisdiction while decreeing the suit of respondent No,1 to the tune of Rs,200,000.
6. On the other hand respondent No,3 further supports the judgment and decree passed by the learned lower appellate Court. Learned counsel submitted that respondent No,3 in her statement described each and every article which her brothers had given to her as dowry at the time of marriage. The Civil Procedure Code is not applicable. The family cases cannot be scrutinized with the standard of scrutinizing civil cases. The judgment of the lower appellate Court is based on correct appraisal of evidence and is convincing, rational and based on cogent reasons. It must be maintained by this Court.
7. I have heard the learned counsel for the parties.
8. The learned lower appellate Court only reversed the findings of the Judge Family Court on issue No,
1. The ground for reversal of the findings on issue No,1 that Muhammad Gulzar son of Muhammad Ibrahim defendant did not appear himself in support of the contentions and averments of the written statement. It is admitted fact that defendant/petitioner is in Saudi Arabia.
In his place his brother D.W.1, Muhammad Arshad, special attorney, appeared before the learned Judge Family Court, produced his power of attorney which is mark-A and recorded his statement which will be deemed the statement of the defendant. He stated that he attended the marriage of the parties, no dowry articles and gold ornaments were given to plaintiff/ respondent No,1 at the time of marriage. D.W.2 Muhammad Saleem stated that no dowry articles were given to plaintiff/ respondent No,
1. Abdul Rashid appeared as D.W.3 and stated that he is owner of the shop which is named as Data Furniture Mart. According to receipt Exh.P.5 he stated that he did not prepare the furniture and he only prepared receipt Exh. P.5 just for estimation which established that the plaintiff produced forged and fabricated receipts. She is not a truthful plaintiff which creates doubts about other receipts also whether the same are genuine or fabricated.
9. In the light of above discussion and facts of the case I am of the view that learned Judge Family Court, on appraisal of evidence, rightly decided issue No,1. I allow this writ petition set aside the judgment of learned lower appellate Court with regard to the decree for dowry articles. No order as to cost.