1. This appeal has been preferred against the decision and decree of Judge Family Court Mirpur passed on 12.11.2010, whereby a decree of dpwry worth Rs. 2,58,120/- was passed in favour of respondent against the appellant herein.
2. The necessary facts forming the background of the instant appeal are that Aasia Parveen, respondent, herein filed a suit for recovery of dowry worth Rs. 2,58,120/- before Judge Family Court Mirpur on 01.04.2009. She averred that she was married to appellant on 12.10.2006 at Mangla Hamlet Tehsil & District Mirpur in lieu of dowry amounting Rupees one thousand alongwith ornaments weighing five toles. During the wedlock the spouses were blessed with a son but due to the separation, the parties have instituted various suits against each other. She further contended that at the time of `Rukhsati' her parents gave her dowry according to the list appended with the suit signed by Karamat Hussain and her brother Muhammad Ayub Khan but despite several demands the appellant did not hand over the dowry which may be recovered from him.
3. The appellant refuted the contents of the suit and submitted that respondent has got no cause of action and the Family Court Mirpur has got no jurisdiction to try the suit. He further averred that at the time of `Rukhsati' on 03.12.2006 the ornaments weighing twenty tolas and seven mashas were given to the respondent but she did not perform her marital obligations and has kept Muhammad Awais minor without his consent. He also contended that no dowry was given to the respondent and list is fake and fictitious, therefore, her suit may be dismissed.
4. In the light of the pleadings of the parties the learned Judge Family Court framed the following issues on 28.08 2009:--
1. Whether the plaintiff has got cause of action? (OPP)
2. Whether at the time of Itukhsati' the parents and the relatives of the plaintiff gave dowry in presence of Karamat Hussain witness and Muhammad Ayub her brother? (OPP)
3. Whether the list of dowry articles with its price and the signature of the witnesses are fake and fictitious? (OPD)
4. Whether the plaintiff was not given any dowry? (OPD)
5. Relief.
5. During the course of judgment Issue No. 1(a) was also framed in the following manner.
1. (a) Whether the Court has got jurisdiction to try the suit? (OPP)
6. In support of her suit, the respOndent produced Karamat Khan, Muhammad Ayub and Shabir Ahmad as her witnesses. She entered the witness-box and also produced list of dowry articles Exh.PA and two receipts .Exh.PB and Exh.PB/1. On the contrary, Muhammad Ilyas, the appellant appeared in the witness-box.
7. After completion of the proceedings and hearing arguments, the learned Judge Family Court passed a decree for recovery of dowry according to the list appended with the suit of the plaintiff- respondent vide its decision dated 12.11.2010. It is the aforesaid decision and decree which have been assailed through the instant appeal.
8. Mian Sultan Mahmood, the learned Counsel for the appellant vigorously argued that no cause of action is available to the respondent because in her statement she categorically deposed that she has not demanded her dowry from the appellant. The learned counsel further contended that the spouses were living in Dudyal and according to respondent, dowry articles are in possession of the appellant who is also residing in Dudyal, therefore, the learned Judge Family Court Dudyal has got jurisdiction to try the suit and not Judge Family Court Mirpur. The learned Counsel referred to me certain portions of the evidence of the respondent and agitated that the respondent miserably failed to prove the factum of dowry but the Court below did not appraise the evidence in a legal fashion and has drawn wrong conclusion therefore, the impugned decision is not maintainable which may be set-aside.
9. Sardar Muhammad Azam Khan, the learned Counsel for the respondent controverted the arguments raised by the learned Counsel for the appellant and submitted that the `Nikah'
10. Ceremony of the spouses held in Mangla Hamlet Mirpur where the respondent is also residing with her parents therefore, the Family Court Mirpur has got jurisdiction to try the suit. The learned Counsel further argued that the respondent has amply proved her case by producing sufficient and reliable evidence and she alongwith her both witnesses Karamat Khan and Muhammad Ayub has proved that the dowry articles according to list appended with the suit were given to her at the time of aukhsati' which are still in possession of appellant, whereas the appellant has not produced any evidence in support of his claim and thus failed to discharge the burden of proof. The learned Counsel pointed out that the Azad Jammu and Kashmir Family Courts Act, 1993 provides special procedure for disposal of the disputes relating to family affairs therefore, provisions of Evidence Act, cannot be applied to proceeding before any Family Court. The learned Counsel defended the impugned decision and decree on all counts.
11. I have given my due consideration to the arguments addressed at the Bar and perused the record with care.
12. At the very outset, it will be relevant to note that it is admitted between the parties that Nikah'
13. Ceremony of the spouses held in Mangle Hamlet Tehsil Mirpur and according to the respondent, articles of the dowry were given to her by her parents and close relatives therefore, the cause of action has arisen in part in the light of Rule 4 of Azad Jammu & Kashmir Family Courts procedures Rules, 1998 at. Mirpur. In order to appreciate the contention of the learned Counsel, it will be fruitful to examine the provision contained in Rule (4). It is reproduced below:-- "4. Jurisdiction.--The Court, which shall have jurisdiction to try a suit, will be that within the local limits of which:-- (a) the cause of action wholly or in part has arisen; or (b) where the parties resided together: Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall have jurisdiction."
14. Thus, in light of Rule 4 (a) of above mentioned Procedure Rules, the cause of action in part has arisen at Mirpur, therefore, the Family Court Mirpur has got jurisdiction to try the suit. In the aforesaid position the argument of the learned Counsel for the appellant is repelled as being misconceived and without substance.
15. So far as another objection raised by the learned Counsel for the appellant about cause of action is concerned, is also not tenable. As stated earlier, the respondent has filed a suit for recovery of her dowry and numerous suits between the spouses are pending before Judge Family Court Mirpur. The perusal of Paragraph (6) of the suit filed by the respondent shows that the appellant did not return the dowry articles despite her claim. The aforesaid Paragraph (6) of the plaint was denied in an evasive manner. Furthermore, the respondent has categorically deposed before the Court below that she wants the recovery of her dowry; therefore; the respondent has got cause of action. In this-view of the matter, a casual assertion of the respondent does not destroy the overall effect of her statement until she resiles from her major part of deposition. (1996 SCR 197). Thus, the Court below did not commit any illegality while deciding the issue regarding cause of action in favour of the respondent.
16. The next point which needs determination is as to whether the dowry articles according to list appended with the suit were given to the respondent or still in possession of the appellant. In this regard, it may be appropriate to appreciate the evidence of the parties in detail.
17. Aasia Parveen, plaintiff-respondent, deposed that her parents gave her dowry approximately worth Rs. 2, 50,000/-, which was received by brother-in-law of appellant Muhammad Yunus and Muhammad Shah, which is still in possession of the appellant. She further stated that the list of dowry was prepared by Karamat Khan.
18. Shabbir Ahmad, brother-in-law and a witness for the respondent, testified that at the time of Rukhsati the dowry approximately worth Rs 2,50,000/- was given to the respondent, which is in possession of the appellant.
19. Karamat Khan, another witness for the respondent and also scribe of the list of dowry Exh.PA testified the execution of dowry list, and deposed that dowry was taken away by brother-in-law of the appellant, which is still in possession of the appellant. He refuted that he prepared a fake list of dowry Exh.PA.
20. Muhammad Ayub, a witness and brother of the respondent, stated that 3/4 days prior to Rukhsati, he handed over the dowry articles to Muhammad Yunus brother-in-law of the appellant and prepared the list of dowry Exh. PA, which was signed by Dr. Karamat Khan, but he did not sign the list himself. He further deposed that he purchased the dowry articles according to receipts Exhs.PB & PB/1 and the amount of dowry is Rs. 2,25,000/-, which is still in possession of appellant.
21. On the other hand, Muhammad Ilyas, appellant deposed that at the time of Nikah or Rukhsati, no dowry was given to the respondent and the list of dowry is fake and fictitious. However, he admitted that Karamat and Muhammad Ayub, the witnesses for the respondent, were present at the time of marriage ceremony.
22. A careful perusal of the evidence led by the parties shows that the respondent has proved her claim by producing sufficient, cogent and reliable evidence, whereas on the other hand, the appellant did not produce any evidence to refute the claim of the respondent or to prove that either no dowry articles were given to the respondent or the list of dowry, its price and signature of the scribe are fake and fictitious. In support of his version, the appellant appeared in the witness- box but failed to produce any evidence. He even did not produce his brother-in-law Muhammad Younus and withheld his evidence of vital importance about whom the respondent and her witnesses categorically deposed that he took away the dowry articles from the house of the respondent. Thus, an adverse presumption can be drawn against the respondent under Article
(129) of Qanun-e-Shahadat Order that if Muhammad Yunus would have been produced, he would have been unfavourable to him. He also did not choose to file an affidavit in support of his version; therefore, he not only failed to rebut the evidence of the respondent but also not succeeded to prove his version.
23. I cannot subscribe to the view of the learned Counsel for the appellant that receipts Exhs.PB & PB/1 cannot be taken into consideration because neither the name of purchaser has been incorporated nor the scribe of the receipts have been produced as witnesses. (Firstly), when the list of dowry articles Exh.PA stands proved which includes the articles recorded in receipts Exhs.PB & PB/1 then the question of producing the scribe of the receipts does not arise. Even otherwise, The Azad Jammu & Kashmir Family Courts Act, 1993 has been promulgated and AJ&K Family Courts Procedure Rules, 1998 have been framed for the expeditious settlement and disposal of the suits relating to family affairs. Therefore, a special procedure for recording of evidence has been prescribed under Section 11 of the Act, coupled with Rule 10 of Procedure Rules. It will be pertinent to note here that under Section 17 of the Act, the provisions of Qanun-e-Shahadat Order, 1984 do not apply to the proceedings before a Family Court.
24. For elucidating the matter, it would be expedient to reproduce Section 11 of The AJ&K Family Courts Act, 1993 which reads as under:-
11. Recording of Evidence.--(1) On the date fixed for recording of evidence, the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.
(2) The Court shall not issue any summons for the appearance or any witness unless, within three days of the framing of issues, any party intimate the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible or practicable for such party to produce the witness.
25. 7[(3) The witnesses shall give their evidence in their own words: Provided that the parties or their counsel may further examine, cross-examine or re-examine the witnesses: Provided further that the Family Court may forbid any question, which it regards as indecent, scandalous or frivolous or which appears to it to be intended to insult or annoy any one or is needlessly offensive in form].
26. 8[(3-A) The Family Court may, if it so deems fit, put any question to any witness for the purpose of elucidation of any point which it considers material in the case].
(4) The. Family Court may permit the evidence of any witness to be given by means of an affidavit: Provided that if the Court deems fit it may call such witness for the purpose of examination in accordance with sub-section (3).
27. Similarly, Rule 10 of The AJ&K Family Courts Procedure Rules, 1998 is reproduced below:--
10. Evidence.--(1) The evidence of each witness shall be taken down in writing in the language of the Court by the Presiding Officer of the Court, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Presiding Officer of the Court.
28. (2)When the evidence of a witness is given in English, the Presiding Officer of the Court may take it down in that language with his own hand and unless the parties request the Court otherwise, an authenticated translation of such evidence in the language of the Court shall form part of the record.
29. (3)When the evidence of a witness is given in any other language, not being the language of the Court, the Presiding Officer of the Court may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court shall form part of the record.
30. (4)In case in which the evidence is not taken down in writing by the Presiding Officer of the Court, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes, and memorandum shall be written and signed by the Presiding Officer of the Court with his own hand which shall form part of the record.
31. (5)As the evidence of each witness taken down is completed, it shall be read over to him and shall, if necessary, be Corrected.
32. (6)If the witness denies the correctness of any part of the evidence when the same is read over to him, the presiding officer of the Court may, instead of correcting evidence, make a memorandum thereon of the objection made to it by the witness, and shall record such remarks as he thinks necessary.
33. (7)If the evidence is taken down in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so taken down shall be interpreted to him in the language in which it was given, or in a language, which he understands.
34. (8)When the Court has recorded the evidence of a witness it shall also record such remarks (if necessary) as it thinks material respecting the demeanour of such witness whilst under examination.
35. A critical analysis of the above stated provisions of law about recording of evidence and the procedure prescribed by the Act, reveals that the case relating to family affairs has to be appraised in the light of aforementioned provisions only and crude, and critical appreciation of the evidence is not allowed but in spite of that in the instant cas3, the list of dowry articles Exh.PA stands proved in the light of Article (78) of the Qanun-e-Shahadat Order, whereby the signature and handwriting of the scribe of the above stated document Exh.PA were proved by the evidence of scribe, Karamat Khan. Article (78) of Qanun-e-Shahadat Order, 1984 only requires proof of signature and handwriting of the person alleged to have singed or written the document produced which has been apply proved by the respondent. In this regard, a case titled National Bank of Pakistan v. General Tractor and Machinery Company Ltd. (1996 CLC 79 Karachi) can be referred to, whereby it was opined that Article (78) does not prescribe any particular mode of proof rather a document can be proved by any means recognized by Qanun-e-Shahadat Order i.e., signature or the handwriting of a document as is alleged to be in that person's handwriting must be proved to be in his handwriting. In this manner, the contents of document Exh.PA has been sufficiently proved by the primary evidence by producing Karamat Khan Scribe.
36. In pursuit of the above discussion, the appellant miserably faijed to make out a case to set-aside the impugned decision and decree.
37. For the foregoing reasons, I find no merit in this appeal, which is hereby dismissed.