' SYED SAJJAD HASSAN SHAH, J.---The petitioner-defendant by filing the instant writ petition has challenged the judgment and decree dated 13-7-2010 passed by learned Additional District Judge-IV, Peshawar, whereby appeal filed against the judgment and decree of learned Judge Family Court, Peshawar, dated 14-4-2010, was dismissed.
2. Briefly stated facts of the case are that the respondent-plaintiff filed a suit against the petitioner- defendant for the recovery of maintenance allowance at the rate of Rs,10,000 per month since August, 2005 and for future at the same rate. She also sought decree for payment of dower i,e, 5 tolas gold, two shops in the ownership of petitioner-defendant at Gurguri, Karak, recovery of rent with regard to the shops mentioned above for preceding two years and possession thereof, five marlas house situated at Peshawar described in the heading of the plaint. The suit was contested by the petitioner-defendant by filing written statement. The learned trial court framed issues arising out of the divergent pleas of the parties raised in their respective pleadings. Both the parties adduced their respective evidence which they wished to adduce. After hearing the parties, the learned trial court decreed the suit of the respondent-plaintiff and also declared the petitioner- defendant entitled to the decree for restitution of conjugal rights subject to payment of dower, maintenance and separate accommodation. The petitioner-defendant feeling aggrieved impugned the judgment and decree by filing an appeal, which was also dismissed.
3. Learned counsel appearing on behalf of the petitioner-defendant contended that the petitioner- defendant was abroad in connection with his employment and the "Nikahnama/Mehernama" dated 22-8-2007 Was executed in his absence and he is not signatory to the "Nikahnama", therefore, the respondent-plaintiff was not entitled for any decree passed in her favour by the courts below without adverting to the true aspect of the case. He further contended that Nikah was performed in the year 2005, by that time no "Nikahnama" was prepared and executed.
Subsequently, at the intervention of Jirga members, a dower deed was executed on 20-6-2005 and the earlier fixed dower was mentioned therein. The respondent-plaintiff is residing with her parents and not provided access to the petitioner-defendant for performance of matrimonial obligation. He further argued that the learned trial court committed gross illegality and irregularity and passed the judgment without lawful authority, which is liable to be set aside.
4. Learned counsel for the respondent-plaintiff contended that "Nikahnama" was executed in the year 2007, whereas. Nikah was performed in the year 2005.. The property given in lieu of dower has been transferred in her favour, which is the ownership of the respondent-plaintiff. The subsequent the, "Mehernama" Exh.P.W.1/1 was also executed by the petitioner-defendant in favour of respondent-plaintiff, wherein once again agreed to satisfy the dower etc., which is duly signed by petitioner and witnesses as well. He further contended that all the documents produced on record have duly proved by the respondent-plaintiff. Moreover, the respondent-suit of plaintiff succeeded to prove her case, thus, the suit of the respondent-plaintiff justly and lawfully decreed by the learned trial court and the same was confirmed by the learned Appellate Court. He added that on behalf of the petitioner-defendant the questions of facts are agitated, which have already been concurrently decided by two courts below. According to learned counsel this court has no jurisdiction to exercise its jurisdiction where the questions of facts have been decided after considering the entire material on record. Lastly, he prayed for the dismissal of the instant writ petition.
5. Arguments of the learned counsel for the parties considered and record carefully perused. From the record, of the case it transpires that the Nikah of the parties was performed on 22-6-2005 in presence of petitioner-defendant, his brother namely Tariq Badshah was also present and signed the "Nikahnama" being the witness of Nikah. In Columns Nos. 13 and 14 of "Nikahnama" Exh.P.W. 1/2, the detail of dower is mentioned. According to the entry made in Column No,21 of the said "Nikahnama" about the date of execution of Nikahnama, is shown as 22-8-2007. It is proved that the petitioner-defendant has also contracted second marriage without the permission of respondent-plaintiff. Presently there are three wives of the petitioner-defendant. The Nikahnama was executed at the instance of his brother, who has also signed the same. DW-1 Sabirullah, the brother of petitioner-defendant testified that Tariq Badshah agreed about the property shown to have been fixed against the dower in the Nikahnama. Similarly, Tariq Badshah was examined as DW-2, who has also admitted the fixation of dower and his signature on Mehernama (Wed 20-6- 2005 Exh. P. W.1/1. DW-4 Shahid Rahman also admitted that at the time of Nikah Islam Badshah was present. The petitioner-defendant has never challenged the Nikahnama and Mehernama as well prior to the institution of instant suit. Moreover, no independent and disinterested witness has been produced in support of his stance which lend support to the testimony of Mst.Taj Begum P.W.1. She brought on record her Nikahnama and Mehernama, respectively admitted in evidence as Exh. P. W .
1/1 and Exh. P. W . 1/2 but both the documents have not been objected to by the petitioner- defendant. At the stage of hearing of the writ petition no objection can be raised regarding the validity and propriety of document which was exhibited without any sort of objection. A question was asked on behalf of the petitioner-defendant about Exh.P.W.1/1 to which the respondent-plaintiff replied as follows:- {{URDU TEXT}} ' P.W.2 Ghulam Muhammad supported the stance of respondent-plaintiff and testified in his cross- examination that Mehermama Exh.P.W.1/1 was signed at the time of reciting Nikah of the parties and the petitioner-defendant signed the same. He further stated that at the time of execution of Exh.P.W.1/1 he was present and Tariq Badshah signed Exh.P.W.1/1 in his presence. The petitioner- defendant has failed to substantiate his stance by producing requisite evidence, however, certain admissions were made by the witnesses of petitioner-defendant about the execution of Exh.P.W.1/2 and fixation of dower amount. On the other hand the respondent-plaintiff also substantiated her claim by producing evidence which seems to be more plausible and convincing. Since both the learned courts below considered the entire material available on record and decided the factual controversy between the parties conclusively.
6. This Court while exercising the writ jurisdiction which is extraordinary in nature not to re-evaluate and examine the evidence where the courts below concurrently passed the judgment and decree, so as to arrive at any other decision. It can be exercised where there is a misreading and non- reading of evidence or the forum of exclusive jurisdiction committed gross illegality and miscarriage of justice.
7. Once the Family Court has decided the suit by evaluating and taking into consideration the entire evidence, usually needs no further appraisal or evaluation of evidence in the constitutional petition. We are supported by a case titled "Javed Khan v. Mst. Fozia Azim amd another" (PLD 2005 Peshawar 89), wherein, it was held that:- .
"Finding of the trial court cannot be successfully challenged/assailed in writ jurisdiction unless the Court is found to have exceeded jurisdiction, acted without jurisdiction of findings are shown to have been passed on no evidence. Constitutional petition also does not lie to challenge an order on the ground that evidence in the case was not correctly appreciated because finding of fact recorded by the Court of competent jurisdiction cannot be disturbed simply on the ground that another view could be possible on the same evidence. High Court in its Constitutional jurisdiction cannot sit as a Court of appeal and cannot substitute finding of facts recorded by the Court below on such matters. A perusal of the impugned judgment reveals that plausible reasons have been given in support of the conclusion arrived at and no case of misreading or non: reading of evidence has been made out. It needs no reiteration that appraisal or evaluation of evidence usually is not made in Constitutional petition. Such exercise is essentially undertaken by the trial Court."
8. The learned trial court while deciding the suit of the respondent-plaintiff extensively considered the available evidence, thus, decreed the suit of the respondent-plaintiff. Likewise, Appellate Court, has also effectively dealt with the points raised by the parties to resolve the instant controversy in accordance with law.
9. In view of above discussion, the judgments and decrees passed by learned courts below do not suffer from any illegality or jurisdictional error or misreading and non-reading of evidence, therefore, while mainlining the judgments and decrees of the courts below, we hereby dismiss this petition.