' MUHAMMAD FARRUKH IRFAN KHAN, J.---Facts of the case in brief are that the petitioner inter alia filed suit for recovery of dowry articles which was decreed by the learned Judge Family Court vide judgment and decree dated 26-3-2008 in the following terms:-- "Suit for recovery of dowry articles is hereby decreed with direction that the suit for recovery of dowry articles worth, Rs,5,10,000 is hereby decreed with 20 per cent depreciation from this amount."
2. Being aggrieved respondent No,2 filed appeal before the learned lower appellate court who vide impugned judgment and decree dated 20-11-2008 modified the judgment and decree of the learned Judge Family Court in the following terms:- "she is entitled only to get dowry articles as mentioned in the plaint as well as admitted by the appellant/defendant or their value for the amount of Rs,1,00,000 in lump sum or more."
3. The petitioner has challenged the aforesaid modification through instant Constitutional petition.
4. Learned counsel for the petitioner submits that judgment and decree of the learned lower appellate court is based on surmises and conjectures and result of mis-reading and non-reading of the evidence; that learned Judge Family Court after due appreciation of the evidence had passed the decree of dowry articles which has illegally been set aside by the learned lower appellate court through impugned judgment and decree.
5. Arguments heard. Record perused.
6. It is astonishing that the learned Judge Family Court without recording evidence of the parties decreed the suit of the petitioner. Both the parties only tendered affidavits of the witnesses who were neither put to cross-examination and any documentary evidence was got exhibited by the learned Judge Family Court. No reason whatsoever was furnished by the said court for believing the claim of the petitioner and disbelieving that of respondent No,2. It is not borne out from the record that the deponents ever appeared in the Court to verify the contents of the affidavits. It is a well established principle of law that a party against whom an affidavit is produced is entitled to cross-examine the person swearing the affidavit about the content thereof. If a deponent is not produced for cross-examination, his affidavit in such circumstances loses all its force as a probative piece of evidence and cannot be acted upon. Reliance is placed on case reported as Mst. Shehnaz Begum v. Muhammad Shaft and 3 others (PLD 2004 Lahore 290).
7. In appeal the learned lower appellate court equally fell in error and by relying upon the affidavit tendered by respondent No,2 which otherwise has no evidentiary value modified the judgment and decree of the learned Judge Family Court through the impugned judgment and decree. Both the courts below committed material illegalities and irregularity by rendering the judgments and decrees which are not sustainable in the eyes of law.
8. Resultantly, this writ petition is allowed and consequently impugned judgments and decrees dated 26-3-2008 and 20-11-2008 passed by the learned courts below are set aside. Matter is remanded to the learned Judge Family Court with direction to record evidence of the parties in accordance with the provisions of section-11 of the West Pakistan Family Courts Act, 1964 and then decides the suit afresh in the light of the evidence adduced by the parties. The learned Judge Family Court is directed to make all out efforts to decide the case expeditiously but not later than one month from the date of receipt of certified copy of this order under intimation to the Deputy Registrar (J) of this Bench.