HAIDER ALI KHAN, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have sought the following relief:- "It is, therefore, prayed that on acceptance of this writ petition the judgments and decrees of both the Courts below may be declared illegal and without lawful authority to the extent of dower; and suit be decreed in favour of petitioner as prayed in the plaint. Any other relief which this august Court deems necessary may also be granted to petitioner".
2. Brief facts of the case are that the petitioners filed a family suit against the respondent No.1 for recovery of 10 tola gold as dower, maintenance allowance @ Rs:5,000/- per month for each of them for past three months with 20% annual increase and recovery of dowry articles worth Rs:3,00,000/- mentioned in the annexed list. The suit was contested by the respondent through submission of written statement. After framing of issues and recording of pro and contra evidence, the learned trial Court vide judgment dated 22.6.2013, partially decreed the suit in the following manner:- "As nutshell of above, plaintiff has partially succeeded to establish her cause of action against the defendant and therefore, she is held entitled to the decree for recovery of dower of Rs:1-1/2 tolas of gold ornaments or in alternate its prevailing market value at the time of its payment. She is also entitled for recovery of maintenance allowance @ Rs.3000/- per month for 03 months next before the institution of present suit and onwards till she is in wedlock of defendant. Similarly, plaintiff is also entitled for recovery of maintenance allowance for minor issues @ Rs.2000/- per month with 10% annual increase for previous 03 months next before the institution of present suit till majority of male minor issue and till marriage of female minor issue. Plaintiff is also held entitled for recovery of her dowry articles as per list annexed with the plaint Ex. PW 1/1 except item No.38. Defendant is also duty bound to provide separate accommodation to the plaintiff either by erecting wall in his house or by constructing separate portion at the upper storey of his house or in the shape of separate house with surety of good behaviour and equal status to both of his wives. Defendant is also entitled to the decree for restitution of conjugal rights subject to payment of dower, outstanding maintenance allowance and separate accommodation with surety of good behaviour. Rest of the suit stands dismissed as not proved. No order as to costs".
3. Aggrieved of the aforesaid judgment and decree of the learned trial Court, the petitioners preferred an appeal before District Judge/Zilla Qazi, Swat which was entrusted for disposal to learned Additional District Judge/Izafi Zilla Qazi-II, Swat, who vide impugned judgment dated 30.01.2014, modified the judgment of learned trial Court in a manner that Rs.5,000/- for each of the petitioner with 20% annual increase in the maintenance allowance were decreed, while rest of the judgment was maintained. Hence, the instant writ petition.
4. Learned counsel for the petitioners to avoid the factual controversy put at rest by the two Courts below, confined his arguments only to the legal position in respect of taking the special oath to the extent of 10 tolas of gold which was paid to the petitioner-wife, which according to the petitioner was still outstanding and was claimed in the family suit along with other reliefs.
5. The learned counsel for the petitioners contended that the oath prescribed under Article 163 of Qanun-e-Shahadat Order, 1984, was the proper oath which was to be administered at the time of second reconciliation and the trial Court as well as the appellate Court have erred in law to rely upon the oath on the Holy Quran. In support of his above contentions, he referred to different Surah/Verses from Holy Quran and stated that the swearing upon the Holy Quran or other holy books or objects, except Allah Almighty, is not warranted. In support of his arguments, he relied on case law reported as 1995 SCMR-918 'Dr. Abdul Ghafoor Raza and 2 others Vs. Mst.Razia Begum', wherein it has been held that:- "---Art. 163---Constitution of Pakistan (1973), Art. 185(3)-- Denial of claim by defendant on Oath-- -Effect---Parties to suit taking Oath, one affirming the claim and the other denying the same--- Trial Court dismissed suit, also the Appellate Court---High Court in revision, remanding case to Trial Court for decision on basis of evidence which stood already recorded---Validity---Provision of Art. 163, Qanun-e-Shahadat does not lay down what would be the consequences if defendant does or does not deny plaintiff's claim".
He also referred to case law reported as 1987 CLC 2006 [Lahore] 'Muhammad Sharif V. Bashir Ahmad'.
6. As against the above, the learned counsel for the respondents rebutted the said contentions by referring to various provisions, especially section 5 of Oaths Act (X of 1873) and in that regard relied upon case law reported as 1981 SCMR-162 'Attiqullah V. Kafayatullah', wherein it has been held that: 'Ss.9,10 & 11 -Special oath, resiling from-Party undertaking to be bound by evidence given on special oath by opposite-party-Held: Such offer when accepted an agreement in nature of contract-One of contracting parties could not back out of such agreement unless contract void or frustrated-none of such eventualities occurring, trial Court justified in refusing to permit petitioner from resiling from his offer to be bound by special oath of other party, such other party having accepted offer".
Learned counsel also referred to PLD 2010 Lahore-484 'Abdul Sattar V. Judge Family Court, Toba Tek Singh and 2 others', wherein it has been held that: "Once an offer was made by one party and accepted by the other then the party making the offer could not resile from the same-- Offer of party to a suit whereby it undertook to be bound by the statement made on oath by the other party on being accepted by the other party was in the nature of binding agreement".
He also relied on case law reported as PLD 1993 Peshawar-72 'Bhore Khan V. Noor Din' wherein it has been held that: "Oath referred to in Art. 163, Qanun-e-Shahadat, 1984 is a general oath and the oath provided by the Oaths Act, 1873, is a special oath and both are diametrically opposed to each other--- Procedure to be adopted by the court outlined. The oath within the contemplation of sections 8 to 11 of the Oaths Act, 1873 stems from a voluntary agreement between the parties and when taken has a binding effect leaving the party making the offer with no choice to turn around and strike a discordant note".
Learned counsel also referred to other case law reported as 2005 CLC-1164 [Lahore] 'Muhammad Ijaz V. Additional District Judge, Islamabad and 3 others', 2011 YLR-1240 [Lahore] 'Muhammad Haider V. Syed Nasir Abbas Naqvi, Judge Family Court Lahore and another', 1999 MLD-2852 [Lahore] 'Ghulam Qadir V. Muhammad Yaseen', 1999 CLC-573 [Lahore] 'Abdul Rehman V. Master Abdul Latif'.
7. Arguments heard and record perused.
8. The record of the case would show that on 07.6.2013, during the post-trial reconciliation proceedings, the petitioner-plaintiff had made an offer to the respondent-defendant that in case he (defendant) or his mother or father take an oath on Holy Quran that the gold ornaments weighing 10 tolas recorded as dower has been given to the petitioner-plaintiff and is not outstanding against the respondent-defendant, in that eventuality, she (petitioner) would be ready to withdraw from her claim to the extent of above-stated 10 tolas of gold as dower. The petitioner also reduced this offer into writing in black and white which is part of the record. The respondent- defendant accepted the said offer and took the special Oath offered by the petitioner-plaintiff on the same date i.e. 07.6.2013 and the proceedings of offer and acceptance of the special oath were completed as post-trial reconciliation. In view of the above-referred post-trail reconciliation on special oath and the precedent cited above, the petitioner-plaintiff is estopped to reopen the past and closed transaction, especially in view of the fact when she herself had offered the special oath.
9. In view of what has been stated above and keeping in view the law on the subject, the writ petition is dismissed as no injustice has been caused to the petitioner.