' SHUJAAT ALI KHAN, J.-- Through this single order, I intend to dispose, of this petition as well as Writ Petition No,8690/16, having commonality of law and facts inasmuch as in both these petitions, the petitioner has put challenge to the judgments and decrees dated 13.02.2015 and 16.11.2015 passed by learned Judge Family Court, Toba Tek Singh (Respondent No,3) and learned Additional District Judge, Toba Tek Singh (Respondent No,2), respectively.
2. Precisely, respondent No,1 filed composite suit for dissolution of marriage and recovery of dowry articles or Rs,16,061,14/- as their alternate price. Respondent No,3 decreed the said suit to the extent of dowry articles through judgment and decree dated 13.02.2015 while holding her entitled to dowry articles as per list Exh.P/3 excluding articles mentioned at serial Nos.26 to 28, 41, 49, 50 to 55 or Rs,4,20,000/- as their alternate price. The parties challenged the above mentioned judgment and decree passed by respondent No,3 by way of filing independent appeals which were decided by respondent No,2 through consolidated judgment and decree dated 16.11.2015 whereby, while dismissing the appeal filed by the petitioner, partially accepted that of respondent No,1 and enhanced the alternate price of dowry articles from Rs,4,20,000/- to Rs,4,50,000/-; hence this petition.
3. Learned counsel for the petitioner, while opening his arguments, submits that as the petitioner was settled abroad, he refused to accept any dowry articles from the parents of respondent No,1 and also reprimanded them thus no dowry articles were given at the time of marriage; that PW-2 admitted that the petitioner refused to receive the dowry articles; that respondent No,1 miserably failed to establish that the list of dowry articles was prepared at the time of marriage; that as a matter of fact, the dowry articles given by the parents of respondent No,1 are lying in packed position and the petitioner is ready to return them; that respondent No,1 admitted in his evidence that neither list of dowry articles was prepared at the time of marriage nor any body on behalf of the petitioner signed the same.
4. Conversely, learned counsel appearing on behalf of respondent No,1, while defending the impugned judgments and decrees, submits that though the petitioner was settled abroad at the time of marriage, however, as the marriage was solemnized according to local rituals, respondent No,1 was given dowry articles; that version of the petitioner is based on inconsistent pleas inasmuch as on the one hand, he totally denied the delivery of dowry articles by the parents of respondent No,1 at the time of marriage but on the other, took the stance that the dowry articks given to respondent No,1 are lying in his house in packed condition; that untoward conduct of the petitioner is manifest from the fact that prior to marriage with respondent No,1 he also contracted marriage with some other lady in a short span of time but divorced her and that the petitioner never returned to Pakistan after spending just twenty days with respondent No,l. so she was left with no option but to get rid off the petitioner by getting decree of dissolution of marriage and that due to non-return of dowry articles by the petitioner, respondent No,1 is handicap to contract second marriage. To conclude his arguments, learned counsel for respondent No,1 submits that she would be satisfied if in addition to payment of amount deposited by the petitioner with the Executing Court, she is returned the dowry articles lying with the petitioner.
5. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that in view of law laid down by the apex Court of the country in the case reported as Mst. Allah Rakhi v. Tanvir lqbal and others (2004 SCM R 1739), when the list of dowry articles is not properly exhibited in evidence, reliance cannot be placed thereon.
6. I have heard learned counsel for the parties in addition to going through the documents appended with this petition as well as the case-law cited at the bar.
7. While scanning the document appended with his petition I have noted that both the courts below decreed the suit file by respondent No. 1 while relying upon documents Exh P/2 and P/3 but while doing so they have filed to take into consideration that as a the original list of dowry articles was not produced the same could not be considered as conclusive proof of dowry articles especially when respondent No. 1 admitted that neither the prices of the articles were mentioned in the said list nor the same was signed by anybody from petitioners side:
8. There is no cavil with the proposition that as provisions of Qanun-e- Shahdat Order 1984 are not applicable to the family matters rather the same are decided while following the rule of thumb but when a party fails to prove its case as set out in its pleading courts are supposed to be very careful and cautious whole gibing any verdict in favour of said party. The bona fide on the part of the petitioners is manifest from the fact that not only while filing written statement he tool clear cut stance that the articles given by the parents of respondent No. 1 were lying in packed condition in his house but also specific suggestion was put to PW. 1 in teha regard during that course of evidence The said fact also finds support from the plea of respondent No.1 that just after twenty days of the marriage the petitioner went abroad and never came back.
9. It is important to note that PW-2, during the course of cross-examination, admitted that the petitioner restrained the parents of respondent No,1 to give her dowry articles on the premise that he wanted to shift her to England. Though in the next breath, he stated that parents used to give dowry articles to their daughters at the time of their marriage but the fact remains that the dowry articles were not given to respondent No,1 as claimed by her in the suit. So, the plea of the petitioner that dowry articles given by the parents of respondent No,1, despite his refusal, are lying in a packed condition, stands further strengthened. It is settled law that when the list of dowry articles produced by a plaintiff in a family suit remained unestablished, the matter can be decided while relying upon the list attached by the defendant with his written statement or the articles stated by him in his evidence. Reliance in this regard can be placed upon the case reported as Mst.
Shazia Begum v. Additional District Judge Islamabad and others (PLD /014 SC 335).
10. As a necessary corollary to the discussion made in the afore going paragraphs, I have no hesitation to hold that both the courts below have miserably failed to appreciate the evidence of the parties in its true perspective. Consequently, instant petition is partly accepted, impugned judgments and decrees are modified to the effect that respondent No,1 shall be entitled to recover the dowry articles lying with the petitioner in a packed condition. For the purpose, the executing court would be at liberty to appoint local commission. As the articles are lying with the petitioner in packed condition, it is not possible to determine their alternate price rather it is left up to the executing court to ensure the determination of the prices of packed articles through local commission and in case of non-return of dowry articles, respondent No,1 shall be entitled to their alternate price to be determined by the executing court. There shall be no order as to costs.
11. Insofar as the connected petition (W.P. No,8690 of 2010) is concerned, suffice it to note that as the relief claimed in the said petition is identical to the present one, no order is required to be passed in the same which is accordingly disposed of.