Raja Saeed Akram Khan, J.-- The titled appeals by leave of the Court have been directed against the judgment and decree passed by the Shariat Court on 05.08.2016, whereby , the appeals filed by both the parties have been dismissed.
2. The brief facts culminating into filing of the instant appeals are that Uzma Waheed, plaintif f-appellant, herein, in appeal No.260/16, filed three suits; one, for recovery of the maintenance allowance; second, for recovery of dowry articles, and; the third, for recovery of dower, in the Court of Judge Family Court, Sudhnoti/Pallandri on 12.09.2013.
The defendant-appellant No.1, herein, in appeal No.259/16, also filed a suit for restitution of conjugal rights in the same Court on 02.01.2014. The marriage between the spouses was solemnized on 23.07.201 1, in lieu of the dower , amounting to Rs.4,55,525/- in shape of gold ornaments, which were to be given at the time of Nikah . It was alleged by Uzma Waheed in her plaint that she remained populated with Saqib Munir for 20 days and performed marital obligations. During this period, her mother and sister-in-law used to abuse, maltreat and harass her. On this, she demanded her husband, Saqib Muinir , to provide her separate accommodation which was not provided to her and she was sent to the house of her parents. It was further alleged that when she returned to the house of her husband, she was again maltreated and beaten severely , due to which, she remained at the DHQ Hospital, Pallandri. Her gold ornaments were also snatched. It was stated that she was compelled to live at the house of her parents for more than three years and for this period she has not been paid any maintenance allowance. During this period, she gave birth to a baby-girl and the expenses incurred the delivery were met with her parents. It was contended by her in the suit for recovery of dowry that her parents gave dowry articles amounting to Rs.100,000/- at the time of her marriage which are lying at the house of her husband. She prayed that a decree for recovery of dowry articles amounting to Rs.100,000/- may be passed in her favour . The defendant, Saqib Munir , was summoned who filed written statement and refuted the claim of the plaintif f Uzma Waheed in toto. He submitted that he is ready to populate her and in this regard he has filed a suit for restitution of conjugal rights. The learned trial Court after necessary proceedings, decreed the suits for recovery of dowry articles amounting to Rs.100,000/-, maintenance allowance to the tune of 10,000/- per month from the date of desertion, i.e. 15.03.2012 to onward and expenses incurred on child' s birth amounting to Rs.60,000/- in favour of the plaintif f, whereas, the suit for recovery of dower of Rs.4,55,525/- was dismissed for want of proof. The suit filed by the appellant, Saqib Munir , for restitution of conjugal rights, was also dismissed vide judgment and decree dated 29.11.2014. Feeling aggrieved, both the parties filed separate appeals before the learned Shariat Court which were dismissed vide impugned consolidated judgment dated 05.08.2016, hence, these appeals by leave of the Court. As both the appeals arise out of the same judgment, therefore, we propose to decide the same through this single judgment.
3. Sardar Abdul Hameed Khan, Advocate, the learned counsel for the appellant, Saqib Munir , argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that both the Courts below failed to appreciate the evidence available on record as well as the relevant law on the subject. He added that the dowry articles are still lying in the house of the appellant which can be taken back by the respondent, but the trial Court has not considered this aspect of the case and passed an order to pay the amount of dowry article Rs.1,00,000/- to the respondent. The learned Shariat Court has also failed to appreciate the illegality committed by the trial Court. He lastly submitted that the trial Court while awarding the maintenance allowance to the respondent has not considered the financial position of the appellant and the learned Shariat Court also failed to consider this aspect of the case in a legal manner .
4. On the other hand, Barrister Humayun Nawaz Khan, Advocate, the learned counsel for the appellant, Uzma Waheed, strongly opposed the arguments advanced by the learned counsel for the contesting party . He submitted that the dower was paid in shape of the gold-ornaments. The appellants by producing the un-rebutted evidence proved that the gold-ornaments are in possession of the respondent. In such state of affairs, it was enjoined upon the Courts below to pass the decree for recovery of dower in favour of the appellant, but the Courts below without assigning any plausible reason dismissed the suit. He contended that the evidence brought on record by the appellant clearly speaks that the respondent deserted the appellant from his hous e in the month of August, 2011, but the trial Court while deciding the suit filed for recovery of maintenance allowance ordered the respondent to pay the maintenance allowance from 15.03.2012 and the learned Shariat Court on appeal filed by the appellant has not recorded any findings in this regard. Thus, the impugned judgment is based on misreading and non-reading of record which is liable to be set aside.
5. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The perusal of the record shows that the appellant, Uzma Waheed, filed three suits against the respondent, Saqib Munir; one for recovery of dower; second, for recovery of dowry articles; and third, for maintenance allowance. The respondent also filed a cross suit against the appella nt, Uzma Waheed for restitution of conjugal rights. The trial Court consolidated all the suits and after due process of law, decreed the suits filed by the appellant, Uzma Waheed, for recover y of dowry articles and maintenance allowance, however , dismissed the rest of the suits filed by the parties. On appeals filed by both the parties the learned Shariat Court concurred with the findings recorded by the trial Court. To decide the lis between the parties we have to examine whether the concurrent findings recorded by the Cour ts below are based on misreading/non-re ading of evidence or violation of any law. The record reveals that the appellant, Uzma Waheed, in support of her claims made in the suits got recorded the statement of 5 witnesses and also recorded her statement as witness and in the documentary evidence she brought on record an agreement-deed, Exh.P A along with many other documents. The impugned judgment shows that the Courts below have already appreciated all the material brought on record by the parties in a legal manner . It is an admitted position that the dower was paid to the appellant, Uzma Waheed, at the time of Nikah , in shape of gold-ornaments. The claim of the appellant that the gold-ornaments are in possession of the respondent is not supported by any reliable evidence. In such situation, the trial Court was justified to dismiss the suit for recovery of dower for want of proof and the learned Shariat Court has no committed any illegality while upholding the judgment passed by the trial Court.
6. So far as, the claim of the appellant, Uzma Waheed, that she is entitled to get the maintenance allowance from August, 2011, is concerned, it may be observed here that the trial Court at page No.8 to 12 of its judgment after considering the evidence produced by the parties in depth, has held that the appellant is entitled to get the maintenance allowance from 15th March, 2012. The learned counsel for the appellant during the course of arguments submitted that the learned Shariat Court has not attended this point, however , the perusal of the impugned judgment shows that the learned Shariat Court in paragraph 9 of its judgment after considering the same upheld the findings recorded by the trial Court. The claim of the appellant, Uzma Waheed, regarding the recovery of dowry articles has also been accepted by the Courts below , in such scenario, it can be said that the Courts below in the light of the evidence availabl e on record have already granted the relief to the appellant for which she deserved. The relief which she has not been able to prove cannot be extended to her. Keeping in view the material available on record, we fully endorsed the findings recorded by the Courts below .
7. The points agitated by the counsel for the appellant, Saqib Munir , keeping in view the material available on record have no substance. The appellant himself admitted in the agreement-deed, Exh.P A that he will pay the maintenance allowance at the rate of Rs.10,000/- per month if he unpopulated the respondent, Uzma Waheed.
Now, when it has been proved that he deserted the respondent, Uzma Waheed, from his house and she is living at the house of her parent and the appellant is not paying the maintenance allowance to her then according to the agreement made by him he is bound to pay Rs.10,000/- per month to the respon dent from the date of desertion and the Courts below have not committed any illegality while resolving this issue. The counsel for the appellant submitted that the financial position of the appellant has not been considered by the Courts below , in our estimation, this argument is no more available to the appellant as he did not take any plea in his pleadings or the statement that the maintenance allowance claimed by the respondent is beyond his source of income, moreover , he himself has made an agreement that he will pay the maintenance allowance at the rate of Rs.10,000/- per month. Even otherwise, it has satisfactorily been proved by the respondent' s side that the financial condition of the appellant is well and he can pay such maintenance allowance easily . The scrutiny of the record shows that the appellant, Saqib Munir , at many times made different commitments, but at the end he turned around the same. The respondent due to non-serious attitude of the appellant is moving pillar to post to get her due right. Even before this Court the time was granted to the parties to settle the issue amicably but due to non-seriousness of the appellant the matter has not been settled. It is also an admitted position that the appellant contracted second marriage but the lady with whom he contracted the marriage has also filed suit for dissolution of marriage. In such state of affairs, keeping in view the conduct of the appellant, Saqib Munir , he is not entitled to get the decree for restitution of conjugal rights or any other relief. There are concurrent findings recorded by the Courts below and it is settled principle of law that the findings of facts concurrently recorded by the Courts below cannot be disturbed until and unless a case of non-reading or misreading of evidence is made out or gross illegality is shown to have been committed while appreciating evidence, whereas, no such eventuality is available in the case in hand. Reference may be made on a case reported as Abdul Ghafoor vs. Kiran Mukhtar Awan & others [2014 SCR 1494], wherein, it has been held as under:- "......According to the statutory provisions as well as the principle of administration of justice, the concurrent findings recorded by the Courts below cannot be disturbed by this Court, unless there is violation of statutory provisions of law or gross misreading and non reading of the evidence......"
As the parties failed to substantiate any misreading/non-reading of the evidence or any violation of law committed by the Courts below , hence, we do not intend to interfere with the concurrent findings of facts recorded by the Courts below . Resultantly , both the appeals having no substance are hereby dismissed with no order as to costs.