' The petitioner has challenged the judgment and decree passed by the learned IVth Additional District Judge Karachi in Family Appeal No, 47 of 1980 whereby the judgment and decree passed by the learned Court of III Family Judge. Karachi, in Family Suit No, 1247 of 1979 was reversed and the suit for recovery of Rs, 5,000 as prompt dower was decreed.
' The facts leading to the filing of this petition under Article 199 of the Constitution of Pakistan may briefly be stated as follows :
1. The respondent No, 1 was married to the petitioner on 16th September, 1978 and an amount of Rs, 5,000 was fixed as prompt dower. She filed Family Suit No, 1247/79 in the Court of the 3rd Family Judge Karachi against the petitioner for recovery of the dower amount on the grounds amongst others that after the marriage the respondent lived in the house of the petitioner for about two months during which period the marriage was consumated. It was however alleged that after a short period of marital relationship, the respondent No, 1 found that the petitioner was physically unfit and incapable to perform his marital duty as a result of which he started maltreating his wife, mentally and physically and thus made her life miserable by his cruel conduct. On account of alleged cruel conduct the respondent No, 1 had to leave the petitioner's house and started living with her parents: As re-conciliation efforts failed, on 24th February, 1979 the petitioner sent deed of divorce to the respondent No, 1 by registered post A. D. Whereby she was divorced which fact, it is stated was confirmed by the petitioner in presence of a number of witnesses.
2. Legal notice dated 7th May, 1979 was thereafter given by the respondent No, 1 whereby she, inter alia, called upon the petitioner to pay the dower amount, viz. Rs, 5,000. As the petitioner failed to do so the respondent No, 1 filed the above mentioned suit in the Court of Family Judge at Karachi for the recovery of the said amount with costs and interest at the rate of 14% per annum from the date of the institution of the suit, till its payment.
' The defendant, petitioner contested the matter and filed his written statement.
' After failure of the pre-trial the family Court framed issues upon which the parties led evidence and examined number of witnesses. After hearing the learned Advocates for the parties the learned trial Court dismissed the suit by judgment passed on 31st March, 1980 on the ground that the plaintiff failed to establish her case and to prove that dower amount was not paid to her.
3. Against the aforesaid judgment of the learned trial Court an appeal (Family Appeal No, 47/1980) was filed by the respondent No, 1, the said appeal was heard by the learned IVth District Judge, Karachi who by his judgment and decree passed on 10th May. 1980 reversed the find- ings of the trial Court and decreed the suit of the respondent No, 1 as prayed and allowed the appeal with costs.
4. The petitioner has now filed this petition under Article 199 of the Constitution whereby he has prayed that the above mentioned judgment of the learned Appellate Court be declared as without jurisdiction and of no legal effect.
5. The learned counsel for the petitioner contended that in spite of the bar contained under section 17 of the Family Courts Act, 1964 excluding the application of the Evidence Act, the learned Appellate Court excluded from consideration two material documents dated 21st February, 1979 and 6th May, 1979 produced by the petitioner, on the basis of the provisions of the Evidence Act and thus committed gross error of law which has vitiated the judgment given by the learned Family Court and accordingly the same is liable to be declared as passed without lawful authority and of no legal effect.
' According to the learned counsel for the petitioner the contents of the letters and the evidence produced on behalf of the petitioner were sufficient to prove that the respondent No, 1 had received the dower amount and that the suit in fact was filed for other reasons.
6. In order to appreciate the contention of the learned counsel and keeping in view the fact that the Court is not sitting in appeal over the judgment of the learned Family Appellate Court and that in exercise of its powers under the Constitution the jurisdiction of the High Court is limited to find if the Court or tribunal had acted without lawful authority rendering its judgment as of no legal effect, I proceed to examine the contentions of the learned counsel.
' The learned Family Appellate Court has come to the conclusion that it was not disputed that the dower amount was Rs, 5,000 and it was not the case of the respondent that it was paid at the time of Nikah. As regards the two letters referred to by the learned counsel for the petitioner the learned Family Appellate Court observed as follows "Letters Exhs. 9 and 13 are the statements of the respondent written to the appellant after the relations between the parties became strained and after the dispute arose between them. The contents of Exhs. 9 and 13 would show that the same were in the interest of the maker of the letters Exhs. 9 and 13, the respondent, These letters contain the statements of the maker in his own interest hence cannot be used by the maker in his favour under the law of Evidence. The letters Exhs. 9 and 13 could be used only when the statement contained in these letters would have been against the pecuniary and proprietary interest of the person making it or when true, it would expose, the maker.
To a criminal prosecution or to a suit for damages. I need not refer to the provision of section 32 (3) of the Evidence Act, in support of the proposition said above."
' The learned Appellate Court on consideration of the evidence and circumstances further proceeded to observe that :- "It can safely be said that the respondent was creating circumstances to show that the dower was paid to the appellant. Mere fact that Exhs. 9 and 13 were written before the institution of suit, would not mean that contents of it, which were in the interest of the maker, should be construed and presumed to be true."
7. Having discussed the effect of the aforesaid two letters and considering the enure evidence on record of the various witnesses, the learned Appellate Court after pointing out discrepancies and contradictions in the evidence produced by the petitioner and the effect of his failure to examine his parents and concluding that had they been examined, they would not have supported the case of his son/the petitioner, reached the following conclusion of fact :- "It is surprising that neither mother nor other lady inmates were present when the alleged dower amount was passed on to the appellant. I cannot believe the story, set up by respondent and the same is also not supported by reliable and independent evidence, The evidence of the appellant is reliable and worthy of credit and appears to be natural. 1 he father of the appellant has also stated the correct facts which he knew. It is not difficult to set up two or three unscrupulous persons in the witness box and to narrate the tale as told by another unscrupulous person in these bard days.
' Accordingly in my opinion the evidence of the appellant is reliable and satisfactory while the evidence of the respondent is neither satisfactory nor reliable nor independent and is lull or contraictions. No other plea has been raised before me. The judgment and decree of the trial Court cannot be sustained being based on improper appreciation of evidence on record and improper appreciation of law hence the same are set aside and the sun of the appellant is decreed as prayed for and appeal is allowed with cost."
' It would be observed that the findings of the learned appellate Court on the disputed questions of facts are based upon appreciation of evidence on record.
' The effect of the two letters referred to by the learned counsel has also been discussed and the evidence led on behalf of the petitioner defendant has been disbelieved.
8. The learned counsel for the petitioner was unable to show that the impugned order was passed without lawful authority, or that the said Court had no jurisdiction in the matter. The only ground advanced was that Evidence Act by virtue of section 17 of the W. P. Family Courts Act 1964 was not applicable to the proceedings and that the two documents could not have been excluded from consideration. A perusal of the impugned judgment, however, clearly shows that the findings of the learned Family Appellate Court is based not merely on the ground that the said documents were inadmissible under the Evidence Act but merely mainly on the ground that these two letters were written by th petitioner after the relations between the parties became strained and after the disputes between them had already arisen, and that the evidence and circumstances established the fact that the dower amount had not been paid by the petitioner to the respondent No,
1. The learned Court acted well within its jurisdiction to form opinion on appreciation of evidence on record that the mere fact that these documents, Exhs. 9 and 13, were written before the institution of the suit would not mean that the contents thereof, which were in the inerest of the maker, should be construed and presumed to be true.
' These findings of facts cannot be made subject-matter of writ petition under the Constitution as laid down by the Hon'ble Supreme Court of Pakistan in the case of Zulfiqar Khan Awan v. The Secretary Industries and Mineral Development (1) and the case of Muhammad Hussain Munir v.
Sikandar and others (2).
' The observations of the Hon'ble Supreme Court in the case of Mohomed Hussain Munir may be reproduced herein below :- "The High Court's supervisory jurisdiction under Article 98 (2) (a) (iii) of the 1962 Constitution (or for that matter under Article 199 (0 (a) (iii) of the present Constitution] having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects : first, the former jurisdiction being a creation of the Constitution stands on a higher pedestal than that under section 115, C. P. C. Second, the former jurisdiction has a wider reach than the jurisdiction under section 115 Civil Procedure Code, which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseabk in a full-fledged appeal, which plainly is not the intention of the Constitution-makers."
' I may also refer here to the case of Badarul Haque (3) where the Honourable Supreme Court held t- ' The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."
10. Applying the above authoritative pronouncements of the principles by the Hon'ble Supreme Court of Pakistan, I find that all that learned counsel for the petitioner could urge was that the judgment of the learned Family Court was erroneous on merits, and that
(I) 1974 SC MR 530 (2) PLD 1974 SC 139
(3) PLD 1963 SC 704 at 736 ' the two documents Exhs. 9 and 13 ought not for have been excluded or disbelieved.
This Court however in exercise of its Constitutional jurisdiction under Article I99 cannot convert itself into an appellate Court and thus enter into disputed questions of fact or allow such questions to be re-agitated.
11. No case calling for any interference with the findings given by the learned appellate Court having been made out, I find no merits in this petition which is, therefore, dismissed with costs.