ANWAAR HUSSAIN, J. Brief facts of the case are that on 07.11.2019, respondent No.3; namely, Mst.
Saima Mai (hereinafter "the respondent") instituted a suit for recovery of maintenance allowance, dower and return of dowry articles against Ejaz Iqbal (hereinafter "the petitioner"). The respondent averred in the plaint that the marriage of the parties was solemnized on 03.12.2017 against dower of Rs.1500/- and 05 marla constructed house with all facilities valuing Rs.2,000,000/- (hereinafter "the house"); and that the petitioner ousted the respondent two months prior to institution of the suit when she did not consent for his second marriage. The respondent claimed for maintenance allowance at the rate of Rs.10,000/- per month; dowry articles worth Rs.658,900/- and the dower in the form of the house or alternate value thereof. The petitioner appeared before the court and filed controverting written statement. Out of divergent pleadings of the parties, the issues were framed and evidence adduced by the parties was recorded. Vide judgment and decree dated 22.10.2020, learned Senior Civil Judge (Family Division), Muzaffargarh decreed the suit of the respondent in the terms that she is entitled to recover maintenance allowance for five months Rs.6,000/- per month including her Iddat period; Rs.1500/- and the house as dower; and a sum of Rs.1,00,000/- as alternate price of the dowry articles. Feeling aggrieved, both sides preferred appeals, which were dismissed by learned lower appellate court, vide consolidated judgment and decree dated 30.01.2021. Hence, this writ petition has been filed by the petitioner.
2. Learned counsel for the petitioner confined his challenge to the decree qua the house only and has not laid challenge to the remaining findings of the courts below pertaining to maintenance and alternate value of dowry articles. Submits that the impugned judgments and decrees are result of misreading and non-reading of evidence because there were two counter leaves/pert of nikahnama (hereinafter "pert") between the parties, which are contradictory to each other to the extent of the dower and hence, no presumption of truth is attached thereto. Adds that even otherwise, the contents mentioned in Column No.16 of the nikahnama have no value in the eye of law and cannot be regarded as dower. Places reliance on Mst. Tanzeela Butt v. Additional District Judge and others (2018 MLD 320) in this regard to conclude that the learned courts below erred in law while decreeing, 05 marla house mentioned in Column No.16 of the nikahnama, in favour of respondent.
3. Conversely, learned counsel for the respondent has supported the judgments and decrees of learned courts below by stating that the nikahnama is a public document and presumption of truth is attached thereto. Adds that the Nikah Khawan concerned, appeared before the trial court as CW.1 and unambiguously admitted that the nikahnama is genuine and non-mentioning of the house in Column No.16 thereof in the fourth pert (Ex.D.1) forwarded to the Union Council concerned is an inadvertent mistake on his part. Asserts that this writ petition has no merit and hence, is liable to be dismissed.
4. Arguments heard. Record perused.
5. The matter requires opinion of this Court as to which pert of a nikahnama has presumption of truth attached therewith, being a public document, in a case, where contradictory pert of the same nikahnama are adduced before the court in evidence. In the instant case, the respondent in support of her claim before the trial court, appeared as PW.1 and placed on record her copy of nikahnama i.e., the second pert (Ex.P.3). Attested copy of original pert (Ex.P.5) of her nikahnama was also brought on record. Both Ex.P.3 as well as Ex.P.5, contain the following entry against Column No.16: On the other hand, the petitioner produced fourth pert (Ex.D.1), which is attested copy of the pert available in the record of the Union Council concerned and in the said pert there is no entry recorded in Column No.16.
6. In order to better appreciate the controversy, it is imperative to examine the procedure of solemnization of Nikah and the registration of nikahnama under the law. The nikahnama is the document that records the contents of a Nikah. It records the personal details of the parties to the marriage, amount of dower, conditions of the Nikah settled between the parties, and the names and addresses of the witnesses to the marriage. The nikahnama records those facts and conditions of the Nikah, which have been settled between the parties as is evident from the language of its columns, distinguished by numerical numbers and is regulated by Muslim Family Laws Ordinance, 1961 (hereinafter "the Ordinance") read with Muslim Family Law Rules, 1961 (hereinafter "the Rules"): It involves three people i.e., a Nikah Khawan, Nikah Registrar and Union Council concerned. Under Rule 8, a Union Council gives a register with 50 leaves to the Nikah- Registrar. Each register contains nikahnama as specified in Form II. Nikahnama is in quadruplicate (having four pert). Under Rule 10, original pert is kept intact in the register whereas the second pert, filled and signed is given to bride, the third pert is given to the bridegroom and the fourth pert is forwarded to the Union Council concerned. There is no cavil to the proposition as it has become a stone-etched legal position that nikahnama, being a public document carries with it presumption of truth as has been held by the superior courts in catena of judgments. I am fortified by the judgments reported as "Abdul Malik and others v. Mst. Subbha Mai alias Sabbah Mai" (2016 MLD 925) and "Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others" (PLD 2015 LAH 88).
Since second and third part of the nikahanama are with the parties, hence, possibility that they may tamper the same by addition or deletion of an entry cannot be ruled out; however, the fourth pert duly forwarded to the Union Council concerned or one that is kept in the original register is the document, which carries the presumption of truth as these two pert are kept in the official custody.
However, it is pertinent to note that there.is a very fine and delicate interplay of law of presumption and burden of proof. Presumption of a specific fact shifts the burden on the other party.
Presumption implies that a certain fact is deemed to be true or proved on the basis of some other relevant fact which is proved to be true. In other words, the existence of a fact or set of facts is considered as proof of the existence of some other fact. Such presumptions may be presumptions of fact or presumptions of law. Similarly, presumption can be conclusive or rebuttable. Rebuttable presumptions are such presumptions which involve the use of words "shall presume". Such rebuttable presumptions have been embodied in Articles 90, 95 and 99 of the Qanoon-e- Shahadat Order, 1984 (hereinafter 'the QSO') whereas irrefutable presumptions involve the use of words such as "conclusive proof" or "conclusive evidence". Articles 90 of QSO, states as under: "90. Presumption as to genuineness of certified copies:
(1) The court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Federal Government or a Provincial Government to be genuine; Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such document."
(Emphasis supplied)
Perusal of the above provision in general and proviso attached to Article 90(1) in particular reveals that in order to carry presumption of truth attached to a public document, it is imperative that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. Inference of presumption of truth to any document involves an in-built declaration that such document has been substantially in the form and manner as directed by the law in that behalf. The statement of the Nikah Registrar, who appeared as CW-1 is important in the instant case. He stated in his examination-in-chief that he forgot to incorporate the terms of Nikah in fourth pert (Ex:D.1) of the nikahnama and submitted the same in the Union Council, without incorporating the terms and conditions of Nikah between the parties. This fact itself implies that the nikahnama was not filled in the form and manner as directed by law, hence, the presumption of truth was never attached to the said nikahnama between the parties. It is also evident that Column Nos. 14 to 16 in fourth pert (Ex.D.1), have been crossed with the line in order to reflect that nothing was incorporated in the said columns at the time of Nikah as far as fourth Pert is concerned. Had the same been done in the other pert of nikahnama at the same time, similar line should have been drawn in Ex.P.5 (copy of original pert produced by the respondent), which is not the case as no such line crossing the said columns is visible in Ex.P.5. Be that it may, since presumption of truth attached to nikahnama is rebuttable presumption, therefore, even if such presumption of truth attached to nikahnama (Ex.P.5) is presumed, the same being rebuttable, is taken away in the instant case when Ex.P.5 is put in juxtaposition with the Ex.D.1 as there is contradiction in both the pert of the same nikahnama kept by public officials and produced before the court by the parties.
Hence, no presumption of truth was available in the instant case even to Ex.P.5 (copy of original pert) or Ex.D.1 (copy of fourth pert forwarded to the Union Council).
7. This takes me to the nub of the matter and that is to opine as to whether the respondent was able to prove the contents of her pert and the courts below were justified in decreeing her suit.
Under the peculiar circumstances of the present case, nikahnama is to be examined as a simple contract between the parties without any presumption of truth attached to it. It has been held in "Mst. Shaista Shahzad and another v. Additional District Judge and others" (PLD 2012 LAH 245) that "according to Mohammedan Law Nikah is not a Sacrament but a civil contract between a Muslim man and woman which is entered into for procreation and legalization of children and the spouses after consenting it are bound to respect it and to live within the limits of Allah."
8. The parties were obligated to prove the genuineness of the entries of nikahnama particularly entry recorded against Column No.16. The respondent herself entered in the witness box as PW.1 and produced Muhamad Akram as PW.2 who also happens to be uncle of the respondent and a witness of the nikahnama. His signatures as witness are available on the three pert of the nikahnama produced i.e., Ex.P.3, Ex.P.5 as well as Ex.D.1. On the other hand, the petitioner himself appeared as DW.1 and relied upon fourth pert of the nikahnama, which is Ex.D.1. Astonishingly enough, he did not produce any other witness of Nikah in his support not even his own "walilwakeer, i.e., Wazeer son of Bahadur Khan whose name is duly incorporated in the nikahnama and who has affixed his thumb impression on all pert produced by the parties in support of their respective contentions. The petitioner did not produce his copy of nikahnama i.e., third pert, which was given to him at the time of Nikah in term of Rule 10 of the Rules. It is imperative to note that it is not the case of the petitioner that he was not given copy of his pert of the nikahnama as no such plea has been taken by the petitioner either in his pleading or even in the evidence. The petitioner's copy of pert was his best evidence. By production of his pert of nikahnama, the petitioner could have dispelled the statement of the CW-1 that he forgot to fill the conditions of Nikah only in the "fourth pert" (Ex.P.5) prior to submitting the same in the Union Council concerned under the law and in the absence of the same, there seems to be no reason in disbelieving the unshaken testimony of the respondent, her witness as well as the scribe of the nikahnama. Therefore, non-production of his own copy of pert of the nikahnama leads to adverse inference against the petitioner as the best evidence in this regard has been withheld by him and same brings the case of the petitioner within the purview of illustration (g) to Article 129 of QSO, which contemplates that an adverse presumption is to be drawn against the party, who withholds the best evidence. The dicta laid down by the Hon'ble Supreme Court in Dilshad Begum v. Nisar Akhtar (2012 SCMR 1106) is referred in this regard. So far as Mst. Tanzeela But supra is concerned, the reliance by learned counsel for the petitioner is misplaced, inasmuch as in case reported as Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others" (PLD 2016 SC 613), Hon'ble Supreme Court of Pakistan held that the entries in various columns of the nikahnama are part of undertakings related to the dower.
9. The nutshell of the above discussion is that there are concurrent findings of two courts below against the petitioner and there is no illegality or irregularity therein which could be pointed out by learned counsel for the petitioner. Moreover, learned lower courts have passed the impugned judgments and decrees after thrashing evidence of the parties, which cannot be interfered with by this Court in ordinary circumstances just to substitute the findings of learned lower courts with that of its own. In fact the Hon'ble Supreme Court has discouraged such practice in exercise of constitutional jurisdiction by the High Court. I am fortified by the law laid down by the Hon'ble Supreme Court of Pakistan in case reported as Mst. Farah Naz v. Judge Family Court, Sahiwal (PLD 2006 SC 457) in this regard.
10. For what has been discussed above, this writ petition being devoid of any force is hereby dismissed. No order as to cost.