MUHAMMAD NAEEM ANWAR, J.- This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment and decree of the learned District Judge, Malakand at Batkhela dated 29.05.2018, whereby appeal of the petitioners was partially allowed and consequently the judgment and decree of the learned Family Court (Civil Judge-II, Malakand at Batkhela) dated 17.10.2017 partially decreeing the suit of respondent No.1 & 2 was modified.
2. Brief but essential facts of the case are that the respondent No.1 alongwith minor/ respondent No.2 Taimoor Khan filed a suit before the learned family Court against the petitioners for (i) recovery of her dower as per the agreement dated 17-09-2002 i.e., 25 tolas gold ornaments or its market value, two shops located at Bali Khel Market, Batkhela Bazar (shops No. 2 & 3 behind the front shop towards the main road), and two plots as per the description mentioned in sub-heads iii & iv of headnote alif of the plaint; and (ii) recovery of maintenance allowance @ Rs. 10,000/- per month, per head, with 20% annual increase for the period w.e.f. 2008 and onwards till their legal entitlement. It was averred in the plaint that marriage of respondent No.1 was solemnized with the petitioner No.1 in lieu of the dower, regarding which, the deed dated 17.09.2002 was scribed in the presence of witnesses; that after her rukhsati, on 19.11.2007, another deed was also executed in respect of clarification of the boundaries of the landed property; that the relations were cordial and the wedlock was blessed with plaintiff No.2 namely Taimoor Khan, however, in the year 2008, her husband/ petitioner No.1 contracted a second marriage with Mst. Rani without her permission and thereafter, she was ousted from the house forcibly and since then, she alongwith the minor is residing in her parents house while the petitioner/ husband has never asked for their maintenance despite her request/demand; that her dower is still in possession of the petitioner/ husband; that the minor/ plaintiff No.2 is a school going kid, therefore, she is entitled for recovery of the dower alongwith maintenance allowance for her and the plaintiff No.2/ minor, with 20% annual increase.
Suit was resisted by the petitioners/ defendants through their written statements on different legal and factual objections. On failure of the pre-trial reconciliation proceedings, the learned trial court framed issues. The parties recorded their best evidence and on conclusion thereof and failure of the post-trial reconciliation proceedings, the learned trial court decreed the suit of the respondents/ plaintiffs to the extent of recovery of twenty five tola gold ornaments with two shops situated at balay khel market Batkhela or its market worth, a plot measuring 100 x 100 / feet situated at Sangina BatkhelAor its market value and plot situated at khwar patay (as per deed dated 17.09.2002) or its market value as dower of the respondent/ wife; and maintenance allowance @ Rs.3000/- per month, per head, for the last three years prior to institution of the suit for plaintiff No.1 while for plaintiff No.2 since his date of birth and onwards till attaining the age of majority with 20% annual increase vide judgment and decree dated 17.10.2017. Being dissatisfied from the said judgment and decree, the petitioners filed a family appeal, which was partially allowed by the learned appellate Court through impugned judgment and decree dated 29.05.2018, whereby the decree to the extent of the dower granted by the learned trial court though was upheld, however, it was held that from 25 tola gold ornaments, 20 tola gold have already been paid to the respondent/ wife whereas the maintenance allowance of the respondents was enhanced from Rs.3000/- to Rs.5000/- per month, per head, with 20 % annual increase and the judgment and decree of the learned trial Court to that extent was modified, hence, this petition.
3. Arguments heard. Record perused.
4. The respondent/ wife was claiming her dower as per deed dated 17.09.2002 (Ex.PW1/ 2), according to which, her dower was fixed as 25 tolas gold ornaments, two shops located in Bali Khel Market, Batkhela Bazar and two plots. This deed was executed by petitioner No.2 Aziz-ur-Rahman, the father of petitioner No.1 (the husband of respondent No.1 Mst. Noorin). It appears that both the petitioners i.e., Akmal Khan and Aziz ur Rahman have signed this deed (Ex.PW1/2). The petitioner No.2 Aziz-ur-Rahman has passed away during the pendency of this petition and as such, his list of legal heirs was submitted and in this respect entries in the memorandum of this petition has already been made by the office. There is no denial on the part of the petitioners about fixation of the dower of the respondent/ wife as alleged by her, however, in para No.6 of the preliminary objections they have alleged that the property mentioned at serial No.ii is the joint ownership of legal heirs of late Shakir Ullah, who are Aziz Ur Rahman Khan ( petitioner No.2, the father of petitioner No.1) alongwith his other brothers and sisters whereas, the property at serial No. iii is the joint ownership of Bakht Biland and Bakht Zamin Khan, besides the other legal heirs of Shakir Ullah.
Similarly, the property situated in Nawan Kalli has been given as dower to the wife of petitioner No.2 Aziz-ur-Rahman vide deed dated 21.05.1971. It was also alleged that the respondent/ wife has received her dower vide deed dated 14.04.2008. The burden to prove her stance, as taken that her dower was fixed as per deed dated 17.09.2002 (Ex.PW1/2) and subsequently deed dated 19.11.2007 (Ex.PW1/3) was executed for certain clarification qua the boundaries of the dowered property measuring 10000 square feet, was upon the respondent No. 1/wife. Admittedly, both the spouses themselves have not deposed before the learned trial Court, however, the respondent/ wife has produced Abdul Matin as PW-2, Fazal Sattar as PW-3 and Nisar Khan s/o Zur Talab as PW-4. The first two were marginal witnesses of the deed Ex.PW1/2 while the third person namely Nisar was the son of the other marginal witness Zur Talab. Similarly, Tariq Khan, the other son of the marginal witness Zur Talab was also produced by the respondent/ wife before the Court as PW-5. Likewise, record keeper of the office of Deputy Commissioner Office Bat khela was also produced by the respondent/ wife as PW-6. This witness has produced the relevant extracts from the relevant registers regarding the execution of both the deeds relied upon by the respondents as Ex.PW6/1 & Ex.PW6/2. In Ex.PW6/ 1, there is an entry regarding deed dated 17.09.2002 (Ex.PW1/2) at serial No.2176 while in Ex.PW6/2, there is an entry regarding the deed dated 19.11.2007 (Ex.PW1/3) at serial No.1975.
In the relevant columns pertaining to details against both the entries, the execution in favor of the respondent Mst. Noorin was also specifically mentioned. Besides, Khadi Muhammad, the scribe of both these deeds Ex.PW1/2 & Ex.PW1/3 (dated 17.09.2002 & 19.11.2007) was also produced by her as PW-7, who deposed that both these deeds were scribed by him. All these witnesses were cross examined by the petitioners at length but nothing favoring them could be brought on record rather during the cross examination of Nisar Khan (PW-4), who was the son of marginal witness namely Zur Talab, it was confirmed by him in his cross examination that the document (Ex PW1/2) was scribed by Khadi Muhammad who was also produced by the respondent No.1 as PW-7 before the learned trial Court. It was also deposed in his cross examination that 'though the document does not bear his signature, however, he was present at the time of its execution, whereas in respect of the deed dated 14.04.2008 relied upon by the petitioners regarding payment of dower to the respondent/ wife, it was brought during cross examination of PW-4 that he cannot say whether the signature attributed to him on this document was put by him or not. More-so, the documents (Ex.PW1/2 & Ex.PW1/3) bear the signatures of the petitioner No.1 as well as her deceased father (petitioner No.2) and the execution of the documents pertaining to the dower of the respondent No.1 Mst. Noorin could not be rebutted by them through overwhelming evidence. In such an eventuality, the documents (Ex.PW1/ 2 & Ex.PW1/3) were rightly considered by both the learned Courts below while holding that the dower of the respondent/ plaintiff was fixed as 25 tola gold ornaments alongwith two shops in Balay Khel Market Bazzar Batkhela, a plot situated at Khwar Patay and another plot measuring 100 X 100 square feet situated at Wand Sangeena Batkhela.
Regarding the payment of the dower to the respondent/ wife, it was brought on record by the petitioners themselves during the cross examination of the witnesses of the respondent/ wife that document allegedly executed on 14.04.2008 was not signed by them whereas, regarding the receipt of 20 tola gold ornaments, the learned appellate Court has relied upon the admission of the respondent/ wife at the time of reconciliation proceedings and those findings to the extent of receipt of 20 tola gold ornaments have not been assailed by the respondent/ wife before this Court, thus, same have attained finality. When so, except 20 Iola gold ornaments, the entire decreed dower, as per the decision of the learned appellate Court, shall be paid by the petitioner/ husband to wife/ respondent No. 1. It is also significant to mention that Aziz Ur Rehman, the father- in-law of the respondent No.1 and the father of Akmal khan has executed the deed in favour of Mst.
Noorin in respect of all the properties mentioned in Ex. PW1/2 and till the institution of the suit on 20.09.2012 he has not questioned the validity of the deed. The alienation of the property as dower gives a right of cause of action for maintaining the claim for recovery of dower before the Family Court in view of the dicta laid down in the case of Liaquat Ali vs. Additional District Judge, Narowal and 2 others (1997 SCMR 1122) wherein it Was ruled that:
3. We have considered the submission made by the learned counsel for the parties carefully. We do not agree with the learned counsel for the petitioner. A plain reading of section 5 of the Family Court Act 1964 will show that the Judge Family Court alone was competent to suit for the recovery of the property given as dower to the wife at the time of marriage. Learned counsel has failed to quote any provision of law restraining Judge Family Court to entertain suit for the recovery of immovable given as dower to a wife. The three Courts below have believed the oral evidence as well as Kabinnama Exh.P.1 and Nikahnama Exh.P.3. Learned counsel has failed to point out any misreading or non-reading of evidence by the Courts below. The Judge Family Court has not flouted any relevant provision of law either Learned Additional District Judge and the High Court as well were fully justified in dismissing the appeal and the Constitution petition respectively.
4. Leave to appeal is, therefore, refused and the petition is dismissed.
Reliance is also placed on the principle laid down in the cases of Muhammad Arif and others vs. District and Sessions Judge, Sialkot and others (2011 SCMR 1591), Pirzada Noor Ui Basar vs. Mst.
Pakistan Bibi and others (2023 SCMR 1072), Mst. Qamar Sultan vs. Mst. Lofrin Begum and 2 others (1990 SCMR 1646).
5. Insofar as the contention of learned counsel for the petitioners that it was an unregistered dower deed (Ex. PW1 / 2) is concerned, in support of their contention, the petitioners relied upon the cases of "Umar Bakhsh Vs. Mst. Zamrut Jan and 09 others" (PLD 1973 Peshawar 63), "Sardar Ahmad Vs. Mst. Zeenat Bibi" (2013 YLR 2439), "Zohra Begum Vs. Fazal e Rab Pirzada and 04 others" (2015 YLR 2602), 'Muhammad Mansha Vs. Industrial Development Bank of Pakistan and others" "Mst.
Hussana and others Vs. Mst. Ghufrania and others" (2003 YLR 250, Peshawar) wherein this Court has held that failure of the bride to get the deed registered would render the deed ineffective, however, no such stance was taken by the petitioners in their pleadings and now at stage, their stance cannot be considered because it is settled law that mere pleadings unless corroborated by qualitative evidence could not be based for the decision of the its nor the evidence without pleadings could provide any benefit. Moreover, mere pleadings of a party cannot be treated as substitute for proof. It is also settled law that no litigant can be allowed to build and prove his case beyond the scope of his pleadings. Reliance in this respect is placed on the judgments reported as Muhammad Iqbal vs. Mehboob Alam (2015 SCMR 21) "Inayat Ali Shah v. Anwar Hussain" (1995 MLD 1714), "Pir Wali Khan v. Niaz Badshah" (2013 MLD 1106), "Mir Laiq Khan v. Sarfraz Jehan" (2013 MLD 1449), "Mst. Ghazala Yasmeen v. Sarfraz Khan Durrani" (201'3 CLC 1406) and "Messrs Choudharq Brothers Ltd., Sialkot v. Jaranwala Central Co-operative Bank Ltd., Jaranwala" (1968 SCMR 804). In the case of Muhammad Yaqoob vs. Mst. Sardaran Bibi and others (PLD 2020 SC 338) and wherein it was held: "It is .settled law that a party is not allowed to improve its case beyond what was originally set up in the pleadings".
Even otherwise, the respondent No.1/ wife has proved the execution of the document through production of two marginal witnesses as per the provision of Article 79 of the Qanun-e-Shahadat Order, 1984 then the objection of the learned counsel for the petitioners that it was an unregistered deed is of no significance. Reliance is placed on the case of Inayat Ullah Vs. Mst. Pareveen Akhtar" (1989 SCMR 1871) wherein the apex Court has held that: "Entry regarding gift of the disputed house m the relevant column of Nikahnama was made merely to show how the dower fixed at the time of marriage had been paid--Provisions of Ss.17 & 49 of the Registration Act were not attracted."
Further reliance may be placed on the judgment of this court rendered in case of "Mst. Rehmat Bibi Vs. Haji Allah Dewaya and 02 others" (2009 CLC 290), wherein it was held that: "Dower deed through which property either cash or kind or in any shape of immovable property given to wife in lieu of dower, was not compulsorily registerable."
This Court in the case of Masal Khan vs. Mst. Shah Tarina and another (2012 CLC 206) while relying on the case of Fazal Ur Rehman vs. Sosan Jan and other (1989 SCMR 651) has held that the transfer of property to the wife in lieu of dower does not require to be effectuated through registered deed as it is neither a sale nor provision of section 123 of Transfer of Property Act 1882 applies by virtue of section 129 of the ibid Act. Thus, in the circumstances, non-registration of dower deed does not affect or impinges the legal value of unregistered dower deed.
Emphasis provided.
6. It may be mentioned here that the marriage between the spouses (petitioner No.1 & respondent No.1) is still intact, therefore, this Court made efforts for amicable settlement of the issue through special attorneys for the parties but failed. The order sheets dated 12.06.2023 & 29.04.2024 were recorded in that respect. It was also one of the objections of learned counsel for the petitioners that since the marriage between the parties is still intact, as such, the respondent/ wife could not be held entitled for recovery of the deferred dower during subsistence of the marriage. In this regard, he placed reliance on the cases of this Court titled "Asif Khan Vs. Mst. Neelam and others" (W.P No.326-M/2022) decided on 12.09.2022 and `Asif Khan Vs. Mst. Neelum" (W.P No.478-M/2015) decided on 23.02.2017, however, recently the apex Court in the case of Whalid Pervaiz Vs. Samina and others" (2024 SCMR 142), while dismissing the appeal of the husband, has observed to levy a substantial compensatory cost upon him for indulging the wife into unnecessary and fruitless litigation and that too in a family matter up-to the apex "Court but was not imposed only for the reason that he was ready to deposit the dower before the learned Family Court within a period of one month. The relevant portion of the referred to above judgment of the apex court (2023 SCMR 142), for ready reference, is reproduced as under: "4. The impugned judgment accords with the law and the learned counsel has not been able to point out any illegality therein. It transpired during the hearing that the petitioner has two wives, but the petitioner did not fulfil his obligations towards the respondent No.1 when he failed to pay the mehr demanded by the respondent No. 1. The respondent No.1 had to file a suit for recovery of the mehr and maintenance, and the petitioner unnecessarily involved the respondent No.1 in litigation, which reached this Court after six and half years. This kind of frivolous litigation is paralysing the judicial system of Pakistan. The petitioner took up an untenable defence, and perpetuated it probably because costs were not imposed upon him and the courts did not insist that the decision of the Family Court should first be complied with before entertaining a challenge to it. The excuse put forward by the learned counsel that, since the decision was challenged it was not complied with, is untenable. We reiterate that if a decision is challenged it does not mean that it becomes ineffective, and need not be complied with.
5. There was no justification to assail the decision of the High Court, which was in accordance with the law. Therefore, leave to appeal is declined and this petition is dismissed. Imposing sufficient costs may have had the salutary effect to make the petitioner act reasonably. Courts should not hesitate in imposing costs, and compensatory costs too when required. We were inclined to impose substantial costs, however, the learned counsel states that the mehr (dower) will be paid to the respondent No.1 through bankers cheque/pay order/demand draft or will be deposited in the Family Court within one month. Therefore, in addition to imposing costs throughout we impose compensatory costs to the extent of one hundred thousand rupees on the petitioner considering the decrease in the value of money. If the mehr and the said costs are not paid the Family Court shall execute this order, which may include attachment of the properties of the petitioner."
Reliance is also placed on the cases of Vasim Raza Vs. Additional District Judge Mailsi District Vehari and 02 others" (2018 CLC Note. 2) and "Muhammad Shabbir Vs. Rehan Kauar and others"
(PLD 2013 Lahore 102) wherein it was held that "According to injunctions of Islam, there is no split on the dower, whether deferred or prompt, dower was obligatory on husband, which was the entitlement of the wife as consideration of marriage". Thus, the objection of the learned counsel for the petitioners is not in accordance with law, in the circumstances.
7. It may be mentioned here that at the time of execution of the deed in the year 2002 and thereafter another deed for clarification in the year 2007 from the property of Aziz-ur-Rahman, the father of petitioner No.1, he was alive and had properly executed the deeds in presence of the witnesses and similarly, the petitioner/ husband has also signed the same and as discussed above, the factum of execution thereof has been proved by the respondent/ wife, in accordance with law. The other petitioners/ defendants were well aware of the execution of the dower deed including the mother of the present petitioner No.1 regarding the execution of alleged dower deed dated 21.05.1971 by Aziz-ur-Rahman but they including the wife of Aziz-ur-Rahman have neither challenged the deeds in favor of the respondent/ wife within time nor could prove the factum of execution of the deed dated 21.05.1971, in accordance with law. Hence, in the circumstances, the stance taken by other petitioners of being co-owners/ co-sharers in the property was just to deprive the respondent/ wife of her legal right.
8. Next, it was the objection of learned counsel for the petitioners that the learned appellate court has enhanced the maintenance allowance of the respondents/ plaintiffs without their appeal, thus, has committed an illegality. It appears that the learned trial Court has granted only Rs.3000/- per month for each of the respondents/ plaintiffs. Admittedly, the respondent No.1 is wife of the petitioner No.1 while respondent No.2 is son, who is school going and thus the learned appellate Court, while considering R a,000/ - per month as insufficient amount to meet the daily expenses of the respondents in view of escalation of prices of the commodities, devaluation of currency and inflation globally in juxtaposition with the sound financial possession of the petitioner No.1 (husband of respondent No.1 and father of respondent No.2), has rightly enhanced the maintenance allowance of each of the respondents to Rs.5000/ - per month, with 20% annual increase. In the peculiar facts and circumstances of the instant matter and evidence on the record, it was a right approach of the learned appellate Court rather has arrived at a just decision on the issue of the maintenance of the respondents. Thus, the learned appellate court has rightly appreciated the evidence on record while modifying the findings of the learned trial Court to the above extent whereas, this Court while sitting in constitutional jurisdiction, can only interfere if there is any illegality, jurisdictional defect or perversity in the judgments impugned before it rather cannot determine the factual aspect of the matters, which was already decided by the learned Courts below. The apex Court in the cases of M. Hamad Hassan Vs. Mst. Isma Bukhari and 02 others"
(2023 SCMR 1434), in Civil Petitions No.4657 to 4659 of 2022 titled "Ibrahim Khan Vs. Mst. Saima Khan and others", "Muhammad Hussain Munir Vs. Sikandae (PLD 1974 SC 139),"Muhammad Lehrasab Khan Vs. Mst. Aqeel-un-Nisa" (2001 SCMR 338), "Mst. Tauyeba Ambareen and another Vs. Shafoat Ali Kiyani and another'' (2023 SCMR 246) and "Aril Fareed Vs. Bibi Sara and others"
(2023 SCMR 413) has observed that only in exceptional circumstances, the High Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere in the judgments of the learned Family Court or Appellate Court, otherwise High Court lacks the jurisdiction to reappraise the evidence and reach a different conclusion. For reference such a para from judgment of the Hon'ble apex Court rendered in the case of M. Hamad Hassan Vs. Mst. lsma Bukhari and 02 others" (2023 SCMR 1434) is also reproduced hereunder: "6. The objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts. Its role is limited to correcting jurisdictional errors and procedural improprieties, ensuring the proper administration of justice. In the present case, the Petitioner pursued his case through the family court and its appeal in the district court and then also invoked the High Court's constitutional jurisdiction to reargue his case amounting to a wrongful exercise of jurisdiction whereby the High Court upheld the factual findings of appellate court after making its own assessments on the same. Allowing a re-argument of the case constituted to arguing a second appeal which should not have been entertained regardless of the outcome of the case.
7. The right to appeal is a statutory creation, either provided or not provided by the legislature; if the law intended to provide for two opportunities of appeal, it would have explicitly done so. In the absence of a second appeal, the decision of the appellate court is considered final on the facts and it is not for High Court to offer another opportunity of F hearing, especially in family cases where the legislature's intent to not prolong the dispute is clear. The purpose of this approach is to ensure efficient and expeditious resolution of legal disputes. However, if the High Court continues to entertain constitutional petitions against appellate court orders, under Article 199 of the Constitution, it opens floodgates to appellate litigation. Closure of litigation is essential for a fair and efficient legal system, and the courts should not unwarrantedly make room for litigants to abuse the process of law. Once a matter has been adjudicated upon on fact by the trial and the appellate courts, constitutional courts should not exceed their powers by reevaluating the facts or substituting the appellate court's opinion with their own - the acceptance of finality of the appellate court's findings is essential for achieving closure in legal proceedings conclusively G resolving disputes, preventing unnecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms."
Reliance may also be placed on the case of Khair-ud-Din Vs. Mst. Sabiha and 05 others' (PLD 2021 SC 85), wherein the apex court has held that "Proceedings under the constitutional jurisdiction of High Court were not a substitute for an appeal so as to reappraise the evidence recorded by the Family Court." Learned counsel for petitioners could not point out any illegality or legal error in the impugned findings of the learned Courts below in the impugned findings of the learned appellate.
Court.
9. Thus, for the reasons discussed above, the instant petition, being devoid of merits, is hereby dismissed, leaving the parties to bear their costs.