SAFDAR SALEEM SHAHID, J. The instant petition has been directed against the judgments and decrees dated 16.11.2019 and 05.03.2020 passed by the learned Senior Civil Judge (Family Division) and the learned Additional District Judge, Sargodha.
2. Brief facts relevant for the decision of the instant petition are that respondent No.3 filed a suit for restitution of conjugal rights, recovery of maintenance allowance and dowry articles, alleging that she was married with the petitioner on 31.03.2014, however, they remained issueless; that she was given valuable dowry articles at the time of marriage; that the petitioner left Pakistan to earn his livelihood and since then neither he came back nor paid any maintenance allowance; that father of the petitioner turned her out from his house; that the petitioner was earning Rs.2,50,000/- per month. The suit was filed against the petitioner as well as his father. The petitioner as well as his father filed contesting written statement, wherein while raising certain preliminary objections, they claimed the list of dowry articles attached with the plaint forged and fabricated and expressed readiness to return the dowry articles on oath as per list appended with the written statement by alleging the weak financial status of the family of respondent No.3.
3. On failure of pretrial reconciliation attempt, the learned trial Court out of divergent pleadings framed issues, recorded evidence of the parties and after having gone through the same, while dismissing the suit to the extent of restitution, of conjugal rights, partially decreed the same in the terms that respondent No.3 was held entitled to recover maintenance allowance at the rate of Rs.6000/- per month from January, 2016 till the expiry of her Iddat period and to recover the dowry articles as per list (Exh.D.3) in addition to price of bed value of Rs.30,000/- from the petitioner.
Feeling aggrieved, both the parties filed their respective. appeals and the learned Additional District Judge while dismissing appeal of the petitioner, partially accepted the appeal filed by respondent No.3 and modified the decree of the trial Court in the terms that her maintenance allowance was enhanced to Rs.12,000/- per month from January, 2016 till the expiry of her Iddat period and she was held entitled to receive the dowry articles as per list Exh.P.2 or alternate price thereof, excluding the items mentioned at serial Nos.40, 69, 78, 79-A, 79-B, 79-C, 124 to 131, 134 to 136,, 138, 142 to 145 and 149.
4. Arguments heard. Record perused.
5. As regards the decree for grant of maintenance allowance, it was the case of respondent No.3 that after few days of marriage the petitioner went abroad by leaving her in the house of his parents, but father of the petitioner ousted her from the house about three years ago and since then neither she has been contacted for rehabilitation nor has been provided any maintenance.
According to her, monthly salary of the petitioner was 3525 Dirham in addition to the earning by overtime. In support of her claim, she produced salary slip of the petitioner as Exh.P.16 which shows that he was Associate Electrical Engineer in Emico Electric Company and was drawing monthly salary 3525 Dirham. On the other hand, petitioner produced his salary slip dated 8th April, 2019 as Exh.D.7, which shows his salary as 1732 Dirham excluding allowances. It appears that allowances have deliberately been got excluded to conceal his actual salary, which, if calculated in Pakistani currency, becomes more than one hundred thousand rupees. Keeping in view the financial status of the petitioner and that there was no categorical denial regarding period of desertion of respondent No.3, the learned appellate Court has rightly enhanced her maintenance allowance from Rs.6000/- to Rs.12,000/- per month from January, 2016 till the expiry of her Iddat period.
6. As regards decree for recovery of dowry articles, learned counsel for the petitioner submits that dowry articles available with the petitioner have been returned back to respondent No.3. In this respect, he referred to order dated. 29.11.2021 passed in C.M. No.2/2021, whereby the petitioner was allowed to place on record copies of the order of the executing Court for appointment of local commission, report of local commission, statement of attorney .of the petitioner and that of respondent No.3 and list of dowry articles returned back to respondent No. 3. Perusal of the said documents shows that decree to some extent has been executed.
7. Learned counsel for the petitioner with regard to the remaining .decree argued that the learned Courts below have not properly appreciated evidence brought on record by the parties. In this regard submits the Courts below should have consider and appreciate all the evidence produced by the parties. However, despite having accepted in 'evidence USB produced the petitioner as Exh.D.16, the both the Courts have only made reference to the same and have not discussed as to whether it was played and confronted to A the witnesses to reach at a definite conclusion regarding the dowry articles given to respondent No.3 by her parents. Even otherwise, no purpose to produce a video or audio would be served if it is not played and confronted to the witnesses.
With reference to the provisions of Article 164 of the Qanun-e-Shahadat Order submitted that screening of video cassette is admissible in evidence and also conclusive in some cases. Learned counsel also relied upon the cases of Shahid Orakzai v. Pakistan Muslim LeaRue (Nawaz Group) and 8 others (2000 SCMR 1969), Collector of Customs and another v. Saeed-ur-Rehman and others (PLD 1989 SC 249) and Yasir Ayya z and others v. The State (PLD 2019 Lahore 366).
8. Learned counsel for respondent No.3 has been unable to prove otherwise, as both the Courts below have not discussed as to whether the USB produced Exh.D.16 was confronted to the witnesses by playing the same in the Court. In the circumstances, it is proved that both the Courts below have failed to properly record the evidence and appreciate the same while deciding the suit filed by respondent No.3.
8 (sic) In view of the above discussion, it is found that the learned appellate Court as correctly appreciated the evidence with regard to financial status of the petitioner and rightly enhanced the rate of maintenance allowance of respondent No.3 by setting aside the findings of the trial Court to that effect. However, the learned trial Court while recording evidence of the parties has accepted the USB produced by the petitioner, but neither has confronted the same to the witnesses nor discussed to have viewed the same by playing it. The learned appellate Court also did not appreciate the evidence with regard to production, acceptance and playing of USB to view the pictures. In the circumstances, the findings of the Courts below with regard to recovery of dowry articles are not in accordance with law and are liable to be set aside.
9. For what has been discussed above, the instant petition is partly allowed, the judgments and decrees of both the Courts below to the extent of recovery of dowry articles are set aside and the case is remanded to the learned trial Court for decision afresh, after confronting the witnesses with the USB produced by the petitioner as Exh.D.16 and recording their evidence to that effect in addition to any other necessary evidence. The learned trial Court shall also take into consideration the orders passed in the execution petition with regard to appointment of local commission and delivery of dowry articles to respondent No.3, while deciding the suit. However, while upholding the findings of the learned appellate Court with regard to maintenance allowance this petition to that extent is dismissed. The parties are left to bear their own costs.
10. The learned trial Court shall summon the parties by fixing any date and proceed with the matter in accordance with law.