SHAHID KHAN, J.- This single judgment shall decide both the subject writ petitions, i.e., W.P No.886- M/2021 titled "Mst. Arfa & one another vs Aftab Muhammad & 02 others" and the connected W.P No.1019-M/2021 title "Aftab Muhammad vs Mst. Arfa and 02 others", which have been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, ("the Constitution").
2. Mst. Arfa & her minor daughter, namely, Mst. Kubra, the petitioners, in writ petition bearing No-.886-M/2021, have sought for the following prayer: "It is, therefore, prayed that on acceptance of this writ petition, the impugned judgment & decree of the learned lower courts may kindly be set aside to the extent of dismissed articles & the suit of the petitioners/ defendants may be decreed as prayed for with costs throughout."
3. Aftab Muhammad, the respondent, in his writ petition No.1019-M/2021, has sought for the following prayer: "It is graciously prayed that on acceptance of the instant writ petition, the impugned order, judgment and decree of the respondent No.3 dated 10.09.2021 may graciously be set aside being illegal, unlawful, without jurisdiction and against the settled principles of law and the suit of the plaintiff may please be decreed as prayed for and the respondent No.1 may graciously be directed to restore 05 tolas gold ornaments admittedly received by her and marriage be dissolved on the basis of Khula, if she is not ready to resettle at any cost.
Any other relief which this august Court deems fit and appropriate may also be graciously granted."
4. Essential facts floated on the face of record of the subject petitions are that the plaintiff, Aftab Muhammad, ("the respondent-husband"), filed a family suit bearing No.209/FC on 03.06.2015, against the defendants, Mst. Arfa, ("the petitioner-wife") and Mst. Kubra, a minor daughter, ("the petitioner No.2"), in his sought a decree for restitution of conjugal rights in his favour against the petitioner-wife.
5. The petitioner-wife, turned-up before the learned family Court and contested the suit of the respondent-husband by filing her written statement on 05.11.2015. Needless to mention here that the petitioner-wife also filed separate family suit for dissolution of marriage on the basis of cruelty coupled with other reliefs but the same was dismissed by the learned family Court vide order, dated 20.07.2016, but the petitioner-wife was allowed to file her amended written statement in view of subsection (lb) of section 9 of the West Pakistan Muslim Family Courts Act, 1964, so, she filed her better written statement on 02.09.2016, thereby, she sought her counter claim with following prayers:
6. In pursuance of the counter claims of the petitioner-wife in her better written statement, the respondent-husband with permission of the family Court submitted his replication on 20.01.2017. On failure of pre-trial reconciliation efforts in between the spouses by the learned family Court, contentious issues were framed. Both the parties afforded full opportunities for adducing their respective evidence and hearing of arguments of their respective learned counsel, followed by the decision of learned family Court vide judgment & decree, dated 11.12.2019, in the terms mentioned below: "43. In the view of the above detailed discussion, it is concluded that as per above detailed findings, the plaintiff has got permanent cause of action for which as per above finding she is entitled to the following reliefs.
(i) Decree of separate accommodation in favour of defendant No.01 subject to decree of restitution of conjugal rights in favour of plaintiff.
(ii) Decree of 05-Toal gold in favour of defendant No.01.
(iii) Decree of maintenance for minor at the rate of Rs.4000/- with 10% annual increase.
(iv) Decree of medical expenses Rs.80,000/-
(v) Decree of dowry articles in favour of defendant No.-1."
7. The petitioner-wife, being partially aggrieved from the judgment & decree referred to above, so, she approached the learned appellate Court for achieving the target by preferring an appeal bearing No.53/FCA of 2020, which was partially allowed after hearing arguments of learned counsel for the parties vide impugned judgment & decree, dated 10.09.2021, by modifying the judgment & decree of the learned family Court, dated 11.12.2019, as follows: "31. In the wake of discussion made ibid, instant appeal is partially accepted and the impugned judgment & decree of the learned Judge Family Court is modified in a way that a decree for dissolution of marriage on the ground of cruelty and non-payment of dower is granted in favour of defendant/ appellant. She is also held entitled for paym ent of maintenance allowance at the rate of Rs.3,000/- per month from February, 2015 till disposal of appeal and further till expiration of Iddat period. Moreover, a decree for payment of medical/ maternity expenses is also granted in her favour as prayed for. The paym ent of maintenance allowance to minor Kubra is also enhanced from Rs.4,000/- to Rs.5,000/- per month for the period as recorded by learned Judge Family Court, however, the rate of per annum increase as fixed by the learned Judge Family Court shall remain the same. As the marriage between the spouses has been dissolved, so the decree as to the restitution of conjugal rights coupled with provision of separate accommodation to defendant/ appellant shall be treated as infructuous. Rest of the judgment & decree recorded by learned Judge Family Court shall remain intact."
8. It obliged both the spouses to approach this Court for getting appropriate reliefs as the petitioner-wife filed the subject writ petition bearing No.986-M.2021, whereas, the respondent- husband filed the connected writ petition No.1019-M/2021, under Article 199 of the Constitution as no other adequate & efficacious remedy was available to them
9. Arguments of learned counsel for the parties were heard and record gone through with their valuable assistance.
10. It is transparent from the floating facts surfaced on the record that the petitioner-wife has called in question the judgments & decrees of learned Courts below with regard to partial dismissal of her claims to the extent of half dower weighing 05 tola gold out of total dower 10 tola gold, her personal gold weighing 01 tola 10 masha 6.60 rati, quantum of maintenance as Rs. 3000/- per month instead of Rs.20,000/- without any yearly increase for the petitioner-wife and Rs.5000/- per month instead of Rs.10,000/- without observing the circumstance of uncontrolled price hike.
11. On the other side, the respondent-husband is partially aggrieved from the judgment & decree of the learned appellate Court only to the extent, whereby, the learned appellate Court while allowing the appeal of the petitioners modified the judgment & decree of the learned family Court, by converting the mode of dissolution of marriage from Khula into cruelty, entitled the petitioner-wife for the recovery of Rs.3000/- per month from February, 2015 till disposal of appeal & expiry of Iddat period, medical/maternity expenses as claimed in the plaint and also enhanced the maintenance allowance decreed in favour of the petitioner No.2, namely, Kubra, from Rs.4000/- to Rs.5000/- per month with yearly increase for the period as fixed by the learned family Court.
12. Close perusal of record would reflect that the respondent-husband is fully satisfied with the judgment & decree of the learned family Court and he is aggrieved only from the judgment & decree of the learned appellate Court partially to the extent of modifying the judgment & decree of the learned family Court being contrary to the material available on the record and in contravention of the law on the subject. Similarly, the petitioner-wife has shown her grievances over the judgments & decrees of both the learned Courts below to the extent of partial dismissal of her suit. It is manifest from perusal of the record that the available material fully supports the judgment & decree of the learned appellate Court to the extent of modifications so made in the judgment & decree of the learned family Court, whereas, the remaining findings of the learned family Court in its judgment & decree are also well founded and based on the proper appraisal of the pleadings as well as the evidence led by the parties, which warrant no interference by this Court in writ jurisdiction under Art.199 of the Constitution.
13. However, when the learned counsel for both the parties were confronted that since they have approached to this Court for issuance of writs of certiorari to declare the judgments & decrees of the two Courts below as illegal and unlawful, therefore, under the law they are required to show lack of jurisdiction or excess of jurisdiction or illegal exercise of jurisdiction vested in the fora below to warrant interference of this Court under its constitutional jurisdiction, however, they were unable to wriggle out of this legal position. In the case of Amjad Khan vs. Muhammad Irshad (deceased) through LRs reported as 2020 SCMR 2155, the Hon'ble Apex Court has held: "It is by now a settled law that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter."
Similarly, in the case of "Chief Executive Mepo & others v/s Muhammad Fazil & others" reported as 2019 SCMR 919, the Hon'ble Apex Court has observed as follows: "Where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed-out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution."
In the case of "Chairman NAB v/s Muhammad Usman & others" reported as PLD 2018 Supreme Court 28, the Hon'ble Apex Court has ruled as follows: "the powers of judicial review vested in High Court under. Article 199 of the Constitution is no doubt a great weapon in the Judge's hands, however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice.
Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner."
14. Other than the above, if findings of the two Courts below are in conflict with each other, then preference should be given to the findings recorded by the first appellate Court. Reliance is placed on the case of Enavat Sons (Pvt.) Ltd. v/s Govt: of Pakistan through Secretary Finance and others reported as 2007 SCMR 969. In this case, the Hon'ble apex Court held as under:
10. It is well-settled proposition of law that in the event of a conflict between the judgments of trial Court and the First Appellate Court, preference should be given to the views of the Appellate Court, who had the opportunity of examining and analyzing the evidence of the parties."
Similarly, in the case of Muhammad Hassan vs. Khawaja Khalil-ur-Rehman (2007 SCMR 576), it was observed that: "In case of divergent findings of the two Courts below, the High Court will have to give due attention to the findings of the Appellate Court unless it suffers from grave irregularity or the same are perverse or the reasons given by the Appellate Court are not sustainable."
15. As the record made available before the Court, prima facie, support the judgment of the appellate Court, being well reasoned, based on correct appreciation of material placed on the case file in conformity with the law on the subject and not suffering from any misreading & non- reading of the existing material on file or the result of misapplication of law on the subject.
16. In view of what has been discussed above, learned counsel for the parties have not been able to point out any illegality, irregularity, jurisdictional defect or misapplication of law in the impugned judgment & decree of the learned appellate Court or any violation of their fundamental rights have been made, therefore, the same is upheld.
17. Resultantly, the subject writ petition bearing No.986-M/2021 alongwith the connected writ petition No.1019-M/2021 titled "Aftab Muhammad vs Mst. Arfa & 02 others" stands dismissed being bereft of merits.