1. I intend to dispose of the above-noted two Constitution petitions by this single judgment as the same raise common issues of facts and law.
2. The facts leading to the filing of the above petitions are that in 1940 the petitioner's marriage with the respondent No. 1 took place at Calcutta according to Muslim law of Shariat. It is the case of the petitioner that dower amount of Rs. 30,000 plus 21 golden ginnis, approximately at the rate of Rs.
3. 2,000 per ginni and the total amount comes to Rs. 72,000. The entire dower amount was deferred. It is alleged in the petition that her nikah was performed orally. After partition, the petitioner and her husband migrated to the then East Pakistan and the petitioner from her own assets and with the assistance of her apprents purchased a house in Tejgoon. The respondent No. 1 was in service and was getting a meagre salary and was not financially sound. The respondent No. 1---s behaviour has all along been very indifferent with the petitioner. Out of wedlock six children were born. The eldest son is Shamim Akhtar. After preliminary education he got a job in P.I.A. And he used to run the house-hold affairs with his small earning as the respondent No. 1 was negligent and charges to maintain the petitioner and the family members. In February 1968 the' petitioner with her children shifted to Karachi as the respondent No. I and the eldest son were transferred from Dacca to Karachi. The petitioner sold her house at Tajgoon and with this amount she purchased a plot of land in which she was putting up at Norh-Nazimabad, Karachi. It is further the case of the petitioner that respondent No. 1 by a written "talaqnama" dated 19-10-1982 divorced the petitioner and further issued notices of disinheritance (AAQ) to the petitioner and her children on 31-10-1982 and claiming that the plot of land with construction thereon be handed over to him. On 23-12-1982 the petitioner filed two suits for recovery of dower amount in the sum of Rs. 72,000 and maintenance against the respondent No. 1.
4. The respondent No. 1 resisted the above suits and denied all the allegations made against him. The respondent No. 1 alleged that the dower was fixed at Rs. 5,000 which was paid to her.
5. The respondent No.3 framed appropriate issues, the petitioner examined herself and her son Shamim Akhtar and Mst. Sughra Bibi. The respondent No.1 examined himself besides three witnesses namely Amir Hussain, Shaikh', Mohiuddin and Nazir Ahmad. The .Respondent No. 3 dismissed the suit for maintenance and decreed the suit only in the sum of Rs. 5,000. The petitions being aggrieved filed two separate appeals against the judgments of the Family Court. The respondent No. 2 decided Appeal No. 18 of 1986, whereby he decreed the petitioner's suit to the extend of the `iddat' period only whereas the other appeal filed by 'the petitioner was dismissed.
6. The petitioner being aggrieved against judgment fled the above two petitions.
7. Mr. Hafiz Abdul Baqi Advocate raised the following contentions:-- (1)The deposition of Nazir Ahmed does not figure in the judgment of the respondent No. 3.
8. (2)the respondents Nos. 2 and 3 misread the evidence on record.
9. (3)the judgments of respondent No. 3 as well as of respondent No. 2 are devoid of requirements of Order 20 Rules 4'and 5, CPC.
10. On the other hand Mr. Samiuddin Sami learned counsel for the respondent No. I submitted that the judgments are according to law. There is sufficient evidence on the record.
11. I have heard the learned counsel for the parties and perused the impugned judgments. The petitioner claimed maintenance from 1969. The respondent No. 1 pleaded in his written statement as well as deposed that the attitude of the petitioner with him was unfair and he was maltreated by her with the help of children, as such he divorced the petitioner as she was disobedient. He also `Aaq' his children. The respondent No. 3 dismissed the suit for maintenance. The respondent No. 2 found that the evidence led by the respondent No. 1 is sufficient enough to prove that the respondent No. 1 had reasons to leave the house and live at some other place. The respondent No. 2 held that the petitioner was not entitled to maintenance as claimed upto the date of divorce but he granted maintenance for the `Iddat' period. He decreed the suit for `Iddat' period at the rate of Rs. 500 per month.
12. The respondent No. 3 decreed the suit for dower amounting to Rs. 5,000. The petitioner filed appeal which was also dismissed by the respondent No. 2. The Courts below found that there was no documentary evidence showing that the dower was fixed at Rs. 30,000 plus 21 ginnis. The Courts below came to the conclusion that the dower was fixed at Rs. 5,000 which amount was paid to the petitioner.
13. The question therefore, arises for consideration is whether the impugned judgments passed by the Courts below are without jurisdiction, without lawful authority, or have been passed in the absence of any material on record or misreading the evidence. Both the Courts below were of the view that the dower was fixed at Rs. 5,000 and the petitioner was not entitled to maintenance upto the date of divorce. The respondent No. 2 granted maintenance for the `Iddat' period at the rate of Rs. 500 per month.
14. As held in the case of Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139), the expression in Article 199 (1) (a) (ii) of the Constitution of Pakistan without lawful authority and of no legal effect' is an expression of art and refers to the jurisdictional defects as distinguished from mere erroneous decisions whether on question of facts or even of law. The High Court in exercise of its constitutional jurisdiction is only concerned with the Court or Tribunal below has acted within its jurisdiction and if a Court or Tribunal having jurisdiction to decide matter, has decided the same wrongly or incorrectly, that will not render such decision as "without lawful authority". It has been held that it is wholly wrong to consider that constitutional provision is 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 as in that case it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal which plainly is not the intention of the constitution makers. Similarly in the case of Rahim Shah v. Chief Election Commissioner of Pakistan and another (PLD 1973 SC 24), it has been held that although the conditions for grant of writ which obtain in the English Courts did not apply to High Courts of Pakistan, at the same time the existence of constitutional jurisdiction cannot be enlarged to an appeal on facts of question law. An appeal is a creation of Statute and if no appeal is provided by the legislature the determination of a Tribunal of exclusive jurisdiction is final. The scope of interference by the High Court is, therefore, limited to the inquiry whether the Court or Tribunal has in passing order or in doing an act, acted in accordance with law. If the answer be in the affirmative, the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Court or Tribunal. It has been held that the cases of no evidence, misdirection or failure to follow the judicial procedure are treated as acts done or orders passed without lawful authority, and vitiate the act done or proceedings undertaken by the Tribunal or order passed in this behalf.
15. For the aforesaid reasons, the impugned judgments are maintained and the Constitutional petitions are dismissed. In the circumstances of the case, the parties shall bear their own costs.
16. H.B.T./K-142/K