' JAVAID NAWAZ KHAN GANDAPUR, J.---This writ petition has been filed against the judgment of, the Additional District Judge-IV, Peshawar (Mr. Muhammad Alam Zeb Khan) recorded on 13-10-1994 whereby he had modified the judgment of the Judge, Family Court, Peshawar (Mr. Shahid Khan) dated 11-12-1993.
2. Briefly stated the facts of the case in hand are that Mst. Shano (petitioner No,1) was married to Amanullah (respondent) on 23-1-1985 at Peshawar. At the time of the "Nikah", agreement deed, Exh.P.W.1/1 in the form of ' Kabin Nama'/Dower Deed was duly executed by the husband (respondent) vide which Rs,2,00,000 (in cash) and golden ornaments, weighing five colas, were to be paid to petitioner No,1 (wife) as dower by the respondent. In addition, the respondent's father also undertook to give 1/2 share out of his house situated in Village Mian Gujar, Tehsil Peshawar, as dower to petitioner No,1 (daughter-in-law).
3. Petitioner No,1 F and the respondent resided together happily for sometimes and as a result of the wedlock petitioner No,1 gave birth of a girl namely, Sonya, aged about five years (petitioner No,2) and a boy by the name of Darvesh, aged about four years (petitioner No,3). However, to the misfortune of the couple, some misunderstanding developed between them and they fell out.
Resultantly the respondent started maltreating the petitioner, his wife. Finally, in June, 1986 he turned her out from his house.
4. On 29-9-1991, petitioner No,1 instituted the present suit against the respondent for the recovery of her dower amount (Rs, 2 lacs), past maintenance for three years @ Rs,1,000 per month and for future maintenance at the same rate. In addition, the petitioner-wife prayed that a decree for the past/future maintenance be also granted to the children (petitioners Nos.2 and 3) Rs,1,000 per month per child.
5. The respondent contested the suit. In his written statement quite a few as well as factual objections were raised. The execution of deed, in the of "Kabin Nama"/Dower Deed, was not specifically denied. However, on her hand, it was alleged that the petitioner-wife has not attached the copy "Nikah Nama", with the plaint, therefore, it could not be ascertained as to such dower was fixed at the time of Nikah, before the Nikah Registrar. It ontended that the ornaments, weighing 11 tolas of gold, were given to the her dower amount.
' The respondent, as a counterblast, also instituted a suit, against the oner-wife, for restitution of conjugal rights.
' Both the suits were consolidated and the pleadings of the parties gave o as many as 10 issues which are as under:--- 1) Whether plaintiffs have got a cause of action?
2) Whether plaintiff No,1 is estopped by her conduct to sue?
3) Whether suit is based on mala fide, if so, its effect?
(4) Whether a dower of Rs,2,00,000 cash and five tolas of golden ornaments were fixed if so, whether that had been paid?
(5) Whether plaintiff was kicked out by the defendant from his home?
(6) Whether plaintiffs have been provided with the maintenance if so to what extent?
(7) Whether plaintiff is entitled to the decree of maintenance as claimed?
(8) Whether the plaintiffs are entitled to the decree of dower as claimed?
(9) Whether the defendant is entitled to the decree of restitution, of conjugal rights as claimed.
(10) Relief.
8. The Judge, Family Court after recording the evidence of the parties which they wished to produce and hearing their counsel, disposed of both the is by his consolidated judgment recorded on 11-12-1993. The suit of petitioner No,1 was partially decreed and she was granted a decree for the ovary of dower amount of Rs,2 lacs and ornaments (5 tolas). She was' also ted a decree for past/future maintenance @ Rs,200 per month. Petitioners s.2 and 3 were granted a decree for past/future maintenance allowance @ .500 per month. Similarly, the respondent's suit, for restitution of conjugal his, was also decreed against petitioner No,1.
9. Dissatisfied with the said verdict, the respondent took the matter before Additional District Judge-IV, Peshawar (Muhammad Alamzeb Khan). The ' Additional District Judge accepted the appeal and modified the judgment/decided of the trial Court in the following terms:---
(i) the decree granted to the petitioner-wife for the recovery of do amounting to Rs,2,00,000 plus ornaments weighing 5 tolas of gold set aside and her suit dismissed;
(ii) the decree granted to petitioner No,1 in respect of past/future maintenance was also set aside; and
(iii) the decree granted to the children for past maintenance @ Rs,500 month was upheld.
However, no order as to the future maintenance made.
10 Aggrieved, the petitioner has challenged the vires of the impugn judgment by this writ petition.
11. We have heard Mr. Tariq Javed, Advocate, learned counsel for petitioners and Malik Zeb Khan, Advocate, learned counsel for the respondent length and have also gone through the record of the case.
12. It may be stated at the outset that the Additional District Judge ha discarded the Kabin Nama/Dower Deed (Exh.P.W.1/1) solely on the ground that it had to be duly registered, therefore, being an unregistered deed, no reliance could be placed on it. The relevant portion of his judgment, in this respect, is reproduced:--- "As far as dower to the extent of Rs,2,00,000 and five tolas of golden ornaments are concerned the respondents/plaintiffs have placed certain photo copy of Kabin Nama dated 23-1-1985 as Exh.P.W.1/1. The perusal of which reveals that this Iqrar Nama/Kabin Nama contain Rs,2,00,000 as cash and five tolas as golden ornaments, even then this important deed is unregistered. As this deed is unregistered so it cannot be relied upon."
13. In our opinion, the Additional District Judge has patently failed to apply his judicial mind by holding that as the deed (Exh.P.W.1/1) was n registered therefore it could not be relied upon. It has probably escaped h -notice the Honourable Supreme Court of Pakistan (Full Bench) on 6-6-1988 Civil Petition No,16-P of 1988 (Muhammad Nisar Khan v. Mst. Bagh Ch and 2 others) has held as under:--- ' None of these arguments would however, prevail with us. It is true there is no written document qua 20 jarcebs as dower but the o evidence produced in this case by the respondent is so over whelmi that it hardly leaves any room for any doubt about her claim. Jan Nis Khan who is the brother of the petitioner and who has appeared P.W.3, has deposed at the trial that at the time of the Nikah, ornament and land measuring 20 jareebs was promised by the defendant to be given to the plaintiff as dower. The learned Appellate Court and the High Court have considered the evidence produced by the parties at great length and have come to the conclusion that the respondent has been able to establish that at the time of Nikah, 20 jareebs of land as dower was fixed. Re-appraisal of the evidence by use too has led us to the same conclusion. As to the second contention it is incorrect that the respondent had not given the particulars of the land claimed by her as dower in that in her plaint she has given the detailed particulars of the land including the Khasra numbers and their location. Therefore, it was absolutely unnecessary to repeat the same in her statement at the trial.
' The last contention of the learned counsel for the petitioner that in this part of the country usually land is not given as dower is not correct because the evidence produced in this case by the parties is to the contrary.
' In view of this judgment of the Supreme Court of Pakistan, we of the view that Kabin Nama/Dower Deed could not be brushed discarded so lightly. Besides, it may be noted that the petitioner, in her had specifically alleged about the execution of dower-deed Exh.P.W.1/1. Relevant para(2) of the plaint is reproduced here for the sake of convenience:-- {{URDU TEXT}} 16.. When the petitioner was examined as P.W.1, she stated, on oath, that at time of ' Nikah', a Kabin Nama (Exh.P.W.1/1) was executed. According to this deed, the dower amount was fixed at Rs, 2,00,000 plus ornaments weight five tolas of gold. She was not cross-examined on this score. It is now w settled that failure to cross-examine a witness, on a specific/particular poi tantamounts to admitting his statement as correct. Not only this, the contentioner of petitioner No,1 has also been admitted by the respondent in his cross examination wherein he stated, on oath, as under:--- {{URDU TEXT}}
18. We have considered the evidence produced by the parties at great long and have come to the conclusion that the petitioner (wife) has established h case. The re-appraisal of the evidence by us has also led us to' the same conclusion, and we hold that Rs,2,00,000 + Ornaments weighing 5 tolas of gold was in fact fixed as the "dower" at the time of Nikah when Kabin Nama Exh.P.W.1/1 was duly executed by the respondent. We are therefore of the opinion that the findings of the trial Court are correct and that the Additional District Judge has miserably failed to appreciate/evaluate the evidence produced by the petitioner in this respect.
14. Moreover when the respondent was examined as D.W.1 he ha' admitted:---
15. Since the petitioner-wife was not paid the prompt dower, on demand therefore, she had every right to live separately, from the respondent (husband and claim maintenance for herself as well as for her children.
16. It would therefore follow that the petitioner (wife), along with h children, is entitled to get a decree for the recovery of dower as well past/future maintenance. The Additional District Judge-IV, Peshawar, in the circumstances, was not justified in reversing the findings of the lower Court Since the decision of the Additional District Judge is based on misreading/no reading of the evidence and has resulted in the miscarriage of justice, the same cannot, therefore, be sustained.
21-A. Resultantly, this writ petition is accepted and the impugned judgment recorded by the Additional District Judge on 13-10-1993 is set aside and that of Judge, Family Court, dated 11-12-1993 restored with no order as to costs.