1. ' The petitioner through this petition under Article 199 of Constitution has called in question the judgment and decree passed by the trial Court on 6-2-2001 and the judgment of Appellate Court passed on 19-9-2001 relating to maintenance of his daughter Baby Mahnoor/respondent Nol.
2. ' Background of the case concisely stated is that the marriage between the petitioner and mother of respondent No,1 was dissolved by way of Khula' on 19-1-2000. The question of maintenance of baby Mahnoor/respondent No,1, however, came up before learned Ilnd Civil and Family Judge, Karachi (South) in Family Suit No,153 of 2000 which was tried and decided on merits allowing maintenance to the respondent No,1 in following terms:--
(i) Past maintenance of minor baby Mahnoor, is granted w,e,f, 12-10-1997 till the date of this judgment i,e, 6-2-2001, at the rate of Rs,2,500 (two thousand five hundred only).
(ii) Future maintenance of baby Mahnoor is granted from the date of this judgment till the date of her marriage at the rate of Rs,5,000 p.m. (five thousand only). A decree be prepared accordingly.
3. The suit of plaintiff stands disposed of with no order as to cost.
4. ' Feeling aggrieved by this judgment and decree both the parties preferred appeals, which were heard and disposed of by common judgment, dated 19-9-2001 whereby the aforementioned order was modified in following terms:-- "I hereby modify the impugned judgment and reduce the amount of Rs,5,000 p.m. On account of maintenance of baby Mahnoor as granted by trial Court and fix the same at Rs,3,000 p.m. From 12- 10-1997 till Baby Mahnoor passes her primary education. Thereafter, Faisal Hanif will be bound to make payment of Rs,4,000 p.m. Towards the maintenance and educational expenses of baby Mahnoor till she complete middle class education. Thereafter, Faisal Hanif will pay Rs,5,000 p.m. Till baby Mahnoor passes her matriculation examination and, thereafter Rs,7,000 till she will marry."
5. ' The contention raised on behalf of the petitioner is that technically the above order is erroneous in that the current maintenance Of Rs,5,000 per month has been modified but the date from which it has been given effect to viz. 12-10-1997, is eventually, the commencing date for past maintenance granted by the trial Court. It is commonly agreed that to the above extent there is a technical error in the order of learned Additional District Judge, which needs to be clarified.
6. ' On merits, learned counsel for the petitioner submitted that the trial Court as also the Appellate Court have allowed maintenance beyond the capacity of the petitioner as he is thriving only on the rent of a shop which has been rented out at the rate of Rs,5,000 p.m. While dealing with this aspect the learned counsel for petitioner on a question put by Court admitted that the petitioner has remarried and he has a son from the second wife. In any manner he did not dispute the legal position regarding entitlement of respondent No,1 to payment of maintenance but he submitted that from his present source of income the petitioner would only be capable to pay Rs,2,000 as current maintenance and Rs,1,500 as instalment towards the past maintenance. It may in this context be noted that learned Appellate Court has taken note of the evidence recorded at the trial that the appellant is dealing with a real estate business and his income may be much more than that.
7. ' Mr. Nooruddin Sarki learned counsel for respondent No,1, on the other hand, contended that the factual aspect of the quantum of maintenance cannot be dealt with in exercise of Constitutional jurisdiction and disputed facts are to be determined by the trial Court or the Appellate Court.
8. The legal position as enunciated by the Honourable Supreme Court in the authorities (i) Shah Jehan v. Syed Amjad Ali 2000 SCM R 88 and (ii) Ghulam Nabi v. Additional District Judge, Jhelum 2001 SCM R 683 is that the High Court in a Constitutional petition while dealing with the factual aspects shall not sit as Appellate Court. At the most the errors and mistakes in the assessment and scrutiny of evidence can be taken note of and if the impugned order on the face of it is perverse and cannot be sustained in the eyes of law the same could be set aside, leaving it again to the trial Court or the Appellate Court to satisfy themselves about the quantum of the maintenance etc. The evidence in the instant case has been duly assessed and no miscarriage of justice has occurred. Even otherwise the point agitated by the learned counsel for the petitioner in this Court does not appeal to mind, for the petitioner claims his entire source of income to be Rs,5,000 from the rent of shop yet he is prepared to pay Rs,3,500 (i,e,. Rs,2,000 + Rs,1,500) per month. It cannot be conceived how he would maintain himself, his second wife and the child from second wife, while, living in Defence Housing Society a posh area from the income of remaining Rs,1,500.
9. Reasonableness in this argument is patently lacking. Indeed, no cogent ground is available to upset the findings of the Appellate Court.
10. In view of the above the petition cannot be entertained as against the findings of the Appellate Court about the maintenance but, however, as already pointed out, on the face of it, the appellate order suffers from technical error which is to be rectified by the Appellate Court itself. The matter is, therefore, remanded to the Court of 3rd Additional District Judge, Karachi (South) for rectifying the impugned order.