This be considered as admitted case.
2. Brief facts in the instant writ petition are that the petitioner was married with Muhammad Shabbir son of the respondent No,1 on 1-6-1990, husband died on 27-10-1996 and after his death according to the contention of petitioner she was forced to leave the house of her husband and kept the dowry articles with him. According to the settlement arrived at between the parties some articles were returned to the petitioner and the remaining articles were still with the respondent No,1 and for recovery of the same she filed a suit for recovery of dowry articles for R s.4,33,827. Suit was contested, issues were formulated and both the parties filed their affidavits and learned counsel recorded their statements to the effect that they did not cross-examine the evidence of respective sides. Learned Judge Family Court vide judgment and decree dated 27-5-2000 decreed the suit to the extent of Rs,3,94,252 in respect of articles of dowry against the respondents Nos.1 and 2 and dismissed the suit against the respondent No,3. Being aggrieved respondents Nos.1 and 2 filed appeal against the judgment and decree dated 27-5-2000, which too was dismissed vide judgment and decree dated 8-12-2001 on the ground that the court-fee was not deposited within the time fixed by the Court. Writ Petition No,3385 of 2002 was filed, which was disposed of on 14-10- 2002 with the observation that in view of settlement arrived at between the parties and their learned counsel the impugned judgment and decree dated 8-12-2001 was set aside and the case was remanded to the learned District Judge, Sargodha to decide the same within a month. After remand the learned District Judge, Sargodha accepted the appeal filed by respondents Nos.1 and 2 vide judgment and decree dated 11-12-2002 and set aside the judgment and decree dated 8-12- 2001, with the result that suit filed by the petitioner was dismissed hence this writ petition.
3. Learned counsel for the petitioner submitted that judgment and decree dated 11-12-2002 is illegal and without jurisdiction, the decree passed by the learned Appellate Court is against the law and facts proved on record hence, liable to be set aside; that the learned Appellate Court has wrongly upset the judgment and decree of the learned trial Court without adverting to the reasons advanced by the learned trial Court; that findings of the learned Appellate Court to the extent of list B, submitted with the suit, does not fall within the jurisdiction of learned Family Court is not correct as it was the case of petitioner, that articles mentioned in List B were gifted away to the petitioner by her husband, which is part of dowry and findings of the learned Appellate Court that evidence of the plaintiff/petitioner is contradictory is not borne out from the record, rather the affidavit produced by the plaintiff/petitioner in her evidence were never rebutted as the defendant/respondent has not choosen to cross-examine the witnesses, which means that the evidence produced by the plaintiff./petitioner has been admitted by respondents/defendants and the learned trial Court has rightly decreed the suit based on evidence and that evidence was wrongly ignored by the learned Appellate Court. It is established through evidence that after the death of husband of the plaintiff/petitioner she has been turned out from the house of her husband by the defendants and they have also snatched the dowry articles since then she is leading miserable life in the house of her parents, although she had sufficient dowry, which has been usurped by the defendants/respondents illegally and unjustifiably.
4. Learned counsel for the respondents submitted that counter-affidavits were given. Affidavit of Tariq Nazir deposed that he was present in wedding of the spouses in this case and dowry articles given to her through bailiff were the dowry articles which were given as articles of dowry. Affidavit of defendant also deposed that all the articles of dowry were handed over to the petitioner/plaintiff and she has admitted the same, as these were given through Court and suit filed by the petitioner is based on lies. The affidavit of Mst. Fatima wife of Muhammad Shafi also deposed the same and evidence of Abdul Sattar is also to the effect that petitioner has received all the dowry articles. Now this Court is to decide two points:--
(i) Whether articles of "WARI" given by the defendants at the time of marriage to the petitioner are gifts or termed as gift to her and her personal property are recoverable through institution of suit for recovery of dowry articles?
(ii) Whether the deponents of affidavit if not produced before Court to verify that these were given to them, any evidentiary value can be given to such evidence and relied by the learned trial Court?
5. As far as first question whether articles of dowry given by bride-groom at the time of marriage would be the belongings of the wife, section 2(a) of the Dowry and Bridal Gifts (Restriction) Act, 1976 defines:-- "(a) 'Bridal gift' means any property given as a gift before, at or after the marriage, either directly or indirectly, by the bridegroom or his parents to the bride in connection with the marriage but does not include Mehr;
(b) 'dowry' means any property given before, at or after the marriage, either directly or indirectly, to the bride by her parents in connection with the marriage but it does not include property which the bride may inherit under the laws of inheritance and succession applicable to her; ''present' means a gift of any property, not being a bridal gift or dowry, given before, at or after the marriage, either directly or indirectly to either party to a marriage in connection with the marriage or to the relatives of the bride or bridegroom but does not include Neundra and Salami."
The articles of dowry, bridal gifts, presents or all the other movable property are the belongings of bride the husband if deprives her, she has the right to recover all these articles even though the same were given in contradiction of provisions of section 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976, "Masud Sarwar v. Mst. Farah Deeba" 1988 CLC 1546, wife can always recover the articles of dowry and Wari given to her by the bridegroom or bridegroom side at the time of marriage. Even it was held in this judgment that restriction of articles of dowry is repugnant to the Injunctions of Islam. There is no limit on value of bridal gift according to Qur'an and Sunnah excess of Rs,5,000 each. In this judgment the decree regarding recovery of dowry articles and Wari was confirmed. Ghulam Rasul v. Judge Family Court 1991 CLC 1696 it is held that bridal gift given by husband is the absolute property of wife and it could not be snatched away from her.
6. Now the second question whether affidavits without productionof deponent in Court and without giving an opportunity of cross-examination to the other side by the Court will retain any evidentiary value? Zafar Mirza v. Mst. Naushina Amir Ali PLD 1993 Kar. 775, affidavit would have no legal value, if deponent does not make himself available for cross-examination. The facts should be proved by the parties, who pleads its existence. Mere affirmance or denial of a fact in written statement would not be legal proof of fact. Atta Ullah Khan Malik v. The Custodian, Evacuee Property West Pakistan and others PLD 1964 SC 236, The President v. Justice Shaukat Ali PLD 1971 SC 585, Rehmat Ullah v.
Tufail Hussian and others 1987 CLC 792, in this very judgment reliance is put on the ratio of these cases, where it is held that party against whom an affidavit is produced is entitled to have deponent put in witness-box and to cross-examine him. If a deponent is not produced for cross- examination, the affidavit, in such circumstances loses all its force as a probative piece of evidence and cannot be acted upon.
7. Even otherwise the settled principle of primary evidence under the Qanun-e-Shahadat.That primary evidence of a document means the document itself produced for the inspection of the Court and when the document is affidavit the deponent is to appear and verify that he has given the affidavit and then it is the parties' right to cross-examine the deponent of the affidavit in respect of the statement of facts given in the affidavit. With lit production of deponent in Court to verify the affidavit no reliance can be placed on an affidavit, which will remain as a piece of paper and not part of evidence. In this case the learned lower Court did not bother to order the production of affidavit rather in a very care-free way observed that parties do not want to cross- examine the deponents of the affidavits without even directing the appearance of deponents in the Court to verify whether they have given the affidavits or not.
8. Both the learned Courts below committed error of jurisdiction while discussing the affidavits on the record, which were merely the pieces of papers and had no force as probative piece of evidence, as the deponents of affidavits were net produced neither cross-examined or reexamined under the provisions of West Pakistan Family Courts Act, 1964 nor under the provisions of Qanun-e- Shahadat and also in the light of ratio adopted by the superior Court in the judgments cited above the judgment and decree passed by the learned trial Court dated 27-5-2000 and that of the learned Appellate Court dated 11-12-2002 are set aside and the case is remanded to the learned trial Court to decide the same afresh after keeping in view the law and ratio decided by learned superior Court in respect of evidence produced by way of affidavits and decide this case within two months of receipt of this judgment.