' IJAZ-UL-HASSAN, J.--- Muhammad Anwar petitioner, an employee in Police Department, has filed instant Constitutional petition against his wife Mst. Tahira Jabeen and others respondents, with the prayer that judgment and decree of the learned trial Court to the extent of decreeing the suit of respondent No:1 and judgment and decree of the learned Appellate Court, be declared illegal, without lawful authority and of no legal effect and consequently by setting aside the same, the suit of respondent No,1 be dismissed with costs throughout or any other order deemed proper in the matter be passed.
2. Succinctly stating the facts relevant are that the petitioner married his cousin Mst. Tahira Jabeen respondent on 2-3-1996 and Rukhsati took place on 9-3-1996. Out of the wedlock a daughter was born in November, 1997. Unfortunately the married life of the couple did not prove successful due to stated ill-treatment of petitioner. The respondent left the house of the petitioner and started living in the house of her parents. The petitioner has contracted second marriage on 4-9-2000.
3. The respondent No,1 filed suit for the recovery of dower, dowery articles and maintenance allowance for herself as well as of her minor daughter Mst. Sidratul Muntaha, respondent No,2 herein, before Judge Family Court, Peshawar. The suit was resisted and the allegations of the petitioner were denied. The petitioner also instituted a suit for the restitution of conjugal rights. Both the suits were consolidated and out of the pleadings of the parties, necessary issues were framed.
Upon consideration of the evidence adduced by the parties in support of their respective contentions, the learned trial Judge, through judgment and decree dated 3-4-2002 proceeded to hold that defendant-husband is entitled to decree for restitution of conjugal rights on payment of dower, maintenance allowance, dowery articles and on providing separate accommodation to the plaintiff-wife. Having held so, the husband's suit was partially decreed. An appeal was preferred which was entrusted to Additional District and Sessions Judge, Peshawar for disposal. The appeal was dismissed vide judgment dated 24-7-2002 on the ground that the trial Court has properly appreciated the evidence of the parties and no legal defect has been pointed out warranting interference.
4. Mr. Abdus Sattar Khan, Advocate, learned counsel for the petitioner, confined his arguments to the finding returned on Issue No,4 concerning recovery of 14 Tolas of gold and reiterated that the bare perusal of plaint of respondent No,1 makes it manifest that there is no suit filed or prayer made for the 'recovery of the said gold ornaments on account of dower, but both the Courts below, through misreading and non-reading of record, granted decree for the same, which cannot be allowed to remain intact. On the contrary Mr. Muhammadullah, Advocate, learned counsel for respondents Nos.1 and 2 who appeared in Court on pre-admission notice defended the impugned judgments and decrees of the Courts below and prayed for their sustenance.
5. Jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan (1973) is completely discretionary in nature and may be declined in appropriate cases. While exercising Constitutional jurisdiction, this Court has to see, if the Tribunal or Court acted without jurisdiction or in violation of any relevant statute or law and High Court in such cases cannot embark upon a reappraisal of evidence and proceed as if it was hearing an appeal from a subordinate Court. It is the job of Appellate Court to appraise the evidence and same has been done in the instant case, in accordance with law. No irregularity or jurisdictional defect has been pointed out by learned counsel for the petitioner inviting interference of this Court. It needs no reiteration that in writ proceedings, this Court cannot make a reappraisal of evidence led in the suit and come to a different conclusion on question of fact, because such is actually the function of an Appellate Court and this Court cannot take upon itself such a function nor can the present proceedings be regarded a substitute for an appeal, not provided by law. In Mst. Mehmooda Begum v. Chief Settlement Commissioner, West Pakistan and another PLD 1962 Lah. 911, following observations were made:-- "There is a fundamental difference between the power to hear appeals or revisions and the power to issue writs. A Court which is competent to hear an appeal or a revision is competent to set aside the order of a Court sought to be appealed from or revised on the ground that in the circumstances of the case the order was not proper or just but when the question to consider is whether or not a writ should issue, the consideration before the Court has to be whether or not the order against which the issue of a writ is sought was within the jurisdiction of the authority which had passed it, and a writ will not issue on the ground that though the order was within the jurisdiction of the Tribunal of authority which had passed it, the circumstances of the case demanded that it should not have been passed."
6. In the case of Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139 the question was considered at length and it was observed:-- "It is wholly wrong to consider that the above Constitutional provision was 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. 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."
7. Again in Zulfiqar Khan Awan v. Secretary, Industries and Mineral Development Government of Punjab, Lahore and 8 others PLD 1973 SC 530 it was held:-- "Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as without lawful authority. In the instant case, the Tribunal's order was challenged on the ground of being merely erroneous as distinguished from being without jurisdiction."
8. The marriage under Islamic Law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Qur'an and it is for comfort, love and compassion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live within those bounds and if the parties transgress those parameters, they should relieve each other i,e, they may break matrimonial tie with kindness. In the instant case, as stated above, the petitioner-husband has contracted second marriage during the subsistence of first marriage and he is living with his second wife. The petitioner has a daughter from his first wife who is residing with her mother. The dispute between the couple is with regard to 14 Tolas of gold. The husband is reluctant to discharge his liability by way of returning the same to the wife. This conduct of the husband is not appreciatable. In the circumstances, we are not inclined to allow the writ petition and accept the prayer of the petitioner.
9. In view of the above discussion, the writ petition having beenI F found without substance, is hereby dismissed, with no order as to costs.