.s*.•

IJIL

BEFORE THE PESHAWAR HIGH COU

ABBOTTABAD

W.P.

1. Liaqat Khan son of Abdul Aziz, Resident of Mc

Dheri Tatokar; Tehsil and DisttHari our

(Petitioner)

VERSUS

Mst Bakhat Bibi (Wakhat Bibi) Doughter of Riasat Khan.

Mst Haram Bibi (Minor) Doughter of Liaqat Khan ,Through

Respondent No .1 / mother Resident of village Gheba Tehsil and

Distt Haripur.

Additional District Judge-ui Haripur.

(Respondents) dtO be iru' EXAMINER

Peshawa( PETITION UNDER ARTICLE 199 OF THE

CONSTITUTION OF THE ISLAMIC REPUBLIC OF

PAKISTAN AGAINST THE CONSOLIDATED

JUDGMENT IN FAMILY APPEAL NO. 17/FA AND 07/FA

OF 2014 PASSED BY THE LEARNED ADDITIONAL

DISTRICT JUDGE III, HARIPUR, WHEREIN APPEAL

OF RESPONDENTS NO 1 &2 WAS PARTIALLY

ACCEPTED AND MODIFIED THE JUDGMENT AND

DECREE OF LEARNED FAMILY COURT HARIPUR TO

THE EXTENT OF RELIEF "ALIF" ,i.e THE VALUE OF

SUIT DOWER HOUSE i.e RS 99/- IS DECREED ,RELIEF

"DAAL" IS MODIFIED AND FURNITURE OR ITS

MARKET VALUE IS DECREED AND RELIEF "RAAY" IS

MODIFIED AND MAINTANCE ALLOWANCE OF

RESPONDENT NO 2 ,IS INCREASED FROM 5% PER

ANNAM TO 35% PER ANNUM.APPEAL OF PETITIONER

IS DISMISSED.

t

Judgment Sheet

IN THE PESHA WAR HIGH CC ABBOTTABAD BENCH.

JUDICIAL DEPAR TMENT

W.P.No.08-A/2016.

JUDGMENT

Date of hearing......06.11.2017..........................................................

Liaqat Khan by Ms. Sobia Gui, Advocate ...... ... ... ... .........

Bakht Bibi by Mr. Zafar Jqbal, Advocate. ...... ... ....

SYED ARSHAD ALL, J:- Through this single judgment,

two separate writ petitions bearing No. 8-A of 2017 and

274-A of 2016 are intended to be disposed of as both the

petitions are between the same parties and are the outcome

of single judgment and decree. Through writ petition No.

8-A/20 16, petitioner Liaqat Khan seeks constitutional

jurisdiction of this court with the prayer:-

"On acceptance of this writ petition for the i?edtobe True copy declaration to the effect that the impugned

EXAMINER

05 DEC consolidate judgment and decrees dated 14.10.2015 in Family appeal No. 17/17A passed by learned respondent No. 3, to the

Peshawar High above mentioned extent and dismissal of petitioner 's appeal are wrong, illegal, against the law ard facts, arbitrary, fanctful, perverse, without lawful authority, without jurisdiction, based on no evidence, ultra vires, hence liable to be struck down"1

While through writ petition No. 274-Al

2016, petitioner Mst. Bakht Bibi prays that:-

"Under the circumstances, it is respectfully prayed that on acceptance of the instant writ

7

petition the impugnedjudgments and decrees of respondent No. 2 & 3 may kindly be modmed and suit of the petitioner be kindly accepted as prayed for. Any other relief which this court may deem fit in the interest of justice may kindly be granted to the petitioner."

2. Brief but essential facts of the case are that

Mst. Bakht Bibi alias Wakht Bibi (hereafter referred to as

plaintiff) filed Family Suit No. 125/17C of 2011 against

Liaqat Khan (hereinafter referred to as defendant) for:-

"A: Possession of dowered house detailed in the heading ofpiaint. B: Recovery of 08 tolas gold ornaments as dower or market value thereof along with Rs. 4990 1/- cash amount ofremaining dower. C. Recovery of 05 tolas gold ornaments belonging to plaintiff as her dowry. D: Recovery of dowry articles as per list annexed with the plaint or market value thereof E. Recovery of maintenance allowancó of plaint ?ff No. 1 from September, 2007 till institution of suit at the rate of Rs. 2000/- per month and future maintenance allowance at the rate of Rs. 4000/- per month. F: Recovery of Rs. 35000/- as expenses incurred upon birth of minor plainiWNo. 2. G. Recovery of maintenance allowance of minor plaint jff No. 2 at the rate of Rs. 5000/-per month from her birth i.e. 22.04.2011 till institution of the suit and future maintenance at the rate of Rs. 7000/- per month.

According to averments of plaint, the marriage

between the parties was solemnized in the year 2007 in lieu

7

of dower of Rs. 50,000/- out of which against Rs. 99/- half

share in the house was transferred to the plaintiff. Besides,

it was also said that 08 tolas gold ornaments would

4,

3

additionally be given to her, which are still outstanding. At

the time of Rukhsati, the parents of the plaintiff also gave

dowry articles according to the list along with 5 tolas gold

ornaments which are in possession of the defendant. Soon

after the marriage, the defendant started torturing the

plaintiff and after six months of the marriage, she was

expelled from the house of the defendant. Resultantly,

plaintiff instituted suit No. 227/FC which was later on

withdrawn on the basis of compromise. After that, the

plaintiff rehabilitated with the defendant, however, the

defendant failed to change his attitude and on 26th July,

2010, the defendant and his mother severely tortured her and

expelled her from the house. During the desertion, minor

plaintiff No. 2 was born and the entire expenses of her birth

met out by the parents of plaintiff. The defendant

neither paid any attention nor provided any maintenance.

Thereafter the plaintiff along with minor daughter is living

with her parents and the defendant has refused to accept her

claim.

3. The learned trial Court summoned the

defendant who appeared and contested the suit by filing

his written statement wherein he not only controyerted the

averments of plaint but claimed that the dower of the

dto be True Co EXAMINER

Q5 BEG ZUll

Peshawar

plaintiff was paid and the dowry articles were also taken

51

back by the father of the plaintiff. He ftirther asserted that

minor is not his sibling and that he had divorced the

plaintiff. l'he learned Family Judge, after framing issues

and recording pro and contra evidence, passed following

decree in favour of the plaintiff:-

"Prayer AIjf Stands dismissed.

Prayer Bay: Stands decreed to the extent of Rs. 49901/-, while to the extent of dowered properly stands dismissed.

Prayer Jeem: Stands dismissed

Prayer Daai: Apart from already received items, claim of plaint ¶ No. I stands decreed to the extent ofwashing machine, Dv with its trolley and refrigerator.

Prayer Ha Stands decreed to the extent of maintenance allowance

EXAMIN Rs. 2000/- from September, 2007 till 28.07.2008 and at the same rate from

5 DEc 20 26.07.2010 till expiration of Iddat W&HjQh Cnn,*q'1.,

period.

Prayer K/ta: Stands decreed to the extent of Rs. 15000/-.

Prayer Rey: Stands decreed to the extent of Rs. 2000/- per month from birth of plaintiff No. 2 i.e. 22.04.2011 till today, and onwards @ Rs. 3 000/-per month with 5 % annual increase in future till getting married.

Rest of the claim stands dismissed"

4. Both the parties assailed the judgment and decree

of learned Family Judge, Abbottabad through separate

appeals No. 07ff C and 17/17C of 2015 before the learned

hi

District Judge, Haripur which were entrusted to learned

ADJ-III, Haripur for disposal. The learned Additional

District Judge-Ill, Haripur, vide his consolidated judgment

dated 14.10.2015 decided both the appeals in the

following manner:-

"In the light of my above detailed

issue-wise discussion, appeal No. 1 7/FC

titled Mst Bakht Bibi Vs Liaqat Khan is

partillay accepted by deciding issue No. 2

and additional issue in positive and issue No.

12 in negative, impugnedjudgment an decree

of learned judge Family Court is moc4fied to

the extent of

Relief Aif i.e. the value of suit dower house i.e. Rs. 99/-is decreed Relief Daal is modjfIed and plaintiff/appellant is also entitled for dowry furniture or its market value. Relief Ray is also modified and future maintenance allowance of plaint ?ff No. 2/appe1nat NO. 2 is hereby increased from 05 % per annum to 35% per annum. Rest of the prayer in appeal No. I 7/FA stand dismissed with no order as to costs."

Feeling dissatisfied, the parties have filed subject

writ petitions.

4KI.NS. The controversy between the parties before this

Court can be narrowed down to the following issues:-

i. Whether the learned appellate Court has rightly

granted the value of Rs. 99/- in lieu of the dowered

house?

no

Whether the learned appellate court has rightly

disbelieved the relinquishment deed dated

26.07.2008, despite the fact that the defendant has

produced the scribe, marginal witnesses and the

notary public, who attested the said deed?

Whether the findings of both the Courts below while

granting maintenance, dowry articles, expenses to the

plaintiff, are correct?

Whether the increase of 35 % per annum amount

granted to the minor by the learned appellate court is

correct?

6. To address the first question, this Court noted that

the dower was initially fixed in the Nikah Nama as Rs.

50,000/- and 08 tolas gold ornaments and details of the

entire dower have been provided in deeds No. 1532 and

1533 dated 09.02.2007. The execution of Nikah Nama and

DEC 2Uyj o deeds have not been denied by both the parties. The

deed No. 1534 dated 09.02.2007, exhibited as Ex PW-1/1

shows that defendant has undertaken to pay an amount of

Rs. 2000/- as maintenance to the plaintiff, whereas deed No.

1533 Ex PW- 1/2 mentiorthe detail of the dower. According

to this deed, the defendant has given half of the house in lieu

of the aforesaid agreed dower to the plaintiff. However,

valuation for the purpose of execution of stamp paper and

further proceedings was fixed as Rs. 99/-. The learned trial

Court while relying and believing in the documents Ex DW-

1/2 dated 26.08.2008, whereby wife has allegedly received

7

30 tolas gold ornaments, has dismissed the claim of the

plaintiff for dower, whereas learned appellate court while

disbelieving agreement deed dated 26.08.2008 has

allowed/decreed the dower amount as mentioned in Ex PW-

1/2, however, has misconstrued the contents of Ex PW- 1/2.

According to this document Ex PW-1/2, the husband has

transferred his share (half of the house) to the plaintiff in

lieu of the dower i.e. Rs. 50,000/- and 08 tolas gold

ornaments, however, at the bottoffi of the deed a value of Rs.

99/- has been given for the purpose of execution of the deed.

The same appears to avoid the consequences of the

7EL-

to Copy compulsory registration as under the provision of Transfer

Act and Registration Act, a deed whereby the

property valuing more than Rs. 100/- is transferred, is

compulsorily registrable. However, it is eyident from the

deed Ex PW-1/2 that half of the house was given to the wife

in lieu of the dower. The learned appellate Court instead of

decreeing the half of the dower house or its market value,

has decreed an amount of Rs. 99/- as the value of the house..

If the interpretation of the appellate Court is accepted then

the same would deprive the wife from her dower which has

been agreed in unequiVocal terms. 1-lence, the only

interpretation, discernable from the bare reading of Nikab

Nama and Ex PW-1/2 is that the husband has agreed to

transfer the half of the house to the wife in lieu of dower.

Hence findings of the learned appellate Court are not

sustainable and accordingly modified to the effect that wife

is entitled to half of the house mentioned in Ex PW-1/2 or

its market value.

I Now moving the seco'd question, whether the wife

has received 30 tolas gold ornaments in lieu of dower house

and has acknowledge the return of furniture to her father.

Perusal of this deed would show that this deed was

witnessed by Ghulam Raza and Jaffar Iqbal and was also

Certi duly notarized by Jjaz Hussain Shah Advocate as Notary

EXAM! Qt0beecopy

Public. The defendant in order to prove this deed has not

05 DEc 2077 Jnly produced the marginal witnesses Jaffar lqbal and

Ghulam Raza as DW-1 and DW-2, but has also produced

Notary Public Ijaz 1-lussain Shah Advocate as CW-1. The

/ scribe of the deed Abid Habib was also produced as DW-1.

From examination and cross examination of the said

witnesses, one can come to the conclusion that despite the

fact that spouses were not in good terms and were litigating

against each other, the wife was not identified by any male

member, i.e. father or brother who are alive. Even CNIC

number of the wife has not been mentioned in the deed. It is

by now sealed principle of law that in cases in which

executant of the document is a Parda Nasheen or illiterate

9

woman notwithstanding the fact that she is knowing to the

beneficiary of the documents and if she denies the execution

of the document, the burden is on the beneficiary to establish

the execution of the document. Although the defendant has

produced all the witnesses relating to the documents but

from perusal of their testimonies, the identity that it was the

plaintiff who signed the documents, is doubtful. Indeed the

identification of a Parda Nasheen or illiterate woman while

executing the document must be established beyond doubt

and court must be vigilant in taking extra care to ascertain

the genuineness of such document. In our society the Parda

Tr Copy T asheen lady does not on her own executes the document EXAMINE

05 DEC. 2 17 elating to her valuable rights unless accompanied by the

PeshawarHihc,t ale member of her family. Even otherwise, from the close Ithorjyprj II..a_

perusal of the testimony of the marginal witnesses and the

Notary Public, it could not be established that 30 tolas gold

ornaments were received by the plaintiff. It is not the

execution of the document which would per-se establish the

contents and transaction mentioned in the document but the

contents/transaction qua payment of consideration of the

document has to be independently established in case the

executor denies the same. Hence the document dated

26.07.2008 and its contents have been rightly disbelieved by

the appellate Court. In "Khawas Khan V. Shabbir

10

Hussain Shah (2004 SCMR 1259)" the august Supreme

Court held:-

"In case of Pardanasheen lady, the party placing reliance upon the document would have to prove execution ofsaid document that the Pardanasheen lady understood the terms of the deed and the deed was read over and explained to her. This Court has also time and again held that in case of illiterate Pardanasheen lady, it must be shown that deed was read over to her and the terms of the same were adequately explained to her and Court has to be cautious to see that the burden is satisfactorily discharged by the party in whose favour the deed was allegedly executed."

EXAMft4ER Copy Similarly, in "Ghulam Muhammad V.

05 DEC2, k Farooq Ahmed and others (2002 SCMR 1801)" it was

k held:-

"It has been held by the superior Courts consistently that in the case of illeterate and Pardanashin lady, the Court should be very careful in recording findings as to the execution of any agreement by her jf she had challenge the same on the ground that it had been obtainedfrom her by fraud."

This view was re-affirmed by the

honourable Supreme Court in "Arshad Khan V. Mst.

Resham Jan and others (2005 SCMR 1589)" in the

manner:-

"This is settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the

ii

transaction as envisaged in Article 127 of Qanun-e-Shahadat 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of properly of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence."

In "Abdul Hameed through L.Rs and others

V. Shamsuddin and others (PLO 2008 Supreme Court

140)" it has been held:-

____________ "In the present case, Mst Halima Bai died

ertifietobeTrne Copy before she appeared in the witness box and EXAMINER none of the two marginal witnesses of the •

U b DEC ithi V sale-deed namely Qazi Mumtaz Ahmed and Qazi Ijaz Ahmed were produced to prove the execution of sale-deed dated 26-2-1969 and the genuineness of transaction of sale in favour of Abdul flamed. The sole statement made by Abdul Hameed, vendee, on oath who was the beneficiary of the transaction, that Ivlst. Halima Jiai, his maternal grandmother having sold the property for valuable consideration, executed the sale-deed of her free wil4 could not be considered sufficient in the facts of the present case to prove the willingness ofMst Halima Baifor transfer of the property and genuineness of the registered sale-deed dated 26-2-1969. The legal character of the document of title must be established through the independent evidence and Courts in such cases ofdoubtful character, must be extra careful to ascertain the genuineness of transaction. The first appellate Court as well as the I-ugh Court in second appeal after detail scrutiny of evidence, have concurrently held thcr% the genuineness of sale allegedly executed by

12

Ms/i Halima Bai was not proved and notwithstanding the presumption of correctness attached with the registered sale- deed, the same being of disputed character, would not be ipso facto considered a valid document of title. Learned counsel for the petitioners without satisfring us that the concurrent findings of two Courts on a pure question offact were suffe ringfrom any legal or factual infirmity, made an attempt to convince us that Ms/i Feroza Khanum having purchased the property in goodfaith, derived title free of any legal defect. We are afraid. Mst. Feroza Khanum having stepped into the shoes ofAbdul Hameed, who was not a lawful owner of the Property, would not get a' better title and we having examined the record with the assistance of learned counsel for the parties, have not been able to take any exception to the legal position and also have not been able to find out any substance in the grounds raised by the learned counsel in support of the present petition for

ertifiecl to be True Cooy interference. The petitioners have not EXAMINER claimed the benefit of section 41 of the

05 DEC 17 Transfer of Property Act and rightly so because Ms/i Feroza Khanum, their

Peshawar High Couct4 predecessor-in-interest having the ulhorized Under Sc: 75 Eyj4Q knowledge of dispute of title of property

between Ms/i Halima liai and Abdul I-lamed purchased the same and notwithstanding the fact that petitioners were in continuous possession of the property as owner, they by efflux of time would not be able to improve their title."

5. Now coming to the third issue, perusal of the

judgment of the learned appellate Court shows that while

arriving to the conclusion, whereby the learned appellate

Court has maintained the findings of the learned trial Court

regarding the expenses incurred on the birth of the child,

maintenance of the wife, and further allowing dowry

13

furniture or its market value to the plaintiff, are based on

correct appreciation of evidence. The same findings are

neither perverse nor the; learned counsel appearing on

behalf of petitioner could point out any misreading or non

reading of evidence by both the Courts below, hence do

not call for any interference by this Court in its

constitutional jurisdiction. It is settled law that concurrent

findings of both the courts below cannot be interfered with

by the 1-ugh Court in its constitutional jurisdiction even if

the same appears to be erroneous, unless the said findings

are based either on no evidence or misreading of evidence.

Lastly coffling to the enhancement of

maintenance of Rs. 3000/- allowed/decreed for the minor.

The learned trial Court has allowed Rs. 3000/- per month

as maintenance for minor with 5% increase per annum, A

4' whereas learned appellate Court in the impugned

judgment hand decree has enhanced the increase of 5% per

annum to 35% per annum, however, the learned appellate

Court has given no reason for the said increase. Neither

the circumstances for the said increase nor financial

position of the defendant/husband has been considered.

Normally, the Courts allow 10 to 15 % increase on the

principle amount of maintenance, keeping in view

be

inflation and financial position. In the circumstances 15 %

14

increase would be sufficient to meet the requirement of the

child. Hence the findings/decree of the learned appellate

Court whereby it has allowed 35 % per annum is modified

and the decree is reduced to 15 % increase per annum on

theprinciple amount of Rs. 3000/- granted as maintenance

for the minor.

7. With these observations, the instant writ petitions

are disposed of accordingly.

Announced Dt06.I1.2017. JUDGE

ertlned to be Tru EXA MINER

I-n I 05 DCL tO

Peshawar High Cou4 Ithorized Under Sc: 7'5Ev

AJtab/

Justice Sycd Ar.shad .4/i