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Petitioner: BASHIR AHMAD VS Respondent: ATTIA PARVEENHonorable Justice Khawaja Farooq SaeedCh. Nazir Ahmad Ranjha,Mian Shahzad Ali
2009 Y L R 2334
2009 Y L R 2334
[Lahore]
Before Khawaja Farooq Saeed, J
BASHIR AHMAD---Petitioner
Versus
ATTIA PARVEEN and 2 others---Respondents
Writ Petition No.11893 of 2008, decided on 12th November, 2008.
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched. ---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dowry articles---Judgment of Family Court decreeing suit upheld by Appellate Court---Plea of defendant was ,that list of dowry articles exhibited in evidence did not find mention price thereof---Validity---Defendant having accepted at various stages of proceedings existence of articles and its list not be allowed to go back of his words just for reason that no corresponding amount of dowry articles had been calculated---High Court dismissed constitutional petition in circumstances.
Pakistan National Shipping Corporation v. Rent Controller, Lahore and 2 others PLD 1992 Lahore 305 ref.
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition involving factual controversy---Jurisdiction of High Court---Scope---Factual contro versy, unless suffering from jurisdictional error or illegality committed by subordinate Courts, could not be decided in constitutional jurisdiction of High Court.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition against order of Appellate Court---Scope---Legislature by not providing further appeal against order of Appellate Court had given an impression of culmination of issue at such stage---Such impression should not be blurred by using powers under Art. 199 of the Constitution as if same was an appellate jurisdiction---Extraordinary jurisdiction could be exercised only in extraordinary circumstances.
Ch. Nazir Ahmad Ranjha for Petitioner.
Mian Shahzad Ali for Respondents.
ORDER
KHAWAJA FAROOQ SAEED, J-The petitioner seeks indulgence of this Court and issuance of direction for setting aside the impugned judgment/decree passed by learned Civil Judge Malakwal on 29-3-2008 and learned District Judge M.B. Din on 22-8-2008, respectively. Brief facts are that the petitioner married with respondent No.1 about seven years back. The marriage could not continue and a suit for dissolution of marriage was filed. The learned trial 'Court decreed the suit in favour of respondent No.1, the present writ petitioner, on the basis of award of the referee-dated 29-3-2008. The present petitioner filed an appeal, which was dismissed on 22-8-2008. Latter the petitioner also filed an application for registration of the case against the- said referee and consequently F.I.R. No.440/8 has been registered against him. Now on the basis of the said F.I.R., it is stated that the judgments of the two Courts below are a result of non-reading and misreading' of evidence, besides,_ the arbitrator was base and his mala fide stands established by way of registration of a criminal case against him. The petitioner has admitted in its petition that the arbitrator was appointed with his consent, but he however, became partisan hence, his award is based on dishonesty. Furthermore, he misappro priated gold ornaments given to him by the petitioner during the arbitration proceedings. Still further that the Courts have relied upon the Exhibit-C-1 but have not fixed any price which is his opinion makes the order defective. It has been claimed that the respondent's father is a sweeper; hence, there is no question of giving dowery articles as per list produced.
2. The respondents on his turn however, said that the petitioner on 29-3-2008 accepted having received the articles, however, even after accepting the existence of the said articles on the basis of the list he refused to hand it over the same to the respondent. The respondent on the other hand pointed out that the arbitrator was appointed on the proposal of this petitioner. However, later when he proved to be as an unbiased person they became inimical against him. So far as the matter of jewellery is concerned, since it was handed over to the arbitrator as a consideration of the dowery articles, on refusal of the petitioner to hand them over to the respondent as per agreed list, he passed jewellery to the respondent. The respondent accepts having received it and in' fact the F.I.R registered against the arbitrator has been considered as incorrect and the Investigating Officer has already recommended for quashment of the same. Even otherwise the petitioner having once accepted the existence of dowery articles now cannot claim that it was never given.
He is deprived of changing stand after having given consent for the same by his conduct. He referred Article 114 of the Qanun-e-Shahdat Order of 1984. The very salutary principle that after having led the Court to certain thing for benefits of the parties none of them can be allowed to change the same. This has been so referred re: Pakistan National Shipping Corporation v. Rent Controller, Lahore and 2 others (PLD 1992 Lahore 305).
3. So far as the referred case-law is concerned, since the Muslim Family Laws Ordinance is independent in its purview and law of evidence is not strictly applicable, the common principles like the one referred in the above judgment are definitely relevant. The present petitioner having accepted at various stages the existence of the articles as well as list, now cannot be allowed to go back to his words just for the reason that no corresponding amount of the said dowery articles has been calculated. There is, therefore, no reason in the present case for interference. Though the factual controversy like the conduct of the arbitrator is not relevant to the present proceedings, yet even otherwise the facts of the case does not support the version of this petitioner. The F.I.R was registered at the behest of his petitioner while the respondent confirms having received jewellery, which the said arbitrator has allegedly misappropriated. Since there is neither any misappropriation on his part nor it would have any effect on the findings given by the Judge Family Court ` as well as the Additional District Judge. It is a settled principle of law that in writ petition' factual controversies cannot be decided. The same can only be brought into discussion where there is a jurisdictional error or some illegality has been caused by some subordinate Court.
4. The legislature having not provided a further appeal against his order, has given an impression of culmination of the issue at this stage. Obviously this impression should not be blurred, by using the power under Article 199, as if it is an appellate jurisdiction. This extraordinary jurisdiction can only be exercised in extraordinary circumstances which does not exist in this case at all.
4A. This Court, therefore, is not inclined to interfere in any of the judgments, hence, dismiss the petition.
S.A.K./B-25/L Petition dismissed.