2002 PLP 1513 (CLC)

Vide consolidated judgment, dated 26‑4‑2001 respondent No.2, Mr. Faiz Muhammad, Judge Family Court, Sahiwal decreed the suit of Mst. Rukhsana Kausar for dissolution of marriage on the ground of Khula, dismissed her suit for maintenance allowance and also dismissed the suit for restitution of conjugal rights filed by Muhammad Ali respondent No. 1 against the writ petitioner‑Rukhsana Kausar.

2. Rukhsana Kausar filed an. appeal against the said judgment and decree only to the extent that consideration of Khula' determined by the Family Court as 7 Tolas of gold ornaments was illegal as she had not received ornaments weighing 7 Tolas in her dower and prayed that the said consideration for Khula' be set aside and her suit for dissolution of marriage on the ground of Khula' be decreed unconditionally.

3. The learned Lower Appellate Court (respondent No3) Additional District Judge, Sahiwal, vide judgment, dated 13‑9‑2001 dismissed the appeal where-after Mst. Rukhsana Kausar has come up in this writ petition.

4. Mehr Muhammad Altaf Hussain, Advocate appearing on behalf of the writ petitioner had urged that: ‑‑ (i) evidence, was not correctly appraised, entry in the Nikahnama regarding 7 Tolas of gold ornaments was proved to be incorrect by the evidence produced on record, therefore, the impugned judgments suffer from non‑reading and (ii) Court is not competent to impose any condition for Khula', therefore, the said condition is liable to be set aside and (iii) evidence was not recorded by the Family Court but was recorded by its Reader.

5. The appeal was strongly opposed by Mr. Adam Tahirul Qadri, Advocate on behalf of respondent No.

1. During his arguments he had fully supported the impugned judgments.

6. Arguments have been heard, copies of relevant record annexed with the writ petition and original Nikahnama produced by the counsel for respondent No. 1, during the arguments perused.

7. Adverting to the first submission of Mehr Muhammad Altaf Hussain Advocate it may be observed that it is now well‑settled that High Court in exercise of its Constitutional jurisdiction cannot sit, as Court of appeal and cannot reappraise evidence to come to its own independent conclusion, where finding of facts have been recorded by the Courts below after giving good reasons in support of the same.

8. A perusal of the impugned judgment reveals that finding of the Family Court that 7 Tolas of gold ornaments were given on the occasion of Nikah as dower, is based on entry to that effect in the Nikahnama coupled with the testimony of D. W.2 Muhammad Rasheed and D. W.3, Fateh Muhammad. Former is the witness of Nikahnama while the latter is the grandfather of the spouses. Copy of Nikahnama was not annexed with the petition, however, original Nikahnama was produced by the learned counsel for respondent No.1.

9. Mehr Muhammad Altaf Hussain, Advocate counsel for the petitioner, could not point out as to which of evidence was misread or what piece of evidence was overlooked by the Courts below. First submission of the learned counsel for the petitioner is, therefore, without any force.

10. Reverting to the second submission of Mehr Muhammad Altaf Hussain, Advocate it may be observed that according to the issues only two grounds were agitated for the dissolution of marriage viz. option of puberty and in the alternate Khula'. While deciding Issue No.1 , Family Court held that petitioner was major at the time of Nikah, therefore, ground of option of puberty was not available to her and marriage was dissolved on the basis of alternate ground namely Khula'.

11. The petitioner in her appeal did not assail that finding of the Family Court before the First Appellate Court. Marriage was dissolved on the sole ground of Khula' as no other ground for dissolution of marriage was available. In the given situation the Family Court was bound to determine the terms and conditions for C Khula' and in doing so no illegality was committed by the Family Court.

12. Referring to the last submission of Mehr Muhammad Altaf Hussain, Advocate, suffice it to say that the ground that evidence was not recorded by the Family Court but was recorded by its reader was not taken up by the petitioner before the First Appellate Court it cannot be, therefore, agitated in writ jurisdiction when it is specifically denied by, counsel for respondent No.1. Even otherwise writ petition is not maintainable against concurrent findings of facts.

13. For the reasons stated above, the writ petition is hereby, dismissed. H.B.T./R‑139/L Petition dismissed.