2004 PLP 2381 (YLR)

TALAAT QAYUM QURESHI, J.-Through writ petition in hand, the petitioner calls in question the judgment/ decrees passed by the learned Judge Family Court, Peshawar, dated 8-4-2002 and the judgment/decree, dated 8-4-2003 passed by the learned Addl. District Judge Peshawar being illegal and without lawful jurisdiction.

2. Mr. Muhammad Ali, Advocate the learned counsel representing the petitioner argued that the petitioner was married to respondent No.1 on 1-2-1990 and respondent No.2 was born out of the wedlock. Due to strained relation respondent .No.1 filed suit for recovery of dower, maintenance for herself and for the minor child. The learned trial Court fixed Rs.2000 for respondent No.1 and Rs.1000 per motet for respondent No.2. On appeal filed by the petitioner the maintenance allowance for respondent No.1 was reduced from Rs.2000 to Rs.1500 P.M. till the expiry of "Iddat" period of by the learned Addl. District Judge, Peshawar because during the pendency of the appeal she had been divorced by the petitioner. The petitioner was working privately in a shop and has very meagre source of income, hence unable to pay the huge amount of maintenance fixed by the learned Appellate Court. 2-A. The arguments of the learned counsel for the petitioner has no force because in the case in hand there is nothing available on record to indicate as to what income was derived by the petitioner from the shop where he was serving. It was his duty to have brought evidence that his monthly income was very meagre and he was unable to pay Rs.2500 i.e. Rs.1500 to respondent No.1 till expiry of the "Iddat" period and Rs.1000 per month to respondent No.2.

3. The petitioner during his cross-examination admitted that since respondent No.1 left his house, he did not pay any maintenance either to her or to his minor daughter, respondent No.2. The Courts below after appraisal of evidence have concurrently come to the conclusion that the petitioner is liable to pay maintenance to respondents Nos.1 and 2.

4. So far as the quantum of maintenance fixed by the learned Appellant Court is concerned, in exercise of our extraordinary jurisdiction under Article 199 of the Constitution we cannot correct the errors of fact committed by subordinate Court during the proceedings of a Family case and for that purpose adequate machinery has already been provided by relevant law by way of appeal. When the appropriate remedy has already been utilized by the petitioner and the learned Appellate Court has reduced the amount of monthly maintenance for respondent No. the controversy must come to an end. If the law provides no further remedy to the aggrieved party, finality must attach to the judgment deciding the controversy one way or the other. In our view the Courts below have correctly determined the maintenance amount. In exercise of our Constitutional jurisdiction we ill not be able to substitute our own findings even if other view on re-appraisal of evidence was possible. Wisdom in this regard has been sought from:- (1) Abdul Wali Khan through L.Rs. v. Muhammad Saleh (1998 SCMR 760), (2) Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCMR 859), (3) Siraj Din and 17 others v. Member Judicial Board of Review Punjab (2003 MLD 772), (4) Ghazanfar Abbas, v. Additional District Judge Jhang and 3 others (2001 YLR 644), (5) Muhammad Rafi v. Attaullah Kausar (1993 CLC 1364), and (6) Ishfaq-ur-Rehman v. District Judge and 2 others (1998 MLD 3865). Resultantly the writ petition is dismissed in limine. H.B.T./129/P Petition dismissed.