P L D 2005 Peshawar 89 (PLP)

Muhammad Anwar Awan for Petitioner. IJAZ‑UL‑HASSAN KHAN, J.‑‑‑Javed Khan petitioner has filed instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking annulment of judgment and decree dated 29‑7‑2004 passed by learned Judge Family Court, D.I. Khan whereby suit of Mst. Fozia Azim respondent for recovery of Maintenance and dower etc. was decreed.

2. Mst. Fozia Azim was married to Javed Khan on 22‑3‑1999. The couple was blessed with a daughter who is presently living with her father. After some time relations between the couple became strained due to stated ill‑treatment of the petitioner which led the respondent to file suit on 18‑2‑2002 in the Court of Senior Civil Judge/Judge Family Court D.I. Khan for recovery of maintenance and dower etc. The allegations of respondent‑wife were repudiated and she was alleged to have left the house of the petitioner‑husband of her own accord. The claim of the respondent‑wife for recovery of dower etc. was also denied and the petitioner‑husband was stated to have paid the same at the time of Nikah. In view of the pleadings of the parties, necessary issues were formulated and pro and contra evidence was recorded. On assessment of the material, learned trial Judge by means of judgment and decree dated 29‑7‑2004 accepted the claim of respondent‑wife and decreed her suit.

3. Mr. Muhammad Anwar Awan, learned counsel for the petitioner‑husband confined his arguments to the claim of respondent wife regarding return of four Totals of gold ornaments and attempted to argue that the dower has already been paid to respondent‑wife at the time of marriage and nothing is outstanding against the petitioner‑husband. He stressed that learned trial Judge has proceeded on wrong premises and misdirected herself to accept the claim of respondent‑wife and allow her suit, totally ignoring the material on record. To augment the contention he invited our attention to the `Nikahnama' of the parties and attempted to argue that petitioner‑husband has already discharged his liability and he has been wrongly burdened to pay dower to respondent wife.

4. We have heard the arguments of learned counsel for the petitioner in the light of material on record.

5. It stands established from the material on record that after marriage, relations between the spouses started deteriorating and ultimately, marital tie was broken when the petitioner‑husband divorced respondent‑wife on 30‑3‑2004. It transpires from the record that at the time of marriage, gold ornaments weighing four Totals were given by the petitioner‑husband to respondent‑wife in lieu of dower which were subsequently taken back by the petitioner‑husband. The statement of respondent‑wife in this respect has remained unchallenged. The learned Judge Family Court has considered the matter from all angles and has come to a correct conclusion that respondent‑wife is entitled for recovery of gold ornaments weighing four Totals from petitioner‑husband. Finding of the trial Court cannot be successfully challenged/assailed in writ jurisdiction unless the Court is found to have exceeded jurisdiction, aced without jurisdiction or findings are shown to have been passed on no evidence. Constitutional petition also does not lie to challenge, an order on the ground that evidence in the case was not correctly appreciated because finding of fact recorded by the Court of competent jurisdiction cannot be disturbed simply on the ground that another view could be possible on the same evidence. High Court in its Constitutional; jurisdiction cannot sit as a Court of appeal and cannot substitute finding of facts recorded by the Court below on such maters. A perusal of the impugned judgment reveals that plausible reasons have been given in support of the conclusion arrived at and no case of misreading or non -reading of evidence has been made out. It needs no reiteration that appraisal or evaluation of evidence usually is not made in Constitutional petition. Such exercise is essentially undertaken by the trial Court.

6. In the result and for the foregoing discussion, finding no merit in this writ petition, we dismiss the same in limine. H. B. T./321/P Petition dismissed.