2021 PLP 108 (YLR)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, petitioner has called in question judgment dated 31.07.2018 passed by respondent No.1/Additional District Judge, Chichawatni whereby judgment and decree passed by respondent No.2/Judge Family Court, Chichawatni was modified by reversing findings on issue No.2 through which the trial court had dismissed the suit to the extent of relief relating to 04-tolas gold ornaments and respondent No.3 "the respondent" was held entitled to receive the same from the petitioner.

2. It has been contended on behalf of the petitioner that the respondent Mst. Asma Noreen while appearing as PW-1 and her father Bashir Ahmad as PW-2 had admitted that soon after the marriage, 04-tolas gold ornaments were given to the respondent in compliance of condition No.17 mentioned in the Nikah Nama, therefore, she was not entitled to receive the same again; consequently, the judgment passed by the learned appellate court to the extent of 04-tolas gold ornaments is not sustainable in the eye of law. Further it is stated that the petitioner does not challenge the decree to the extent of maintenance allowance.

3. The learned counsel for respondent has supported the judgment passed by the appellate court.

4. Heard, record perused.

5. The main dispute between the parties is relating to 04-tolas gold ornaments given to the respondent in terms of Column No.17 of the Nikah Nama which is an admitted fact between the parties. The claim of the respondent is that after one month of giving 04-tolas gold ornaments to her, the same was forcibly taken away by the petitioner whereas the petitioner's claim is that while leaving his house, the respondent had taken away the same with her. It is mentioned in the evidence of the respondent as PW-1 and PW-2 that said 04-tolas gold ornaments were taken away by the petitioner; further that the respondent was ready to reside with the petitioner as his wife in a separate house if he agreed to return the said 04-tolas gold ornaments and other articles belonging to her.

6. Although the petitioner in his evidence has claimed that the respondent had taken away said 04-tolas gold ornaments, however, when the respondent appeared in evidence in support of her aforesaid claim, she categorically admitted that 04-tolas gold ornaments were given to her but further of her own stated that the petitioner had subsequently taken the same away. The petitioner's counsel although confronted her that the part of the statement made of her own was incorrect but she denied the same. No further question was put to her relating to her aforesaid statement to the same effect in her examination-in-chief; therefore, the assertion of the petitioner in examination-in-chief that articles had been snatched away/taken away by the petitioner remained unrebutted and would be presumed to be correct as the same has not been specifically cross-examined. Besides, the petitioner had not proved through any cogent evidence that 04-tolas gold ornaments were still with the respondent. Consequently, the appellate court was justified to reverse the findings on the said issue and decreed the claim of 04-tolas gold ornaments which findings of the appellate court are well-founded and warrant no interference. Besides, finding of fact recorded by the appellate court cannot be set merely on the ground that the same is at variance from the judgment of the trial court unless any misreading and non-reading of relevant record, illegality or jurisdictional defect is pointed out and the same has not been done; consequently, this petition being devoid of merit is dismissed. SA/M-27/L Petition dismissed.