2003 PLP 884 (YLR)

(iv) Exh.P.1 was not relied upon and could not be produced in evidence in view of section 7(3) of Family Courts Act.

5. Arguments heard, writ petition and the Annexures appended therewith perused.

6. Adverting to the arguments of the learned counsel for the petitioner it may be observed that in the impugned judgment Family Court has held respondents Nos.2 and 3 as minors on the basis of the following documents:‑ (i) Exh.P.1, age certificate issued by M.S., D.H.Q. Hospital, Lodhran on 23‑1‑2001 on the basis of radiological examination of Muhammad Bilal. According to this document age of the said boy was between 13 and 14 years as on 23‑1‑2001. (ii) Exh.P.2 certificate issued by Head master, Government High School according to which date of birth of Muhammad Iqbal is recorded in the school register as 15‑12‑1990 which means that at the time of institution of suit his age was less than 10 years. (iii) Exh.P.3 a compromise deed between the parties wherein age of the said respondents is respectively stated as 10 and 8 years. Copy of this document is not annexed with the writ petition.

7. The impugned judgment further reveals that document Exh.D.3, which was after remand exhibited as R.1, was not relied upon by the Family Court as its authenticity and genuineness was not proved by producing the original record or the concerned official of the union council to verify the document.

8. According to the learned counsel for the petitioner documents produced by the respondents i.e. ExhS.P.1 to P.3 were not per se admissible in evidence because they were not duly proved and were, therefore, liable to be excluded from consideration whereas Exh.D.3 produced by the petitioner being certified .copy of public record did not require any formal proof under the provision of Qanun‑e‑Shahadate Order, 1984.

9. In the case relied upon by the learned counsel for the petitioner viz. PLD 1992 Karachi 46, it is held that bar contained in section 17 of the Family Courts Act, 1964, excluding applicability of the provisions of Evidence Act, 1872 is not applicable to the provisions of Qanun‑e‑Shahadat Order, 1984 being later in time.

10. With utmost respect I disagree with the said view. Family Courts Act, 1964 was enacted with the object to create a Special Court for the decision of matters mentioned therein; real inquisitional jurisdiction was given to Family Court by introduction of special procedure. Under the said Act, Family Court has to regulate its own proceedings in accordance with the provisions A of that Act and in doing so it has to proceed on the premises that every. procedure is permissible unless a clear prohibition is found in law. When the circumstances so demand, Family Court can exercise its own power to prevent the course of justice being deflected from the path.

11. Adopting, the view expressed in the aforesaid authority, would amount .to repealing of section 17 of Family Courts Act. which is reproduced as under.:‑‑ "Save as otherwise expressly provided by or under this Act, the provisions of Evidence Act, 1872 and Civil Procedure Code, 1908 (except sections 10 and 11) shall not apply to the proceedings before any Family Court. "

12. From a plain reading of the section intention and purpose is clear viz. that provisions of the law of evidence contained in the statute book shall not be applicable to be proceedings before any Family Court.

13. Family Court Act was enacted in 1964 and at that time existing law of evidence was known as Evidence Act, 1872, therefore, the same was mentioned in section 17 (ibid).

14. Qanun‑e‑Shahadat Order, 1984 which is by and large verbatim reproduction of Evidence Act, 1872, being subsequent legislation could not be anticipated in 1964 during the enactment of Family Courts Act.

15. Since the purpose, object and intention behind section 17 of the Family Courts Act was to exclude the application of the law of evidence to the proceedings before any Family Court, it is, therefore, immaterial, if later on, law of evidence was repealed and replaced by Qanun‑e‑Shahadat Order, 1984. In my humble view bar contained in section 17 of the Family Courts Act, therefore, applies to the provisions of the Law of Evidence irrespective of the fact if it was amended, repealed and replaced by subsequent legislation and was given another name. As the provisions of Qanun‑e‑Shahadat Order did not apply to the proceedings before Family Court, therefore, mere fact that respondents did not formally prove documents Exh.P.1 to Exh.P.3 was of no legal consequence, particularly in view of the fact that no objection was raised by the petitioner when the said documents were tendered in evidence before the Family Court. Similarly Family Court was not legally bound to accept document Exh.D.3 (copy of register of birth entry) as true and genuine merely because of the fact that it was a certified copy of public record. Family Court could refuse to attach weight to the said document in view of other convincing evidence to the contrary and it could take notice of any material on record in connection with question of controversy between the parties and was legally competent to evaluate that evidence.

16. For its satisfaction, this Court had also directed for the Medical Examination of respondents Nos.2 and 3 for determination of their ages in compliance whereof respondents Nos.2 and 3 were medically examined. E According to the Radiological Examination conducted in Nishtar Hospital, Multan age of respondent No.2, Muhammad Bilal was between 14 to 16 years whereas that of respondent No.3 Muhammad Iqbal was between 13 to, 15 years as on 30‑7‑2002. Suit for maintenance was instituted on 5‑4‑2000. Both the respondents are still minors as they have not attained the age of 18 years.

17. The finding of the learned trial Court to the effect that both the respondents are minors is, therefore, unexceptionable and no illegality was committed by the learned Family Court in not placing reliance on document Exh.D.3 because in view of the evidence produced by the respondents the said document did not appear to be authentic and genuine.

18. Next contention of the petitioner's counsel that affidavit Exh.D.1 and 'Shariat Nama' Mark A were not considered by the Family Court, is without any substance because vide the said documents mother of respondents Nos.2 and 3 undertook that she would not demand maintenance for her minor sons (respondents Nos.2 and 3). Minors were not bound by the said documents not their mother was legally competent to forego or to contract away their rights.

19. Next contention of the petitioner s counsel that issues were not framed regarding age of the minors is without any force because the case was remanded by the Nigh Court for that every purpose and after remain parties were given opportunity to produce their respective evidence whereafter that point was decided by the Family Court.

20. Last submission of the learned counsel for the petitioner was that Exh.P.1 was not relied upon hence it could not have been tendered in evidence in view of section 7(3) of the. Family Court Act. This argument is also without force because the said document was received in evidence by the Family Court without any objection from the petitioner and there is no penal provision in the Family Courts Act for violation of the provisions of section 7(3).

21. In writ jurisdiction High Court cannot assume the role of Appellate Court for arriving at its own conclusion after re appraisal of evidence adduced before the Family Court.

22. Appraisal of evidence is the function of the Family Court which is invested to it with exclusive jurisdiction. Finding of fact recorded by it cannot be interfered with in writ jurisdiction when it is not shown to be based on misreading and non‑reading of material evidence and reasons have been given in support of the conclusions arriving at.

23. For the reasons stated above, writ petition is hereby dismissed. H.B.T./A‑702/L Petition dismissed.