P L D 2012 Peshawar 108 (PLP)

KHALID MAHMOOD, J.-Mst. Rozeena Khattak plaintiff/ petitioner has instituted a suit for recovery of dower amount of Rs.1,00,000/-, on the basis of agreement deed bearing No.628 dated 10-10-1991 and for declaration to the effect that she is owner in possession of plot measuring 2 kanals 4 marlas in khasra Nos.841,842 and 846, on the basis of Iqrarnama No.628 dated 10-10-1991. Respondent No.1 appeared and contested the suit by filing written statement. Learned Judge Family Court-II, Abbottabad after recording pro and contra evidence and hearing the parties vide impugned judgment dated 16-4-2011 decreed the suit of plaintiff/petitioner. Feeling aggrieved, the respondent preferred appeal and learned appellate Court after hearing the parties partially allowed the appeal and while maintaining judgment and decree of trial court to the extent of recovery of dower amount dismissed the remaining claim of plaintiff regarding suit plot vide judgment and decree dated 29-9-2011. Hence, this writ petition.

2. Learned counsel for petitioner contended that respondent No.1 at the time of marriage has gifted out the suit plot in favour of petitioner besides dower amount of Rs.1,00,000/-, which fact has also been incorporated in the nikahnama and the learned trial court rightly decreed the suit in favour of petitioner while learned appellate court on the basis of conjectures and surmises reversed the findings of trial court to the extent of suit plot. It was argued that since findings of learned appellate court are against facts and evidence on record, therefore, liable to be set-aside.

3. On the other hand, learned counsel for respondent opposed the contentions of petitioner and supported the impugned judgment and decree of appellate court.

4. Arguments heard and record perused.

5. Admittedly, at the time of marriage, a nikahnama was executed wherein in column Nos.13 and 16 along with dower of Rs.1,00,000/- a deed No.628 has also been mentioned. In the said deed transfer of suit plot in favour of petitioner as dower besides payment of Rs.1,00,000/- has also been mentioned. The nikahnama has been exhibited as Exh.PW1/1, which respondent also admits it as correct. However, respondent denied the portion of the deed wherein the suit property in lieu of dower of Rs.1,00,000/-has been mentioned. The contention of the counsel for the petitioner was that subsequent entry in the said deed regarding the suit property has fraudulently been added. Respondent's own real brother and sister appeared as D.W.2 and D.W.3, who admitted that a stamp bearing No.628 was scribed at the time of marriage. D.W.2 has stated that said stamp No.628 is available with his brother/respondent. The deed dated 10-10-1991 though produced by the petitioner but was not exhibited during the evidence of the petitioner, however, respondent's real brother and sister did not deny the existing of said deed and stated that the same is available with respondent.

6. Respondent, as per his version, though was in possession of deed No.628, but did not produce before the Court, hence, under Article 129(g) of Qanun-e-Shahadat adverse inference will be drawn that the same was intentionally concealed as if the same was produced; the contention of petitioner would stand proved. In this regard reference can be made to "Nazim Ali v. Rashid Qamar and 2 others" (2006 CLC 289). Even during the course of arguments, counsel for the respondent admitted the contents of the said deed up to the extent of entry regarding -dower amount of Rs.1,00,000/- whereas remaining was denied being fictitious and fraudulent. It is pertinent to note that signature of respondent are available on the next page of the deed where the entire agreement is concluded. Petitioner has produced petition-writer, who verified regarding the issuing of stamp paper to the respondent. It is also pertinent to note that signatures of respondent on the register Exh.P.W.2/1 and on the overleaf of stamp paper of deed No.628 are also available. The signatures on the deed and that of on the nikahnama are similar and both documents are not denied. The learned court below has not appreciated the very deed No.628, which is clearly mentioned in the nikahnama in different column Nos.13 and 16 especially in column No.19, which specifically relates to the document executed at the time of nikah. The same deed is produced by the petitioner whereas respondent though having the same but did not produce, therefore, the deed produced by the petitioner will be presumed to be correct. Family Courts are governed by special law of Family Courts Act, wherein principles of Qanun-e-Shahadat regarding proof of documents in its stricto sensu are not applicable. All the entries in the nikahnama are presumed to be correct. Any document or deed mentioned in the nikahnama though not proved under Article 79 of the Qanun-e-Shahadat, but its existence and production of Stamp Vendor before the Family Court is sufficient to rely the said deed as correct being validly executed.

7. In the facts and circumstances of the case, learned trial court has rightly decreed the suit of petitioner whereas appellate court, on the basis of conjectures and surmises, has wrongly and illegally set aside the findings regarding we suit plot, which are liable to be set aside.

8. Consequently, this writ petition is allowed. Impugned judgment and decree of learned appellate court respecting plot in question is set aside and that of trial court stands restored with no order as to costs. K.M.Z./70/P Petition allowed.