2006 PLP 697 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

The petitioner is aggrieved of a consolidated judgment dated 3-1-2003 recorded by learned Additional District Judge, Ahmadpur East/respondent No.1, whereby three appeals filed by the petitioner against the consolidated judgment dated 29-5-2000 passed by Civil Judge/ Judge Family Court, Ahmadpur East/respondent No.2, were dismissed.

2. The facts significant for the disposal of this writ petition are that petitioner filed a suit for jactitation of marriage against respondent No.3. Mst. Shaista Qadir seeking a declaration that he never married said Mst. Shaista Qadir and that the Nikah Nama dated 11-4-1990 was fictitious and product of forgery, etc. On the other hand, respondent No.3, Mst. Shaista Qadir and her two minor children respondents Nos.4 and 5 filed two suits separately, one by Mst. Shaista Qadir exclusively seeking a decree for recovery of dower, described in the said plaint dated 14-5-1997 (Annex-A) and second by respondents Nos.3 to 5 jointly for obtaining maintenance allowance from the petitioner at the rate of Rs.I,000 per month each, with previous maintenance of four months prior to the institution of the suit dated 31-3-1997. All the three suits were consolidated by learned trial Court/Judge Family Court and proceedings were carried out in suit for recovery of maintenance. The learned trial Court after framing of issues recorded evidence of the parties and ultimately vide consolidated judgment and decree dated 31-5-2000 dismissed the suit for jactitation of marriage filed by the petitioner but decreed both the suits, one filed by Mst. Shaista Qadir (respondent No.3) and the other to the extent of Mudassar Saeed and Mst. Sazia Bibi (respondents Nos.4 and 5), as prayed for. It was held by learned trial Court in the said judgment that respondents Nos.4 and 5 were entitled to maintenance allowance at the rate of R.400 per month each from the date of institution of suit and that Mst. Shaista Qadir respondent No.3 was also entitled to a decree for recovery of dower to the extent of 32-Kanal agricultural land, 1/2 share in brick-kiln and five tolas of gold ornaments. Against the said judgment of the learned Judge Family Court. the petitioner filed three separate appeals but the same were dismissed by learned Additional District Judge, Ahmadpur East vide judgment dated 3-1-2003, hence this writ petition.

3. Before proceeding further to decide this writ petition on merits, I would like to express my displeasure and dismay over the defamatory, rather malicious language used by the petitioner, not only in the plaint filed by him in suit for jactitation of marriage but also in the written statement which he filed in both the suits of respondents Nos.3 to 5 and the same under no canon of morality can he appreciated. Reference is made to the following relevant inscription:- The above language used by the petitioner against Mst. Shaista Qadir respondent No.3 and her mother is not only uncalled for and unwarranted but has no relevance at all and to me it constitutes defamation per se, therefore, besides leaving the same at the discretion of Mst. Shaista Qadir or for that matter her mother to sue the petitioner for defamation, I A would also like to burden him with special costs in terms of section 35-A, C.P.C. for wrongly and falsely denying his matrimonial ties with respondent Mst. Shaista Qadir, especially after the institution of suit for maintenance by respondents Nos.4 and 5 and also abortively denying their paternity unnecessary stigmatizing their names which, though not proved, yet may be harmful to their future life. As such by following the law declared by Honourable Supreme Court of Pakistan in the case "Muhammad Akram v. Mst. Farman Bi" PLD 1990 SC 28, I am satisfied that this is a fit case where the petitioner must be burdened with compensatory costs in terms of section 35-A, C.P.C. and apart from dismissing this writ petition on merits for the und' r mentioned reasons, I also burden the petitioner with special costs of Rs.10,000 which the respondents Nos.3 to 5 would be entitled to recover from him as a decree of Civil Court, by filing execution proceedings in the trial Court.

4. So far as merits of the writ petition are concerned, it has been contended by Raja Suhail Iftikhar, Advocate learned counsel for the petitioner that respondents Nos. 1 and 2 while passing the impugned judgments tailed to look into the evidence produced by the petitioner, both oral as well as documentary, as such the said judgments suffer from misreading and non-reading of evidence. It is further argued that Mst. Shaista Qadir respondent No.3 failed to prove her Nikah with the petitioner and that Nikah Nama produced by her was result of forgery and fraud.

5. On the other hand, Mr. Shabir Ahmad Afghani. Advocate learned counsel representing respondents Nos.3 to 5 has vehemently opposed this writ petition by arguing that as both the Courts below haverecorded findings of fact about existence of a valid marriage between the petitioner and respondent No.3, valid paternity of respondents Nos.4 and 5 and that findings of two Courts below being concurrent, writ petition was not maintainable, as this Court while sitting in constitutional jurisdiction does neither sit as an Appellate Court over the findings of fact recorded by two Courts below nor can enter into factual controversy on the question of factum of marriage as well as paternity of respondents Nos.4 and 5 and cannot substitute/record its findings for the findings of fact arrived at by a competent Court. To support his contention, the learned counsel has placed reliance on the case "General Manager, Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v. Farhat Iqbal PLD 2003 SC 952 and Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415.

6. I have considered the arguments of learned counsel for the parties with reference to the record and case-law cited by them.

7. Admittedly, the two Courts below concurrently held existence of a valid marriage between the parties and birth of both the minors i.e. respondents Nos.4 and 5 out of the said wedlock, after appraisal of evidence in minute details. As the same do not suffer from any misreading or non-reading of evidence, rather are supported by the evidence, oral as well as documentary, the same are therefore, immune from interference by this Court while sitting in constitutional jurisdiction. Even, as argued by learned counsel for the respondents and rightly so, that this Court while exercising writ jurisdiction does not sit over the findings of Tribunals being not a Court of appeal or revision nor can even appraise evidence to substitute its findings with the findings of facts recorded by Courts below. Similarly, it is an established principle of law that a person coming to the Court with unclean hands cannot invoke constitutional jurisdiction of this Court, which is not only discretionary but also cannot be exercised in retention of ill-gotten gain or where the grant of relief is immoral, unfair, etc., as held by the Honourable Supreme Court of Pakistan in Syed Raunaq Ali's case PLD 1973 SC 236 and "Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others" PLD 2001 SC

415. By falsely denying his marriage with respondent No.3, after begetting two children i.e. respondents Nos.4 and 5 and also after the institution of the suit by said respondents for maintenance, it does not lie in the mouth of the petitioner to seek an equitable relief from this Court. Although the monthly maintenance allowance fixed by the learned trial Court at the rate of Rs.400 per month each, is too meagre to meet the present day economic constraints yet since the same has not been challenged by the respondents, therefore, I do not want to disturb the same, otherwise, circumstances of this case so warrant that I would have raised the said amount to a maximum extent of Rs.2000 per month for each minor.

8. For what has been discussed above, I find no merit in this writ petition which is dismissed as such with special costs as detailed in pra.3 above. F.M./S-520/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.