2025 PLP 1273 (CLC)

S M ATTIQUE SHAH, J.

Petitioner, through the instant writ petition, has expressed her grievance against the judgments and; decrees of both the learned courts below dated 11.12.2021 and; 16.02.2023, whereby, her family suit has been concurrently dismissed.

2. Despite proper service, respondents are not in attendance, as such, this court has left with no option but to decide the petition on merits in the light of the available record and; the arguments advanced by the learned counsel for the petitioner.

3. Record unfolds that the petitioner filed a family suit against the respondents for recovery of her dower consisting of four tola gold ornaments, 05 marla constructed house with courtyard and; cash amount of Rs.5000/- on the basis of Kabin Nama / Dower deed No.38 dated 29.01.2011, which was contested by the respondents through filing of their written statement, wherein, they raised various legal and; factual objections and; alleged that only rupees five thousand was fixed as dower of the petitioner and; the same was paid to her at the wedding night.

4. During the course of trial, petitioner in support of her claim appeared herself before the court as PW-1. She deposed that her Nikah was solemnized with deceased Akhtar Alam on 29.01.2011, in lieu of dower consisting of 04 tola gold ornaments, 05 marla constructed house with courtyard and; cash amount of Rs.5000/- and; in this respect, a proper Kabin Nama / Dower deed No.38, dated 29.01.2011 was scribed (Ex.PW-1/1). Riaz Ali, Stamp Vendor appeared before the court as PW-2, who deposed that at the time of nikah, he had issued and; scribed Stamp Paper No.38, dated 29.01.2011 at the instance of deceased Akhtar Alam, whereby, dower of the petitioner was fixed as 04 tola gold ornaments, 05 marla constructed house and; cash rupees five thousand. Further deposed that the dower deed is correct and; was signed by the witnesses and; deceased Akhtar Alam in his presence. He also owns his signature and; stamp as a stamp vendor / deed writer over Ex.PW-1/1. Gul Roz Khan, Wali of the Nikah / marginal witness to the dower deed appeared before the court as PW-3. He deposed that the dower deed (Ex.PW-1/1) was scribed in his presence and; the same correctly bears his thumb impression as a marginal witness. Brother of the respondent namely Hussain-ur-Rehman appeared as PW-4 and; stated to be present at the time of Nikah of her sister with deceased Akhtar Alam, whereby, her dower was fixed as 05 marla constructed house, 04 tola gold ornaments and; cash Rs.5000/- duly mentioned in the dower deed and; he was also present at the time of scribing Ex.PW-1/1 to which besides he, Mushtaq Ahmad (respondent No.1), deceased Akhtar Alam, his uncle Gul Roz Khan and; Maulvi Nazeer Muhammad were the signatories. Riaz Sarwar, Record Keeper, DC Office, Swabi appeared as PW-5, who produced the relevant register showing the issuance of Stamp Paper No.38, dated 29.01.20211 in favour of Akhtar Alam upon which dower of the respondent was entered as 5 marla constructed house, 04 tola gold ornaments and; rupees five thousand cash. Copy of Page # 6 of the ibid register and; certificate are Ex.PW-5/1 and Ex.PW-5/2 respectively. All the PWs were subjected to lengthy cross-examination by the respondents, whereby, they were also questioned about the authenticity and; veracity of the Kabin Nama / Dower Deed (Ex.PW-1/1), however, they failed to extract anything from their mouth beneficial to them. As against that the respondents produced and; examined Gul Zar and; Fazal Nabi, jirga members as DW-1 and DW-5. Jehangir Alam, Respondent No.2 appeared before the court as DW-2 and; stated that the dower of the petitioner at the time of nikah with his deceased brother Akhter Alam was fixed as Rs.5000/-, however, he could not produce any document to substantiate his such plea.

5. Record shows that both the learned courts below have non-suited the petitioner mainly on the point that she has failed to prove the execution of dower deed (Ex.PW-1/1) by not producing its marginal witnesses, however, they ignored the well established principle of law as enunciated in Section 17 of the West Pakistan Family Courts Act, 1964 that the applicability of Civil Procedure Code, 1908 and; Qanun-e-Shahadat Order, 1984 to the proceedings before the Family Courts have been excluded. Such view has also been expressed by the august Supreme Court of Pakistan in the case of Farzana Rasoool1, wherein, it has been held that "Object of exclusion of C.P.C. and Qanun-e-Shahadat, 1984 was to avoid technicalities by providing a short, simple and; speedy methodology for settlement and; disposal of disputes relating to family matters."

6. Even otherwise, it is well settled that statement of the scribe could be considered to be a statement of marginal witness in the circumstances when he appeared before the concerned court and; deposed that the deed / agreement was scribed by him and; thumb impressions and; signatures were put by the parties. Besides, a person who writes a document is as good a witness as anybody else, if he has signed the document as a witness. In the present case, to prove the execution of dower deed (Ex.PW-1/1), the petitioner produced the scribe of the said dower deed as PW-2, who while appearing in the court admitted the execution of the dower deed and; categorically stated that it was signed by the executant namely; late Akhtar Alam and; the marginal witnesses. His statement was supported by PW-3 Gul Roz Khan, attesting witness of the dower deed, who also verified his thumb impression over the same. Such statement of the scribe can be term to be a statement of marginal witness in the circumstances as laid down by the Honourable Superior Courts in Ram Samujh Singh and; Nazir Ahmad's cases.2

7. In view of the above legal and; factual position of the case, this court believes that both the learned courts below have not properly applied their judicial mind while handing down the impugned findings because the evidence adduced by the petitioner for proving her dower deed has not been properly appreciated in its true prospective and; the law applicable thereto, which resulted into grave miscarriage of justice and; as such, the impugned findings cannot be allowed to remain in the field in the given facts and; circumstances of the case.

8. Accordingly, I admit and; allow this petition; set aside the impugned judgments and; decrees of both the learned courts below dated 11.12.2021 and; 16.02.2023, respectively and; consequently, decree the suit of the respondent as prayed for. SA/146/P Petition allowed. 1 Farzana Rasoool v. Dr. Muhammad Bashir (2011 SCMR 1361). 2 Ram Samujh Singh v. Mainath Quer (AIR 1925 Oudh 737) and Nazir Ahmad v. M. Muzaffar Hussain.