2011 PLP 766 (MLD)

IMAM BUX BALOCI, J.

The petitioner in his petition has prayed as under: (i) To set aside impugned order dated 19-6-2010, with directions to the respondents Nos.2 and 3 to appoint an honest Investigating Officer in Crime No.366 of 2010 under sections 506, 380/34, P.P.C. registered at Police Station Sir Syed. (ii) To pass direction to the respondent No.2 to take departmental legal action against the respondent No.4, who daringly ignored order of respondent No.2 vide Letter No.DIGP/OPS/WZ/R-11/43230/18-6-2010.

2. The petitioner in his petition has stated that he has lodged F.I.R. No.366 of 2010 at Police Station Sir Syed Karachi under sections 380, 506/34, P.P.C. He further stated that the police after investigation submitted Final Report under section 173, Cr.P.C. before Vth Civil Judge Judicial Magistrate, Karachi Central as "C" Class. The learned Magistrate after perusing the relevant record passed final order under section 173, Cr.P.C. and approved the recommendation of Investigating Officer. The main thrust of learned counsel for the petitioner was that the Magistrate has not considered true aspects of the case and only relied upon the recommendations of Investigating Officer and passed the impugned order.

3. We have heard learned counsel for the parties and have perused the record.

4. It appears that the petitioner has assailed the order passed under section 173, Cr.P.C. in this constitution petition. The proceeding under section 173, Cr.P.C. are of administrative nature and could be challenged before this court by invoking inherent jurisdiction of this Court under section 561-A, Cr.P.C.

5. A Division Bench of this Court in case of Soofi Abdul Qadir v. The State (2000 PCr.LJ 52) has observed as under:-- "

10. We now revert to the nature of the order passed by Executive Magistrates in such eventualities and whether such order is revisable by this court in exercise of revisional jurisdiction in terms of sections 435 and 439, Cr.P.C. This question came up before a Full Bench of the Supreme Court in Bahadur v. State PLD 1985 SC 62 in which it was authoritatively laid down that though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. It was rule that the party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. On such assessment Supreme Court concluded, that these peculiarities establish beyond doubt that in so concurring with- a report submitted under section 173, Cr.P.C, he does not function as a criminal Court. With reference to treatises on Justice and Administrative Law by different well-known authors, Supreme Court expressed the view that some of the powers of the Magistrate are administrative, executive or ministerial and he discharges these duties not as a Court but as a "persona designate". This view was followed in Arif Ali Khan v. State 1993 SCMR 187 and Muhammad Sharif v. State 1997 SCMR 304 which was also referred in the latest case of Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503. Ratio decidendi in all the cases appears to be that since the Magistrate while concurring with a police report submitted under section 173, Cr.P.C. does not act as a Criminal Court inferior to. the Court of Session and the High Court, his order cannot be revised and modified under the provisions of sections 435 and 439, Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. provided the order amounts to abuse of process of Court."

6. Likewise in the case of Muhammad Sharif v. The State (1997 SCMR 304) the Hon'ble Supreme Court has observed as under:-- "

4. Sardar Muhammad Latif Khosa, learned counsel appearing on behalf of the appellants in both the appeals, referred us to the law laid down by this Court in the case of Bahadur and another v. State and another (PLD 1985 SC 62) to contend that the High Court does not have the jurisdiction to quash the orders of a Magistrate concurring with the police report submitted under section 173, Cr.P.C., discharging the accused and cancelling the criminal case. The ratio deducible from the precedent case of Bahadur supra is that though a Magistrate in cancelling a registered criminal case is required to act judicially, in that, he has to act fairly, justly and honestly, a duty common to the exercise of all State powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself funcus officio. On the contrary, he is quite competent to entertain and deal with such a complaint on material presented to him. The prosecution enumerated above establish beyond any doubt that in interest so occurring, was conditional or did not fall within the meaning of actionable claim was a property and transferable as such

Constitutional petition was dismissed by High Court. PLD 2007 Lah. 515 ref. (b) Constitution of Pakistan

Art. 199

Constitutional jurisdiction of High Court

Scope

Concurrent findings of two courts below could not be interfered with in the constitutional jurisdiction of High Court until and unless, there was any illegality, infirmity, misreading/non-reading of evidence or jurisdictional error. Ms. Najma Rashid for Petitioner. Chaudhry Ali Muhammad for Respondent No.1. Rana Mukhtar, Secretary Union Council No.268, Faisalabad for Respondent No.3. Date of hearing: 10th November, 2010. JUDGMENT' CH. MUHAMMAD TARIQ J.

This writ petition has been directed against judgment and decree dated 15-12-2009 passed by learned Additional District Judge Faisalabad who dismissed the appeal and maintained the judgment and decree dated 5-6-2009 passed by learned Judge Fancily Court, Faisalabad.

2. Brief facts of the case as narrated in the Writ Petition are that the petitioner filed a suit for declaration to the effect that he was married with Mst. Snober Perveen/respondent No.1 on 29-3-2000 in lieu of Rs.500 as dower which was paid at the time of Nikah. The rukhsati of Mst. Snober Perveen was effected on 1-8-2003 who lived with the petitioner for about 30 days and thereafter on 31-8-2003, respondent No.1 left the house of the petitioner when he was on his duty. The petitioner approached her and requested to join the petitioner but respondent No.1 demanded Rs.2,00,000 from the petitioner on account of damages which was fraudulently inserted by respondent No.1 in league with Nikah Registrar in Column No.19 of the Nikahnama. On refusal by respondent No.1 to join the petitioner, litigation between the spouses started. The petitioner filed a suit for restitution of conjugal rights while respondent No.1 also filed a suit for the recovery of Rs.200,000 on account of damages. Both the suits were consolidated and ultimately, after framing of consolidated issues and recording of evidence adduced by the parties, the learned trial court vide judgment and decree dated 5-6-2009 decreed the suit of respondent No.1 and dismissed the suit filed by the petitioner. The operative part of the judgment and decree dated 5-6-2009 is reproduced as under;-- "In the light of above discussion on issues, the suit for declaration and permanent injunction titled "Muhammad Zulifqar v. Mst. Snober Perveen and others" is hereby dismissed whereas the suit for recovery of Rs.200,000 as damages according to the column No.19 of Nikahnuma titled "Mst. Snober Perveen v. Muhammad Zulifqar" is decreed. There is no order as to costs."

3. Feeling dissatisfied, the petitioner filed two appeals which were also dismissed vide consolidated judgment dated 15-12-2009 passed by learned Additional District Judge Faisalabad. The relevant para of the judgment dated 15-12-2009 is reproduced as under: "The crux of above discussion is that I could not find any misreading or non reading of evidence by the learned trial court while disposing of both the suits through impugned judgment and decree. The appellant/plaintiff could not show any justification or reasonable ground for setting aside the impugned judgment and decree. Resultantly, both the appeals being devoid of any force/merits stand dismissed, leaving the parties to bear their own costs." Hence this writ petition.

4. Learned counsel for the petitioner inter alia contends that the learned courts below have ignored the factual controversy between the parties. Respondent No.1 has failed to prove her case against the petitioner. There are illegalities and irregularities in the impugned judgments and decrees passed by both the learned courts below. The learned Judge Family Court had no jurisdiction to entertain the suit for recovery of damages on behalf of respondent No.1 as the suit for recovery of Rs.200,000 on account of payment of damages was not proceedable before the learned Judge Family Court. It was only proceedable in ordinary civil suit. The entry of amount of Rs,200,000 in the Nikahnama could not be termed as the property of the wife as it was not yet her property, rather she had just a claim to recover the amount from the husband on the basis of special condition incorporated in the Nikahnama. Such claim could not be equated as a personal property belonging to the wife. The amount in question was also not covered under the rule of actionable claims as envisaged by section 130, Transfer of Property Act. In the circumstances, the Family Court had no jurisdiction in the matter and the suit in this behalf was not competent. In support of his contentions, learned counsel for the petitioner has relied on PLD 2007 Lahore 515.

5. Conversely, learned counsel for respondent No.1 has vehemently opposed this writ petition and has contended that the claim of the lady by all means falls within Item No.9 of Schedule read with section 5 of West Pakistan Family Court Act, 1964. Both the learned courts below have rightly disagreed with the petitioner. There are concurrent findings of fact against the petitioner which could not be interfered in the constitutional jurisdiction of this Court, therefore, the writ petition be dismissed.

6. Arguments heard. Record perused.

7. The petitioner has questioned the validity of order passed by two learned courts below whereby respondent No.1 demanded to recover an amount of Rs.200,000 mentioned in Column No.19 of the Nikahnama. The contention of the learned counsel for the petitioner that the suit for recovery of Rs.200,000 was .not maintainable as it was not yet the property of wife and she only had a claim to recover the amount from the husband on the basis of a special condition incorporated in Nikahnama is misconceived as the matter falls within the exclusive jurisdiction of Family Court because the condition incorporated in Column No.19 Nikahnama is fully supported by the Schedule, Family Court Act, 1964 as amended on 1-10-2002 and by virtue of amendment in Item No.9 shall add, which provides that personal property and belonging to the wife by all means vests in the respondent lady with the right to bring an action against the petitioner to claim the said amount upon proof that she was divorced without any reason attributable to her. This being so, the respondent-lady is vested with the right of action and what is termed as actionable claim in the Transfer of Property Act, 1882. At the moment, the said condition became operative, the petitioner became indebted to the respondent lady in the said amount. Even if such debt is beneficial interest so occurring is conditional or not falls within the meaning of actionable claim which is a property and transferable as such. There are concurrent findings of facts by two learned courts below against the petitioner which could not be interfered with in the constitutional jurisdiction of this Court until and unless, there is any illegality, infirmity, misreading/non-reading of evidence or jurisdictional error which could not be pointed out by learned counsel for the petitioner. Hence, no interference is called for.

8. In short, respondent No.1 is entitled to claim Rs.200,000 upon an unjustified divorce which clearly falls within Item No.9 of the Schedule read with section 5 of Family Court Act, 1964. Resultantly, this writ petition having no force is dismissed. No order as to costs. H.B.T./M-628/L Petition dismisse