2015 PLP 1202 (CLC)

QAISER RASHID KHAN, J.

Through the petition in hand, the petitioner has prayed for setting aside the judgment and decree dated 21-5-2013 of the learned Additional District Judge, Lahor District Swabi to the extent of Issue No.9 and to restore the judgment and decree of the learned trial Judge over the said issue. 2 Precise facts leading to the instant petition are that the petitioner instituted a suit for dissolution of marriage on the ground of khula, recovery of maintenance and dowry articles against the respondent before the learned family court, Lahor, Swabi. On being summoned, the respondent resisted the suit of the petitioner on various factual and legal grounds and keeping in view the divergent pleadings of the parties, the learned trial Judge framed 10 issues. After full dressed trial, the learned trial Judge granted her decree for the dissolution of marriage through khula and partially allowed her other claims. The said judgment and decree was challenged by the petitioner in appeal which was partially allowed and the findings recorded by the learned court on issue No.9 were set aside and accordingly the decree for the recovery of one and a half tolas gold ornaments was granted in favour of the respondent No. 1 against the petitioner. Aggrieved of the judgment and decree of the learned appellate court, the instant petition has been preferred by the petitioner. Arguments heard and available record perused.

3. Since the entire controversy between the parties boils down to a single issue i.e. whether the petitioner had taken one and a half tolas gold with herself while leaving the house of the respondent for her parents house? In this respect, when the petitioner namely Mst. Asma appeared before the learned trial court as PW-1 she rejected the suggestion during cross-examination that she ever took away one and a half tolas gold with herself while leaving for her parents house. However, no question regarding the description/details of the said gold was put to her. Similarly when Faidar Ali uncle of the petitioner recorded his statement as PW-2 in support of the allegations in the plaint, he too, was not questioned viz. one and a half tolas gold. The respondent namely Hirad Ali appeared as DW-2. In his examination-in-chief, he stated that on 20-3-2012 when the father of the petitioner informed her regarding his ailment on phone, the father of the respondent took her to her parents house and at that time she had put on 1-1/2 tolas gold ornaments. However, he himself was not witness to the same. Murad Ali father of the respondent appeared as DW-4. In his examination-in-chief he stated to have taken the petitioner to her parents house and that at that time she had put on her gold ornaments. He however never stated that the same were the 1-1/2 tolas gold ornaments prepared by him or for that matter by his son i.e. respondent No.1 for his wife i.e. the petitioner. The statement of DW-3 who alleged to have prepared the alleged 1-1/2 tolas gold for the father of the respondent and the production of receipt Exh.DW3/1 is of little consequence in the matter as it cannot be ascertained from the available, record that the same were in fact that very gold ornaments which the petitioner had put on when she finally left the house of the respondent for her parents house. The learned appellate court has thus seriously erred in total disregard to the available record while decreeing one and a half tolas ornaments in favour of the respondent against the petitioner. The petitioner rightly feels wronged through the judgment and decree of the learned appellate court which is not sustainable under the law. As a sequel to the above discussion, this writ petition is allowed and accordingly the impugned judgment and decree dated 21-5-2013 of the learned Additional District Judge, Lahor District Swabi is set aside, with no order as to costs. JJK/170/P Petition accepted.