2004 PLP 1713 (MLD)

Mst. Shazia, respondent No.1 was married to Naseer Ahmed, writ petitioner about 8 years back. Out of the wedlock, a son was born who is statedly with the petitioner. The estrangement between the parties resulted in the dissolution of marriage, through Court, on 22-9-2000.

2. Mst. Shazia, respondent then filed on 30-9-2000 a suit for recovery of dowry articles, and, in the alternative, an amount of Rs.56,400.00 as value thereof. The defendant (writ petitioner herein) filed written statement, admitting certain articles of dowry of plaintiff-respondent to be with him, while others were pleaded to have suffered decay with the passage of time. So far as golden ornaments are concerned, the defendant had not given to her any jewellery; rather he purchased for her, and while leaving his house she had -taken away the same. Divergent pleas of the parties gave rise to the framing of as many as six issues. Parties were put to trial. The plaintiff-respondent appeared as P.W.1 and made a detailed statement. She was extensively cross-examined. Similarly, defendant-petitioner appeared as D.W.1 and deposed in support of his version. He was also subjected to lengthy cross-examination. The learned Judge, Family Court, after considering the evidence of the parties decreed the suit of the plaintiff-respondent. In the alternative, a decree of recovery of Rs.40,000, which amount was determined by him as value of the dowry, was passed vide judgment and decree, dated 14-12-2002. Appeal filed by the petitioner against the said judgment and decree has gone by the board vide impugned judgment and decree, dated 12-4-2003 passed by a learned Additional District Judge, Jhang. Hence this Constitutional petition.

3. Learned counsel for the petitioner contended that the impugned judgment of the learned Additional District Judge conspicuously omits any discussion of the evidence produced by both the parties and appreciation thereof. I have gone through the impugned judgment and find that the contention of the learned counsel for the petitioner is not without force.

4. The learned Additional District Judge, although a final Court of Appeal, has not independently re-examined the evidence available on record for arriving at his own conclusion and, to speak with respect, has misdirected himself while holding that the defendant (petitioner herein) had concealed some dowry articles in his written statement and that at the time of evidence he took a "U-turn in excess of his written statement" inasmuch as the averments in paragraphs 4 and 5 of the written statement have not been appreciated in their true perspective. Absence of second appeal ' in family matters has added further responsibility on the appelilate Authority to discharge the sacred trust of administering justice after carefully examining and analyzing every bit ofevidence that has been brought on record by both the parties. Hafiz Khalil Ahmed, learned counsel representing respondent No.1, in the circumstances, frankly conceded that he could not support the appellate decision, and consented to remand of the case for decision afresh. I have, therefore, not touched the merits of the case, lest either party may be prejudiced.

5. For the foregoing reasons, with the consent of the learned counsel for the parties, this petition is allowed, the impugned decision, dated 12-4-2003 of the learned Additional District Judge, Jhang, is declared to be illegal and without lawful authority, consequently the appeal filed by the writ petitioner shall be deemed to be pending, and shall be decided on merits afresh, after affording full opportunity of hearing to the parties and examining the entire relevant material brought on record by them. There shall be no order as to costs.

6. Parties are directed to appear before the learned Appellate Court on 20-11-2003. H.B.T./N-103/L Petition allowed accordingly.