2010 SCMR 1811 (PLP)

CH. IJAZ AHMED, J.

Petitioner seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 10-4-2009 wherein Constitution Petition filed by the petitioner against the judgments and decrees dated 2-6-2008 and 15-9-2009 passed by the Judge, Family Court and Additional Sessions Judge, respectively, was dismissed.

2. Necessary facts out of which the present petition arises are that petitioner and respondent No. 1 solemnized marriage in accordance with the injunctions of Islam on 19-12-2002 in lieu of dower amount of Rs.10,

000. Rukhsati had taken place on 27-6-2003. The petitioner started living with respondent No.1/defendant No.1 and performing the matrimonial obligations till the departure of the respondent No.1/ defendant No.1 to Canada in July, 2003. The petitioner also left for Canada in October, 2003. The petitioner was divorced on 18-4-2005. Petitioner filed a suit for recovery of dowry articles before the Judge, Family Court, Rawalpindi on 2-5-2006. The contents of the plaint reveal that at the time of marriage the petitioner/ plaintiff was given valuable dowry articles which included golden ornaments weighing 65 tolas, including 13 golden bangles, 9 gold sets, one silver set, 5 Rings, one Bracelet of gold, one diamond bracelet, gold bangles of 4-1/2 tolas from respondent No.1/defendant No.1's mother and Rs. 100,000 cash amount was also given to the petitioner/plaintiff by her parents. The detailed list of dowry articles is also annexed with the plaint. The respondents filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the Judge Family Court framed the following issues:-- (1) Whether plaintiff is entitled to recover dowry articles as per list annexed with the plaint or in alternate their prices? OPP. (2) Whether after decision of the superior Court of Justice in Canada this suit is not proceedable under section 11, C.P.C? OPD. (3) Whether this Court had territorial jurisdiction as cause of action has also arisen in Canada and parties had also reside in Canada?. OPD. (4) Relief The Judge, Family Court, dismissed the suit of the petitioner vide judgment and decree dated 2-6-2008. Petitioner being aggrieved filed appeal in the Court of Additional District Judge, Rawalpindi who dismissed the same vide judgment and decree dated 15-9-2008. Thereafter, the petitioner filed Constitution Petition No.1997 of 2008 in the Lahore High Court, Rawalpindi, Bench, Rawalpindi, which was also dismissed vide judgment dated 10-4-2009. Hence the present petition.

3. The learned counsel for the petitioner submits that in Ontario Superior Court of Justice, Canada, the claim of the petitioner for the return of jewellery was not finally settled, therefore, the petitioner filed a suit for recovery thereof in Pakistan and the learned High Court as also the learned Additional District Judge and the Family Judge proceeding contrary to the record of the Canadian Court refused her claim on the ground that the same had been settled. A perusal of the minutes of a settlement conference (filed at page 49) attended by the parties and their counsel, prima facie suggests that the petitioner was authorized to file a suit for return of jewellery in Pakistan. Under these circumstances, the Court ought to have proceeded on merits to decide the controversy between the parties. 3-A. The learned counsel for the respondents submits as under (i) That matter has been settled between the parties by Superior Court of Justice in Canada vide judgment dated 31-8-2006 wherein the petitioner had forgiven her claims against respondent No.1/defendant No.1. (ii) That document at page 49 of the paper book dated 17-8-2006 was discarded by the Judge, Family Court. Against the said finding of the Judge, Family Court, the petitioner did not challenge the same before the first appellate court as is evident from grounds of appeal. Similarly, she had not agitated the same in the High Court as is evident from the contents of the Constitution petition filed by her in the High Court. (iii) That document in question dated 17-8-2006 is not genuine document. The petitioner did not produce original document. The photo copy of the document is not admissible in the evidence. (iv) The document in question was filed by the counsel of the petitioner before the Superior Court of Justice in Canada on 17-8-2006 whereas the final settlement arrived between the parties by the Superior Court of Justice in Canada on 31-8-2006. (v) That other documents of Superior Court of Justice in Canada which are attached with the petition which contain entries, i.e. Date of Signature, Signature of Judge or Clerk of the Court whereas the document in question does not contain the said entries.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the operative parts from the finding of the Judge, Family Court, Schedule-A and cross-examination of the petitioner while appearing before Judge, Family Court, regarding document dated 17-8-2006 to resolve the controversy between the parties: Finding of the Family Court This witness also produced order dated 17--3-2006, with final minutes of settlement as Exh.P.1. Since learned counsel for the defendants had raised objection on the admissibility of this document, hence it was ordered that its admissibility will be decided later on. Since documents produced by the plaintiff as Exh. P.1 is not properly attended, therefore, it cannot be produced by the plaintiff hence Exh. P.1 is excluded from the plaintiffs/ evidence. During the cross-examination P.W. admitted Exh.D.1 was the copy of her claim which was filed in Canada. She had attended pages. She also admitted it correct that Exh. D.2 was copy of order dated 17-8-2008 of the Superior Court of Justice of Canada. SCHEDULE 'A' Gold Jewelry given as a dowry and gifts to the applicant valued 20,000 CDN and which are not in the applicant's possession but in the respondent's care and control. (1) 11-22 carat gold sets consisting of necklace, ring and ear-rings. (2) Three gold bracelets. (a) Gold and Sapphire (b) Gold and diamond. (c) Gold and Pearl (3) One white pearl set. (4) 19 gold bangles. (5) 6 gold rings. (6) One diamond ring. (7) 2 sets of ear rings (8) Furniture and electronics valued approximately and 5000 CDN. Cross-examination It is an admitted fact that petitioner filed appeal in the Court of Additional District Judge, Rawalpindi. The petitioner has not challenged the aforesaid finding with regard to the document dated 17-8-2006 in the grounds of appeal consisting from grounds A to H. Thereafter, the petitioner filed Constitution Petition wherein she did not challenge the aforesaid finding of the Family Court as is evident from grounds 1 to

9. It is also admitted fact that all the courts below have given concurrent finding of facts against the petitioner that she had settled all her claims before the Superior Court of Justice in Canada. It is also settled principle of law that this Court generally does not interfere in the concurrent conclusions of the courts below while exercising constitutional jurisdiction under Article 185(3) of the Constitution as law laid down by this Court in various pronouncements. See: (i) Khuda Bakhsh's case (1974 SCMR 279) (ii) Muhammad Sharif's case (PLD 1981 SC 246) (iii) Abdul Rehman Bajwa's case (PLD 1981 SC 522) It is also settled principle of law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. All the courts below had come to the concurrent conclusions while rejecting the document dated 17-8-2006. We have also re-examined the said document and compared the same with other document available on record. We are also of the view that the Judge, Family Court was justified to discard the document in question. Keeping in view this aspect of the case we are not inclined to exercise our discretionary power in favour of the petitioner as law laid down by this Court in various pronouncements: See: (i) Wali Muhammad's case (PLD 1974 SC 106) (ii) Raunaq Ali's case (PLD 1973 SC 236) (iii) Haji Muhammad Saifullah Khan's case (PLD 1989 SC 166) Even otherwise there is no substantial question of law arising in this petition. It is pertinent to mention here that the Judge, Family Court excluded Exh. P/I (document dated 17-8-2006) from evidence, this finding as mentioned above was not challenged by the petitioner before the first appellate court as well as before the High Court, therefore, petitioner has no legal right to agitate the same before us as law laid down by this Court in Ashfaqur Rehman Khan's case (PLD 1971 SC 766) and John E. Brownlee's case (AIR 1940 P.C. 219).

5. In view of what has been discussed above, this petition has no force and the same is dismissed. Leave refused. M.H./A-68/SC Petition dismissed.