Opinion of minor has to be considered if minor was old enough to form an intelligent preference

 PLJ 2012 SC (AJ&K) 26

[Appellate Jurisdiction]

Present: Muhammad Azam Khan, C.J., and Chaudhry Muhammad Ibrahim Zia, J.

ZAINAB BIBI--Appellant

versus

ZAFFAR IQBAL--Respondent

C.A. No. 59 of 2010, decided on 1.12.2011.

(On appeal from the Order of the Shariat Court dated 30.3.2010
in Shariat Appeal No. 58 of 2009)

Guardians and Wards Act, 1890 (VIII of 1890)--

----S. 17(3)--Custody of minor children was welfare of minors--While determining welfare of minor, Court has to consider all circumstances including nearness, kinship of proposed guardian, character and capacity of person proposed to be guardian, prevailing in home, age, religion and sex of minor--Appellant was maternal grandmother of minors while respondent was real father--Question of--Whether in presence of real father, appellant who was maternal grandmother and was of advanced age can be appointed guardian of minor's or custody can be handed over to her--Minor’s were well versed with father and step mother--Handing over to minors to maternal grandmother would not be in interest of minors--Minors appeared to be intelligent enough to form the opinion--Validity--Minors were intelligent enough to form opinion and their opinion could not be lightly ignored when father was financially better and well-to-do a man of status and can afford to give better education as father to his minor son and daughter while appellant maternal grandmother who was lady of advance age, was herself dependent on her sons and daughter-in-law--It would be difficult for her to bring-up the minors--Held: Opinion of minor has to be considered if minor was old enough to form an intelligent preference--Appeal was dismissed.        [Pp. 31 & 32] A & B

2006 SCR 301 and 2000 SCMR 707, ref.

Sardar Muhammad Azam Khan, Advocate for Appellant.

Raja Niaz Ahmad Khan, Advocate for Respondent.

Date of hearing: 28.11.2011.

Judgment

Muhammad Azam Khan, C.J.--The captioned appeal with leave of the Court arises out of the judgment of the Shariat Court dated 30th March, 2010, whereby the appeal filed by the appellant, herein, was dismissed.

2.  The necessary facts for the disposal of the appeal are that appellant filed an application for the custody of minor children, Imran Zafar, aged 6« years and Kainat, aged 3 years and 9 months, in the Court of Guardian Judge, Bhimber, on 1st November, 2008 alleging therein that her daughter, Mst. Shamaila Kausar, was married to Zaffar Iqbal. From the wedlock two minor children, Imran Zafar and Kainat were born. Her daughter died on 29th November, 2007. The minors remained in her custody but the defendant-respondent has taken them with him. He has contracted second marriage, therefore, the welfare of the minors lies in her favour. She requested for the custody of the minors. After being summoned, the defendant-respondent filed written statement and claimed that he, in the capacity of father of the minors, is entitled to their custody as against the plaintiff. He is natural guardian. The minors are studying in a better school. The plaintiff has no source to maintain the minors. He further claimed that the plaintiff demanded return of ornaments and bridal gifts of her daughter which were returned to her. She has no right of the custody of the children. After necessary proceedings, the trial Court dismissed the suit. Feeling aggrieved, the appellant filed an appeal in the Shariat Court. A learned single Judge in the Shariat Court dismissed the appeal vide impugned judgment on 30th March, 2010.

3.  Sardar Muhammad Azam Khan, the learned counsel for the appellant, argued that the judgments of the lower Courts are not maintainable. The respondent has contracted second marriage and in presence of step-mother, bringing up of the minors will not be in a better way. The appellant is real maternal grand-mother of the minors. She has more love and affection with the minors. The father-respondent lives in Lahore in connection with his business while the minors are living with their step-mother in District Bhimber. He further argued that the maternal grand-mother is entitled to the custody of minors as compared to father and the welfare of the minors lies in her. He referred, to the case titled Irshad Begum v. Mirza Muhammad Haleem and another [2003 SCR 318].

4.  Raja Niaz Ahmed Khan, counsel for the respondent, argued that the mother of the minors died on 29th November, 2007. The minor children are in the custody of their father. The son is of 10 years' age while the minor girl is of 7 years age. It is not correct that the father of the minors lives in Lahore. He lives in his native village and has admitted the minors in a reputed English medium school. The appellant is a lady of advanced age of 80 years. She is an illiterate lady and cannot understand the importance of education. Moreover, she has no source to bring up the minors. The learned counsel contended that the father is natural guardian and is entitled to the custody of the minors. Lastly the learned counsel argued that the minors are living with their father after the death of their mother for more than 4 years and they have become so familiar with him that they cannot be handed over to the maternal grand-mother.

5.  We have heard the learned counsel for the parties and perused the record. It may be observed that the prime consideration for the custody of the minors is the welfare of the minors. We have to determine the welfare of the minors in the light of the record prepared by the trial Court. In the trial Court the appellant only filed an application for custody of minors. No supporting document was appended with the application while the respondent filed certification, Ex. PA issued by the Principal' Al-Noor Science Academy, Chapran, District Bhimber, that the minors are studying in the School. This certification was issued on 27th November, 2008. He has also filed a receipt dated 24th June, 2009, whereby Rehmat Khan, father of the deceased, Shamaila Kausar, and Basharat Hussain, her brother, stated that they have received the bridal gifts and ornaments consisting of ear rings, tops and a ring. The appellant produced Liaqat Ali and Raja Ali Shan in support of her case while she herself got recorded her statement. Her two witnesses stated that they live at the distance of 6/7 kilometres away from the house of respondent while they admitted that the respondent has got admitted the children in Al-Noor Academy. The appellant herself appeared as a witness and stated that minors lived with her for 4/5 days after the death of her daughter. The respondent took the children to his house. The respondent has returned the bridal gifts and ornaments of the deceased to her. She further stated that she did not know whether the minors go to school or not. The respondent, apart from two witnesses, himself appeared as a witness and stated that previously he was living in Lahore. Now he is living in the village. The minor children are in his custody and they have been admitted in Al-Noor Academy. The welfare of minors lies with him.

6.  While determining the welfare of a minor, the Court has to consider all the circumstances including the nearness, kinship of proposed guardian, character and capacity of person proposed to be a guardian, circumstances prevailing in his/her home, age, religion and sex of the minor. Although the question of welfare of a minor varies from case to case in the given circumstances. Generally speaking the welfare of a minor includes his moral, spiritual and material well being. While deciding the question of welfare of a minor, the Court shall have the regard to age, sex and religion of the minor. This Court in a case titled Irshad Begum v. Mirza Muhammad Haleem and another [2003 SCR 318] observed as under:--

"10. While appreciating the welfare it has to be seen that the welfare includes his moral, spiritual and material well-being. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor if he or she is intelligent enough to make it."

In another case titled Sughran Bibi v. Akhtar Hussain [2006 SCR 301] it was held as under:--

"..... Consequently the proposition above narrated, keeping in view the facts of this case and the authorities discussed above, can safely be answered by holding that the guidelines provided by the Mahomedan Law are not absolute in nature and while appointing a guardian of the person of a minor her choice cannot be overlooked and that the paramount consideration which has to weight with the Court is welfare of the minor which also includes not only her wel-being but has to be determined keeping in view the surrounding in and outside the house where her father or mother lives.

15. The Courts below have recorded their findings by relying upon a case reported as Shafique-ur-Rehman v. Mst. Fazeelat Begum [1995 SCR 136] wherein it has been held by a division bench of this Court that welfare of the minor would be presumed with the person who is entitled to the custody under the Muslim law and that the Court may refuse to grant custody to the person other than the natural guardian except where strong circumstances justifying to refuse the custody to him are available. Similarly refusal to the natural guardian to maintain the minor would not disentitle him from custody of the minor. In our view this judgment of the Supreme Court runs counter to the law and the case law on the subject as in our view the prime consideration for appointment of guardian is the welfare of the minor which must weight with the Court."

7.  The appellant is the maternal grand-mother of the minors while the respondent is their real father. Whether in presence of real father, the appellant, who is maternal grand-mother and is of advanced age, can be appointed guardian of the minors or the custody can be handed over to her, is an important question particularly when after the death of the daughter of their mother in November, 2007, they are in the custody of the father, and whether it will be safe to remove the minors from present set up and will be in the interest of the minors and in the welfare of the minors or not has to be considered. From the record it appears that the minors are well versed with father and their step-mother. They are studying in the school and it would not be safe to remove them from the present family set up where they are well adjusted and being educated. Handing over of minors to maternal grand-mother will not be in the interest of minors. Similar proposition came under consideration before the Supreme Court of Pakistan in a case titled Mst. Zahoor Ahmed v. Mst. Rukhsana Kausar & 4 others [2000 SCMR 707] wherein it has been observed as under:--

"4. .......In this regard, reference was made to the second marriage of the petitioner and having got two children out of the wedlock. After great deal of the discussion, the learned single Judge in the High Court reached a categorical conclusion that `it would not be safe to remove the minor from his present family set up where he is well adjusted and make him live under the shadow of a step-mother'. The minor was summoned in Court and was examined by the learned Judge himself. The minor informed the learned Judge that he was happily residing with the respondents and did not desire to go over to his father.

8. The whole burden of the case of the petitioner in the two Courts below and in the learned High Court was and is that he is financially better off and well-to-do man of status and can afford to give better education as a father of his minor son and that Respondent No. 1 having contracted second marriage and having got five children from her new marriage was ill-equipped to properly bring up and educate her minor son. This stance of the petitioner is regrettably ill-founded. The learned two Courts below have reached a definite conclusion that so far as financial status of two families is concerned, they are almost equal. The petitioner being abroad earning his livelihood as Labourer cannot possibly be held to be a fit person to hold the custody of the minor indirectly through his own parents. If the minor has to live with the grand-parents the learned Appellate Court and the learned Judge of the High Court found the maternal grand-parents to be more entitled thereto because the minor has developed grand-sons ties with them rather than to the paternal grand-parents. The learned Judge in the High Court has also noted that the petitioner was not interested in the custody and he was pursuing the matter only-as a counterblast to the application for maintenance of the minor filed by the respondents against the petitioner. He also noticed that the minor was being looked after fully and educated by the maternal grand-parents of the minor under the general supervision of his mother."

8.  The respondent-father of the minors, after the conclusion of arguments, informed the Court that he has brought the minors and their step-mother with him. We asked him to produce the minors in the Court. The minors came in the Court with their step-mother. They were well dressed. The Court questioned them. Their attitude was confidence inspiring. On Court question they replied that they are studying in Al-Noor Academy in village Chapran. They have come in the Court with the aunt. Their father lives with them. Previously he was living in Lahore. Now he has the business in the village. Both the minors appeared to be intelligent enough to form the opinion. On Court question they replied that they do not want to go with their maternal grand-mother. They want to live with their father and aunt. In our opinions, the minors are intelligent enough to form the opinion and their opinion cannot be lightly ignored particularly in the circumstances when the father is financially better and well-to-do, a man of status and can afford to give better education as father to his minor son and daughter while the appellant, the maternal grand-mother, who is a lady of advance age, is herself dependent on her sons and daughters-in-law. It will be difficult for her to bring up the minors.

9.  Under Section 17 sub-section (3) of the Guardians and Wards Act, the opinion of a minor has to be considered if the minor is old enough to form an intelligent preference. In case titled Sughran Bibi v. Akhtar Hussain [2006 SCR 301] it was held as under:

"14.  By what has been stated above, we find that in spite of the fact that her mother has contracted second marriage with a stranger, Mst. Yasrah Bibi, on inquiry of the Court has categorically submitted that she desires to live with her mother and doesn't want to stay or go to her father or grand-father. The father has failed to maintain her which culminated into filing of an application for maintenance. The present proceedings are in fact a counter blast to defuse that situation. The economic condition of her mother and father are almost equal. Thus, keeping in view the circumstances of the present case, we cannot brush aside the desire of the minor to stay with her mother."

10.  We have reached to the conclusion that in the light of the record and attending circumstances, the welfare of the minors lies with their father.

The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.

(R.A.)  Appeal dismissed

Custody of Minor Boy of Over 7 Years Age

 PLJ 2006 Lahore 820

[Multan Bench Multan]

Present: Muhammad Jehangir Arshad, J.

Mst. JAMILA BIBI--Petitioner

versus

SHABIR AHMAD and 2 others--Respondents

W.P. No. 5134 of 2005, heard on 19.10.2005.

Guardians and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan (1973) Art. 199--Custody of minor boy of over 7 years--Contest between father and maternal grandmother--Courts below handing over custody of minor to father on sole ground that he had crossed age of 7 years--Legality--Despite specific issue regarding welfare of minor, neither Guardian Judge nor Appellate Court bothered to record findings with reference to evidence of parties to that effect--Custody of minor boy over 7 years of age can only be handed over to father if the same was in welfare of minor--Judgment of two Courts below being violative of law declared by Supreme Court in Sardar Hussain's case (PLD 2004 SC 357) were not maintainable and the same were set aside--Case was remanded to Guardian Judge to pass fresh judgment after hearing arguments of both parties on issue relating to welfare of minor.              [P. 822] A

PLD 2004 SC 357; 1998 SCMR 1593; 1988 SCMR 608 and Muhammadan Law by D.F.. Mulla Para 357, ref.

Arshad Latif, Advocate for Petitioner.

Ch. Khalil Asghar Sindhu, Advocate for Respondents.

Date of hearing : 19.10.2005.

Judgment

Through this Constitutional petition, Mst. Jamila Bibi petitioner has sought annulment of judgment dated 7.4.2005 passed by learned Judge Family Court/Guardian Judge accepting application of respondent Shabir Ahmad moved under Section 25 of the Guardians & Wards Act, thereby directing the delivery of custody of minor Ali Raza from Mst. Jamila Bibi petitioner to Shabir Ahmad; and also the judgment dated 13.6.2005 passed by learned Additional District Judge, dismissing petitioner's appeal against the judgment of learned Guardian Judge.

2.  The facts in brief are that out of wedlock between Shabir Ahmad and Mst. Khalida Parveen, a son namely Ali Raza was born on 12.11.1996. Mst. Khalida Parveen mother of the minor died sometimes in 1997/98 whereafter, the minor remained with his maternal grandmother Mst. Jamila Bibi, petitioner. On 20.12.2003, however, Shabir Ahmad respondent claiming himself to be natural guardian/father of the minor moved an application under Section 25 of the Guardians & Wards Act, seeking custody of the minor on different grounds. The said application was contested by Mst. Jamila and keeping in view the divergent pleadings of the parties the learned Guardian Judge framed the following issues:--

ISSUES:

1.             Whether the welfare of minor lies with the applicant, hence, he is entitled to his custody?

2.             Relief.

The parties led their respective evidence. On conclusion of the trial, the learned Guardian Judge vide judgment dated 7.4.2005 accepted the said application and directed that custody of the minor be delivered to Shabir Ahmad, respondent. Aggrieved against the said decision, Mst. Jamila petitioner filed an appeal which was dismissed by learned Additional Sessions Judge vide judgment dated 13.6.2006. Hence, this Constitutional petition.

3.  It has been argued by learned counsel for the petitioner that neither the learned Guardian Judge/Respondent No. 3 nor the learned Additional District Judge/Respondent No. 2 recorded any findings about the welfare of the minor and both the judgments have been passed on the assumption that on crossing the age of seven years, father automatically becomes entitled to obtain custody, whereas, it is an established law that despite having crossed the age of seven years, in the absence of any specific findings by the learned Guardian Judge about welfare of the minor, custody of the minor could not be handed over to the father, on account of expiry of above mentioned age alone. In support of his contentions, the learned counsel has placed reliance on the case "Sardar Hussain, etc. versus Mst. Parveen Umar, etc." (P.L.D. 2004; S.C. 357) and "Mst. Nighat Firdous versus Khadim Hussain" (1998 SCMR 1593).

4.  On the other hand, Ch. Khalil Asghar, Advocate appearing on behalf of the respondent argues that apart from recording findings on the question of delivery of minors' custody after attaining the age of seven years, the learned Guardian Judge also came to the conclusion that on appreciation of evidence that welfare of the minor lay in favour of Shabir Ahmad, father being his natural guardian. Learned counsel further contends that the judgments cited by learned counsel for the petitioner are distinguishable, inasmuch as, in the cited judgments, the dispute was between the father and mother, whereas, in the present case dispute is between father and maternal grandmother. In support of his arguments, learned counsel for that respondent has placed reliance on the case "Sh. Abdus Salam another versus Additional District Judge, Jhang and 2 others" (1988 SCMR 608).

5.  I have considered the arguments of learned counsel for the parties, gone through the record and also perused the cited case law.

6.  The only question requiring determination in this Constitutional petition is as to whether, without recording any findings about the welfare of minor, the learned Guardian Judge was justified in handing over custody of the minor to the respondent on the sole ground that he had crossed the age of seven years. Despite a specific issue i.e. Issue No. 1 regarding welfare of the minor, neither the learned Guardian Judge nor the learned Additional District Judge bothered to record findings with reference to the evidence of the parties, to this effect and they were mainly persuaded with the provisions of para 357 of Muhammadan Law by D.F. Mulla (Pakistan Edition) entitling the father to obtain custody of a body over seven years of age, whereas the same is not a rule of thumb in view of the law declared by the Hon'ble Supreme Court of Pakistan in the above referred judgment, that custody of a minor boy over seven years of age can only be handed over to the father where it is in the welfare of the minor. I am therefore, satisfied that the judgments recorded by two Courts below being violative of the law declared by the Hon'ble Supreme Court, are not sustainable and are set-aside. Resultantly, this Writ Petition is allowed and the matter is remitted to the learned Guardian Judge/Respondent No. 3 with the direction to pass a fresh judgment after hearing arguments of both the parties in the above terms. Parties are directed to appear before the learned Guardian Judge/Respondent No.3 on 14.11.2005. This being a guardianship matter, the learned trial Court shall try to decide the case as early as possible but not later than 23.12.2005.

(Aziz Ahmad Tarar)      Case remanded

Filing of Appeal during Summer Vacations

 PLJ 2021 Lahore (Note) 74

Present: Asad Munir, J.

AHSAN JAVED--Appellant

versus

ADDITIONAL DISTRICT JUDGE, LAHORE etc.--Respondents

W.P. No. 19674 of 2011, decided on 4.11.2011.

West Pakistan Family Courts Act, 1964--

----S. 17-A--Muslim Family Law Ordinance, 1961, Ss. 9 & 10--Suit for recovery of maintenance allowance and dowry articles--Non-payment of interim maintenance allowance--Defence of petitioner was struck off--Suit was decreed--Appeal--Dismissed being time-barred--Appeal was filed during summer vacations--Challenge to--Additional District Judge wrongly held that petitioner’s appeal was time-barred as was filed during of summer vacations in month of August--In view of section 4 of Limitation Act, 1908, petitioner had two options as he could either file his appeal during summer vacations on any day in August, 2010 or he could file it on 01.09.2010 upon reopening of Courts--Appeal filed by petitioner during summer vacations was within time as it could be filed later on 1.9.2010--Argument that suit filed by respondents no.2 to 4 has been disposed of with regard to other claims made therein is untenable as appeal has been wrongly dismissed as time-barred instead of being decided on merits--Petition allowed.

                                                                                      [Para 3] A & B

Mr. Muhammad Shahbaz Rana, Advocate for Petitioner.

Mr. Muhammad Zaman Bhutta, Advocate for Respondent.

Date of hearing: 15.9.2011.

Order

After the dissolution of the marriage between the petitioner and respondent No.2 on 21.01.2010, a composite suit for the recovery of maintenance allowance for the two minor children, respondents
No. 3 and 4, for the reimbursement of the delivery expenses of respondent No. 4 and for the return of respondent No. 2’s dowry articles, valued at Rs. 1516334/-, was filed on 03.02.2010. Vide order dated 17.06.2010, the learned Judge Family Court, Lahore, allowed Rs. 4000/-.as interim maintenance to each of the two minors which was to be paid by the 14th of every month. The interim maintenance was not paid by the petitioner by 14.07.2010 whereupon vide order dated 16.07.2010 the learned Judge Family Court struck off the defense of the petitioner under Section 17-A of the West Pakistan Family Courts Act, 1964 and also passed judgment/decree dated 16.07.2010 whereby monthly maintenance of Rs. 4000/- has been allowed to each minor with effect from the date of institution of the suit subject to the annual increase of 10%. On 21.08.2010, the petitioner filed an appeal which has been dismissed for being time-barred by the learned Additional District Judge, Lahore, vide his order dated 21.08.2010 which has assailed through this writ petition.

2. Learned counsel while challenging the impugned order has contended that the appeal could not be dismissed as time-barred as it was filed during the summer vacations commencing from 01.08.2010 till 31.07.2010. Reliance has been placed on Fazal Karim and another versus Ghulam Jillani and others (1975 SCMR 452), Habib Bank Ltd throuuh Authorized Attorneys versus Messrs Wisdom Education System (Pvt.) Ltd. and 6 others (2009 CLD 1367), Port Muhammad Bin Qasim versus National Insurance Corporation, Karachi and 13 others (1983 CLC 3126), Shah Muhammad and others versus Muhammad Ashraf (1994 CLC 90) and Ikramullah and others versus Said Jamal (1980 SCMR 375). In response, the only submission made by the learned counsel for Respondents No. 2 to 4 is that the question of maintenance cannot be re-opened by the learned Additional District Judge as no suit is pending now in the Family Court as other claims made in the suit have already been decided.

3. After hearing the learned counsel for the parties, I find that the learned Additional District Judge wrongly held that the petitioner’s appeal was lime-barred as it was filed on 21.08.2010 during the currency of the summer vacations in the month of August. It may be stated that in view of section 4 of the Limitation Act, 1908, the petitioner had two options as he could either file his appeal during the summer vacations on any day in August, 2010 or he could file it on 01.09.2010 upon the reopening of the Courts. Thus, the appeal filed by the petitioner during the summer vacations was within time as it could be filed later on 1.9.2010. The aforesaid legal position is supported by the case law cited by the learned counsel for the petitioner. The argument that the suit filed by Respondents No. 2 to 4 has been disposed of with regard to other claims made therein is untenable as the appeal has been wrongly dismissed as time-barred instead of being decided on merits.

4. For the foregoing reasons, this petition is allowed and the impugned order is set aside with a direction to the learned Additional District Judge to decide the appeal on merits. There will no order as to costs.

(Y.A.)  Petition allowed

Dissolution of Marriage on the basis of Cruelty

 PLJ 2014 SC (AJ&K) 102

[Appellate Jurisdiction]

Present: Ch. Muhammad Ibrahim Zia & Sardar Muhammad Sadiq Khan, JJ.

ABDUL HAFEEZ--Appellant

versus

SHAMAILA BIBI & 2 others--Respondents

Civil Appeal No. 69 of 2012, decided on 24.1.2013.

(On appeal from the judgment of the Shariat Court dated 12.4.2012 in Family Appeal No. 22 of 2010).

Dissolution of Marriage--

----Decree for dissolution of marriage on basis of cruelty, leveling false allegations of bad character, non-payment of maintenance and non-payment of dower--Factor of cruelty was not proved--Validity--For proof of cruelty, infliction of injury is not requirement of law, in matrimonial matters, Courts had always even throated false allegation against wife as cruelty which result into mental torture and loss of mutual confidence.      [P. 106] A

Dower--

----Amount of dower was paid at time of Nikah while remaining amount worth was kept deffered--According to contract of marriage, appellant had to transfer a house comprising of two rooms in name of plaintiff in lieu of deferred dower amount--Appellant had failed to rebut claim of respondent, therefore, plaintiff was entitled to recover deferred amount of dower.        [P. 107] B & C

Dowery--

----Decree of dowry amount--When wife left house of her husband, gold ornaments were snatched but she had failed to prove--Held: Ornaments were in custody of plaintiff, hence she cannot claim recovery from appellant--Shariat Court while granted decree had not acted against law--At time of marriage a list was provided for dowry items--Plaintiff had proved that dowry items were still laying with husband and fact had been proved by herself as well as statements of witnesses produced by plaintiff in Court--Trial Court as well as Shariat Court while passing decree for recovery of dowry had appreciated and concluded matter in its true perspective.  [P. 107] D & E

Sh. Abdul Aziz, Advocate for Appellant.

Ch. Muhammad Manzoor, Advocate for Respondents.

Date of hearing: 9.1.2013.

Judgment

Sardar Muhammad Sadiq Khan, J--The captioned appeal, with the leave of the Court, has been addressed against the judgment and decree of the Shariat Court dated 12.4.2012, whereby the learned Shariat Court accepted the appeal filed by the appellant, herein partly, modified the judgment and decree of Judge Family Court, Muzaffarabad dated 15.5.2010 and granted a decree for dissolution of marriage on the ground of cruelty and non-payment of dower amounting to
Rs. 1,37,000/-. However, the decree of trial Court for recovery of dower amounting to Rs. 70,300/- is maintained. The appeal one; filed by Abdul Hafeez to the extent of restitution of conjugal rights and the appeal filed by respondent, herein, for recovery of maintenance is dismissed.

2.  The summary of facts necessary for disposal of this appeal is that Respondent No. 1, Shamaila Bibi, filed four separate suits; one for recovery of dower, the second for recovery of maintenance allowance, the third for recovery of dowry and fourth one for dissolution of marriage in the Family Court, Muzaffarabad. It is averred that she was married to the appellant in lieu of dower worth Rs. 2,50,000/-, out of which ornaments worth Rs. 1,30,000/- were given to her at the time of Nikah. A house consisting of two rooms was promised to be transferred in her name for remaining dower amount, but the appellant snatched away the ornaments after physical torture and ill-treatment and ousted her from his house. He leveled false allegations of bad character and started to abuse her. He did not provide any maintenance to her and her minor son and also did not pay the expenses of delivery. It is further alleged that she is living with her parents since Dec. 2008 but the appellant didn't return her dowry, therefore, a decree for dissolution of marriage on the basis of cruelty, leveling false allegations of bad character, non-payment of maintenance and non-payment of dower may be passed against him and he may also be ordered to pay expenses for delivery and maintenance allowance to her and her minor son.

3.  The appellant refuted the claims of the plaintiff-respondent by filing written statement. The main objection raised by the appellant is that on demand of loan by his father from the father of Mst. Shamaila, plaintiff-respondent, she was compelled by her parents to leave him and despite counseling by the elite of the family, she did not come back. He has also been paying the expenses of delivery and maintenance.

4.  The appellant, herein also filed a suit for restitution of conjugal rights against Respondent No. 1, wherein it is averred that when his father, Abdul Hameed demanded Rs.2,00,000/- the borrowed money from the father of Respondent No. 1, the plaintiff-respondent forthwith left the house of her husband. It is further averred that despite his best efforts her parents didn't send her back, therefore, a decree for restitution of conjugal rights be passed in his favour. Respondent No. 1, Mst. Shamila Bibi, by filing written statement refuted the allegations and stated that she was ousted from the house by the appellant after ill-treatment. The learned Judge, Family Court consolidated all the suits, framed issues and after necessary proceedings, passed a decree for dissolution of marriage along with decree for recovery of dower amounting to Rs.2,50,000/- and also a decree for recovery of dowry worth Rs.70,300/- in favour of Respondent No. 1, whereas the suit filed by Respondent No. 1 to the extent of maintenance allowance was dismissed and the suit filed by the appellant for restitution of conjugal rights was also dismissed vide judgment and decree dated 15.5.2010.

5.  Feeling aggrieved from the judgment of the Judge Family Court, Muzaffarabad, both the appellant and Respondent No. 1 filed separate appeals before the learned Shariat Court. A learned Judge in the Shariat Court, after hearing the counsel for the parties vide impugned judgment dated 12.4.2012 disposed of the appeals in the manner indicated in aforementioned para 1, hence the instant appeal with leave of the Court against the impugned judgment and decree of the Shariat Court.

6.  Sh. Abdul Aziz, the learned counsel for the appellant, strongly opposed the judgment of the Shariat Court. He contended that neither a single word with reference to cruelty alleged by the respondent against the appellant has been uttered by any one of the witnesses nor anything to prove cruelty has been brought on record before the trial Court but despite this both the Courts below have granted the decrees in favour of respondents which amounts to non-reading and mis-reading of evidence. He further argued that Respondent No. 1, on the one hand alleged that she was beaten and forced to leave the house of her husband, whereas on the other hand, she stated in the evidence that she was in the school and from school she went to her parents' house without informing the other family members. Such a contradiction itself negates the version of plaintiff-respondent. He next argued that if Respondent No. 1 doesn't want to continue the marriage she may get the decree for dissolution of marriage on the basis of Khulla. In the pleadings, she has categorically alleged that she cannot live in the limits ordained by Allah and she hates her husband, therefore, on this ground she may get decree on the basis of Khulla but she is not entitled to get the decree on the basis of cruelty because she couldn't prove cruelty, even none of the appeared witnesses has supported her version. It is further argued that regarding the amount of recovery of the loan borrowed by the father of Respondent No. 1, a `Jirga' was held at the Shrine of Sahaili Sarkar in which the father of Respondent No. 1 offered that he will put the money on Holy Quran and if Abdul Hameed accepts the offer, he shall pay the same but on the certain date he didn't appear. On the same date i.e. on 20.4.2009 another `Jirga' was convened in which Respondent No. 1 categorically refused to live with her husband. She showed hatred towards the husband, which reflects her pre-planned decision to leave her husband and ultimately she left her husband's house and went to the parents on her own choice. He further argued that the Shariat Court as well as the trial Court have granted the decree of dowry to the tune of Rs. 70,300/- which has not been proved by any documentary as well as the oral evidence, therefore, the judgment of both the Courts below are liable to be set aside being contrary to record and law. He lastly prayed that while setting aside the decrees for dissolution of marriage, decree for recovery of dowry and decree for recovery of dower passed by the Shariat Court, a decree for restitution of conjugal rights may be granted in favour of the appellant.

7.  Conversely, Ch. Muhammad Manzoor, Advocate, the learned counsel for the respondents, forcefully defended the impugned judgment and vehemently argued that Respondent No. 1 has categorically mentioned in her plaint that the appellant neither paid dower nor provided maintenance, but the aforesaid averment was not specifically denied in the written statement filed by the appellant and as such this fact has been admitted by the appellant and now he cannot refute the same at this stage. He further argued that the appellant has contracted second marriage. The statements of the witnesses produced by Respondent No. 1 reveal that there is no hope for reconciliation between the spouses and Respondent No. 1 doesn't want to live with the appellant at any cost in the presence of second wife. He next argued that the ground for dissolution of marriage on the basis of cruelty has been proved by Respondent No. 1 through the evidence adduced by her. He further argued that it is not incumbent upon a wife to prove an infliction of injury for showing physical ill-treatment rather if a wife proved that her husband made her life miserable, cruel by his conduct, is a sufficient proof. In such type of case leveling of false allegation of bad character also comes in the purview of cruelty because it results into mental torture and agony, therefore, in such state of affairs, it will be in the interest of justice to dissolve the marriage on the ground of cruelty. In support of his argument, he referred to a case titled Syed Imtiaz Hussain Shah and another vs. Mst. Razia Begum and 3 others [2011, SCR 233]. Regarding the decree of dowry to the extent of Rs.70,300/-, the learned counsel argued that the said amount has been proved through documentary evidence, therefore, the Courts below have rightly granted the decree of dowry. It is further argued on behalf of the respondents that the appellant has not produce even a single witness in the Family Court to negate the version of Respondent No. 1. Neither, he himself recorded with regard to the payment of dower in his plaint nor specifically denied the fact of non-payment of dower in the written statement filed by him in the counter suit. Even the witnesses of Respondent No. 1 have also not been cross-examined on this point. If the statement of a witness is not challenged in cross-examination, the same is considered to have been admitted by the opposite side as is held in a case titled Abdul Latif vs. Safarish Ali Khan [2002 SCR 288]. He lastly argued that as the appellant has failed to point out any illegality in the impugned judgment, therefore, the same may be dismissed.

8.  We have given our utmost thought to the respective arguments advanced at bar by the learned counsel for the parties and also gone through the record made available. Although the re-appreciation of evidence is not the function of this Court, however, for our own satisfaction, we have perused the record minutely. The argument advanced by the counsel for the appellant that factor of cruelty is not proved by the plaintiff-respondent as she herself or any other witness appeared before the Court has not stated that any sign of injury caused by the appellant on the person of plaintiff-respondent has been witnessed. It may be observed that such an argument itself is indicative of the cruel mentality on the part of the appellant. For proof of cruelty, infliction of injury is not the requirement of law, in matrimonial matters the Courts have always even treated the false allegation against wife as cruelty which result into mental torture and the loss of mutual confidence. The plaintiff-respondent in support of the alleged cruelty has produced the witnesses which deposed that the appellant has been treating the plaintiff-respondent in an ill manner. Moreover, as it is alleged by the plaintiff-respondent that the appellant-husband has leveled false allegation of bad character to the wife. We, therefore, concurred with the judgments of the Courts below that the fact of cruelty has been proved and nothing against it has been brought by the appellant on the record.

9.  So far as the argument of the learned counsel for the appellant with regard to the decree for recovery of dower amount is concerned, we have perused the pleadings as well as the evidence brought on record by the parties. The marriage between the spouses was solemnized in lieu of dower amounting to Rs. 2,50,000/-. As is evident from the Nikah Nama that an amount of dower in shape of ornaments worth Rs. 1,13,000/- was paid at the time of Nikah Nama while the remaining amount worth Rs. 1,37000/- was kept deferred. According to contract of marriage, the appellant had to transfer a house comprising of two rooms in the name of plaintiff-respondent in lieu of deferred dower amount. The plaintiff-respondent categorically alleged in her plaint that the appellant has not transferred the house after marriage in the name of plaintiff-respondent in lieu of the remaining dower amount worth Rs. 1,37,000/-. In support of her claim she has produced the witnesses who categorically support the claim of the plaintiff-respondent. The appellant failed to rebut the claim of plaintiff-respondent, therefore, the plaintiff-respondent was entitled to recover the deferred amount of dower amounting to Rs. 1,37,000/-. It was also alleged by the plaintiff-respondent that when she left the house of her husband, the gold ornaments were snatched by the father of the appellant but she failed to prove this allegation through cogent and reliable evidence, therefore, the Shariat Court was justified to hold that the ornaments amounting to Rs. 1,13,000/- were in the custody of the plaintiff-respondent, hence she cannot claim the recovery of the same from the appellant. The learned Shariat Court while granted the decree has not acted against law.

10.  So far the decree of dowry amounting to Rs. 70,300/- is concerned, we have perused the record minutely. The plaintiff-respondent along with the plaint has produced a list of articles given at the time of marriage to her. It is also evident from the Nikah Nama that at the time of marriage a list was provided bearing serial number 1 to 36 for the dowry items and an amount of Rs. 70,300/- is mentioned therein. The plaintiff-respondent has proved that the dowry items are still laying with the appellant and this fact has been proved by herself in her own statement as well as the statements of the witnesses produced by the plaintiff-respondent in the Court. Therefore, we are of the view that the trial Court as well as the Shariat Court while passing the decree for recovery of dowry have appreciated and concluded the matter in its true perspective.

The appellant has failed to substantiate his case to interfere with the findings recorded by the Shariat Court, hence the same is upheld in its tune and spirit. Thus, finding no force in this appeal, the same is hereby dismissed with no order as to the costs.

(R.A.)  Appeal dismissed

Condition of Divorce Mentioned in Nikahnama

 PLJ 2021 Lahore 485

[Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD SAJJAD--Petitioner

versus

ADJ etc.--Respondents

W.P. No. 1802 of 2019, heard on 8.2.2021.

Muslim Family Laws Ordinance, 1961 (VII of 1961)--

----Ss. 7 & 10--“Talaq” & “Dower”--Condition of divorce mentioned in Nikahnama--Suit for recovery of dower to the extent of 5-Tolas gold ornaments of Respondent No. 3 was dismissed and house measuring 05-Marlas was decreed and suit for recovery of Rs.5,00,000/- as per stipulation mentioned in Nikahnama was also decreed--Conditions mentioned in Column No. 16 of Nikahnama--Claim of recovery of Rs.500,000/- by the respondent/plaintiff from the petitioner/defendant on the ground of second marriage--it was mentioned in the Clause 19--Allah Almighty in Holy Qur’an has delegated uncovenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified
law--The husband has a right to divorce his wife from his free will and no condition can be imposed in this regard--The judgments of the learned Courts below to the extent of Issue No. 4 suffer from patent illegality and are liable to be set aside--Writ petition is hereby partly accepted.

                                              [Pp. 487, 488 & 490] A, B, C, D, E, F & G

Ayat Nos.227-228 of Surah Al- Baqarah, 01st Ayat of Surah At-Talaq, the Sunnah of Holy Prophet from Hadith No. 235 of Bukhari Sharif, Section 105 Chapter XII of the Code of Muslim Personal Law (written by Dr. Tanzil-ur-Rahman, Ex-Judge of Sindh High Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq)
2008 SCMR 186 ; 2012 CLC 837; 2018 CLC 1844

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 7  & 10--“Talaq” & “Dower”--Condition of divorce mentioned in Nikahnama--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified law.    [P. 490] E

2008 SCMR 186

Malik Javed Akhtar Wains, Advocate for Petitioner.

Jam Ghulam Asghar, Advocate for Respondent No. 3.

Date of hearing: 8.2.2021.

Judgment

Through this writ petition, the petitioner has challenged the validity of consolidated judgment and decree dated 20.10.2017 only to the extent of dower passed by the learned Judge Family Court, Jalalpur Pirwala and consolidated judgment and decree dated 05.05.2018 passed by the learned Addl. District Judge, Jalalpur Pirwala who partly accepted the appeal of Respondent No. 3 and dismissed the appeal of the petitioner.

2. Brief facts of the case are that Respondent No. 3/plaintiff contracted marriage with the petitioner/defendant on 07.02.2016. Respondent No. 3 filed three suits for recovery of maintenance allowance and dowry articles valuing Rs.5,52,000/-, dower weighing 05-Tola gold ornaments and 05- Marlas constructed house as well as recovery of Rs.5,00,000/- against the petitioner in which the petitioner appeared and filed contesting written statement as well as also filed suit for restitution of conjugal rights. As many as 9 issues were framed which are as under:--

1.       Whether the plaintiff is entitled for recovery of maintenance allowance from the defendant as prayed for, if so, on what grounds? OPP

2.       Whether the plaintiff is entitled for recovery of dowry articles as prayed for from the defendant, if so, on what grounds? OPP

3.       Whether the plaintiff is entitled to recover dower from the defendant as prayed for, if so, on what grounds? OPP

4.       Whether the plaintiff is entitled to recover Rs.5,00,000/- from the defendant because of defendant’s second marriage without permission of plaintiff? OPP

5.       Whether the suits of the plaintiff are false, frivolous, and concocted, the same are liable to be dismissed? OPD

6.       Whether the plaintiff has not come to the court with clean hands and estopped by her words and conduct, if so, on what grounds? OPD

7.       Whether the plaintiff has filed suits just to harass and blackmail the defendant, if so, on what grounds? OPD

8.       Whether the defendant is entitled to the decree for restitution of conjugal rights as prayed for, if so, on what grounds? OPD

9.       Relief.”

After framing of the issues, both parties led their pro and contra oral as well as documentary evidence. The learned Judge Family Court, Jalalpur Pirwala vide consolidated judgment and decree dated 20.10.2017 decreed the suits for recovery of maintenance allowance of Respondent No. 3 declaring her entitled to get maintenance allowance @ Rs.5000/-per month with 10% annual increment from April, 2016 till her legal entitlement. Suit for recovery of dowry article was decreed to the extent of Rs.25,000/- and rest of claim of dowry articles was dismissed. Suit for recovery of dower to the extent of 5-Tolas gold ornaments of Respondent No. 3 was dismissed and house measuring 05-Marlas was decreed and suit for recovery of Rs.5,00,000/- as per stipulation mentioned in Nikahnama was also decreed as prayed for whereas suit of the petitioner for restitution of conjugal rights was also decreed subject to payment of dower. Both parties filed appeals respectively and the learned Addl. District Judge, Jalalpur Pirwala partly accepted the appeal of Respondent No. 3 and dismissed the appeal of the petitioner vide consolidated judgment and decree dated 05.05.2018. Hence, this writ petition.

3. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.

4. Initial onus of proving the assertion raised in the plaint was placed on the shoulder of the plaintiff/Respondent No. 3. As per Column No. 16 of document of Nikahnama (Exh.P-2) of Mst. Rehana Mai daughter of Haji Muhammad Sadiq it is written as under:-

16۔ پانچ مرلہ پلاٹ محلہ حافظ آباد میں مکان پختہ بنوا کر دونگا۔

The other copy of Nikahnama (Exh.P-3) of the petitioner with Mst. Rehana Mai Column No. 16 whereof also contains stipulation as under:-

16۔ 5 مرلہ مکان بستی ٹھار والی میں مکمل بنوا دیں گے جلال پور پیر والامحلہ حافظ آباد میں مکمل بنوا دونگا۔

But copy of Nikahnama (Exh.P-2) does not contain any cutting or tempering whereas copy of Nikahnama (Exh.P3) of the spouses contain certain cutting and interpolation but in this regard neither objection was raised in the written statement nor objected when it was got exhibited in the evidence by the petitioner whereas both aforementioned documents almost contain the same stipulation regarding Column No. 16 of the Nikahnama. It is also proved on record that house/plot measuring 05-Marlas situated at Hafizabad was settled between the parties. With regard to existence of cutting in Column
No. 16 of Ex.P3 Saeed Ahmad Nikah Khawan/ Registrar (PW-3) has clarified in his statement that in first leaf five marla constructed house situated at Basti Tharwali was mentioned in Nikahnama but later on same was crossed/cancelled and Mohalla Hafizabad City Jalapur Pirwala was mentioned with mutual consent of parties and this part of his statement has not been questioned/shaken in cross-examination which deposition is deemed to be correct/ admitted. As such, the learned courts below rightly passed the impugned judgments & decrees and no illegality has been committed.

5. As regard the claim of recovery of Rs. 500,000/- by the respondent/plaintiff from the petitioner/defendant on the ground of second marriage is concerned, which controversy is encompassed in Issue No. 4 that:

Whether the plaintiff is entitled to recover Rs. 5,00,000/- from the defendant because of defendant’s second marriage without permission of plaintiff? OPP

The respondent/plaintiff has contended that at the time of registration of Nikah, it was mentioned in the Clause 19 that in case the petitioner/ defendant divorces the respondent/plaintiff, he will pay an amount of Rs.500,000/-. With regard to imposition of clog on the right of a husband qua pronouncing divorce, Allah Almighty in Holy Qur’an has delegated uncovenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds. In this regard I seek guidance from Ayat Nos.227-228 of Surah Al- Baqarah, which is as under:

227. But if their intention Is firm for divorce, Allah heareth And knoweth all things.

اور اگر ارادہ کر لیں طلاق کا تو بیشک اللہ ہر بات سننے والا، سب کچھ جاننے والا ہے۔

228. Divorced women Shall wait concerning themselves For three monthly periods. Nor is it lawful for them To hide what Allah Hath created in their wombs, If they have faith In Allah and the Last Day. And their husbands Have the better right To take them back In that period, if They wish for reconciliation. And women shall have rights Similar to the rights Against them, according To what is equitable; But men have a degree (Of advantage) over them. And Allah is Exalted in Power, Wise. (translation by Abdullah Yusuf Ali)

اور طلاق یافتہ عورتیں روکے رکھیں اپنے آپ کو تین حیض تک۔ اور نہیں جائز ہے ان کے لئے یہ کہ چھپائیں وہ اس کو جو کچھ پیدا کیا ہے اللہ نے ان کے رحم میں اگر وہ ایمان رکھتی ہیں اللہ پر اور آخرت کے دن پر۔ اور ان کے خاوند زیادہ حقدار ہیں انہیں لوٹا لینے (اپنی زوجیت میں) اس (مدت) میں اگر وہ چاہیں صلح کرنا۔ اور عورتوں کے بھی حقوق ہیں ویسے ہی جسے ان پر ہیں۔ (مردوں کے) دستور کے مُطابق البتہ مردوں کو عورتوں پر ایک درجہ حاصل ہے۔ اور اللہ غالب ہے بڑی حکمت والا ہے۔ (اردو ترجمہ): مرتبہ: مولانا سید شبیر احمد

Further in 01st Ayat of Surah At-Talaq, Allah Almighty says as under:-

O Prophet! when ye Do divorce women, Divorce them at their Prescribed periods, And count (accurately) Their prescribed periods : And fear Allah Your Lord: And turn them not out Of their houses, nor shall They (themselves) leave, Except in case they are Guilty of some open lewdness. Those are limits Set by Allah : and any Who trans gresses the limits Of Allah, does verily Wrong his (own soul: Thou knowest not if Perchance Allah will Bring about thereafter Some new situation. (translation by Abdullah Yusuf Ali)

اے نبی! جب طلاق دو تم عورتوں کو تو طلاق دو تم انہیں اس طرح کہ وہ عدت شروع کر سکیں اور ٹھیک ٹھیک شمار کرو عدت (کے زمانہ) کا۔ اور ڈرو اللہ سے جو تمہارا رب ہے۔ اور نہ نکالو تم انہیں ان کے گھروں سے اور نہ وہ خود نکالیں الایہ کہ ارتکاب کریں وہ کسی کھلی بد کاری کا۔ اور یہ اللہ کی (مقرر کردہ) حدیں ہیں۔ اور جو تجاوز کرے گا اللہ کی مقرر کردہ حدود سے تو درحقیقت وہ ظلم کرے گا اپنی ہی جان پر۔ نہیں جانتے تم شاید کہ اللہ پیدا کردے اس کے بعد بھی (موافقت کی) کوئی صورت۔ (اردو ترجمہ) مرتبہ: مولانا سید شبیر احمد

Further guidance in this regard can be taken from the Sunnah of Holy Prophet from Hadith No. 235 of Bukhari Sharif, which reads as under:-

اسماعیل بن عبداللہ، مالک، نافع، عبداللہ بن عمر سے روایت کرتے ہیں کہ انہوں نے اپنی بیوی کو رسول اللہ صلی اللہ علیہ وسلم کے عہد میں بحالت حیض طلاق دیدی حضرت عمر رضی اللہ تعالیٰ عنہ نے نبی ﷺ سے اس کے متعلق پوچھا، تو آپ نے فرمایا کہ اس کو رجوع کرنے کا حکم دو پھر وہ اسکو روکے رکھے، یہاں تک کہ پاک ہو جائے پھر حیض آئے پھر پاک ہو جائے پھر اگر چاہے تو صحبت کرنے سے پہلے طلاق دے یہی وہ عدت ہے جس کے لئے عورتوں کو طلاق دیئے جانے کا حکم اللہ تعالیٰ نے دیا ہے۔

Section 105 Chapter XII of the Code of Muslim Personal Law (written by Dr. Tanzil-ur-Rahman, Ex-Judge of Sindh High Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq) is described which is reproduced as under:

Delegation of the right of divorce: It is lawful for the husband to delegate to the wife the right of effecting divorce. In that event, however, his own right of effecting divorce shall not lapse.

Even otherwise, Section 7 (1) of the Muslim Family Laws Ordinance, 1961 deals with Talaq, which is reproduced as under:

“S. 7 ‘Talaq’. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.”

5. From the perusal of afore-mentioned glorious references of Holy Quran and Sunnah as well as provisions of Section 105 of the Code of Muslim Personal Law written by Dr. Tanzeel-ur-Rehman and Section 7 of the Muslim Family Laws Ordinance, 1961, a husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified law. In this regard, the Hon’ble Supreme Court of Pakistan in the case reported as Muhammad Bashir Ali Siddiqui Vs Mst. Sarwar Jahan Begum and another (2008 SCMR 186) has also declared that the condition/restriction on the right of a husband to divorce his wife, is illegal. The condition if any imposed in the Nikahnama for the award of damages on account of alleged unjustified divorce is against the basic principle of Islamic Law. The husband has a right to divorce his wife from his free will and no condition can be imposed in this regard. Reliance can also be placed on the cases titled as Mst. Zeenat Bibi Vs Muhammad Hayat and 2 others (2012 CLC 837) and Muhammad Asif Vs Mst. Nazia Riasat and 2 others (2018 CLC 1844). As such, the judgments of the learned Courts below to the extent of Issue No. 4 suffer from patent illegality and are liable to be set aside. Therefore, the findings of the learned Courts below on Issue No. 4 are hereby reversed and this issue is decided against the respondent/plaintiff.

6. In view of above, this writ petition is hereby partly accepted only to the extent of findings of the learned Courts below to the extent of Issue No. 4 whereas to the extent rest of the findings, the same is dismissed.

(K.Q.B.)          Petition accepted