IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

Constitution Petition S- 476 of 2018

Abdul Ghaffar Memon

vs.

Mst. Raheela Memon

For the Petitioner:                  Mr.Sarfraz Ali Abbasi, Advocate.

For the Respondent No.1:   Mr. Mazhar Ali Bhutto, Advocate.

For the State:                         Mr. Abdul Rasheed Abro, State counsel.

Date of Hearing:                    04.09.2018

Date of Announcement:       04.09.2018

JUDGMENT

Agha Faisal, J. The crux of this judgment is whether in the present facts and circumstances the exercise of writ jurisdiction of this Court is warranted to interfere with concurrent judgments, delivered by the Court of the learned Family Judge, Larkana and the Court of learned V-Additional District Judge, Larkana respectively.

2. Mr. Sarfraz Ali Abbasi, learned counsel, opened the case for the petitioner and his submissions are encapsulated and presented herein below in seriatim:

(i) Per learned counsel the petitioner and the respondent were married on 06.10.2013 and out of wedlock one girl child was born. It was next submitted that the marriage of the parties ended in divorce in the year 2016 and subsequent thereto the respondent inter alia filed a suit for recovery of dowry articles and compensatory amount against the petitioner.

(ii) The Court of Family Judge, Larkana delivered its judgment dated 10.01.2018 in Family Suit No.472/2016 (“Trial Court Judgment”) and the said suit was decreed in favour of the respondent. It may be pertinent to reproduce content of the decree in the aforesaid matter herein below:

“The suit is coming for final hearing viz: 10.01.2018, before Ms. Sonia Awan, Family Judge, Larkana in presence of plaintiff and her counsel Mr. Mazhar Ali Bhutto, defendant and his counsel Mr. Sarfraz Ali M. Abbasi are also are present. It is ordered that the suit of plaintiff partly decreed i.e. to the extent of her dowry articles and dismiss the same in respect of claim of compensatory amount. Plaintiff is held entitled to receive/recover dowry articles from defendant as per receipts submitted by her including gold except quilts and clothes because those are perishable articles and would have lost their utility during such time or an amount of Rs.100,000/- in lieu of such articles”.

(iii) The petitioner assailed the Trial Court Judgment in appeal before the Court of V-Additional District Judge, Larkana and the said family appellate Court upheld the Trial Court Judgment in Family Appeal No. 6/2018 vide its judgment dated 30.04.2018 (“Impugned Judgment”). The Impugned Judgment maintained the Trial Court Judgment, subject to the enhancement of the amount fixed in lieu of dowry amount from Rs.100,000/- to Rs.200,000/-. It may be pertinent to reproduce the relevant portion of the Impugned Judgment:

“Up shot of above discussion is that Judgment and Decree 10.1.2018 passed by learned trial Court is legal, proper, subject to modification of amount fixed in lieu of dowry articles from one lac to the rune of Rs.Two lacs. It is at the option of the defendant/appellant Abdul Ghaffar either to return the dowry articles as per decree of learned trial Court or to pay amount of Rs.2,00,000/- (two lacs) in lieu of dowry articles within a period not exceeding thirty days as prescribed under section 13 of W.P Family Courts Act, 1964.

Except above modification of amount, judgment & Decree does not require interference by this Court and the same is hereby maintained. Accordingly, both appeals are hereby dismissed with no order as to costs. Let the decree be prepared accordingly. The compared copy of this judgment & decree along with R&Ps be sent to learned trial Court for compliance”.

(iv) Aggrieved by the Trial Court Judgment and the Impugned Judgment, the petitioner preferred the present constitution petition and sought for the aforesaid judgments to be set aside.

3.    Mr. Mazhar Ali Bhutto, learned counsel for the respondent No.1, supported the Impugned Judgment and the Trial Court Judgment and submitted that they were in accordance with law. It was further submitted that the controversy between the parties was deliberated at length before the trial Court and an exhaustive judgment was rendered in such regard. It was further demonstrated from the record that the Trial Court Judgment was considered and upheld, subject to modification, by the appellate Court by way of a well reasoned speaking order. Per learned counsel notwithstanding the fact that no stay order is operating in favour of the petitioner, no amount has been paid to the respondent despite the existence of a decree against the petitioner which has been approved in appeal.

4. Learned State counsel supported the arguments submitted by the learned counsel for the respondent and further added that no case for interference was made out by the petitioner.

5. This Court has heard the respective arguments of learned counsel at length and has also reviewed the record of the case. It is observed that the entire controversy between the parties has been addressed by virtue of the Trial Court Judgment. It is also noted that the learned family appellate Court considered the appeal of the petitioner and concluded in favour of the respondent by way of speaking order, being the Impugned Judgment.

6. This judgment in the case of Fazlur Rehman vs. Mst. Shazia Bibi & Others (reported as 2015 CLC 116) is within the contemplation of this Court and it was maintained therein that concurrent findings of facts given by two Courts below should not ordinarily be interfered with by High Court in exercise of its constitutional jurisdiction.

7. Another judgment, in the case of Asif Rafique vs. Mst. Quratullain & 3 Others (reported as 2016 MLD 425), stipulates that this Court could exercise constitutional jurisdiction in rare circumstances if the findings recorded by the Courts below are arbitrary and suffering from the vice of misreading or non-reading of evidence. In this matter, it is the considered view of this Court that the concurrent findings suffer from no such infirmity and that the petitioner has failed to plead any rare circumstance, which would attract the jurisdiction of this Court.

8. In view of the foregoing, it is considered view of this Court that no case for interference of this Court in exercise of its writ jurisdiction has been made out, hence, the subject petition was dismissed vide a short order announced in Court earlier today. These are the reasons for the said short order.

Judge