IN THE HIGH COURT OF SINDH
AT LARKANA
CP S-342 of 2021 : Allah Dino Soomro vs.
Mst. Irshad Begum &Others
CP S-343 of 2021 : Allah Dino Soomro vs.
Mst. Irshad Begum &Another
For the Petitioner : Mr. Muhammad Afzal Jagirani, Advocate
Date of hearing : 17.02.2022
Date of order : 17.02.2022
ORDER
Agha Faisal, J. (1) Deferred. (2) Granted; subject to all just exceptions. (3) Briefly stated, two suits were filed for restitution of conjugal rights and jactitation of marriage respectively. Vide Consolidated Judgment dated 17.03.2021, the suit for conjugal rights was dismissed and the suit for jactitation of marriage was allowed. The findings were maintained in appeal, hence, the present petitions. Since the petitions are interconnected and pertain to common consolidated judgments, therefore, per learned counsel's request they are being determined while this common order.
2. In the Consolidated Judgment, the learned trial Court was pleased to observe as follows:
“The burden of proof lies upon the shoulder of the plaintiff, to prove the issue No.2. The plaintiff stated that he contracted marriage with defendant on dated 03.10.2018. From the careful examination and scanning the evidence of the plaintiff, it was liabilities of plaintiff to prove issue No.2. The plaintiff failed to produce the witness of Nikahnama and also witness of Free Will. The version of plaintiff that he contracted marriage with defendant was not support by any material evidence. The plaintiff also did not exhibit the Nikahnama and affidavit of Free Will. The non Exhibited document cannot be considered as part of evidence. The plaintiff failed to bring his case at home. On other hand the defendant appeared in witness box at Ex.71. She produced her witness at Ex.72. She denial all the allegations leveled by the plaintiff. She also filed another suit bearing No.28/2019 against plaintiff for jactitation of marriage. Therefore issue No.2 answered and negative. Whereas the plaintiff in non leading suit No.28/2019 Re-Mst. Irshad Begum Vs. Allah Dino. It is the case of the plaintiff to prove that she had given signature to the defendant on pretext that defendant will make the card of Shaheed Benazir Bhutto Income Support Program. In her support she produced her witness. After examination of evidence of plaintiff in non leading suit the plaintiff did not produce material in her support. Her witness did not support her version. Therefore non leading suit of plaintiff is dismissed.
Both suits leading bearing No.05/2019 Re- Allah Dino Soomro vs. Mst. Irshad Begum Abro and non leading suit bearing No.28/2019 Re- Mst. Irshad Begum Abro vs. Allah Dino Soomro are hereby dismissed, with no order as to costs. Decree sheet be prepared accordingly. Since this consolidated judgment an original print out of this judgment be placed in record and proceedings of both the suits. File be consigned to Record Room after due compliance.”
3. The learned Appellate Court upheld the findings and the pertinent observations are reproduced hereinbelow:
“The appellant/plaintiff Mst. Irshad Begum in her pleadings had categorically stated that she did not contract marriage with respondent Allahdino Soomro, who obtained photo copies of her CNIC and photographs from her on the pretext of obtaining B.I.S.P card. But malafidely got prepared her false free-will affidavit and registered Nikahnama showing that she contracted marriage with him. The appellant/plaintiff Allahdino in Suit no.05/2019 averred that Mst. Irshad Begum contracted marriage with him and also executed such free-will affidavit Therefore, he was duty bound to prove the fact of his nikah with Mst. Irshad Begum at trial. The claim of the appellant/plaintiff Mst. Irshad Begum in suit No.28/2019 was in negative form and nature. Thus, obviously she was not legally burdened to substantiate the same by producing further evidence. It was sufficient for her to depose on oath that she did not marry with respondent Allahdino. Therefore, burden shifted upon respondent Allahdino Soomro to prove/rebut the claim of Mst. Irshad Begum. He was under legal obligation to prove the tact of marriage and valid nikah between him and Mst. Irshad Begum. Though consolidation of both the suits, the appellant/plaintiff Allahdino Soomro in leading suit did not examine any witness to prove the facts of his nikah with Mst. Irshad Begum. During earlier trial, the plaintiff of leading suit Allahdino Soomro produced copy of nikahnama at trial. In this nikahnama though the date of registration of marriage is shown as 03.10.2018, but no date is mentioned in its column No.12 to show when nikah or marriage was performed. The column No.12 of said nikahnama was left blank. The appellant/plaintiff Allahdino has also produced free-will affidavit of Mst. Irshad Begum, but the same is executed two (2) months after marriage on 24.12.2018, and in this affidavit of free-will also date of marriage or nikah is not mentioned. The appellant/plaintiff Allahdino has failed to examine any nikah witness or Vakeel/representative of Mst. Irshad Begum who obtained her consent/”Hijab Qabool” for her nikah with appellant/plaintiff Allahdino. The appellant/plaintiff Allahdino has also failed to examine any of the witnesses of free-will affidavit, nor he examined Mr. Bilal Khan Lashari,
who identified Mst. Irshad Begum. Therefore, the fact of nikah of Mst. Irshad Begum with plaintiff Allahdino of leading suit is not proved. Hence learned Family Judge Jacobabad has rightly dismissed the leading suit No.05/2019. But he has committed illegality while dismissing the family suit No. 28/2019 filed by Mst. Irshad Begum. Since, plaintiff Allahdino of leading Suit has failed to prove the fact of his nikah with Mst. lrshad Begum. Then, the averments and evidence of family suit No.28/2019 stands proved that free-will affidavit and nikahnama of Mst. Irshad Begum with Allahdino, which are fabricated and false documents and the same are liable to be cancelled. Therefore, finding of learned Family Judge Jacobabad in respect of family suit No.28/2019 are set aside.
In view of my above discussions and findings on point No.1, the Family Appeal No.04/2021 filed by appellant/plaintiff Alahdino Soomro is dismissed, whereas Family Appeal No.03/2021 filed appellant / plaintiff Mst. Irshad Begum stands allowed and Family Suit No.28/2019 (Re: Mst. Irshad begum v/s. Allahdino Soomro) is decreed as prayed. There would be no order as to costs. Let such decree be prepared.”
4. Learned counsel submits that the impugned judgments did not appreciate the evidence in its proper perspective and since there is no further provision of appeal, hence, interference is merited in the constitutional jurisdiction of this Court.
5. Heard and perused. The courts below have observed, upon appraisal of evidence / record that the petitioner's claim was rested upon fraudulent documentation and while the petitioner remained singularly unable to corroborate his allegations, the case of the respondent was established through evidence. It is observed that no infirmity has been identified with the appraisal of the evidence of the courts below and in any event reappraisal thereof is not merited in writ jurisdiction.The original as well as appellate judgment appear to have considered the record, evidence and the law and no infirmity in respect thereof has been identified to this Court.
6. Article 199 of the Constitution contemplates the discretionary[1] writ jurisdiction of this Court and the said discretion may be exercised in the absence of an adequate remedy. In the present matter admittedly there existed an adequate remedy, however, the same was duly availed / exhausted and no case has been set forth before us for invocation of the writ jurisdiction.
7. It is settled law that an appeal is a creation of statute and in the absence thereof no presumption in such regard is merited. Prima facie it was the intention of the legislature to provide for expeditious disposal of family disputes and preclude the possibility of extended litigation, hence, the preclusionofanother appeal.The absence of another forum of appeal does not confer automatic jurisdiction upon a High Court to act as the appellate court in exercise of its writ jurisdiction, which may only be invoked if the precepts of Article 199 are attracted. The ambit of constitutional jurisdiction in such matters is restricted inter alia to appreciate whether any manifest illegality is apparent from the judgments impugned. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law. It is the considered view of this court that no manifest illegality has been identified in the judgments impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
8. In view hereof, this court is constrained to observe that no case has been set forth for the invocation of the discretionary writ jurisdiction of this Court, hence, these petitionsare hereby dismissedin limine.
JUDGE
[1] Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.
[2]Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.