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Constitutional Petition No. S‑53 of 1983, decided on 29th November, 1983.

‑‑Art. 9‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2‑West Pakistan Family Courts Act (XXXV of 19641, S. 5 Dissolution of marriage and question of cruelty and maltreatment by husband, held, questions of fact‑Family Court to decide points of fact coming to categorical conclusion that allegation of malpractice made by wife against husband stood proved on evidence‑Judgment of Family Court neither perverse, nor based on misunderstanding of evidence or no evidence or suffering from any legal defect‑Inter ference, under constitutional, jurisdiction, held, not called for‑High Court not to decide whether evidence before Family Court was sufficient or not or could not be relied upon‑Family Court sole tribunal to decide issue of fact on basis of evidence led‑High Court in constitutional jurisdiction not to disturb finding of fact so as to perform functions of appellate Court.‑[Question of fact.

Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Sikandar Jehan Begum v. Abdul Hameed P L D 1963 Kar. 219 ref.

Obaidur Rehman for Petitioner.

S. Shahinshah Hussain for Respondent No. 2.

Date of hearing : 29th November, 1983.

By a short order announced earlier this petition was dismissed with no order as to cost, for reasons to be recorded later: Following are the reasons :‑

The respondent was married to the Petitioner on 22nd May, 1981 at Karachi. After l months of the marriage she filed a family suit for dissolution of marriage in the Court of XXV Civil Judge, Karachi on the ground of cruelty and maltreatment. The petitioner denied the‑ allega tions of maltreatment etc. The learned Civil Judge, who was also acting as Family Court Judge, recorded statements of the respondent and her witness Mohammad Aslam, and the statement of petitioner Aslam Chughtai as the only witness of defence in the case and came to the conclusion that the allegation of cruelty and maltreatment was proved and that she was entitled to a decree for dissolution of marriage. Accordingly by his judgment, dated 17th March, 1983 the learned Family Court Judge decreed the Respondent's suit for dissolution of marriage. The petitioner has challenged the above decision by this Writ Petition because there was no other remedy open to him to challenge the impugned order. The learned Family Court Judge has been impleaded as Respondent No. 1 while the lady, who has been described above as respondent, is Respondent No. 2 in the title of the petition.

I have heard learned counsel for the parties and also gone through the entire evidence recorded by the Family Court Judge in the family suit. From the statements of the respondent and her witness Mohammad Aslam it transpires that the allegation of maltreatment has been specifically made and deposed to. In rebuttal there is only the evidence of the peti tioner who has denied the above allegation. The learned Family Court Judge as a Tribunal to decide finally the points of fact, has come to a, categorical conclusion that the case of the respondent stood proved i In view of the evidence referred to above. The question, therefore would be whether this Court in exercise of Constitutional jurisdiction should interfere with the above finding Reference in this connection has been made to the case of Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139) in which the Supreme Court made following observations in respect of the supervisory jurisdiction of the High Court under Article 199 of the Constitution :‑

"The High Court's supervisory jurisdiction under Article 98 (2) (a) (ii) of the 1962 Constitution (or for that matter "under Article 199 (1) (a) (ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects : first ; the former jurisdiction being a creation of the Constitution stands in a higher pedestal than that under section 115, C. P. C., second ; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In teat case, it would make the High Court's jurisdiction indistinguish able from that exerciseable in a full‑fledged appeal, which plainly is not the intention of the Constitution makers."

Another case referred to in this connection by Mr. Shahenshah Hussain learned counsel for the respondent is of Sikandar Jehan Begum v. Abdul Hameed (P L D 1963 Kar. 219) in which Inamullah, J. made following observations in respect of the powers of the High Court regarding question of sufficiency or insufficiency of evidence led before an independent Tribunal:‑

'It was open to the learned Settlement Commissioner to accept the statement of "respondent No. 1 which was supported by an affidavit of Mr. Shah. This Court cannot go into the question of sufficiency or insufficiency of evidence. It was within the jurisdiction of the Settlement Commissioner to pass the order that he has passed. This Court cannot, in the exercise of its writ jurisdiction, say that the evidence was not sufficient. It would no doubt have been better if the Settlement Commissioner had further investigated the matter before passing the above order. On the other hand, if he believed the statement of the respondent No. 1 he cannot be said to have acted without jurisdiction or illegally. I cannot hold that the N. C. H. form of the respondent No. 1 was illegally admitted."

Mr. Obaidur Rehman, learned counsel for the petitioner has failed to show that the judgment of the Family Court Judge is perverse, or is based on misreading of evidence or no evidence or that it suffers from any Consti tutional defect or such infirmity which would justify interference of this Court in exercise of Constitutional Jurisdiction. Both the witnesses of the respondent have deposed about maltreatment on the part of the petitioner. It is not for this Court to decide whether the evidence was sufficient or not. Nor it is the duty of this Court to hold that the Family Court Judge should not have relied on the evidence of the respondent and her witnesses. The Family Court Judge was the sole Tribunal to decide the issue of fact on the basis of evidence led before him. This Court in Constitutional jurisdiction shall not disturb the findings of fact so as to perform those functions which are intended for an appellate Court. If the finding of facts is disturbed under such circumstances, then there will be no distinction between the functions of this Court and that an appellate Court and the, object of the legislation in making the order of the Family Court Judge final and non‑appealable shall be frustrated.

For the above reasons the petition is dismissed with no order as to costs.

M. Y. H. Petition dismissed .

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