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Constitutional Petition No. S‑167 of 1982, decided on 2nd September, 1986.

‑‑‑Ss. 5 & 15(2)‑‑Suit for recovery of dower amount‑‑Examination of witness‑‑Petitioner husband taking defence that dower money was paid to father of his wife‑‑Petitioner stating neither in writ petition nor during hearing that he would examine himself as a witness or any other witness‑‑Petitioner prayed before Trial Court for summoning father of wife to give evidence as a witness who had since expired‑‑Remand of case, even otherwise, not likely to serve any useful purpose‑‑Story set up by husband that he had paid up dower not believable‑‑Interference with impugned order declined.

Khairun Nisa and others v. Malik Muhammad Ishaque and others P L D 1972 S C 27 and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1959 Pesh. 81 ref.

Habibullah Samo for Petitioner.

Abdul Kassim Siddiqui for Respondent No.l.

Nemo for Respondents No.2.

Date of hearing: 2nd September, 1986.

By this petition filed under Article 9 of the P.C.O., 1981 the petitioner has prayed for the grant of the following reliefs:

"It is, therefore, prayed that this Hon'ble Court may be pleased to declare that the impugned order dated 13‑1‑1981 of the Trial Court and order dated 1‑9‑1982 of the Lower Appellate Court be declared as illegal and without any consequence and be further pleased to remand the case to the trial Court for recording of evidence of Muhammad Abdul Samad father of the respondent ‑and be pleased to grant alternative such/other/further/additional relief/reliefs as this Hon'ble Court may deem fit in the circumstances of the case."

The facts briefly stated are that the marriage between the petitioner and the respondent No.l was solemnised on 1‑9‑1973 and Rs.5,000 were fixed as the dower amount. Relations between the parties subsequently became strained, resulting in the petitioner divorcing his wife the respondent No.l on 30‑4‑1975. The respondent No. 1 thereafter filed Family Suit No. 1512 of 1975 for recovery of the aforementioned dower amount. The petitioner in defence inter alia pleaded, that the said amount was paid by him to the respondent No.l in the presence of her father Muhammad Abdul Samad. At the trial the respondent No.l examined herself. However, the petitioner did not examine himself but made an application before the trial Court praying therein to summon Muhammad Abdul Samad the father of the respondent No.l to give evidence as a witness. The said application was rejected on 2‑4‑1981 by the Vth Additional District Judge Karachi by order dated 2‑4‑1980, which reads as follows:‑

"2‑4‑1980. The Advocates for the parties are present. The defendants counsel files an application showing that the defendant's witnesses are not attending the Court wilfully. It has been prayed that the witnesses may be dealt with in accordance with the provisions of section 15(2) of the West Pakistan Family Courts Act, 1964. As the defendant's counsel state that he will produce no witnesses so this application is dismissed. Under the circumstances I close the side of the defendant for evidence. By consent put off to 7‑5‑1980 for post trial proceedings. Statement of the defendant's counsel that he will examine no witness is on record."

After passing the Order reproduced above the learned trial Court heard the Advocates for the parties and by judgment, dated 13‑1‑1981 decreed the Suit.

Aggrieved by the said judgment and decree, the petitioner filed Family Appeal No. 25 of 1981 but the same was dismissed by the Vth Additional District Judge, Karachi who concurred with the findings given by the trial Court to the effect that the defendant/petitioner failed to discharge the onus which lay upon him to prove that the dower amount which admittedly was fixed at the time of marriage was duly paid by him to the respondent No. 1. Notice also was taken of the fact by both the Courts that neither any evidence whatsoever in support of the plea in defence that the dower amount had been paid by the petitioner to the respondent No.l was led nor any receipt in proof of the payment of the said amount was produced. The judgments and decrees passed referred to above have now been challenged by the petitioner by invoking the constitutional jurisdiction of this Court.

The learned counsel for the petitioner submitted that the petitioner wanted to examine Muhammad Abdul Samad (father of the respondent No.l) as the only witness and none else in defence (not even himself and that for summoning the said witness application was made before the trial Court but the same was rejected without any just cause. The learned counsel further submitted that the case may be remanded to the trial Court Family Judge as prayed in the petition for recording the evidence of the said witness.

Mr. Abdul Karim Siddiqui the learned counsel for the respondent however drew my attention to the record of the trial Court where in at page 49 Part III appears statement filed by the Advocate for the petitioner to the effect that the petitioner would not examine any person as a witness on his behalf except Muhammad Abdul Samad on whom the summons had not been served. The said witness I am informed by the learned counsel for the respondent No‑1, has already expired. It was accordingly argued that in view of the said statement of the learned Advocate for the petitioner no useful purpose would be served even if the case is now ordered to be remanded for examining the said witness I find myself in agreement with the arguments thus advanced by the learned counsel for the respondent particularly also for the reason that neither in the petition nor during the hearing before me it has been stated that the petitioner would like to examine himself as a witness or any other witness in the circumstances.

It is obvious that even in the trial Court it was open to the petitioner to have examined himself in proof of his plea that the dower amount had been paid by him to the respondent No.l/wife. He however avoided to step in the witness‑box and submit himself to cross-examination. The story set up by the petitioner that the dower amount was paid by him to the respondent No. 1/wife at the time he was leaving for Japan, therefore, is liable to be totally disbelieved. In the view thus taken, I find support from the principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Khairun Nisa and others v. Malik Muhammad Ishaque and others P L D 1972 SC 27 wherein the following observations made in the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1959 Pesh. 81 have been cited with approval:‑----

"It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross‑examination. His non‑appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case."

For the aforestated reasons I find that it is not a fit case in, which any interference is called for in the impugned judgments/ decrees passed by the two Courts below. This petition, therefore, is dismissed but keeping in view the fact that the amount claimed as dower has already been withdrawn from the Court by the respondent No. 1/the wife, the parties are left to bear their own costs.

M.Y.H Petition dismissed.

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