2002 C L C 1010
[Lahore]
Before Ijaz Ahmad Chaudhry, J
AMIN SABIR SHAH alias PIR SABIR PIA—Petitioner
versus
FEHMEEDA KHANAM and 4 others—Respondents
Writ Petition No. 17228 of 2000, decided on 22nd October, 2001.
(a) Constitution of Pakistan (1973)—
—-Art. 199—Constitutional petition—New point—Point not raised in the proceedings at lower forums could not be allowed to be raised for the first time in Constitutional jurisdiction.
(b) West Pakistan Family Courts Act .(XXXV of 1964)—
—-S. 5 & Sched.—Constitution of Pakistan (1973), Art. 199– Constitutional petition—Suit for maintenance of wife and sons—Decree passed by Family Court was affirmed by Appellate Court —Validity– Both the Courts below after considering evidence on record had concurrently found that petitioner was liable to make payment to both his children, who were still minors and also to make payment of six months to his divorced wife—Finding of fact could’ not be interfered with in Constitutional jurisdiction unless shown to be unwarranted or based on misreading of evidence—Impugned judgments were based on cogent reasons and evidence on record—No illegality or misreading or non- reading of evidence was pointed out by petitioner—Constitutional petition was dismissed in circumstances.
PLD 1989 Lah. 69; PLD 1993 Lah. 549; Shagufta Bani v. Musarrat Hanif and others 1982 CLC 1821; Naeem Gul’s case 1989 ALD 93; Mst. Kausar Parveen v. Ghulam Rasool PLD 1981 Lah. 511, Muhammad Tufail v. Additional District Judge 1985 MLD 1275
(c) West Pakistan Family Courts Act (XXXV off 1964)—
—-S. 5 & Sched.—Constitution of Pakistan (1973), Art.199—Islamic, Law—Constitutional petition—Suit for maintenance of sons—Decree passed by Family Court was affirmed by Appellate Court—Contention was that under Islamic Law, age of puberty was the age of majority, but Courts below had not fixed the date uptil which petitioner (father) had to make payment to his minor sons—Validity—Petitioner had raised such ground neither in written statement nor in appeal nor any issue was framed in this respect—Petitioner had moved number of applications, but not a single application had been moved in this regard—Such ground was taken for the first time in Constitutional jurisdiction, which could not be allowed.
Irfan Qureshi for Petitioner.
Ch. M. Saleem and M.A. Aziz for Respondents Nos. 1 to 3.
ORDER
Through this Constitutional petition the petitioner seeks setting aside of judgments and decrees, dated 7-10-1997 and 24-4-2000 passed by learned Judge, Family Court, Lahore and learned Additional District Judge, Lahore respectively.
2. The brief facts of the case are that the petitioner and respondent No. 1 married each other and subsequently respondent No. 1 has been divorced. Respondents Nos.2 and 3 are two sons which has been born out of the wedlock. It will be relevant to mention here that the daughter was also born but since she has been married, she is not party in the proceedings.
3. Respondents Nos. l to 3 filed a suit for recovery of maintenance allowance in which respondent No. 1 claimed the maintenance allowance for the period in which the divorce had not been effected. The respondents Nos.2 and 3 being sons also claimed the maintenance allowance and 5 issues were framed which are as under:–
“(1) Whether the plaintiff No.1 is entitled to the recovery of Rs.1,20,000 as maintenance allowance from the defendant? OPP
(2) Whether plaintiffs Nos.2 and 3 are entitled to the recovery of Rs.20,000 as arrears of maintenance from defendant? OPP
(3) Whether plaintiffs Nos.2 and 3 are entitled to recover future maintenance allowance at the rate of Rs.20,000 per month from the defendant? OPP
(4) Whether the plaint has not been verified in accordance with law? OPD
(5), Relief.”
Respondents Nos.1 to 3 produced three witnesses namely: (1) Mian Abdur Rehman, (2) Abdul Hameed Khan and (3) Fahmeeda Khanam respondent No.1 herself. They also produced documentary evidence to prove the factum of date of birth of Hafiz Mian Ahmad and Misbah-ud Din respondents Nos.2 and 3. The petitioner produced two witnesses namely; Zaka-ul-Haq (D.W.1) and petitioner himself as D.W.2 and he also produced documentary evidence Exh.D.I to Exh.D.13 and Mark “A” to Mark “F”. The petitioner filed application which was also dismissed vide order, dated 2-10-1997. The petitioner then filed an application for summoning, of the original record of birth registers for the years 1982 and 1984 from Municipal Corporation, Lahore. Reply was filed vide order, dated 30-9-1997. This application was also rejected. The suit for recovery of maintenance allowance was filed by respondents Nos.1 to 3 which has been decreed vide judgment, dated 7-10-1997. Rs.60,000 for six months maintenance allowance was directed to be paid by the petitioner to respondent No. 1 at the rate of Rs.10,000 per month Similarly Rs.50,000 was also directed to be paid by the petitioner to respondents Nos.2 and 3 each since July, 1996.
4. Petitioner aggrieved by the said judgment filed appeal wtych was dismissed on 24-4-2000 vide judgment and decree of even date. However, the maintenance allowance was reduced to Rs.5,000 for respondent No. 1 and the petitioner was directed to pay Rs.30,000 instead of Rs.60,000 to respondent No.1. However, maintenance allowance awarded by the trial Court to respondents Nos.2 and 3 at the rate of Rs.50,000 per month to each of the respondent was maintained. Hence, this petition has been filed.
5. Learned counsel for the petitioner contends that the learned trial Court as well as the Appellate Court has failed to keep into mind that under the Muhammadan Law the age of the puberty is the age of the majority. Hence the date has not been fixed by the learned Courts below for which the petitioner had to make the payment to respondents Nos.2 and 3. He relied upon PLD 1989 Lah. 69, PLD 1993 Lah. 549 and has also argued that P.W.1 has failed to give the ages of respondents Nos.2 and 3 and in reply of a question he stated that the ages of respondents Nos.2 and 3 are 17 to 18 years. Hence, they are not minors, therefore, the payment cannot be made to respondents Nos.2 and 3 by treating them as minors. He prays for setting ‘aside of the order and judgment.
6. On the other hand learned counsel for the respondents has opposed this writ petition on the ground that the concurrent finding has been arrived at by the Courts below which cannot be set aside in writ jurisdiction. It is further contended that the Courts below have relied upon the birth certificates which are at pages 81 and 82 of this petition which are ‘made basis for the determination of the ages of respondents Nos.2, and 3. Hence, the judgments and decrees passed by the Courts below are based on the evidence on record and this petition is liable to be dismissed.
7. I have heard the learned counsel for the parties and perused the record carefully. Admittedly the petitioner who is father of respondents Nos.2 and 3 has been directed to make payment to respondents Nos.2 and 3 as they are still minors. Both the Courts below have given concurrent findings of fact which cannot be interfered with in the writ jurisdiction. Both the Courts below have held that the petitioner is liable to make the payment to both his children and also held that the petitioner is liable to make the payment of six months’ maintenance allowance to the respondent No. 1 as well. Both the Courts below have arrived at this conclusion after considering the evidence on the record. The judgments are based on cogent reasons and the evidence on the record and this Court cannot set aside the judgments as the finding of fact cannot be interfered with in writ jurisdiction unless shown to be unwarranted or based on misreading of evidence. I am fortified by the judgments which are mentioned herein that a finding of fact arrived at by Courts below cannot be set aside in writ jurisdiction. In case of Shagufta Bani v. Musarrat Hanif and others 1982 CLC 1821, this Court has held that:–
“Contention that finding of fact cannot be interfered with in writ jurisdiction unless shown to be unwarranted or based on misreading of evidence.”
Similarly the view has been taken in Naeem Gul’s case 1989 ALD 93 which is as under:–
“Courts below after duly appraising evidence on record, recorded concurrent findings of fact against petitioner– Concurrent findings of fact recorded by Courts below were not shown to suffer from any misreading or non-reading of material evidence on record—Such finding thus could not be interfered with—Appraisal of evidence in exercise of Constitutional jurisdiction was also not possible.”
The r case Mst. Kausar Parveen v. Ghulam Rasool PLD 1981 Lah. 511, in which this Court has held as under:
“Finding of fact recorded by Appellate Court below on appraisal of evidence—Cannot be disturbed in writ jurisdiction.”
The 4th case Muhammad Tufail v. Additional District Judge 1985 MLD 1275, in which this Court has held as under:–
“Concurrent findings of Courts below formulated on proper assessment of all documentary and-oral evidence—Such findings of’ facts by Courts below, held, could not be disturbed in Constitutional petition.”
The point raised by the learned counsel for the petitioner is that under the Mohammadan Law the age of the puberty is the age of the majority and that both the Courts below have failed to consider this aspect of the case. This argument of the learned counsel for the petitioner has been raised first time in writ jurisdiction which cannot be accepted as neither in the written statement nor in the appeal. This ground has been taken up for the first time at the time of filing of this writ petition. The raising of new point cannot be allowed. No issue was framed in this respect and though the petitioner has moved number of applications but not a single application has been moved in this connection. Hence there is no need to discuss the issue raised first time in this writ petition that the age of puberty is the age of majority under the Muslim Family Laws which has 1B not been raised in the proceeding at the lower forums by the petitioner
8. I find that the judgments of both the Courts below are based on evidence on the record and learned counsel for the petitioner has failed to point out any illegality or misreading or non-reading of evidence; hence the writ petition is dismissed.
S.A.K./A-339/L Petition dismissed.