Saturday, 19 May 2012

Nikahnama should not be forged

PLJ 2009 Lahore 461

Present: Kh. Farooq Saeed, J.

KHURRAM ZULFIQAR ALI--Petitioner

versus

Mst. BENISH MUBARAK and another--Respondents

W.P. No. 17463 of 2008, decided on 4.2.2009.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Forgery in nikahnama at columns--Suit for recovery of dower, dowry articles--During the proceedings receipts of dowry article were filed--Objected to be as forged--Challenge to--Piece of evidence should not be deprived to bring on record--Receipts of dowry articles produced by respondent were forged hence should not be allowed to be exhibited--Question of--Presentation of document by one person and exhibiting--Interocutory order--Evidential value--Validity--Law of evidence and Civil Procedure Code not being applicable the concept of exhibiting a document in a civil case would not apply in a family matter--Permission to allow to exhibit a document even in civil case does not amount to its acceptance as an alternate evidence--It was only a receipt and acknowledgment and permission to make it a part of record--One can always challenge its validity, correctness or genuineness during cross-examination at the time of final argument--Held: If some body wants to bring on record certain piece of evidence he should not be deprived from doing so--Every authority as far as possible should not refuse to entertain the evidence produced by parties in support of their claim--Authorities, therefore, need to be benevolent in receiving, however, prudent in accepting its evidential value--Petition was dismissed.   [P. 463] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Inter locutory order--Maintainability--Nothing mere than an interlocutory order against which writ petition even otherwise is normally not allowed to be entertained--Held: Writ petition does not lie against such an interlocutory order through which the matter has not been decided finally.      [P. 463] B

1991 MLD 1097, ref.

Mr. Naveed Aslam, Advocate for Petitioner.

Mian Rafaqat Ali, Advocate for Respondent No. 1.

Date of hearing: 4.2.2009.

Order

The writ petition filed by the petitioner husband is on the basis of the facts that the Respondent No. 1 and petitioner entered into a contract of marriage on 9.7.2006 but the same could not pull on statedly for the reasons of forgery in the Nikah Nama at Column Nos.10, 17, 19 and 20 by the father of the Respondent No. 1. The petitioner, therefore, lodged a criminal case through F.I.R No. 1039/06 at Police Station Ghalib Market on 28.12.2006 which was registered under Sections 420/468/471 PPC.

2.  The respondent also filed suit for recovery of dower, dowry articles and gold ornaments. During the course of the proceedings he filed receipts of dowry articles which are objected to be as forged by the present petitioner. The petitioner filed an application challenging the same. The objection of the present petitioner is that the receipts of the dowry articles produced by the respondent of this writ petition are forged hence should not be allowed to be exhibited.

3.  By placing reliance on a plethora of case law which has already been reproduced in Para No. 3 of the order of the Judge Family Court dated 12.11.2008, the petitioner counsel reiterated that the receipts which are not properly prepared and their evidential value is doubtful, hence, should not have been allowed to be exhibited. There appears to be some misconception in the minds of the petitioner. The reason being that in family matters neither the law of evidence is applicable nor the provisions of Civil Procedure Code are applied. All the judgments referred by the petitioner counsel are with regard to the proceedings under C.P.C. The same, have been held to be as not applicable in the said proceedings by the Family Judge to which this Court also agrees in principle.

4.  The petitioner counsel when pointed out conceded that since the above two enactments have been held to be as not applicable by the Family Court Act itself he obviously does not have the case to the said extent. He, however, urged that there must be some procedure for appreciating the evidence. The comment is quite un-necessary as every Judicial Officers understands as to what procedure should be adopted by him while deciding an issue before him. The prime purpose has always been to provide substantial justice and the present judicial system having a long history of progressive changes in law of jurisprudence administratively and on the basis of the judgments of the superior Courts is rich enough to take care of the same.

5.  In this regard one can refer (2008 C.L.C 806) re: "Shafqat Ali Vs. Nighat Perveen and others". The Hon'ble Court has clearly held that the law of evidence is not strictly applicable on family matters, but, however, one needs to look into the correctness of the documents after due application of mind, as obviously the effect of acceptance or rejection of the same would either deprive or grant a right to persons.

6.  The important factor which needs consideration is that presentation of document by one person and exhibiting it would not always mean acceptance of its contents also especially in a family case. As already mentioned law of evidence and Civil Procedure Code not being applicable the concept of exhibiting a document in a civil case would not apply in a family matter either. Even otherwise, the permission to allow to exhibit a document even in civil case does not amount to its acceptance as an alternate evidence. It is only a receipt and the acknowledgement and the permission to make it a part of record. One can always challenge its validity, correctness or genuineness during the cross-examination or thereafter at the time of final argument. In fact if some body wants to bring on record certain piece of evidence he should not be deprived from doing so. Every authority as far as possible should not refuse to entertain the evidence produced by the parties before then in support of their claim. However, it obviously does not mean acceptance of the same without checking its veracity as well as correctness and justification. The authorities, therefore, need to be benevolent in receiving, however, prudent in accepting its evidential value.

7.  This, therefore, is nothing more than an interlocutory order against which writ petition even otherwise is normally not allowed to be entertained. It has been held in a long line of judgments that writ petition does not lie against such an interlocutory order through which the matter has not been decided finally. Reference may be placed on (1991 M.L.D 1097) re: "Rao Muhammad Owais Qarni Vs. Mst. Tauheed Aisha and 2 others".

8.  The gist of the above discussion is obvious. This writ petition does not have any merit, hence, is dismissed.

(R.A.)      Petition dismissed

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