Citation Name : 2000 YLR 1258 KARACHI-HIGH-COURT-SINDH

Side Appellant : MUMTAZ ALI

Side Opponent : DR. GULNAZ
Dissolution of Muslim Marriages Act 1939 ---- Divorce on basis of Khula---
Exercise of Constitutional jurisdiction by High court -- Suit for dissolution of
marriage filed by wife was decreed by the family court on the basis of Khula---
Contention raised by the husband was that right of Khula' was not absolute right
of wife but was a controlled one and the same was not to be allowed frequently
on mere asking of the wife unless court was satisfied---Validity---Right of Khula'
was not contingent on the consent of the husband but was dependent upon
reaching a conclusion on the part of court that spouses could no longer live
within the limits of God---High court in exercise of Constitutional jurisdiction
would only interfere when court or Tribunal had acted without jurisdiction or in
violation of relevant statute or law--Judgment and decree of the family court
having attained, finality, mere fact that on reappraisal of evidence High court
might have come to a different conclusion would not make decision of family
court without jurisdiction---Constitutional petition was dismissed in
circumstances---Constitution of Pakistan (1973), Art. 199.

Citation Name : 2000 YLR 902 KARACHI-HIGH-COURT-SINDH

Side Appellant : THE STATE
Side Opponent : SHAMSHUR REHMAN
Pakistan Penal Code ----S.302/353/324---West Pakistan Arms Ordinance (IOC of
1965), S.13-D---AntiTerrorism Act (XXVII of 1997), Ss.6, 7, 25, 31 & 32---Criminal
Procedure Code (V of 1898), 5.435/439---Case transferred by Special court to
Sessions court ---Revision petition, maintainability of---Weapons required under
the Anti-Terrorism Act, 1997 to attract the jurisdiction of Special court were not
used in the commission of the offence---Main ingredients of S.7 of the said Act
were also not attracted in the case as the occurrence had taken place due to
previous incident of slapping the father of accused without any intention to
cause terror or create sense of fear and insecurity among the people---Reasons of
vindication of family enmity and the motive had been given in the F.LR. and
initial intention of the accused was to take revenge from the deceased---No
revision was provided in the Anti-Terrorism Act, 1997 for challenging the
impugned order of Special court transferring the case to the Sessions court and
the provisions of Ss-25, 31 & 32 of the said Act when read in conjunction with
each other, did not permit the same---Criminal revision, thus, was not
maintainable and was dismissed in limine accordingly.

Citation Name : 2000 YLR 584 KARACHI-HIGH-COURT-SINDH

Side Appellant : PARYALDAS
Side Opponent : MUHAMMAD BUX
Specific Relief Act 1877 ----S.39---Civil Procedure Code (V of 1908), O. VII, R. 7---
Hindu Law---Cancellation of sale-deed---Suit property was a joint Hindu
property and the respondents/vendees having knowledge of the same
purchased same from the respondent/head of family (Karta)--Execution of such
sale-deed had deprived the petitioner of their lawful rights to the suit property---
Suit for cancellation of sale deed and for possession of the suit property was
filed---Petitioners in their plaint failed to ask for the relief of cancellation of sale
deed--Effect---Non-granting a relief of cancellation of the sale-deed, though the
same had not been specifically prayed for was not appropriate---Finding of
Lower Appellate court was based on misreading of evidence and court had
misapplied and misinterpreted the law---Finding of the Lower Appellate court
was set aside in addition to the relief granted by the Trial court , the sale-deed
was cancelled under S. 39, Specific Relief Act, 1877---Petitioners were directed to
deposit required court fees accordingly.

Citation Name : 2000 YLR 488 KARACHI-HIGH-COURT-SINDH

Side Appellant : ARIFA AMJAD
Side Opponent : THE STATE
Pakistan Penal Code ----S.494/495---Offence of Zina (Enforcement of Hudood)
Ordinance (VII of 1979), S.10(1)---Criminal Procedure Code (V of 1898), 5.561-
A---Quashing of proceedings--Female accused being major and sui juris had
contracted marriage with co-accused without any duress coercion or compulsion
against the wish and to the annoyance of her parents---Inordinate delay of about
1-3/4 months in lodging the F.I.R. was not plausibly explained---Female accused
initially had been shown and treated as a prosecution witness, but on her refusal
to support the prosecution she was made a co-accused in the case---Sections 494
& 495, P. P. C. were non-cognizable and S. 10(1) of the Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 had been wrongly applied to the
circumstances of the case---No offence whatsoever was made out against the
accused and the charge against them was not substantiated---court s could not be
privy to the ipse dixit of the persons still believing in the false notions of the pre-
Islamic days and could not act in aid of those who were acting contrary to the
Injunctions of Holy Qur'an and Sunnah---Where the spouses were pubert and sui
juris and their act was not in defiance of the commands ordained by God, they
could not be victimized due to family pride--Continuance of proceedings against
the accused in the case amounted to abuse of the process of court in
circumstances and the same were ordered to be quashed accordingly.

Citation Name : 2000 YLR 23 KARACHI-HIGH-COURT-SINDH

Side Appellant : RAMZAN
Side Opponent : THE STATE
Pakistan Penal Code ----S.302/34---Appreciation of evidence--Incident had taken
place in the court yard of deceased's house which was witnessed by members of
family of deceased ---eye-witnesses whose house was adjacent to the house of
deceased were natural witnesses and their testimonies which retrained
unrebutted in lengthy cross-examination, could not be discredited merely
because they were related to the deceased especially when no enmity had been
suggested by the defence to said eye-witnesses---Motive had been proved--
Empty was though not recovered front place of Vardat but recover, of unlicensed
gun possessed by accused had been supported by Mashir---Two co-accused were
acquitted extending them benefit of doubt as they were though armed with
hatchets, but had no committed any overt act and did not use their weapons---
Case against accused having been fully proved, judgment of Trial court
awarding sentence to accused could not be interfered with.

Citation Name : 2000 CLC 2012 KARACHI-HIGH-COURT-SINDH

Side Appellant : ATTA MUHAMMAD
Side Opponent : MAIEEDAN
Muslim family Laws Ordinance 1961 ----S. 8---West Pakistan family courts Act
(XXXV of 1964), Ss.5, Sched.. & 14---Constitution of Pakistan (1973), Art. 199---
Constitutional petition--Dissolution of marriage on ground of Khula---During
pendency of suit for dissolution of marriage filed by wife, husband had
contracted second marriage without prior permission of the wife---family court
on basis of evidence on record had concluded that it was not possible for spouses
to live within limits of God and granted dissolution of marriage on ground of
Khula'---Appeal against order of family court being barred under S.14 of West
Pakistan family courts Act, 1964, husband filed Constitutional petition against
judgment of family court simply on the ground that evidence on record should
be re-evaluated---Husband had failed to point out any illegality or misreading of
evidence on record by family court ---Appeal against judgment having not been
provided by law, Constitutional petition was not maintainable only on ground to
re-assess evidence on record--Constitutional petition was dismissed, in
circumstances.

Citation Name : 2000 PCRLJ 1775 KARACHI-HIGH-COURT-SINDH

Side Appellant : DHINGANO
Side Opponent : STATE
Criminal Procedure Code (Cr.P.C) ----S. 497---Offence of Zina (Enforcement of
Hudood) Ordinance (VII of 1979), S.11/16---Bail, grant of---Plea of accused that
alleged abductee was living with him and had married with - him on her own
accord prior to registration of case against him, had support from affidavit of
alleged abductee in which she had stated that she was betrothed with accused,
but later on when her parents did not fulfill their commitment she married with
accused with her own will---Alleged abductee produced Nikahnama in court
---Genuineness of affidavit and Nikahnama, though was yet to be evaluated at
the time of trial, but same could not be altogether ignored---Alleged abductee
having claimed to be married with accused, no allegation of Zina could be
levelled against the accused---Section 16 of Offence of Zina (Enforcement of
Hudood) Ordinance, 1979 which carried punishment of seven years only was not
covered by prohibitory clause of S.497(1), Cr.P.C.---Complainant having
involved all male and female members of the family of accused false
involvement of the accused could not be ruled out in circumstances---In absence
of reasonable ground to believe that accused had been guilty of any non-bailable
offence, case against accused required further enquiry---Accused was granted
bail, in circumstances.

Citation Name : 2000 PCRLJ 1150 KARACHI-HIGH-COURT-SINDH

Side Appellant : SAMINA AKHTAR
Side Opponent : SHAH MUHAMMAD
Offence of Zina (Enforcement of Hudood) Ordinance 1979 ----S. 10(2)---
Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of
proceedings---Validity of Nikahnama, determination of---High court under its
Constitutional jurisdiction could not embark upon the jurisdiction of
family .court which was competent to decide about the existence or non-
existence of the marriage or validity and invalidity of the Nikahnama---Dispute
relating to false marriage lay wholly within the jurisdiction of family court
which could be moved by the petitioner by way of a suit for jactitation of
marriage---Accused regarding her grievance against registration of the F.I.R. had
not approached the Trial court under 5.249-A or 265-K, Cr.P.C. which remedy
was available to her and in the presence of such alternate remedy the
Constitutional petition was not maintainable--Provisions of Art. 199 of the
Constitution could not be resorted to circumvent the due process of law---
Constitutional petition was dismissed accordingly.

Citation Name : 2000 PCRLJ 920 KARACHI-HIGH-COURT-SINDH

Side Appellant : GHULAM NABI
Side Opponent : STATE
Pakistan Penal Code ----Ss. 365-A/149 & 395/149---Appreciation of evidence---
Accused being already known to the complainant, holding of identification test
for the purpose of identifying the accused was meaningless and the same had no
evidentiary or corroborative value---Evidence furnished by the abductees
inspired confidence and not having been tainted with any motive for false
implication of accused, identification of accused by them in the court could be
accepted as substantive evidence ---Abductees had been released after 23 days of
their abduction on payment of ransom amount---Accused used to visit the forest
daily to meet the other dacoits and impressed upon them that the abductees
belonged to a rich family and a good ransom amount could be paid for their
release and he, therefore, had shared common intention in the entire affair---
Defence plea taken by accused about his false implication in the case was not
substantiated on record---Appraisal of evidence by Trial court did not suffer
from any defect---Conviction of accused under 5.365-A, P.P.C. was consequently,
upheld with reduction in his sentence---No offence, however, having been made
out against the accused under S.395/149, P.P.C. he was acquitted of the said
charge.
Citation Name : 2000 MLD 447 KARACHI-HIGH-COURT-SINDH
Side Appellant : GULZAR HUSSAIN
Side Opponent : MARIYAM NAZ
Muslim family Laws Ordinance 1961 ----S.8---Constitution of Pakistan (1973),
Art. 199---Dissolution of marriage on ground of Khula'--Remarriage by parties---
Conditions---family court decreed suit filed by wife for dissolution of marriage
on ground of Khula'and dissolved marriage between the parties in lieu of dower
amount--Husband had challenged the decree in Constitutional petition---During
pendency of Constitutional petition, application was filed praying therein to
dispose of Constitutional petition in the light of settlement arrived at between
the parties---Terms and conditions of said settlement were; that husband had
undertaken to maintain wife and to provide her necessities and luxuries
according to his status; that wife was ready to join husband as his wife, and that
decree for dissolution of marriage by way of Khula'be recalled and parties be
allowed to remarry---Dissolution of marriage by way of Khula'was pronounced
by family court subject to return of dower amount by wife, but said amount of
dower neither was returned by wife nor same was accepted by husband---
Pronouncement of Khula'by family court, in circumstances, would amount to
single divorce and until third divorce would take place, husband would be at
liberty to remarry his wife again and parties could join as husband and wife on
solmanization of Nikah without intervention of third person.
2001 Y L R 2415

[Lahore]

Before Mian Nazir Akhtar, J

LUBNA---Petitioner

versus

Mian MUHAMMAD AZAM, JUDGE, FAMILY COURT, LAHORE and

another---Respondents

Constitutional Petition No. 17083 of 2000, heard on 22nd June, 2001.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S.17---Miscellaneous application fled without affidavit ---Effect---No specific mode to file

such application having been prescribed under the West Pakistan Family Courts Act, 1964, or the
Rules framed thereunder---Family Court is free to entertain application without verification or
even without supporting affidavit ---To decide such application the Family Court may proceed to
record evidence of the parties and may call upon a party to submit affidavit to substantiate his
claim or may otherwise accept the application to secure the ends of justice.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S.17---Civil Procedure Code (V of 1908), Preamble ---Qanun-e-Shahadat (10 of 1984),

Preamble---Provisions of Code of Civil Procedure, 1908, and Qanun-e-Shahadat,
1984---Inapplicability---Object---By making the said provisions inapplicable to the proceedings
before the Family Court the law maker intended to give greater freedom to Family Courts and
release them from the cobweb of procedural technicalities embodied in Qanun-e-Shahadat, 1984
and C. P. C

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----S.17---Situation not governed by express provision of West Pakistan Family Courts Act,
1964---Effect---Where a matter or situation is not governed by express provision of the law or the
rules framed thereunder, the Family Court is free to evolve its own procedure and pass any
suitable order for expeditious and just decision of the case.

Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305; Khalilur Rehman Bhutta v. Razia
Naz and another 1984 CLC 890 and Mst. Saleema Bibi v. A.D.J. and others 1985 CLC 1015 ref.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S.17---Family Court---Powers of---In absence of any express provision, the Family Court can
dismiss a suit for non prosecution, restore same, pass an order for ex parte proceedings and recall
it, allow amendment of pleadings, take additional evidence, appoint a Commission for site
inspection etc. ---In each case the dominant consideration must be a fair and impartial trial,
ascertainment of truth and expeditious disposal of the case.

(e) Practice and procedure---

---- Following a particular procedure with consent of parties---Protest against such procedure by a
contesting party ---Effect--Where a party to a suit leads the Court to follow a particular procedure
or does not raise an effective protest qua the procedure followed by a Court then it cannot turn
round to assail an order if it goes against that Party.

(f) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss.11(3) & 12---Constitution of Pakistan (1973), Art.l99---Constitutional petition--Recalling

of order---Right of cross-examination of the respondent was closed by the Family Court and the
order was recalled subsequently on application filed by the respondent---Validity---Such right of
the parties was preserved under S.11(3) of the West Pakistan Family Courts Act, 1964--Right of
cross-examination being a valuable right could not be lightly taken away and there was no
express provision to close the right of a party to examine, re-examine or cross-examine a
witness---Keeping in view the justice of the cause and object of its expeditious disposal, Family
Page No. 1 of 6
Court had inherent power to pass such order and recall such order---Judgment and decree could
only be passed by the Family Court if the parties had failed to arrive at a compromise or
reconciliation---Where right of cross-examination was closed the Family Court had ignored the
provisions of S.12 of West Pakistan Family Courts Act, 1964---Order refusing the right of
cross-examination was illegal and the same was rightly recalled by the Family Court---High
Court in exercise of Constitutional jurisdiction declined to interfere with the order passed by the
Family Court---Petition was dismissed in circumstances.

(g) Practice and procedure-

----When law provides a thing to be done in a particular manner, it ought to be done in that
manner or not at all.

Mst. Fatima Bibi and another v. Pakistan PLD 1960 (W.P.) Lah. 1031; Agha Muhammad Hassan
v. Mehraj Din ILD 1973 Lah. 95; Muhammad Ghazanfar v. Ali Harder 1979 CLC 84; Anwar
Masih v. Wailat and 2 others 1983 CLC 2365; Muhammad Habibullah Siddique v. Haji Habib
Jaffarali and 2 others 1988 MLD 1143; Saleem Mirza v. Presiding Officer, Xth Family Court East
and 2 others 1989 ALD 228(2), Province of Punjab through Collector, Khushab and 2 others v.
Malik Ghulam Qasim 1993 CLC 589 and Mst. Zareena and 5 others v. Syeda Fatima Bibi PLD
1995 Kar. 388 distinguished.

Sh. Zia-ud-Din Ahmad Qamar with Wajahat Hussain Langah for Petitioner.

Pir S.A. Rashid for Respondents.

Date of hearing: 22nd June, 2001.

JUDGMENT

This Constitutional petition has been filed to challenge legality of order, dated 31-7-2000 passed
by the learned Judge, Family Court, respondent No.1 recalling his earlier order, dated 26-7-2000
whereby right of cross-examination of Shahan Malik, respondent No.2 was closed and the case
was fixed for ex parte arguments.

2. Briefly stated the facts giving rise to this petition arty that the petitioner was married to
respondent No.2 on 20-3-1999 at Lahore in consideration of prompt dower amounting to
Rs.4,00,000. Respondent No.2 had agreed that the petitioner would be entitled to receive a sum of
Rs.5,000 per month as maintenance allowance and that the jewellery given to the petitioner from
the respondent's side would belong to her. The petitioner was also delegated the power of divorce.
Unfortunately, the marital bond could not subsist and ended up in divorce on 18-4-2000.

3. After the marital tie was broken, litigation ensued between the petitioner and respondent No.2.
The petitioner filed three suits in the Family Court, Lahore. The first for recovery of dower
amount, the second for maintenance allowance for the period of Iddat and the third for recovery
of the dowery articles. On his turn, respondent No.2 filed a suit for restitution of conjugal rights.
For the convenience of the parties, all the suits were consolidated by the learned Judge Family
Court vide his order, dated 3-6-2000 arid the proceedings were conducted in the suit for recovery
of prompt dower. The Court framed consolidated issues on 5-6-2000 and started recording
evidence. The petitioner produced nine witnesses in support of her claim and herself appeared as
P.W.10 on 22-7-2000 when her examination-in-chief was recorded. On the said date, she could
not be Cross-examined due to absence of the respondent's learned counsel. The case was
adjourned for 26-7-2000 subject to payment of costs of Rs.1,000 by respondent No.2. On the
adjourned date, the petitioner appeared in the Court for the purposes of cross-examination but
respondent No.2 did not. The case was repeatedly called out and ultimately the respondent's right
of cross-examination was closed vide interim order, dated 26-7-2000. On 27-7-2000 another
counsel was engaged by respondent No.2 who appeared in the Court and stated that he wanted to
file an application for setting aside order, dated 26-7-2000. Accordingly the application was filed
on the same day and the case was adjourned for 29-7-2000 for submission of reply by respondent
No.2 as well as arguments. On the adjourned date, the learned Judge Family Court was on leave,
hence the case was taken up for hearing on the next working day i.e. 31-7-2000. On the said date
the learned Judge Family Court heard arguments, accepted the application and recalled his earlier
order, dated 26-7-2000.

4. The petitioner's learned counsel strenuously urged that the learned Judge Family Court was not
competent to review his earlier order because no such provision exists in the West Pakistan
Family Courts Act, 1964; that even if he was competent to recall his earlier order he ought to
have assigned some valid reason which is lacking in the impugned order; that no material was

Page No. 2 of 6
placed on the record by respondent No.2 in support of the averments made in the application; that
even the affidavit of respondent No.2 or his learned counsel was not placed on the record; that the
conduct of respondent No.2 was not kept in view while allowing the application. The learned
counsel relies on the following judgments:---

(i) Mst. Fatima Bibi and another v. Pakistan PLD 1960 (W.P. Lah. 1031, (ii) Agha Muhammad
Hassan v. Mehraj Din PLD 1973 Lah. 95, (iii) Muhammad Ghazanfar v. Ali Haider 1979 CLC 84,
(iv) Anwar Masih v. Wailat and 2 others 1983 CLC 2365, (v) Muhammad Habibullah Siddique v.
Haji Habib Jaffarali and 2 others 1988 MLD 1143, (vi) Saleem Mirta v. Presiding Officer, Xth
Family Court East and 2 others 1989 ALD 228(2), (vii) Province of Punjab, through Collector,
Khushab and 2 others v. Malik Ghulam Qasim (1993 CLC 589) and (viii) Mst. Zareena and 5
others v. Syeda Fatima Bibi (PLD 1995 Kar. 388).

5. On the other hand, the learned counsel for respondent No.2 urged that the Family Court not
being bound by the provisions of the C.P.C. and the Evidence Act and is free to follow any
procedure and pass any order to secure the interest of justice; that the rule that a Court cannot
review its judgments or orders in the absence of an express provision for review is applicable to
final judgments, decrees or orders and is not applicable to interim orders; that the Court below
has passed a well-reasoned and balanced order to secure the ends of justice which does not call
for any interference by this Court in exercise of Constitutional jurisdiction; that the application
filed by respondent No.2 was duly verified on oath and no separate affidavit was required to be
filed in support of the averment made therein; that the hypertechnical objection raised by the
petitioner hardly justifies interference by this Court in exercise of Constitutional jurisdiction
particularly when the impugned order is passed by a competent legal forum for cogent reasons in
order to secure the interest of justice. The learned counsel also relies on the rule laid down in the
case of Saleem Mirza cited by the petitioner's learned counsel, apart from the following
judgments:---

(i) Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305, (ii) Khalilur Rehman Bhutta v.
Razia Naz and another 1984 CLC 890, (iii) Mst. Saleema Bibi v. Additional District Judge, etc.
1985 CLC 1015.

6. I have carefully considered the arguments raised by the learned counsel for the parties and
perused the material on the record. First of all, I would like to refer to the case-law cited by the
petitioner's learned counsel. The judgment in the case of Mst. Fatima Bibi and another (supra)
lays down that an application for leave to sue as pauper must contain particulars required for
claims in suits failing which it is liable to be dismissed. In the case of Agha Muhammad Hassan
(supra) it was laid down that a Rent Controller and the appellate Court are not empowered under
the West Pakistan Urban Rent Restriction Ordinance, 1959 to review their orders. This case
pertains to a final order whereby the learned Additional District Judge had dismissed the appeal
but subsequently entertained a review petition and allowed it. Obviously, after dismissing the
appeal, the appellate Court had become functus officio and was not competent to review its order
in the absence of any provision for review in the Ordinance. In the case of Muhammad Ghazanfar
(supra) it was held that where a plaintiff seeking restoration of suit on the ground of illness of his
daughter had failed to produce material in support of his assertion, the trial Court was justified
not to restore the suit. This case had arisen out of a regular civil suit in which the C.P.C. was
applicable with full force. Moreover, the High Court had noticed a clear misreading in the
judgment of the Appellate Court and set it aside in exercise of revisional jurisdiction. In the case
of Anwar Masih it was held that a District Judge was not competent to review his own order
passed earlier in appeal, which attained finality notwithstanding the fact that the order was
defective or illegal. This case also pertains to a final order passed in appeal and does not relate to
an interim order. In the case of Muhammad Habibullah Siddique (supra), it was held that where
the plaintiff was directed by the Court to appear personally but failed to attend the Court, the
Court was justified to refuse restoration of the suit dismissed for non-prosecution. It was observed
that the absence of plaintiff and his counsel on a crucial date had to be explained but no affidavit
had been filed by the counsel to explain such absence. In this case negligence of the plaintiff as
well as his counsel was established on the record. Hence, the trial Court had rightly refused to
restore the suit. In the case of Saleem Mirza (supra) it was held that a decision regarding
dismissal of an application for recalling a witness was not appealable under the Act. It was further
held that the object of the Family Courts Act is to provide a speedy method of settling family
disputes and if the decisions of interlocutory character or orders of the kind involved are to be
brought-or taken in appeal, this object will be defeated. 'In the case of Malik Ghulam Qasim
(supra), it was held that Thal Development Act, 1949 and Thal Development Authority
(Colonization) (Appeal and Revision) Rules, 1973 did not contain any provision for review,
therefore, order passed by the Deputy Secretary (Development) HP and EP recalling his own
order was without jurisdiction. In the case of Mst. Zareena (supra), it was held that the statement
made in the written statement although verified, did not seem to be on oath and could not be

Page No. 3 of 6
treated as evidence in the case. Thus, it is clear that none of the above judgments are relevant
regarding review of an interim order or an order of interlocutory nature passed by a Family Court.

7. The hypertechnical objection raised by the petitioner's learned counsel that the application
submitted by respondent No.2 for recalling/cancelling order, dated 26-7-2000 could not have
been allowed as it was not supported by an affidavit has not impressed me. By virtue of section
17 of the West Pakistan Family Courts Act, 1964, the provisions of the Evidence Act, 1872 and
the Code of Civil Procedure, 1908 except sections 10 and 11 of the Code are not applicable to the
proceedings before any Family Court. No specific mode to file a miscallaneous application is
prescribed under the Act or the Rules framed thereunder. Therefore, the Court is free to entertain
an application without verification or even a supporting affidavit. However, if the Court requires
that the applicant should furnish an affidavit in support of the averments made in the application
then the concerned party would be bound to do the needful. It may be mentioned here that under
the provisions of section 11 of the Act, the Family Court has to record evidence of the witnesses
but can permit the evidence of any witness to be given by means of an affidavit. In case of a
miscellaneous application, the Court can proceed to record evidence of the parties to decide any
disputed question of fact and may call upon a party to submit an affidavit to substantiate his claim
or may otherwise accept the application to secure the ends of justice. By making the provisions of
the Evidence Act and the C. P. C. inapplicable to the proceedings before the Family Court the law
maker intended to give greater freedom to Family Courts and release them from the cobweb of
procedural technicalities embodied in the Evidence Act and the C.P.C. The Act and the Rules
framed thereunder have laid down certain express provisions for trial and execution of the decree
which have to be followed by a Family Court. Where a matter or a situation is not governed by an
express provision of the Act or the Rules framed thereunder the Family Court is free to evolve its
own procedure and pass any suitable order for expeditious and just decision of the case. In the
case of "Khalilur Rehman Bhutta v. Razia Naz and another" (1984 CLC 890) it was held that the
Court has to regulate its own proceedings as the Act does not make provision for every
conceivable eventuality and unforeseen circumstances. In the case of Ejaz Mahmood and Mst.
Saleema Bibi (supra) it was observed that the Court should proceed on the premises that every
procedure is permissible unless a clear prohibition is found against it in the law and that the Court
must exercise its own powers to prevent the course of justice being deflected from its, true path.
Thus, even in the absence of an express provision, the Family Court can dismiss a suit for
non-prosecution, restore, it, pass an order for ex parte proceedings and recall it, allow amendment
of pleadings, additional evidence, appoint a commission for site inspection etc. In each case the
dominant consideration must be a fair and impartial trial, ascertainment of truth and expeditious
disposal of the case. It is settled law that if a party to a suit leads the Court to follow a particular,
procedure or does not raise an effective protest qua the procedure followed by a Court then it
cannot turn round to assail an order if it goes against him. In the present case the parties to the
suit did not press the Court to frame issues and record evidence to decide the disputed questions
of fact. Therefore, the Court was free to take into consideration the averments made in the
application, submitted by respondent No.2 and recall his earlier order for closing the right of
cross-examination of respondent No.2: It may be mentioned here that right of cross-examination
of parties is preserved under section 11(3) of the Act. It is a valuable right, which cannot be
lightly taken away. It is also worth mentioning here that there is no express provision to close the
right of a party to examine, re-examine or cross-examine a witness. However, the Court has
inherent power to pass such an order and recall such an order keeping in view the justice of the
cause and object of its expeditious disposal.

8. The suit for recovery of the dower amount was filed by the petitioner on 19-11-1999. As
mentioned above, she also filed two other suits. Respondent No.2 filed a suit for restitution of
conjugal rights. All the suits were consolidated vide order, dated 5-6-2000 and recording of
evidence commenced on 17-6-2000. The Court had recorded evidence of nine P.Ws. from the
petitioner/plaintiff's side and also recorded examination-in-chief of the petitioner/plaintiff on
26-7-2000. On 22-7-2000 Mr. Hakam Qureshi, Advocate appeared on behalf of respondent
No.2/defendant and filed memo. of appearance and stated that he would file his power of attorney
on the next date. On the next date i.e. 26-7-2000 respondent No.2/defendant could not reach the
Court in time (as stated by him in his application dated 27-7-2000. He was unable to give a power
of attorney to Mr. Hakam Qureshi, Advocate and for that reason he could not appear on his behalf
on 26-7-2000. Respondent No.2/defendant primarily gave two explanations for his
non-appearance on 26-7-2000. The first is that his maternal-cousin Mst. Farida died at
Kamra/Attock on-. 23-7-2000 and her Qulkhawani took place on 25-7-2000 after the "Asar"
prayers.

Respondent No.2/defendant participated in the "Qul" ceremony and came back to his ancestral
house at Attock. He further stated that on 26-7-2000 he proceeded for Lahore at 4-00 a.m.
through a private car which went out of order at Peshawar Road Rawalpindi after about 45
minutes of journey. For that reason he could not reach the Court before 4-00 p.m. or
inform/instruct Mr. Hakam Qureshi, Advocate to appear in the Court on his behalf. In her reply
Page No. 4 of 6
the petitioner raised four preliminary objections. The first objection is that the application is not
supported by an affidavit, the second that the conduct of the applicant/respondent No.2 is
contumacious, the third that the applicant had miserably failed to show sufficient cause or cogent
reasons to set aside order, dated 26-7-2000 and the fourth that the Family Court had no
jurisdiction to recall a witness under the provisions of the Act. On merits, para. Alf of the
application was denied for lack of knowledge. It was urged that the applicant had failed to annex
proof of his bona fides. Para. Bay was denied and it was urged that respondent No.2 had failed to
convince the Court hat he had taken "diligent steps" to communicate the Court about his
non-appearance through production of telegram or communication through telephone. Para. Dal
was denied as being incorrect. It was further stated no order whatsoever can be passed by any
Court for production of evidence in the absence of the parties". This is a reply to the averment
made by respondent No.2 that 26-7-2000 was not fixed' as a date for production of evidence. The
order sheet shows that consolidated issues were framed on 5-6-2000 and the case was fixed for
the plaintiff's evidence on 17-6-2000. On the said date evidence of three witnesses was recorded.
The case was adjourned for 21-6-2000 and only one witness from, the plaintiff's side was
examined and the case was adjourned for 24-6-2000 when statements of three more witnesses
were recorded. Thereafter, the case was taken up on 29-6-2000 when an application for
adjournment was filed on behalf of respondent No.2. The case was adjourned for 30-6-2000. On
the said date, the case was adjourned for 1-7-2000 at 10-00 a.m. with an order that if the counsel
for the defendant/respondent No.2 did not appear then the right of cross-examination of
respondent No.2 shall stand closed. The learned counsel for the parties appeared in the Court on
1-7-2000 and statements of two witnesses were recorded and cross-examination of P.W.9 was
reserved. The case was adjourned for 3-7-2000 but on the said date the Presiding Officer was on
leave and the case was fixed for hearing on 4-7-2000. P.W.9 was cross-examined on the said date
and the case was adjourned for 6-7-2000 for remaining evidence of the plaintiff. On the joint
request of the learned counsel for the parties, the case was adjourned for 10-7-2000 for remaining
evidence of the plaintiff. On 10-7-2000 an application was filed on behalf of respondent
No.2/defendant for taking steps for reconciliation between the parties. The petitioner/plaintiff also
expressed willingness to take part in reconciliation proceedings before the Court. The Court noted
that reconciliation proceedings had failed, hence the case was adjourned for the plaintiff's
evidence for 11-7-2000. On the said date, the plaintiff filed an application for providing her
protection through police. The case was adjourned for 14-7-2000 for the respondent No.2's reply.
On the said date the Presiding Officer was on leave and the case was taken up on 15 -7-2000. The
Court accepted the application and directed the S.S.P., Lahore to provide adequate police
protection to the person and ~ property of the petitioner/plaintiff. The case was adjourned for
20-7-2000.

On that date learned counsel for respondent No.2 was busy before the learned Additional Sessions
Judge, Shakargarh, hence the case was adjourned for 22-7-2000. On the said date learned counsel
for respondent No.2 made a statement to the, following effect:---

In view of his statement Pir S.A. Rashid, Advocate was allowed to withdraw his power of
attorney. Mr. Hakam Qureshi, Advocate filed memo of appearance on behalf of respondent
No.2/defendant who sought adjournment on the ground that he was engaged on that very date and
was not in a position to cross-examine the plaintiff. Hence the case was adjourned for 26-7-2000
subject to payment of costs of Rs.1,000. On the adjourned date, the case was called out four times
during the day and ultimately at 2-15 p.m. the right of respondent No.2 to cross-examine the
petitioner/plaintiff was closed and the case was adjourned for 27-7-2000 for ex parte arguments.
On 27-7-2000 Mr. Hakam Qureshi, Advocate filed power of attorney on behalf of respondent
No.2/defendant and stated that he wanted to file an application on behalf of respondent No.2. The
case was again taken up at 12-30 p.m. when respondent No.2 filed an application for cancellation
of order, dated 26-7-2000 which was allowed by the Court vide order, dated 31-7-2000.

8. The above narration of facts shows that the defendant or his learned counsel had been taking
part in the proceedings. However, for some reason his learned counsel Pir S.A. Rashid, Advocate
withdrew his power of attorney on 22-7-2000 and Mr. Hakam Qureshi, Advocate filed his memo.
of appearance with a prayer for adjournment. The change of the counsel provided a valid ground
to adjourn the case. The learned Family Court passed somewhat harsh order by imposing costs of
Rs.1,000 to respondent No.2 and observing in the interim order that it was the last opportunity for
respondent No.2 to cross-examine the petitioner/plaintiff. On the adjourned date, respondent No.2
could not reach the Court for the reason stated in his application, dated 27-7-2000. It appears that
the Court felt satisfied that the reason stated in the application was bona fide and allowed the
application to recall interim order, dated 26-7-2000. Being an interim order, the Court was
competent to recall or cancel it to secure the ends of justice. It is significant that all the four suits
instituted by the parties were consolidated and had to be decided on the basis of the evidence
recorded in the dower suit. If respondent No.2 is not allowed to cross-examine the petitioner, he is
bound to be seriously prejudiced .in all the four cases referred to above. It is also noteworthy that
through order, dated 26-7-2000 the learned Judge Family Court had not only closed the
Page No. 5 of 6
respondent's right to cross-examine P.W.10 but also fixed the case for final arguments without
affording any opportunity to respondent No.2 to produce his evidence. Respondent No.2 has
rightly mentioned in para. Dal of his application that without fixing a date for his evidence the
impugned order (for arguments) could not have been passed. Even if it is assumed for the sake of
argument that the Court had rightly closed right of respondent No.2 to cross-examine the
petitioner/plaintiff, the Court was bound to fix a date for recording evidence of respondent No.2.
After doing the needful, the Family Court had to make another effort to effect a compromise or
reconciliation between' the parties in compliance with the provisions of section 12 of the Act. It is
only after failure of the parties to arrive at a compromise or reconciliation that a Family Court can
announce judgment and pass a decree. The learned Judge Family Court has conveniently ignored
the provisions of section 12 of the Act. It is settled principle that when law provides a thing to be
done in a particular manner, it ought to be done in that manner or not at all. Looked at from all
these angles it is clear that order, dated 26-7-2000 is illegal and was rightly recalled by the trial
Court in the interest of justice.

9. For the foregoing discussion, I do not find any valid ground justifying interference in the
impugned order in exercise of Constitutional jurisdiction under Article 199 of the Constitution of
Pakistan. Hence the petition is dismissed.

Q.M.H./M.A.K./L-24/L Petition dismissed.

Page No. 6 of 6
Page 86, Family Court

Page No. 7 of 1