IN THE SUPREME COURT OF PAKISTAN

(APPELLATE JURISDICTION)

PRESENT:
JUSTICE YAHYA AFRIDI, CJ
JUSTICE MUHAMMAD SHAFI SIDDIQUI
JUSTICE MIANGUL HASSAN AURANGZEB

CPLA No.1106 of 2024

(Against judgment dated 04.12.2023 of the Peshawar High Court,
Peshawar passed in W.P. No.4688-P of 2018 with CM No.2331-P of
2018).
&
CMA No.3330 of 2024
(Stay application)

Maqbool Ali and another

…Petitioners/Applicants
Versus
Mst. Raheela and others
…Respondents

For the Petitioners / Syed Azmat Ali Bukhari, ASC.

Applicants:

For the Respondents: Mr. Muhammad Sadiq Khan, ASC with

Syed Rifaqat Hussain Shah, AOR.

Date of Hearing: 13.05.2025.

ORDER

MIANGUL HASSAN AURANGZEB, J.- Through the instant

petition, the petitioners assail judgment dated 04.12.2023 passed

by the Peshawar High Court, whereby writ petition No.4688-P of

2018 with CM No.2331-P of 2018 filed by respondent No.1,

Mst. Raheela, against the concurrent judgments and decrees dated

14.10.2017 and 11.06.2018 passed by the Judge, Family Court

and the appellate Court, respectively, was allowed by setting aside

the said judgments and decrees and decreeing the suit filed by

respondent No.1. Vide said judgment and decree dated

11.06.2018, the learned appellate Court had dismissed respondent

CPLA No.1106/2024 & -: 2 :-
CMA No.3330/2024

No.1’s appeal against the learned Family Court’s judgment and

decree dated 14.10.2017.

2. On 03.01.2015, respondent No.1 instituted a suit for

recovery of dower against petitioner No.1 before the Family Court

at Nowshera. Since respondent No.1’s husband had passed away,

she had filed the suit against her father-in-law / petitioner No.1.

Vide judgment and decree dated 14.10.2017, the said suit was

dismissed. Respondent No.1’s appeal against the said judgment

and decree was dismissed by the appellate Court vide judgment

and decree dated 11.06.2018. The said concurrent judgments and

decrees were assailed by respondent No.1 in writ petition No.4688-

P/2018 before the Peshawar High Court. After a thorough

re-evaluation of the evidence on the record, the High Court allowed

the writ petition. The High Court not just set-aside the said

judgments and decrees, but proceeded further by decreeing

respondent No.1’s suit.

3. Respondent No.1, in her suit had sought recovery of dower

i.e., a house built on 05 marlas of land and a separate 10 marla

plot not on the basis of entries in the nikah nama but on the

strength of a gift deed / tamleeq nama executed on 26.09.2017 by

her father-in-law / petitioner No.1 in favour of her late husband

and another kabeen nama / tamleeq nama executed on the very

same day by her late husband in her favour. The Family Court and

the appellate Court concurrently held that the execution of the

above-mentioned deeds had not been proved. The High Court took

the view that the learned Courts below had dealt with the case as

though it was a civil a suit, and that in family cases the provisions

of the Qanun-e-Shahadat Order, 1984 and the Code of Civil

Procedure, 1908 are not to be applied strictly. The High Court also
CPLA No.1106/2024 & -: 3 :-
CMA No.3330/2024

referred to the testimony of the witnesses which it considered

sufficient for proof of the execution of the said deeds. The High

Court also referred to the statement made by petitioner No.1 that

the properties which were the subject matter of the said deeds

would be given to respondent No.1 if she handed over custody of

the children to him.

4. We are refraining from delving deep into the merits of the

dispute between the contesting parties as it is not necessary for

deciding the instant petition. However, the vital question that

needs to be answered is whether the High Court while issuing a

writ of certiorari under Article 199(1)(a)(ii) of the Constitution with

respect to the concurrent judgments of the trial Court / Family

Court and the appellate Court dismissing a suit for recovery of

dower, decree the suit.

5. In the case at hand, the High Court had identified the

evidence that had not been read by the learned Courts below while

dismissing respondent No.1’s suit. This may well have been reason

enough for interference with the concurrent findings of the learned

Courts below but having done this, the High Court could not have

substituted its own findings for those of the learned Courts below

by decreeing respondent No.1’s suit. The High Court in exercise of

its Constitutional jurisdiction cannot arrogate to itself the powers

of a family Court and issue decrees.

6. There is a catena of case law in support of the proposition

that the High Court in exercise of Constitutional jurisdiction

cannot substitute its own views on the merits of the case with

those of the Courts / Tribunals below. Interference by the High

Court can be made when the findings of the Courts / Tribunals

below are based on insufficient evidence, misreading of evidence,

CPLA No.1106/2024 & -: 4 :-
CMA No.3330/2024

non-consideration of material evidence, erroneous assumption of

facts and patent errors of law. Where however, interference with

the findings of fact of the Courts / Tribunals below is considered

imperative, the High Court ought not to substitute its own views

with those of the Courts / Tribunals below. In such instances, the

proper course for the High Court is to remand the matter to the

Courts / Tribunals below for corrective measures to be taken.

7. Where the High Court is of the view that the conditions for

interference with concurrent findings of fact of the Courts /

Tribunals below are satisfied in any particular case, the proper

course is to remand the case to the Courts / Tribunals below for

recording fresh findings after considering the material or the law,

which had earlier been omitted from consideration. We take this

view on the strength of the law laid down in the following cases:-

(i) In the case of Azmat Ali Vs. The Chief Settlement and

Rehabilitation Commissioner (PLD 1964 SC 260), it was held as

follows:-

“In a proceeding of this extraordinary nature where a superior Court

calls for the records of judicial or quasi-judicial authorities or
Tribunals, which are not subject to its appellate jurisdiction, the
superior Court no doubt has the full power to do justice but does not
as a rule, even in a case where it does interfere, substitute its own
decision for the decision of the inferior authority or Tribunal. Where
it is felt that questions have been left undecided by such Tribunal or
authority or a question has to be decided after the taking of fresh
evidence, it is more appropriate to return the case to the authority or
Tribunal concerned for a decision in accordance with law, after
quashing the order complained against.”

(ii) In the case of Nawaza Vs. The Additional Settlement and

Rehabilitation Commissioner (PLD 1970 SC 39), this Court held

that the High Court, in the exercise of its writ jurisdiction, does not

act as a Court of facts and ought not to enter into and decide

disputed questions of fact, although it can interfere with a finding

of fact given by a subordinate Court or a Tribunal or other

CPLA No.1106/2024 & -: 5 :-
CMA No.3330/2024

authority if the finding is based on no evidence or is based on a

complete misreading of the evidence. Furthermore, it was held that

the High Court, in writ jurisdiction, cannot decide disputed

questions of fact and that a finding of fact if based on no evidence

or misreading of evidence can be interfered with but nevertheless

proper course is to remand case back to lower Tribunal for

decision.

(iii) In the case of Shabbir Hussain Vs. Muhammad Afzal (1972

SCMR 47), it was held as follows:-

“Court exercising [writ] jurisdiction does not sit as a Court of Appeal

but merely as a Court for correcting a grave illegality. Where an
inferior authority has acted contrary to law or to rules of natural
justice, the practice is to set aside the order of the inferior authority
and send the case back for proper decision by that authority,
particularly, where that authority has, as in this case, exclusive
jurisdiction in the matter. This was pointed out in the cases of Syed
Azmat Ali v. Chief Settlement and Rehabilitation Commissioner (PLD
1964 SC 260), Begum B. H. Syed v. Mst. Afzal Jahan Begum (PLD
1970 SC 29) and Sh. Khursheed Muhammad v. Settlement and
Rehabilitation Commissioner (PLD 1971 SC 498).

We see no reason to depart from the principle laid down in the

above-mentioned decisions and are in agreement with the learned
counsel that the High Court had exceeded its jurisdiction under
Article 98 of the Constitution in reversing a finding of fact arrived at
by the Settlement Authorities as if it was a Court of Appeal.”

(iv) In the case of Muhammad Younus Khan Vs. Government of

N.-W.F.P. (1993 SCMR 619), it was held as follows:-

“Where the case has been considered by various authorities, their

decision on fact can be disturbed in exercise of writ jurisdiction if it
is against the material on record or without any basis. Even in such
cases the High Court refrains from substituting its own finding of
fact and proper course is to remand the case to lower Tribunal for
proper determination of the controversy.”

8. In view of the above, we are not inclined to interfere with the

impugned judgment to the extent whereby the concurrent

judgments and decrees passed by the Family Court and the

appellate Court have been set-aside. However, as regards the

decision of the High Court to decree respondent No.1’s suit, the

same being beyond the jurisdiction of the High Court, is liable to

CPLA No.1106/2024 & -: 6 :-
CMA No.3330/2024

be set-aside. Consequently, leave to appeal is granted only to the

extent of the High Court’s decision to decree the suit; the petition

is converted into an appeal to the said extent only and allowed;

and the matter is remanded to the Family Court for a decision

afresh on the basis of the material on the record and the

observations made by the High Court in the impugned judgment.

CMA No.3330 of 2024

Since the main petition has been decided, the prayer sought in the

instant application has been rendered infructuous. Consequently,

the said application is dismissed as such.

Chief Justice

Judge

Judge

Islamabad, the
13th May, 2025
Not approved for reporting
Ahtesham Majid