ISLAMABAD: The high courts cannot re-examine or reconsider facts of a case already decided by the lower courts, the Supreme Court has ruled.

In a verdict on Saturday, the apex court said high courts can only correct jurisdictional errors and procedural improprieties and ensure proper administration of justice.

The verdict was issued after a two-judge bench comprising Justice Ayesha A. Malik and Justice Syed Hasan Azhar Rizvi dismissed a petition against a Peshawar High Court judgement passed in December 2022.

The petition was filed by Hamad Hassan who was asked by the family court to pay a dower, and maintenance allowance to his wife and son.

Mr Hassan married Isma Bukhari in 2014 and the couple had a son. In March 2015, the wife filed a suit for the recovery of the dower, maintenance allowance and dowry articles before a family court in Kohat.

Justice Ayesha Malik notes they can only rule on jurisdiction, legal errors

The family court decided that Ms Bukhari was entitled to Rs300,000 as dower and half of the share in the house along with five marla land, as specified in the Nikhahnama.

The court ordered Mr Hassan to pay maintenance to her wife until the dower was fully paid and as long as the marriage was intact.

Additionally, he was asked to pay a maintenance allowance, with an annual increment of 10 per cent, with effect from Feb 2015 until his son reached the age of majority. Ms Bukhari was also allowed to recover medical expenses incurred at the time of her delivery.

Mr Hassan challenged the judgement before a district judge who dismissed the case for being meritless.

Mr Hassan then filed an appeal before PHC claiming that the family court’s verdict was misconceived and announced after a “misreading of the evidence”.

The petitioner challenged the factual aspects of the case and not any legal error or violation of jurisdiction by the trial court. The PHC allowed the appeal and heard the case on facts.

Even though the PHC dismissed the appeal in Dec 2022 for being meritless, the re-argument of the case was tantamount to giving the petitioner “a second appeal which should not have been entertained regardless of the outcome of the case,” wrote Justice Malik in the verdict.

“The right to appeal is a statutory creation, either provided or not provided by the legislature; if the law intended to provide for two opportunities of appeal, it would have explicitly done so.”

She remarked that the law has not provided the option of a second appeal because the intent, especially in family cases, was to not prolong disputes.

“The purpose of this approach is to ensure efficient and expeditious resolution of legal disputes,” Justice Malik observed.

Citing past Supreme Court verdicts, Justice Malik remarked the legal position was that high courts’ constitutional jurisdiction cannot be a substitute for revision or appeal.

“This means that the High Court in constitutional jurisdiction cannot reappraise the evidence and decide the case on its facts,” she said, adding that interference in lower courts’ verdicts can be done in limited cases “as an exception and not the rule”.

She said in the case under question the high court could have interfered if there was a “miscarriage of justice”. But nothing of that sort was established in the case.

“In fact, the High Court substituted and adjudicated on the facts and tendered its opinion, which amounts to having an appeal out of the Appellate Court’s judgement.”

Justice Malik explained that the objective of Article 199 — which outlines constitutional jurisdiction of high courts — was to foster justice, protect rights and correct any wrongs, for which, it empowered the high courts to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. The Article was “well-defined and its … limited in scope against appellate decisions.”

Published in Dawn, July 23th, 2023