Haji Muhammad Saleem Chotia Advocate
2012 S C M R 695
[Supreme Court of Pakistan]
Present: Ejaz Afzal Khan and Muhammad Athar Saeed,
JJ
QAMAR SULTAN and others---Petitioners
Versus
Mst. BIBI SUFAIDAN and others---Respondents
Civil Petition No.1131 of 2010 and C.M.A. No.1754 of
2010, decided on 2nd March, 2012.
(On appeal against the judgment dated 26-5-2010
passed by Lahore High Court,
Rawalpindi Bench, Rawalpindi
in C.R. No.69 of 2002).
(a) Islamic Law---
----Inheritance---Sect---Deceased being issueless
left behind a mother and sister---Mother's statement in court to the effect
that her deceased son was shia by faith---Validity---Sister would retain
remaining property, if deceased was found to be a shia by faith---Such evidence
of mother aimed at benefiting her daughter was interested and discarded in
circumstances.
(b) West Pakistan Land Revenue Act (XVII of
1967)---
----S. 135---Partition of agricultural
property---Jurisdiction of Revenue court or civil court---Scope---Jurisdiction
to grant such relief would lay with Revenue court---Decree of civil court
granting such relief would be nullity in eye of law.
(c) Qanun-e-Shahadat (10 of 1984)---
----Arts. 76(f), 78 & 85(1)(iii)--- Secondary
evidence--- Proof of signature on an application by a person since
deceased---Scope---Application by said person (deceased) to Deputy
Commissioner---Tendering of certified copy in evidence without proving
signature of deceased on such application---Validity---Secondary evidence to
prove such signature on such copy would not be necessary for same being
certified copy of such application.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court
for Petitioners.
Gulzarin Kiani, Senior Advocate Supreme Court for
Respondents Nos. 3, 4 and 5.
Ch. Abdul Aziz, Naib Tehsildar for Respondents Nos.7
and 8.
Date of hearing: 2nd March, 2012.
JUDGMENT
EJAZ AFZAL KHAN, J.---This petition for leave
to appeal has arisen out of the judgment dated 26-5-2010 of the Lahore High
Court whereby the learned Judge in his chambers dismissed the petition filed by
the petitioners and maintained the judgment and decree of the learned Appellate
Court.
2. Brief
facts of the case as spelt out in paragraph-1 of the impugned judgment read as
under:--
"The summary of facts of this case is that
predecessor-in-interest of the respondents instituted suit for possession in
respect of land measuring 3888 kanals and 1 marla, mentioned in the plaint, for
partition of 1/6th share out of Haveli and for rendition of accounts being
legal heirs of Fateh Khan son of Allah Dad. Fateh Khan died on 3-6-1970. Mst.
Anwar Sultan, defendant No.1 being the mother; Mst. Qamar Sultan being sister
and Mumraiz Khan being collateral were legal heirs of Fateh Khan. As per
averments of the plaint, Fateh Khan was Sunni by faith, therefore, Mumraiz
Khan, plaintiff being a collateral
was entitled to
1/6th share. It
was further averred that Mutation
Nos.1764 and 433 having been sanctioned on 14-8-1970 in accordance with Shia
law were illegal. In the written statement filed by present
petitioners/defendants, it was averred that the deceased Fateh Khan professed
Shia faith, therefore, estate of Fateh Khan devolved upon the petitioners in
toto. In view of the pleadings of the petitioners, the learned trial Court
framed Issues. The parties led their oral as well as documentary evidence.
D.Ws.1 to 5 supported the averments made in the written statement and
contended that Fateh Khan was unmarried and died issueless. Mst. Anwar Sultan
was his mother and Mst. Qamar Sultan was her sister. He
professed Shia sect and
used to participate in the 'Tazia Procession'. Mst. Anwar Sultan
appeared as D.W.6 and stated that Fateh Khan was Shia by faith from the time of
his predecessor. The defendants also produced copy of Mutation No.1764
sanctioned on 24-8-1971, as Exh.D1 and copy of Mutation No.433 as Exh.D2,
sanctioned on 24-8-1971. The respondents-plaintiffs produced nine witnesses who
deposed that Fateh Khan was 'Sunni' by faith and his 'Fatiha prayer' was led by
a 'Sunni Sect Scholar'. The plaintiffs also produced documentary evidence. The
learned Civil Judge, Attock, who vide judgment and decree dated 23-10-2000
dismissed the suit of the plaintiffs-respondents. The appeal filed by the
respondents was accepted by the learned Additional District Judge, Attock, who
vide judgment and decree dated 22-12-2001 decreed the suit of the
respondents."
3. Learned
counsel appearing on behalf of the petitioners contended that where sufficient
evidence was brought on the record to prove that Fateh Muhammad, the propositus
of the parties was professing Shia faith, suit filed by the respondent could
not be decided on the basis of presumption. The rule, the learned counsel
added, laid down in the case of Pathana v. Mst. Wasai and another (PLD 1965 SC
134) that the initial presumption in the Indian subcontinent that a Muslim is
governed by Hanafi Law unless the contrary is proved is not absolute. The
learned counsel by referring to the case of Muhammad Bashir and another v. Mst.
Latifa Bibi through legal heirs (2010 SCMR 1915) contended that faith of a
person and determination thereof depends on the circumstances he lived in,
including his way of life, the parental faith and the faith of his other kith
and kin, therefore, no rule of universal application can be laid down in this
behalf. The learned counsel next contended that where mother of the deceased
being closely related to him stated that he was professing Shia faith, it was
to be believed in as no other evidence could be more reliable than that of her.
Learned counsel by referring to the application allegedly signed by the
deceased, besides others, requesting the Deputy Commissioner of the District
not to permit the Shias of the village to take out a procession could not be
made the sole basis for drawing an inference that the deceased was not a Shia
by faith when the said application was not proved in accordance with the
requirements of the law to have been signed by him. He by referring to the case
of Muhammad Din and others v. Niamat Bibi and others (2006 SCMR 586) contended
that where the finding of the trial court and that of Court of Appeal were at
variance with each other on contentious questions of law and facts, the High
Court was not supposed to dispose of the revision summarily without
re-appraising the entire evidence. The learned
counsel by concluding
his arguments submitted
that relief viz-a-viz partition
of agricultural property
could not have
been granted by the
Civil Court as
it lay within
the jurisdiction of the
Revenue Court, therefore, any degree thus passed would be nullity in the eye of
law.
4. As
against that, the learned counsel appearing on behalf of the respondents
contended that all the Courts including High Court after proper appraisal
of evidence declared
that the deceased
was a Sunni and not Shia by faith, therefore, such finding is not open
to any interference when it is free from any taint of misreading and
non-reading of evidence.
5. We
have gone through the entire record carefully and considered the submissions of
the learned counsel for the parties.
6. The
learned trial Court after discussing the evidence on the record held as
under:--
"10. The presumption that deceased Fateh Khan
was Sunni goes in favour of plaintiff as has been held in PLD 1965 SC 134 that
initial presumption in Indo-Pak Sub-continent is that a Muslim is a Sunni,
unless contrary is established by good evidence. The defendant had to prove
that the deceased Fateh Khan was Shia. To prove this fact, they examined D.W.1.
He is resident of Mauza Jandial, D.W.2 is resident of Talagang. D.W.3 is
resident of Mauza Gakhar and D.W.4 is also resident of Talagang. D.W.5 is the
mother of deceased. She is beneficiary of transaction. Major discrepancies are
found in the statement of D.Ws. D.W.1 has deposed that there is no Shia mosque
in Dhurnal. There was no Shia Maulvi and Imam Barah in the village, D.W.2 has
deposed that no Shia was known to him except Fateh Khan. Fateh Khan name was
not incorporated in the register meant for members of Shai Sect. D.W.3 is not
aware of true fact. D.W.5 has not rebutted the statement of Maulvi Muhammad
Faazil. She has stated that she was not aware of the fact that who led the
funeral prayer of Fateh Khan. All the P.Ws. have deposed that Fateh Khan was
Sunni by Sect. Maulvi Fazil P.W.1 is an independent witness. He has deposed
that funeral prayer was led by him. He has clearly stated that Fateh Khan was
follower of Sunni Sect.
11. Learned counsel for defendant has pointed out
that P.Ws. are closely related to the deceased. That they are having enmity
with the
defendant. The statement
of P.Ws. cannot be discarded on this ground. The
plaintiffs have brought on record copy of documents Exh.P.10 to Exh.P.12. The
application by Allah Yar Khan Exh.P.11 was given to Deputy Commissioner on
12-6-1971 for permission of holding procession. Statements were recorded. An
application was also given in the form of Exh.P.10 for uzadari. This
application was contested by the deceased Fateh Khan and was bearing his
signatures. This shows that Fateh Khan was Sunni and was against holding Shia
procession. The evidence on record shows that there was no Shia in Dhuranl village.
The deceased Fateh Khan belongs to Sardar Family. He was owner in estate. There
was no Shia mosque till the time of his death. He had been saying congregation
(Jumma) prayer with Sunni Muslims. He was an affluent and could make Imam
Bargah for himself but this was not done by him during his life time."
7. The
learned Additional District Judge while concurring with the finding of the
learned trial Court on this issue held as under:--
"10. Now I come to the case of the appellants
that apart from initial presumption what is the other evidence with them.
Exh.P.11 is the copy of an application moved by one Allah Yar to the then
Deputy Commissioner Cambelpur where he had requested for the issuance of
licence for the procession in the month of Moharram in the village of the
deceased. This application is dated 3-3-1966. Exh.P.10 is the copy of the order
of the then Deputy Commissioner which shows that not only the deceased but the
other villagers opposed the said application with the plea that only four/five
persons in the village of the deceased were affiliated to Shia and the
remaining entire abadi is of Sunni, hence due to the procession there is the
possibility of apprehension of breach of peace and earlier such type of
applications had been dismissed. This document was also signed by the deceased.
These two documents are the most important document in relation to which the
counsel for the respondents contended these cannot relied upon having not been
proved. This argument has no force on the reason that the said copies have been
brought on the judicial record from the custody of the office who is duly
authorized to obtain the same and to issue these documents. These two documents
are covered by under Article 85 of the Qanun-e-Shahadat being public documents
and under Article 91 the presumption of genuineness is attached to them. There
is no rebuttal to these two documents, hence these two documents will exclude
the ocular testimony furnished by the respondents and their witnesses and will
be used in favour of the appellants."
8. The High Court while maintaining the finding of
the fora below held as under:--
"4. I have heard learned counsel for the parties
and have also gone through the record. The plaintiffs claiming Fateh Khan Sunni
by faith have produced the witnesses from Shia and Sunni communities. They have
categorically stated that Fateh Khan was Sunni by faith and his funeral prayer
was led by Maulvi Muhammad Faazal/P.W.1, who was a Sunni Sect Scholar. On the
other hand the defendants have also produced witnesses from both Sunni and Shai
Sect, who have categorically stated that Fateh Khan professed Shia faith and
used to part in Tazia Procession. The only edge to the defendants/petitioners
in the oral evidence is the statement of Mst. Anwar Sultan, who is mother of
Fateh Khan. She has stated that Fateh Khan professed Shia faith.
Although in either eventuality whether Fateh Khan is
held to be a Shia or Sunni her 1/3 share remains unchanged but the share of
Mst. Qamar Sultan, sister of Fateh Khan daughter of Anwar Sultan increases from
1/2 to 2/3, if Fateh Khan is declared Shia and resultantly Mumraiz Khan the
predecessor of the respondents is deprived of his 1/6 share as a collateral. Mst.
Anwar Sultan is an indirect beneficiary. Her daughters shares increased and her
rivals share extinguishes. Moreover, the petitioners cannot escape a big hump
in their way. Exh.10 an application by the Sunni inhabitants of the village
including Fateh Khan was filed to thwart an effort of Allah Yar, P.W.8, a Shia
by faith to get permission to take out Tazia procession. This application
betrays strong abhorrence against those who were trying to hold the procession.
These sentiments are a proof of the faith of the applicants including that of
Fateh Khan. Did he change his faith from Sunni to Shia after that application
and statement? There is neither an assertion in the written statement nor any
proof of that in evidence. The principle laid down by the superior judiciary is
that great majority of the Muslims in Indo-Pak Subcontinent being Sunnis, the
presumption would be that the parties to the suit are Sunnis, unless its proved
otherwise. The burden to rebut the presumption would lie heavily on the one who
attributes the faith of Shia to any person. Reliance is placed on Pathana v.
Mst. Wasai and others (PLD 1965 SC 134) and Ghulam Shabbir and others v. Mst.
Bakhat Khatoon and others (2009 SCMR 644). As far the dictum laid down in (PLD
2006 SC 1476) titled (Mst. Ghulam Ayesha and another v. Sardar Sher Khan) and
(2009 SCMR 644) titled (Ghulam Shabbir and others v. Mst. Bakhat Khatoon and
others); that leading the funeral prayer by a Sunni Imam is no proof of the
faith of the deceased that reduces the strength of the arguments of the
respondents only to that extent. The evidence led by the plaintiffs/respondents
to this extent may be excluded from their credit. The documentary evidence
referred above weighs heavily in favour of the respondents/plaintiffs and against
the petitioners/defendants. The only conclusion that may be drawn is that Fateh
Khan was a Sunni by faith. I find neither any illegality in the concurrent
findings of both the courts below nor any irregularity in the
proceedings".
9. A
look at the above quoted paragraphs of the trial, appellate and revisional
Courts would reveal that they, after discussing the entire evidence on the
record, concluded that deceased was not a Shia but a Sunni by faith. They were
swayed not by presumption alone but by the preponderance of evidence on the
record which unmistakably shows that the deceased was a Sunni and not a Shia by
faith. The learned counsel during the course of arguments tried to give a hype
to the evidence of the mother of the deceased by submitting that no person
could afford to have better knowledge about the faith of the deceased than his
mother but her evidence was discarded without any tenable reason. A perusal of
the judgments of the fora below as well as the High Court would reveal that not
only her but the entire evidence available on the record was examined keeping
in view the circumstances the deceased lived in including his
way of life,
the faith of his parents
and other kith and
kin including his
sister. The evidence
of his mother
was found interested,
is as much
as it aimed
at benefiting her
daughter who was to retain the remaining property if her son was proved
to be a Shia by faith. The other part of the contention also appears to be
incorrect as all the Courts recorded cogent reasons for discarding her and
other evidence.
10. The
proposition that when the relief vis-a-vis partition of an agricultural
property lay within the jurisdiction of the Revenue Court, any decree passed by
the Civil Court in this behalf is nullity in the eye of law, is no doubt
correct, but in this case the Civil Court has not passed any such decree. Yes,
no secondary evidence has been produced in the Court to prove the signature of
the deceased on the application mentioned above but, to our mind that was not
necessary, because it was a certified copy of the application thus moved. When
considered in this background, we don't think the impugned finding can be said
to have been based on misreading and non-reading of evidence or erroneous
assumptions of law and facts. We, therefore, do not feel persuaded to grant
leave in this case.
11. For
the reasons discussed above, this petition being without merit is dismissed.
C.M.A. No.1754 of 2010
12. As the
petition for leave to appeal has been dismissed, this C.M.A. for suspension of
the impugned judgment having become infructuous is also dismissed.
Leave
refused.