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2000 S C M R 1126

 

[Supreme Court of Pakistan]

 

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

 

Mst. SAKINA BIBI—Petitioner

 

versus

 

NAZAR and others—Respondents

 

Civil Petition No.920-L of 1999, decided on 26th November, 1999.

(On appeal from the judgment and decree dated 6-5-1999 passed by the Lahore High Court, Lahore in RSA No.908 of 1978).

 

Ahmed Raza Khan Qasuri, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on-Record for Petitioner.

 

Nemo for Respondents.

 

Date of hearing: 26th November, 1999.

JUDGMENT

 

CH. MUHAMMAD ARIF, J.—Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave is sought against judgment and decree, dated 6-5-1999 passed by the Lahore High Court, Lahore in R.S.A. 908 of 1978 whereby the said R.S.A. of the present petitioner and her mother Mst. Rabia Bibi, now deceased, was dismissed with the result that the judgment and decree, dated 18-7-1978. passed by the 1st Appellate Court reversing the judgment and decree of the trial Court dated 12-7-1976 was maintained and their suit stood dismissed.

 

2. Briefly stated the facts leading to this petition are that the petitioner and her mother brought a suit for a declaration that they became owners of the suit-property i.e. agricultural land measuring 107 Kanals and 6 Marlas situated in the area of village Pindi Kalu, Tehsil Phalia, District Gujrat alongwith the share of “Shamelat deh and other rights appurtenant thereto, in their capacity as daughter and widow respectively of Khushi Muhammad son of Dadu, who had breathed his last in January, 1970. The claim was that deceased Khushi Muhammad had left behind the plaintiffs and defendants who are sons of daughters of Mst. Sainan and Mst. Omran, predeceased sisters of Khushi Muhammad. The deceased was a Shia by faith and hence the plaintiffs are entitled to inherit his estate to the entire exclusion of the defendants. The mutation of inheritance of deceased Khushi Muhammad was wrongly and collusively sanctioned by the Revenue Authorities in which the plaintiffs were allowed 5/8 share only and the remaining 3/8 share was mutated in the names of the defendants. As a consequential relief, the defendants were sought. -to be enjoined against interference ,with the possession of the plaintiffs over the suit land.

 

2. The defendants contested the suit maintaining that the deceased was a Sunni by faith and that his above-named sister had not predeceased him.

 

3. After settling the issues and receiving evidence of the parties in the case, the trial Court decreed the suit on 12-7-1976 holding that the plaintiff had succeeded in proving that the deceased was a Shia and as such his widow (deceased–Mst. Rabia Bibi) and daughter would get 1/8 and 7/8 share respectively. –

 

4. The respondents/defendants successfully challenged the judgment and decree of the trial Court, dated 12-7-1976 in appeal and a learned Additional District Judge, Gujrat dismissed the suit by setting aside the findings of the trial Court under Issues Nos. 1 and 2 respectively that (1) deceased Khushi Muhammad was Shia by faith and (2) defendants/sons and daughters of the sisters. of the deceased are not entitled to inherit him as the said sisters had predeceased him, with the following observations:–

 

 

“(5) The plaintiff produced P.W.1 Asghar Ali Shah. He deposed that he is a Shia and knows Khushi Muhammad who had died 3 years ago and that he was also a Shia and had seen his performing all Shia rites. He further stated that he was not a “Kattar Shia” and was not the follower of all the tenets of the sect. The witness added that the deceased said prayers with folding hands as well as with open hands Asghar Ali P.W. further deposed that Khushi Muhammad posed to be a Shia while talking. In cross-examination, he deposed that Khushi Muhammad arranged Majalises and that Moulvi Tanvir Hussain Shah and Muhamamd Hussain Shah were the Zakirs and that the latter had attended the Majalasis at his house many a time” and that Tanveer Hussain Shah is alive and has been attending the Majalasis for the last 25 years. He further states that there is no Shia Anjuman in their village; that the subscriptions are- collected and entered in a register which was kept by Muhammad Hussain, that Khushi used to go to Rehman and Shera to attend the Majalasis and that Rehman is alive. He further states that when there was Hazri of Hazrat Abbass, Ghani, Nazra and Ghulla Mirasis were present there. He further states that there is Shia mosque in their village but there is no Imam; that a Sunni Imam had performed the Janaza of Khushi and that he had not attended his Jenaza, and that Khushi had said prayer with him two or three times. He further states that Pindi Kaloo is the centre of Shias. P.W.2 Ghula Shah has deposed that he knows Khushi who was a Shia and he had participated in his Jenaza and that the son of Mian Muhammad had performed his Jenaza who is the Pesh Imam of Shias. He further states that he had seen Khushi celebrating Majalasis for 2 times and that he called Muhammad Hussain and Tanvir Hussain. He further states that there was a register of Shias in their village which was kept with Daulat and that the register is with Muhammad Hussain nowadays and the subscriptions are also entered therein. P.W.3 Shah Muhammad also deposed that Khushi deceased was a Shia. In cross-examination, he. deposed that he is the ‘ Hamzulf’ of Khushi and that he was present in his Jenaza. According to him, the Jenaza was performed by Mahaboob Rasool. P.W. 4 Muhammad Ghani Shah has also deposed that Khushi was a Shia: In cross-examination he had said that Muhammad Hussain was the Zakir. P.W.5 Ghulam Haider deposes that Khushi had Shia school of thought although he did not proclaim it and that he did not see him saying prayers either with Sunnis or with Shias. He further states that his Jenaza prayer was performed by an Ahl-e-Sunnat Moulvi. P.W.6 is Salhoon. He also supports the plaintiffs in the examination-in-chief and says that the deceased Khushi arranged for the Majalises, but he does not know the name of the Zakir. The last witness is Sakina Bibi plaintiff. She states that Khushi Muhammad was a Shia. In cross-examination she asserts that he arranged Majalises and that Tanveer Hussain Shah was the.Zakir, who is alive. She adds that her father used to give subscriptions and now she pays and gets receipts. She says that the Jenaza prayer was performed by Mahboob Rasool who is alive and that they had told the Patwari that her father was a Shia. She denies that the Tehsildai had recorded their statements at the time of the attestation of the mutation. She further states that they had obtained a stay order and gave to the Tehsildar. She denies the suggestion that her father was not a Shia and that for this land they have become Shias.

 

“6. It will be observed that the plaintiffs have not been able to produce the best and confidence-inspiring evidence to discharge the onus which lay heavily upon them. It was held in PLD 1965 SC 134 that the initial presumption in Indo-Pakistan Sub-Continent is that a Muslim is a Sunni unless contrary is established by good evidence. In the present case, we have to see whether the plaintiffs have been able to produce good evidence to prove that the deceased Khushi was Shia. The reply is in the negative. It is in the evidence of Ghulam Shah P.W.2 that there was maintained a register of Shias which also contained the amounts which were paid by the Shias including Khushi towards their subscriptions for the welfare of the community. The registers as deposed to by him are being kept by Muhammad Hussain and Munshi Sardara. But neither that register nor its keeper has been produced nor is there any explanation for withholding the production of this document or the person who has been keeping it with him. The plaintiff Sakina Bibi had affirmed as P.W.7 that she has been giving subscriptions to Imambara and obtaining receipts for the same. But no such receipt has been produced. There is no reason why this evidence has been shut out. Again, the plaintiff has stated that Mahboob Rasool has said the Jenaza prayer of the deceased, who is alive; but that Mahboob Rasool that has not been produced. There is no explanation on record as to why has his evidence been withheld. There is lack of corroboration on one point or the other in the testimonies of the witness as produced by the plaintiff which is self-explanatory in the above discussion. One witness says that the deceased was not a staunch Shia, the other says the deceased did not regularly say prayers and the third says that he used to say prayers with open hands as well as folding them. According to the evidence of Asghar Ali P.W.1, when the deceased had held the Hazri ceremony of Hazrat Abbas, Sardara, Sadiq Tailor, Muhammad Hussain, Ghani Mirasi. Nazar Mirasi and Gulla Mirasi were present. But none of them has been produced although they were very important and material witnesses to prove the case of the plaintiffs. And according to Ghulam Haider (P.W.5), the deceased was of Shia school of thought but he did not declare it. There is no reason, why? If he was in fact a Shia, there was nothing to prevent him for declining himself to be so. Further, almost all the witnesses, have deposed that the deceased used to hold Majalises and it is an undisputed fact that no Majalis can be held without a Zakir. All the witnesses discussed above say that Muhammad Hussain and Tanvir Hussain were holding the Majalises in the house of the deceased. But none of these Zakirs has been produced nor is there any explanation to withhold their evidence.

 

“7 As against it, the defendants have produced 3 witnesses in rebuttal, namely, Sahloon, Ghulam Rasool, and Moulvi Abdul Hamid. They all say that the deceased was a Sunni. Moulvi Abdul Hamid has said on oath that Khushi said prayers with him and that he had performed his Jenaza prayer as well. There are no material contradictions or inconsistencies in their cross-examination.

 

“8 The upshot of the above discussion is that the plaintiffs have not produced any good evidence and have thus miserably failed to prove their case. I am not impressed with their evidence on record. I, therefore, decide this issue against them and set aside the findings of the learned trial Court.

 

Issue No. 2 and 3:

 

“9. Asghar Ali P.W.1, Ghuia Shah, P.W.2, Shah Muhammad P.W.3, and the plaintiff Mst. Sakina Bibi have deposed that Mst. Sona and Umra had died before the death of Khushi Muhammad. The defendant Ghulam Rasul who appeared in rebuttal has deposed that they were present at the time of attestation of the mutation on which date they had raised no such objection. The mutation was undisputedly sanctioned in open assembly where all the people of the village were present and the plaintiffs did not raise any objection which they have taken in this suit. None of the P. Ws. has deposed that the defendants 1-10 are not the sons and daughters of Mst. Umra and Sona who were the sisters of the deceased Khushi Muhammad. To prove this fact cogent evidence should have been brought on record by the plaintiffs but none of the P.Ws. has been proved to be the relative of the deceased Khushi Muhammad and, therefore, their evidence as to the relationship in this case of the dependents with the deceased is of no value. The plaintiffs have not brought on record the death entries of the deceased Khushi Muhammad as well as his sisters Umra and Mst. Sona and there being no evidence on record that the defendants are not their sons and daughters. I hereby decide Issue No.2 in favour of the plaintiffs and hold Issue No.3 in the affirmative, and upset the findings of the learned trial Court on the latter issues.

 

“issue No.4.

 

“10. In view of the findings on Issue Nos. l–3, the shares calculated in the impugned mutation are held to be correct.

 

” 5. The petitioner and her mother remained unsuccessful before the High Court in their RSA No.908 of 1978 which was dismissed after repelling the contentions raised on their behalf that (1) they had proved on the record that the deceased was Shia Muslim and that (2) the Appellate Court was in error in reversing the findings to that effect by the trial Court in that it was the result of misreading and disregard of material evidence. The learned Judge in Chambers also noticed the plea of the petitioner side that as the first appeal before the District Court was barred by time, it was obliged to dismiss the same by observing that as the objection to a cause being beyond time is a mixed question of law and facts and neither the petitioner side pressed this point before the First Appellate Court nor any such position was taken in the memo. of Regular Second Appeal in the High Court, they were not entitled to receive any benefit from their conduct in that regard. Paras. 4 and 5 of the impugned judgment dealing respectively with the point of limitation and the question regarding the faith of deceased Khushi Muhammad, make the following reading:–

 

“4. The perusal of the appellate judgment shows that the point of limitation has not been discussed. The initial presumption, therefore, is that this point was not raised in the first Appellate Court. Admittedly in the memorandum of appeal in this Court, it is not one of the grounds of attack against the appellate decree. There is no force in the contention of the learned counsel for the appellant that this being a question of law should be permitted to be raised. The question of limitation is not exclusive questions of law. In this case at least it is a mixed question of law and facts. This point having not been taken in the first Appellate Court nor in the memorandum of appeal in this Court, cannot be permitted to be raised. Reliance is placed on 1985 SCMR 799 (Muhammad Ishaq and others v. Shah Muhammad and others).

 

“5. The perusal of the two judgments shows that the learned first Appellate Court has extensively examined every ,relevant piece of evidence, as compared to trial Court. It has given sound reasons in support of its view. It is not disputed that the, initial presumption in Indo-Pak Sub-Continent is that every Muslim is a Sunni Muslim this presumption can be rebutted by very strong evidence. The first Appellate Court is correct that the evidence produced to show the deceased as Shia does not come up to the legal standards. It has correctly held that if the register of subscriptions is being maintained, its non-production by the plaintiffs adversely affects their, case. This has again correctly been found that if the deceased was holding ‘ Hazri’ of Hazrat Abbas in presence of Sardara, Sadiq Tailor, Muhammad Hussain, Ghani Mirasi, Nazar Mirasi, Gulla Mirasi, why none of them has been produced to substantiate this assertion. Furthdr in the presence of Shia Moulvi it is inexplicable as to why the ‘Jenaza’ of the deceased was led by a Sunni Muslim. Normally this is not done. In this case, plaintiffs’ own witness (P.W.2) stated that ‘Jenaza’ prayer was led by a Sunni Moulvi. It is not material as to which of the Sunni Moulvi led the prayer and in this connection the submission of the learned counsel as regards contradictions in evidence does not help the plaintiffs. Whether it is one or other Sunni Moulvi who led ‘Jenaza’ prayer is not material. What is material is that ‘Jenaza’ prayer was led by Sunni Moulvi. The findings of the first Appellate Court under Issue No.1 is unexceptionable and the same is hereby affirmed. “

 

6. Hence this petition.

 

7. Mr. Ahmed Raza Khan Qasuri, learned Advocate Supreme Court appearing in support of this petition, has objected to the resolution of the main point about the faith of the deceased-Khushi Muhammad and, after reading in extenso the oral evidence of the parties and the relevant portions from the judgments of the trial Court and the First Appellate Court, argued that there was sufficient material on the record to conclude that the deceased was a Shia-Muslim and the fact that a Sunni-Maulvi led his Namaz-e-Jenaza was of no consequence in that a Shia scholar/Imam was not available to lead Namaz-e-Jenaza. He also reiterated the stand taken on behalf of his client and her deceased-mother before the High Court that First Appellate Court was under an obligation to dismiss the appeal of the other-side being barred by time. Referring to section 3 of the Limitation Act (No.IX of 1908) he also tried to press into service the very case-law which was duly considered by the learned Judge in Chambers and concluded his submissions by arguing that the obligation of the First Appellate Court to consider the point of limitation gains primacy when it is noticed that an application seeking condonation of delay had been filed by the other side alongwith their memo of 1st appeal under section 96, C.P.C. He also- made a reference to a Miscellaneous Application having been made by the petitoner-side to obtain an order for taking an additional ground in. the memo. of R.S.A. No.908 of 1978 before the High Court and argued that had such a course been followed by the High Court it would have been within the purview of Rule 24 of Order XLI, C.P.C. and gone a long way in putting an end to the case of the respondents.

 

8. Respondents are not represented in this cause.

 

9. We have considered the arguments advanced on behalf of the petitioner and have also been taken through the available material by Mr. Qasuri. We find that the learned Judge in Chambers had considered the arguments advanced before him in great detail to reach the conclusion that in the absence of any misreading or disregard of material evidence on the file, the resolution of the question about the faith of deceased-Khushi Muhammad, could not be interfered with under section 100, C.P.C. We find that the learned Judge in Chambers was quite right in observing that the 1st Appellate Court has found it as a fact that the deceased-Khushi Muhammad was not a Shia by faith and that the evidence produced to the contrary does not come up to the legal standards. “…It has correctly held that if the register of subscriptions is being maintained, its non-production by the plaintiffs adversely affects their case. This has again correctly been found that if the deceased was holding. ‘ Hazri’ of Hazrat Abbas in presence of Sardara Sadio. Tailor, Muhammad Hussain Ghani Mirasi Nazar Mirasi Gulla Mirasi. why none of them has been produced to substantiate this assertion. Further in the presence of Shia Moulvi it is inexplicable as to way the ‘ Jenaza’ of the deceased was led by a Sunni Muslim. Normally this is not done. In this case, plaintiffs’ own witness (P. W.2) stated that ‘ Jenaza’ prayer was led by a Sunni Moulvi. It is not material as to which of the Sunni Moulvi led the Prayer and in this connection the submission of the learned counsel as regards contradictions in evidence does not help the plaintiffs Whether it is one or other Sunni Moulvi who led ‘ Jenaza’ prayer is not material. What is material is that ‘Jenaza’mayer was led by Sunni Moulvi. The findings of the first Annellate Court under Issue No 1 is I unexceptionable and the same is hereby affirmed. ” (Underlining is for 1 emphasis). It is not the case of the petitioner that any one of the deficiencies referred to in the above underlined except from the impugned judgment, is factually incorrect.

 

10. As regards the question of the First Appeal of the respondents being beyond time before the District Court, we suffice by observing that the learned Judge in Chambers had considered (1) of failure on the part of the petitioner-side to even so much as argue that the appeal was beyond time there and (2) the petitioner side not taking such a stand before the High Court in its memo of R.S.A. No.908 of 1978 to hold that in this scenario, the petitioner’s side cannot be permitted to raise the point before him. Further, we have looked in vain for any argument having been advanced on. behalf of the petitioner side in the High Court in relation to it pressing into service C.M. No.l of 1997 in R.S.A. No.908 of 1978 (Copy available at pages 25 and 26 of the Paper Book). The above CM was made after the lapse of more than a decade and, may be it was for that reason, that it was not pressed into service at the time of final arguments before the High Court.

 

11. Towards the end of his. arguments in the case, Mr. Qasuri made a faint reference to the fact that all the defendants belong to the category of “Distant Kindred’ heirs and, therefore, they are not entitled to inherit deceased Khushi Muhammad even under the Sunnni law. When his attention was drawn to the admitted position that as sharers of her father she and her mother/widow of deceased Khushi Muhammad were rightly held entitled to the estate of the deceased to the extent of 1/8 and 4/8 shares respectively and that the doctrine of rad cannot be pressed into service with the result that the entitlement of the respondents as determined by the First Appellate Court and upheld by the High Court does not suffer from any infirmity in law whatsoever, he did not press the point any further.

 

11. No other point was argued.

 

12. Resultantly, this petition is dismissed and leave refused.

 

M. B. A./S-9/S Petition dismissed.

 

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