P L D 1989 Karachi 85 (PLP)

(6) Mahbibi wife 0-06 paisa (7) Bachul -do- 0-06 paisa

2. The Khata of the deceased was mutated accordingly. It needs to be mentioned that the deceased had two wives, namely, Mst. Mahbibi and Mst. Bachul at S.No.6 and 7 above. From his first wife he had one son as listed at No.l above, and three daughters as listed at S.No.3, 4 and

5. From the second wife he had one son as listed at S.No.2 above. The above 7 heirs were in existence at the time of death of Gulsher and so the Khata was changed in their names only. Later on, three months after the death of Gulsher, his another son Gulkhan was born to Mst.Bachul who was pregnant at the time of the death of her husband, Gulsher. The said son, however, died in infancy after about five months of his birth, as alleged and submitted by the counsel for the respondent No.4.

3. It appears that the produce of the land etc. was being enjoyed by the heirs according to their shares and thus there was no objection from any quarter for setting aside the order passed by the Mukhtiarkar in respect of Fauti Khata Badal of Gulsher. After some years, some dispute cropped up between the heirs which prompted respondent No.4 (son of Gulaher from Mst. Bachul and so real brother of Gulkhan) to make an application to the Assistant Commissioner, Warah claiming to be heir of the third son, Gulkhan, since deceased, and for re-determination of his share. This application was forwarded by the Assistant Commissioner to the Mukhtiarkar who, after holding spot inquiry, submitted his report to the Assistant Commissioner which is stated to be based on the statements of nekmards on Holy Qur'an recorded by him during spot inquiry. The report of the Mukhtiarkar supported the averments made in the application of the said respondent No.

4. The learned Assistant Commissioner thus observed: "That deceased Khatedar Gulsher had also got third son Gulkhan from Mst. Bachul after three months of his death. The said Gulkhan was alive only for a period of five months. Thus the applicant Hafiz Muhammad Soomar and his mother Mst. Bachul became his heirs. Accordingly this application was treated as an appeal and the parties were called for hearing." It was further observed: "The appellant Hafiz Muhammad Soomar contended that his real brother Gulkhan has been deprived of his due legal share due to reasons that the mashirs did not disclose his name at the time of Fauti-Khatabadal. He also produced two Tahreers of Shareeah issued and countersigned by Maulana Abdul Karim Qureshi of Ber Sharif. These Tahreers show that Gulkhan is entitled to get due share from the property left by his deceased father. And that after his demise the said share is to be inherited by his real brother Hafiz Muhammad Soomar and mother Mst. Bachul."

4. It was, therefore, held by the learned Assistant Commissioner that "in view of the facts discussed above, 1 set aside the order passed by the Mukhtiarkar about the Fauti-Khatabadal case of deceased Gulsher and further direct the present Mukhtiarkar to decide the Fauti-Khatabadal afresh by showing Gulkhan as legal heir of his deceased father." Being aggrieved with the said order the petitioner who is grandson of Gulsher has filed the above petition challenging the above order dated 28-2-1988.

5. Learned counsel for the petitioner Mr. Sharfuddin Ada submits that the impugned order dated 28-2-1988 passed by respondent No.2 (Assistant Commissioner) is illegal and ultra vires inasmuch as that the mutation effected long ago has now been ordered to be amended by respondent No.2, without any jurisdiction.

6. Learned counsel further submits that the learned Assistant Commissioner has passed the impugned order on the basis of Tahreer Shariat (Annexure J). The order is without jurisdiction as the respondent No. 2 is not competent to act as "Shariat Court". Regarding the submission of acting on the basis of Tahreer Shariat it seems proper to reproduce the said Tahreer. Its translation reads as under: "Question: Gulsher died, his wife Mst. Bachul was pregnant at that time who gave birth to one child Gulkhan after three months who died after five months. It is requested that the Ulma may announce the decision of Shariat. Ans: Gulkhan is entitled to inherit from the property of his father as ordained in Holy Quran. i.e. the male shall take double the share, of two females, as ordained by Allah. '" ' This child is born after the death of father and the property has been distributed long after that. It may be mentioned that even if the baby had been in the womb; belly of the mother and he would have been entitled to two shares that of daughter and in case of daughter one share. The difference should have been kept Amanat. So in case thereafter son is born, he would be equal to the double share. This is the ceision of the Shariat. (Sd. ) Abdul Karim. Rajib 1408 A . H. "

7. We inquired from the learned counsel if there was any period of limitation applicable to the change of mutation as ordered by the Assistant Commissioner. His reply was in the negative. It was, however, submitted by him that on factual plane no such third son was born to Mst. Bachul, widow of the deceased Gulsher. In support, he refers to the four alleged affidavits of Mst. Qeemti, Sangeen. Abdul Ghafoor and Haji Abdul Sattar, all dated 25-2-1988, filer alongwith the petition. It is noticeable that these are not affidavits. They are neither on stamp paper nor have been sworn before the Commissioner for taking affidavits. These statements are simple photostat copies on plain paper. They appear to have been filed for the first time in this Court. They do not also seem to have been filed earlier before the Mukhtiarkar during inquiry or before the Assistant Commissioner as these are not shown to be certified copies obtained from their office. Be that as it may, we are afraid, the question being of fact cannot be inquired into by us in our Constitutional Jurisdiction. In Islamic Law the child in womb, the foetus, is an heir alongwith other heirs. provided it is present in the womb of the mother at the time of the death of the ancestor and is born alive within six months from the death of ancestor. If born after a period of more than six months, there is no inheritance for him. It is so stated by Shamsul A'immah Imam Sarakhi (d.482 A.H.) in his well-known work "AI-Mabsut" Vol. XXX pp.50-51 which reads as under. Indeed, there is difference of opinion on the point as to the maximum! time-limit within which it is born alive after the death of the ancestor. The shortest period of pregnancy is held to be of six months. It is based on the following two verses of the Holy Qur'an namely, i.e the carrying of the (child) to the weaning is (a period of) thirty months (S. XI, VI:15) and i -e. and in years twain was his weaning (S.XXXI; 14). Interpreting the above two verses together one may' arrive at a conclusion that the total period of pregnancy and sucking to the child is of thirty months, and the sucking period only is for two years. It is reported from Hadrat Ibn' Abbas that the minimum period for gestation is of ;ix months. Tafsir Ibn Kathir: Tafsir (Urdu Tr. , VOl.IV, pt. xxi, p.45) Hazrat Ali is also of the same view and Hadrat Uthman also holds so (Ibid, Vol. V, pt. xxvi, p.8). Through these traditions, it is well established that Allah the Almighty has, if not prescribed, at least indicated the period of six months to be the minimum period of gestation. The consensus of the Companions of the Prophet as well supports this view. There is also a consensus of all the jurists of the Ummah in the books of fiqh. Mr. Ellahi Bux Kehar, learned counsel for respondent No.4 took a preliminary objection that the impugned order was appealable to the Deputy Commissioner under section 161 of the West Pakistan Land Revenue Act, 1967 and so -a revision against an order passed in appeal is also provided under section 164 of the said Act. It appears that the alternate remedy under the relevant law has not been availed of by the petitioner which is not only adequate but efficacious also, inasmuch as both questions of fact and law can be looked into by the authorities prescribed under the provisions of sections 161, 163 and 164 of the Land Revenue Act, 1967. It may further be stated that section 42 of the West Pakistan Land Revenue Act, 1967 gives power to a Revenue Officer to inquire, from time to time, as to the correctness of all entries in the register of mutations and enter all such acquisitions which come to his knowledge and to pass such orders in this regard as he deems fit. Section 42 empowers the Mukhtiarkar to record the acquisition of any interest in the land other than a right referred to in subsection (1) of section

42. Section 45(a) also provides that entries in the record of rights shall not be varied in subsequent record other than, inter alia, by making entries in accordance with facts proved or admitted to have occurred. According to clause (a) of subsection (1) of section 161 of the aforesaid Act an appeal from an order passed by the Assistant Collector (in which capacity respondent No.2 appears to have acted while passing the impugned order) would lie to the Collector. Admittedly such appeal was not filed by the petitioner before filing of the above petition. The Land Revenue Act is a Special Statute and it provides for a remedy by way of an appeal against an order passed by the Assistant Collector/ Assistant Commissioner. A further remedy is also provided in the Statute by way of Revision against an order passed in appeal. Admittedly no such appeal or revision was filed by the petitioner. We, therefore, do not feel inclined to invoke the jurisdiction of this Court under Article 199 of the Constitution without the petitioner having exhausted the remedies available to him in law. The petition is, therefore, dismissed with costs. A.A. /K-117/K Petition dismissed.