2013 PLP 1295 (MLD)

ABDUS SATTAR ASGHAR, J.

Through this Civil Revision under section 115 of Code of Civil Procedure 1908 the petitioners impugn the judgment and decree dated 5-7-2001 passed by learned Civil Judge Sialkot whereby petitioners' suit for declaration, etc. was dismissed. It further assails the judgment and decree dated 2-1-2003 passed by learned Additional District Judge Sialkot whereby petitioners' appeal against the said judgment and decree was also dismissed.

2. Succinctly the facts leading to this petition are that Saleema Bibi petitioner No.1 (since died and represented by her daughters and petitioners Nos.2 to 5) lodged suit for declaration etc. alleging that Khadim Hussain husband of Saleema Bibi and father of petitioners Nos.2 to 5 belong to 'Shiya' sect therefore petitioners were entitled to inherit his property as legal heirs in accordance with 'Fiqah-Jaffaria' and that Muhammad Hussain and Talib Hussain respondents Nos.6 and 7 have no concern whatsoever with the property of Khadim Hussain deceased. The suit was resisted by respondents with the contentions that Khadim Hussain was 'Sunni' by faith and that inheritance mutation of Khadim Hussain deceased bearing No.606 dated 7-9-1994 was lawfully attested.

3. Pivotal issue with regard to controversy of faith of Khadim Hussain deceased was framed by the learned trial Court as under:-- "Issue No.2. Whether Khadim Hussain deceased was 'Shiya' by faith? OPP" Concurrent findings of both the learned Courts below on the said issue were against the petitioners.

4. It is argued by learned counsel for the petitioners that concurrent findings of learned Courts below are based on misreading and non-reading of the material evidence available on the record; that statement of Mian Muhammad Hussain (DW-2) has not received the consideration of learned Courts below; that the impugned judgments and decrees passed by learned Courts below based on mis-appreciation and non-appreciation of evidence against law and facts are liable to set aside.

5. It is resisted by learned counsel for the respondents with the contentions that learned Courts below have appreciated the parties' evidence in a salutary manner while passing the impugned judgments and decrees with concurrent findings of facts and law and that the impugned judgments not suffering from any jurisdictional error, factual or legal infirmity does not call for any interference through invoking the revisional jurisdiction of this Court.

6. Arguments heard. Record perused.

7. Burden of proof regarding above quoted issue No.2 is upon the petitioners. To discharge the onus probandi Razia Bibi one of the petitioners appeared in the witness box as P.W.1 and stated that her father belong to 'Fiqah-Jaffaria'. While facing cross-examination she admitted it correct that 'Janaza' prayer of her father was offered in a 'Sunni' manner by Molvi Muhammad Hussain resident of the same village Marakewal. She admitted it correct that there are about 4/5 'Molvies' relating to 'Shiya' Sect residing in the said village. She denied that in-laws of her sister Rasheeda Bibi one of the petitioners also belong to 'Sunni' Sect.

8. Petitioner's witness Alamdar Hussain (P.W.2) deposed that he is 'Matwali' of 'Imam-Bargah' village Marakewal; that Khadim Hussain deceased belonged to 'Fiqah-Jafferia' and used to participate in their 'Majlis' and had been paying 'Chanda'. While facing the cross-examination he admitted that 'Janaza' of Khadim Hussain was offered by Muhammad Hussain who belonged to 'Sunni' Sect. He also admitted it correct that Khadim Hussain usually used to offer his regular prayers in 'Charhdi Masjid Mohallah Goongian'. He also admitted that there is only one Mosque namely 'Ali Masjid' relating to people of 'Fiqah-Jafferia' in the village and that 'Imam' of the said mosque is also 'Shiya'. He admitted that Hafeez Begum one of the petitioners is wedded in a 'Sunni' family. He also stated that 'Imam-Bargah' has no register or receipt book maintaining account of 'Chanda'. He also admitted that Muhammad Yousaf (P.W.3) is his 'Behnoi' (husband of sister).

9. Muhammad Yousaf (P.W.3) deposed that Khadim Hussain belonged to 'Fiqah-Jafferia'. He stated that relatives of Khadim Hussain deceased are 'Ahl-Sunnat'. While facing the cross-examination he admitted that he is 'Behnoi' of Alamdar Hussain (P.W.2). During cross-examination he could not remember the name of deceased i.e. Khadim Hussain. He admitted that 'Janaza' prayer of Khadim Hussain was offered by 'Molvi' belonged to 'Ahl-Sunnat' however he could not tell the name of the 'Molvi'. He further stated that accounts of 'Imam-Bargah' are maintained in writing by one Murtaza who resides in the village. He also claimed himself as 'Matwalli' of 'Imam-Bargah'.

10. In rebuttal to the above respondents produced Muhammad Hussain (DW-2) aged about 86 years who had offered 'Janaza' prayer of Khadim Hussain deceased deposed as under:--

11. Learned counsel for the petitioner has laid much emphasis on his argument that Muhammad Hussain (DW-2) in his above quoted statement has admitted that Khadim Hussain deceased had accepted 'Shiya' Sect. I am afraid learned counsel for the petitioner is misconceived. Statement of the witness is to be evaluated in a true perspective as a whole. Context of the statement cannot be ignored. Bare reading of the above quoted statement of Muhammad Hussain (DW-2) makes it crystal clear that Khadim Hussain deceased was 'Sunni' till the time of his death and not 'Shiya'. Argument of learned counsel for the petitioner is devoid of any force and thus repelled.

12. There is no cavil to the proposition that mere fact of 'Janaza' prayer having been offered in 'Sunni' manner is no criterion for determination of sectarian belief. Similarly question whether deceased was 'Shiya' or 'Sunni' cannot be determined merely from Sect to which his relatives belong. Needless to say that the controversy regarding sect of a person cannot be determined by opinion of the parties rather it can be inferred from the facts creating presumption on one way or the other. Reliance is made upon Pathana v. Mst.Wasai and another (PLD 1965 Supreme Court 134). In the cited case of Pathana the Hon'ble apex Court has laid down that in the Indo-Pak Sub-continent there is initial presumption that a Muslim is governed by a Hanfi Law unless contrary is established by good evidence. In another case titled Mst. Sardar Bibi v. Muhammad Bakhsh and others (PLD 1954 Lahore 480) with regard to determination of Sect of a person it was held that court may presume that a deceased person was a Hanafi till the contrary was proved and that when both the parties stand to gain or lose valuable property the oral evidence is always to be approached with caution and it is safer to rely on that evidence which is in accordance with admitted circumstances and probabilities.

13. Alamdar Hussain (P.W.2) in his testimony has stated that Khadim Hussain deceased used to contribute 'Chanda' to the 'Imam-Bargah' however during cross-examination he categorically stated that no register of accounts of 'Imam-Bargah' or receipt book for 'Chanda' were maintained. Contrary to the above his 'Behnoi' Muhammad Yousaf (P.W.3) while facing the cross-examination stated that accounts of 'Imam-Bargah' were maintained by one Murtaza resident of the same village. Said Murtaza was not produced with any record of accounts of 'Imam-Bargah' to establish that Khadim Hussain ever contributed any 'Chanda'. It is pertinent to mention that 'Shiyas' in Marakewal village have their own mosque namely 'Ali-Masjid'. It is admitted by Muhammad Yousaf (P.W.3) that Khadim Hussain deceased used to offer his regular prayer in 'Charhdi Masjid' which belongs to 'Sunni' Sect. It is no where asserted by said P.Ws. that deceased Khadim Hussain had ever offered his regular prayers in 'Ali-Masjid' which belongs to 'Shiya' Sect. It is also admitted by Alamdar Hussain (P.W.2) that there are 5/6 Molvies who belong to 'Shiya' Sect in the village Marakewal. There is nothing on record to show that 'Janaza' prayer of Khadim Hussain was offered by any 'Molvi' relating to 'Shiya' Sect. Testimonies of Alamdar Hussain (P.W.2) and Muhammad Yousaf (P.W.3) therefore become doubtful on account of their inconsistencies. No independent and reliable witness was produced by the petitioners to establish that Khadim Hussain deceased belonged to 'Shiya' Sect. Needless to say that in civil cases once the parties have advanced their respective ocular and documentary account controversy is determined on the basis of preponderance of evidence of the parties. Therefore concurrent findings of facts of both the Courts below on the controversy with regard to identity of Sect of Khadim Hussain deceased are based on true appreciation of the ocular account available on the record and do not call for any interference by this Court through invoking the revisional jurisdiction.

14. For all above, the impugned judgments and decrees passed by learned Courts below do not suffer from any factual infirmity, illegality or jurisdictional error. I do not find any misreading or non-reading of material evidence to call for any interference by this Court through exercise of revisionsal jurisdiction.

15. For the above reasons, this Civil Revision having no merit is dismissed. SAK/S-44/L Revision dismissed.