1989 PLP 1712 (CLC)

3. Syed Muhammad Nawaz Shah, Iqbal Hussain Shah, and Altai Hussain Shah herein appellants Nos. 1 to 3 are the sons of Syed Bahawal Shah while Amir Raider Shah, Zafar Hussain Shah, Ashiq Hussain Shah, Baqir Hussain Shah, (ihulam Abbas Shah, Kalsum Begum, Zcb‑un‑Nisa and Husinan Bano are the ions and daughters of Sharaf Hussain Shah who was the 4th son of Bahawal Shah and had died before the institution of the suit. Mst. Hakim Bibi herein appellant No.ll is the widow of the late Syed Sharaf Hussain Shah. Amir Hussain Shah Muhammad Hussain Shah, Ashiq Hussain Shah, Mst Arbab Bibi, Mst. Murid Bibi and Mst. Hussina Bibi herein respondents Nos. 1 to 6 are the legal hcirs of Mst. Hakim Bibi the real mother of Syed Baqir Hussain Shah. I lassan Bakhsh, Allah Dittah and Muhammad Bakhsh herein respondents Nos. 7 to 9 are the transferees from Mst. Hakim Bibi.

4. From the memorandum of appeal it appears that respondent No.13 .Varir Shah has not been impleaded as a party in this regular second appeal. Sycd Muhammad Nawaz Shah an(i others filed a suit for declaration to the effect that they were the collaterals of Baqar Hussain Shah deceased who died issueless in 1940. It was averred in that plaint that at the time of the death of their propositus, the family was governed by custom to the effect that the estate of issueless person devolved on the mother of the deceased as a life estate. It was averred in the plaint that the limited interests were terminated under the West Pakistan Muslim Personal Law (Shariat Application) Act 1962 and thereon the appellants/plaintiffs were entitled to inheritance in the estate of Syed Baqir Hussain Shah in following shares:‑ . (i) Mst. Hakim Bibi, defendant No.l Mother 1/3 (ii) Syed Muhammad Nawaz Shah 2/3 (iii) Syed Iqbal Hussain Shah 2/3 (iv) Syed Altaf Hussain Shah 2/3 (v) Syed Sharaf Hussain Shah 2/3

5. It was alleged in the plaint that alienations made by Mst. Hakim Bibi in favour of Syed Ashiq Hussain Shah, Hassan Muhammad, Allah Dittah and Muhammad Bakhsh and gift made in favour of Syed Amir Hussain Shah were illegal and without jurisdiction. It was alleged in the plaint that Syed Baqir Hussain Shah belonged to Sunni creed and the parties were governed by the Hanfi rule of inheritance.

6. The suit was resisted. Objections were taken to the effect that Syed Baqir Hussain Shah deceased was assassinated by Bahawal Shah with the intention to grab his property, that Baqir Hussain Shah belonged to Shia faith.

7. The learned trial Court framed as many as 7 issues. However, in this appeal the findings of the learned Additional District Judge on issues Nos. 2 and 6 have been challenged. The issues Nos. 2 and 6 are as follows:‑ (2) Whether Baqir Shah alias Barrat Shah preferred Shia Sect O.P.D. (6) Whether the plaintiffs are debarred from inheriting the suit land on the ground that they are the heirs of murderer of Baqir Shah alias Barrat Shah deceased? O.P.D. R. The learned trial Court by judgment and decree dated 22‑5‑1971 decreed the suit: Both issues Nos. 2 and 6 were decided in favour of plaintiffs. Appeal by Amir Hussain Shah and others succeeded before the learned Additional District Judge. The learned Additional District Judge by impugned decision reversed the finding of the learned trial Court on issues Nos. 2 and 6 and came to the conclusion that Syed Baqir Hussain Shah was Shia by faith. On issue No.6 the learned Additional District Judge concluded that Bahawal Shah had committed the murder of Svcd Baqir Hussain Shah and, therefore, his progeny was disqualified to inherit the estate left by Baqir Hussain Shah. Hence this second appeal.

9. Learned counsel for the appellant assailed the finding of the learned Additional District Judge on issues Nos.2 and 6 only. On issue No. 2 it was contended that the learned Additional District Judge fell into error of law by drawing inferences that Syed Baqir Hussain Shah at the time of his death was of a tender age and therefore, he professed the faith of Chiragh Shah who was held to be Shia. He further elaborated his point by submitting that evidence on record in respect of age of Syed Baqir Hussain Shah was conflicting and contradictory. It was contended that according to D.W.6 Walayat Hussain Shah the age of Syed Baqir Hussain Shah at the time of', death was 14 to 15 years while Ghulam Hussain D.W.9 deposed his age to be 17 to 19 years. D.W.11 Syed Amir Hussain Shah stated that the age of deceased was 16 to 17 years. It was contended with emphasis that the evidence on the age of Syed Baqir Hussain Shah at the time of death was neither clear nor certain. Therefore, the finding of the learned Additional District Judge is built upon contradictory and discrepant evidence.

10. It was next contended that the learned Additional District Judge had drawn inferences by placing reliance upon apparently contradictory evidence it respect of faith of Syed Baqir Hussain Shah. It was urged that evidence in respect of the faith of Syed Baqir Hussain Shah comprised of D.W.1, Allah D.W.: Muhammad Bakhsh, D.W.4 Amir Shall, D.W.5 Wazir Shah, D.W.6 Walaya Hussain Shah, D.W.7 Karim Shah, D.W!8 Ghulab Shah, D.W.9 Ghulam Hussau Shah, D.W.10 Noor Hussain Shah and \ D.W.11 Amir Hussain Shah. It wa contended that D.W.1 deposed that Syed aqir Hussain Shah was a Sunni. D.W. Muhammad Bakhsh in cross‑examination' stated that the father of Syed Baqi Hussian Shah was a Shia. D.W.4 Amir Shah stated that Syed Baqir Hussian Sha was a Sunni while D.W.5 deposed that 55yed Baqir Hussain Shah was a Sunn Syed Karim Shah, Ghulam Shah, Ghulam,Hussain Shah, Noor Hussain Shah an Amir Hussain Shah gave the evidence to the effect that Syed Baqir Hussain Sha was a Shia by faith. It was contended that the burden of proof to establish th Syed Baqir Hussain professed Shia faith was heavily on the defendants and the evidence furnished by them is not confidence inspiring. The inferences drawn from such evidence by the learned Additional District Judge are unwarranted and merit to be interfered.

11. It was contended that the learned Additional District Judge had ignore, the presumption of law that the majority of Muslims in Sub‑continent is Sunni and the burden of proof lies on the persons who want to show that the deceas was a Shia. The learned counsel placed reliance upon Akbarally v. Mahomeda 138 IC 810, Aziz Bano v. Muhammad 89 IC 690, Nurali v. Malka Sultana P L 1961 Lah. 431, Sardar Bibi v. Muhammad Bakhsh P L D 1954 Lah. 480, M Sahib Bibi v. Muhammad and others P L D 1!961 Lah. 1036, Khan Muhammad Gohar Bano P L D 1965 Lah. 46, Amir Ali v, Gul Shaker and 10 others P L 1985 Kar. 365 and Pathana v. Mst. Wasai and another P L D 1965 SC 134.

12. It was vehemently urged that the finding of the learned Additional District Judge .that Syed Baqir Hussain Shad was a Shia is contrary to aforesaid well‑settled law. On issue No. 6 learned counsel for the appeal submitted that the evidence adduced by the a respondents/defendants irrelevant, hearsay and was clearly inadmissible. t was suggested that conclusion issue No.6 were formed on inadmissible evidence.

13. On the other hand, the learned counsel for the respondent supported impugned decision. A preliminary objection w4 raised that the findings of learned Additional District Judge on issues Nos 2 and 6 were findings of fact cannot be interfered with under section 100 4f the Code of Civil Procedure Reliance was placed upon Hafiz Muhammad Hussain and another v. Abbas K and another 1981 S C M R 1233 and Zohran M lid v. Mst. Siftan and others . CLC 2559.

14. Arguments of the parties have been heard and the record of the case been examined by me critically. I herein proceed to examine the respective contentions of the parties.

15. As far as the arguments of the learned counsel for the appellant on issue No.2 are concerned, they have no force. D.W.3 Muhammad Bakhsh admitted in cross‑examination that the father of Syed Baqir Hussain Shah was a Shia. Wazir Shah D.W.5 who made every possible effort to prove that Syed Baqir Hussain Shah was a Sunni, conceded in cross‑examination that father of Syed Baqir Hussain Shah was a Shia. D.W.6 Walayat Hussain Shah stated that the father of Syed‑ Baqir Hussain Shah professed Shia faith. Ghulab Shah D.W.8 deposed to the same effect. The appellants/plaintiffs did not produce an inch of evidence in rebuttal in respect of the assertion that Charagh Shah father of Syed Baqir Hussain Shah was a Shia. In the context of aforesaid evidence there is no escape from the conclusion that Charagh Shah was a Shia by faith. The finding of the learned Additional District Judge, therefore, does not suffer from any misreading or non‑reading of the evidence and is based upon material on the record.

16. In view of the aforesaid finding I will proceed to examine the contention that the great majority of the Muslims in the Sub‑continent is Sunni, unless it is disproved by the party claiming themselves to be Shia, the presumptions, flow from paras. Nos. 28 and 31 of Mahor6edan Law by Mulla. Paras. Nos.28 and 31 ibid are as follows:‑

28. Sunni Sub‑sects. The Sunnis are divided into four sub‑sects, namely, the Hanafis, the Malikis, the Shafeis and the Hanbalis. The Sunni Mahomedans of l;ndia belong principally to the Hanafi School.

31. Change of sect. A Mahomedan finale or female who has attained the age of puberty, may renounce the doctrines of the sect or sub‑sect to which he or she belongs, and adopt the tenets of the other sect or any other sub‑sect, and he or she will thenceforth be subject to the law of the new sect or sub‑sect.

17. The combined reading ,of both the rules make it clear that the presumption that the Muslim population of sub‑continent belongs principally to Hanafi School is the basic presumption flowing from the fact that majority of Muslims in sub‑continent follow the Fiqa evolved by Imam Abu Hanifa and his celebrated disciples. Similarly there is another presumption flowing from para. No. 31 that a Muslim male or female can renounce the doctrine of sect or subject to which he or she belongs and adopt the tenets of the other sect and he or she will thenceforth be subject to the law of the new sect or sub‑sect. The presumption flowing from the aforesaid principle is that a Muslim male or female has the faith of his father and can renounce the faith when he acquires the age of puberty. In the case in hand there is a preponderance of evidence in respect of the conclusion that Charagh Swah the father of Syed Baqir Hussain Shah was a Shia. The precedents cited by the learned counsel for the appellant are of no help to the case of appellant because these precedents relate to different facts and presumption flowing from ka. No.31 has not been considered in these precedents.

18. Even otherwise the conclusion of the learned Additional District Judge I that the propositus was a Shia rests upon material on the record. The defendants 1 have affirmatively proved by the evidence of D.W.6, D.W.7, D.W.8, D.W.9, D.W.10 and D.W.11 that Syec Baqir Hussain Hussain Shah was a Shia. D.W.6, D.W.8 and D.W.10 are near relations of Syed Baqir Hussain Shah and were the best persons to know the sect of their family while the plaintiffs/appellants have not produced any evidence of their near relations in this respect. The finding of the learned Additional District Judge on issue No.2 does not suffer from any legal or factual infirmity warranting interference under section 100 of the Code of Civil Procedure. It is the established principle of law that the first Appellate Court is final Court of fact and the conclusion of the first Appellate Court on question of fact cannot be set aside until and unless the conclusions are vitiated by misreading, non‑reading or misapplication of law.

19. On issue No. 6 the arguments of the learned counsel for the appellant are devoid of force. Iqbal Hussain Shah the appellant/plaintiff admitted that Bahawal Shah was prosecuted for abetting the murder of Sycd Baqir Hussain Shah and was inflicted capital punishment. It is clear from the record that Syed Baqir Hussain Shah was assassinated by one Ilahi Bakhsh and Bahawal Shah. Both of them were tried by the learned Sessions Judge, Multan who by his order dated 3‑11‑1940 sentenced Bahawal Shah and Ilahi Bakhsh to capital punishment. The operative part of the order of learned Sessions Judge, Multan is reproduced in the order of the learned Collector dated 4‑5‑1964 by which the mutation of inheritance in favour of legal heirs of Bahawal Shah was refused. The order of the learned Collector is Exh.D.3.

20. The appellants/plaintiffs have not adduced any evidence in rebuttal to the effect that Bahawal Shah had not committed the murder of Syed Baqir Hussain Shah.

21. Homicide under Muslim Law is a bar to succession. The disqualification of murderer or his legal heirs is clearly ordained by the Holy Prophet (peace be f upon him). The Holy Hadis runs as follows:‑‑ From Abu Huraira,‑ `The Prophest of God said a mprderer cannot inherit'. (Trimizi and Ibne Majah). From Abdullah bin Umr,‑‑ The Prophet of God thus spoke on the day of conquest of Mecca, `A woman inherits her husband's property and drat, the blood money, and vice versa so long as one of them does not murder the other, and if one of them kills the other intentionally he or she cannot inherit the property or the blood money but if the killing was by accident he or she can inherit the property but not the blood money." (Ibn Majah). .2. Para. No.58 of Mohammadan Law by Mulla is as follows: Homicide.‑‑(1) Under the Sunni Law, a person who has caused the death of another, whether intentionally, or by mistake, negligence, or accident, is debarred from succeeding to the estate of that other. (2) Homicide under the Shia law is not a bar to succession unless the death was caused intentionally.

23. It is settled rule of Muslim Law that a murderer or his progeny is disqualified to inherit the estate of person assassinated. The perpetrator of the crime is not entitled to the benefit from the estate left by the person who hag! been murdered. This rule of Mohammadan Law was followed in Khan Gul Khan v. Mst. Karam Nishan and others AIR 1940 Lah. 172 where it was held that `under the Mohammadan Law, the rule of exclusion from succession applies to murderer and his decsendents. The rule of exclusion applied even where a life estate intervenes in order to attract the rule of exclusion based upon public policy It is not necessary that murder should have been committed with the object all getting the murdered man's property.

24. The same rule was highlighted in Mst. Beguman and 2 others v. Saroo and another P L D 1964 Lah.

451. In that case one Rehman died on 25‑8‑1951, leaving behind a widow, and two daughters, his two sons Ahmed Bakhsh and Allah Yar were murdered on the night between 11th and 12th of January, 1948. One Dara and his son Manak were prosecuted and Dara was sentenced to death. After Rehman's death 5/20 shares were mutated in the name of Saroo and 1 Manak sons of Dara but on the suit of widow it was held that a murderer and those claiming through him are barred from succession.

24. The finding of the learned Additional District Judge that Bahawal Shah has committed the murder of Syed Baqir Hussain Shah is not open to any interference.

25. For the foregoing reasons, I have no difficulty in reaching the conclusion that the judgment and decree passed by the learned Additional District Judge is eminently just, proper and is based upon the material on record. This appeal is found to be without any merit, 1 accordingly dismiss it. The appellant shall bear the cost of the proceedings throughout. SA./M‑1373/L Appeal dismissed.