1983 PLP 2559 (CLC)

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S. 100-Sect of person, determination of-Question of fact Question whether deceased was a Shia or Sunni, held, is one of facts-Not open to interference in second appeal.- (Muhammadan Law). Mazharul Haq Bhatti for Appellant. Muhammad Sultan Alam and Khalid Farooq Qureshi or Respondents. This is an appeal from a judgment and decree of Mr. :4I. Sarwar, Additional District Judge, Jhang, dated 24th March, 1966, reversing a judgment and decree passed by . Ch. Muhammad Aslam, Civil Judge, II-Class, Jhang, dated 5th June, 1965, whereby he decreed the suit of the respondents for a declaration that they were the owners in posses sion of the land in dispute having inherited the same as their share in the estate of their collateral Said Ali, who died on 21st February, 1961. 2. The brief facts of this case which are relevant for the purposes of this appeal are that Said Ali who died without any issue was succeeded by his sister Mst. Zohran Mai, the appellant, as his only heir under Shia law. A mutation was sanctioned in favour of Mst. Zohran Mai on 18th June, 1961, in respect of agricultural land which was owned by Said Ali in Mauza Munde Syed, Tehsil and District Jhang, which is described more accurately in the heading of the plaint. The respondents/plaintiffs who are collaterals of Said Ali filed the declaratory suit, out of which this appeal has arisen, contending, inter alia that Said Ali was a Sunni by sect and as such the respondents, too, were entitled to inherit a share in the estate of Said Ali. The trial Court held that Said Ali was a Shia by sect and as such the respondents/plaintiffs suit was dismissed. However, the findings of the learned Additional District Judge was to the contrary. The only issue on which the parties have addressed arguments in this case is issue No. 4, which is as follows :- "4. Whether Said Ali deceased was a Shia or a Sunni.?" Learned counsel appearing on both sides agree that if Said Ali is found to be a Shia, the entire property is to go to the appellant, and if Said Ali is found to be a Sunni by sect the respondents are entitled to the decree prayed for by them in their suit. 3. All the evidence produced in this case on issue No. 4 is oral: 12 witnesses were produced by the respondents/plaintiffs and 11 by the appellant/defendant. 4. It is contended on behalf of the appellant that the learned Additional District Judge has accepted the appeal without discussing the evidence on record and that a very considered judgment passed by the trial Court has been upset without giving reasons. I have, therefore, examined the evidence in the case with the assistance of the learned counsel. 5. It is not disputed that Said Ali deceased belonged to a family of Syeds, most of whom were of Shia sect. Said Ali belonged to village Munde Syed where the property in dispute is also situate. The evidence on record shows that a majority of the population living in this village were Shin. by sect. Said Ali, however, as admitted by the appellant- in her statement as D. W. 11, had gone to live in village Rorhanwali about 30 or 35 years prior to his death, which occurred in the said village. An overwhelming majority of the residents of village Rorhanwali, which is also known as Marali, were Sunni by sect. The learned Civil Judge relied on the evidence of D. Ws. who stated that- Said Ali was a Shia and most of his relations were also Shias. He was impressed by the statement of D. W. I, who stated that a brother of Said Ali, namely, Amir Hussain. was a licence-holder for Tazia. After discussing the evidence of the wit nesses, the trial Court expressed in its judgment that the statements made by the P. Ws. being contradictory, could not be relied upon, and that the weight of evidence indicated that Said Ali was a Shia. The fact that all the-near relatives of the deceased were Shias weighed heavily with the learned trial Judge, who accordingly decided the issue against the respon dents/plaintiffs. 6. The learned Additional District Judge, on the other hand, did not rely on the testimony of any of the D. Ws. primarily on the ground that none of them was a resident of village Rorhan-wait except D. W. 2, and that they were therefore not in a position to depose as to whether the deceased at the time of his death was a Shia or a Sunni. The learned Additional District Judge also expressed that in view of Mst. Sardar Bibi v. Muhammad Banhsh and others (P L D 1954 Lah. 480), the deceased had to be presumed to be a Sunni unless it was proved to the contrary by producing sufficient evidence. All the P. Ws. belonged to village Rorhanwali where the deceas. :.d had been living for the last 30 years and had been teaching Qur'an to children. The lower appellate Court was, therefore, of the opinion that the P. Ws, were in a better position to know the creed of Said All and that :he statements of D. Ws. did not carry so much weight. 7. Learned counsel for the parties have taken me through the evi dence in this case. It is true that the P. Ws. have stated that Said Ali was a Sunni and the D. Ws. have stated that he was Shia by caste, but the ques tion of his sect cannot be determined by their opinion. His sect can only be inferred from facts which create presumption one way or the other. In any case, the initial presumption which is to be made is that he was a Sunni, in view of Pathana v. Mst. Wasai and another (P L D 1965 S C 134). In my view, it is very significant that Said Ali was a Pir. Such assertion was made by P. W. 2, P. W. 4 and P W. 5. This fact was also admitted by D. W. 2 (Muhammad Ali). D. W. 5 (Ghulam Shah), D. W 4 (Jafar Shah), D. W. 2 (Muhammad Sibtain), D. W. 7 (Ahmad) and D. W. 9 (Muhammad Iraq). Even the appellant appearing as D. W. 11, admitted that Said All was a Pir. It was held in the aforecited case of Mst. Sardar Bibi that the "institution of Pirs is unknown amongst the Shins". In that case, the deceased was a Muridni of a Pir and the fact was regarded as being a proof of the fact that she was of Sunni sect. In view of the said authority, a very strong presumption arises that Said Ali was a Sunni by sect. The fact that Said Ali abandoned his village Munde Syed, where his relatives resided and had gone to settle down in village Marali, where he had taken disciples, and where an overwhelming majority of the residents was of Sunnis, also lends support to the view that he was a Sunni. The deceased did nothing to make his living. He lived like a Fagir. He could not have gene to Marah fox economic reasons. The appellant has no brought anything on record to suggest as to what was the reason why the deceased had gone to live in village Marali. The presumption that Said Ali was a Sanni is, therefore, overwhelming. 8. There is some controversy in evidence on the question as to who ha.1 led the funeral prayer for the deceased. The case of the respondents was that Maulvi Ali Muhammad (D. W. 2) had led the funeral prayer. This witness was a Sunni and was the Imam of the only mosque in village Marali, which mosque incidentally belonged to Sunnis though Shias also used to say their prayers in it. It is also in evidence that Maulvi Ali Muhammad used to lead funeral prayers even for Shias in village Marali, because there was no Shia Maulvi available in that village. However, the assertion of the respondents that Maulvi Ali Muhammad had led the funeral prayer, was disproved by the appellant by producing Maulvi Muhammad Ali himself as D. W 2, who dented the fact and also stated that the deceased was a Shia. Very little reliance can be placed on the opinion of this witness as to the sect of deceased, because during cross -examination, he disclosed that he did not know much about Said Ali and that he could not say as to when Said Ali had come to settle down in village Marali, and how long before his death he had been there. The witness could not even say whether Said Ali had lived there for 5 years or IO years prior to his death. He did not even know with whom Said Ali lived in Marali, but he admitted that Said Ali had a large number of disciples. It is, therefore, apparent that the opinion of the witness about the sect of the deceased was not based on any intimate knowledge of him. Since the other relations of Said Ali were Shias by sect, the witness must have presumed that Said Ali, too, was a Shia. In any case, the witness, not having drawn any presumption from the fact that Said Ali had Sunni Murids id village Marali, it is not safe to rely on his opinion. 9. The question as to who led the funeral prayer for the deceased is certainly of some importance. On this question, Maulvi Muhammad Ali could not say anything. D. W. 6 Muhammad Sibtain asserted that it was Maulvi Muhammad Sharif, who was Shia by sect, who bad led the funeral prayer. However, the appellant herself appearing as D. W. 11, stated that it was one Waryam who had done so. But what is significant, is that neither Waryam nor Muhammad Sharif was produced as a witness. It is pertinent to note that the appellant's learned counsel had made a state ment on 7th May, 1969, that he would produce Muhammad Sharif as a witness but despite this statement, he did not produce him. Since it is not established on the record as to whether it was a Sunni or a Shia Maulvi who had led the funeral prayer. the parties have failed to establish an important fact, from which an inference could be drawn as to the sect of the deceased. 10. The witnesses from both sides have laid some stress on showing that the relatives of the deceased were Shias or Sunnis. It appears to me that most of the relatives were Shias. However, the question whether Said Ali was a Shia or a Sunni cannot be determined merely from the sect to which his relatives belonged. Reference in this behalf may be made to Pathana v. Mst. Wasai and another wherein it was observed that initial presumption that had to be drawn even in such cases was that the deceased was Sunni, unless contrary was established by good evidence. Some of the D. Ws. stated to the effect that Said Ali used to live with Haji,Waryam in village Marali and that Haji Waryam was a Shia. However, there is controversy as to where the deceased used to reside. But even if he resided with a Shia family, this fact alone could not rebut the presumption raised by other factors that have been discussed above that the deceased was a Sunni. 11. The assertion that the D. Ws. had made that Said Ali used to come to village Munde Syed to attend Majalis, and he used to pray like Shias are not enough to rebut the presumption to the contrary which arises from the facts discussed above. 12. The question whether the deceased was a Shia or a Sunni is really one of fact. Learned counsel for the appellant has not been able to show that the decision arrived at by the learned Additional District Judge was not based on evidence. There was an initial presumption that Said Ali was a. Sunni by sect, and this presumption has been strengthened on account of the fact that he was a Pir who had a large following in the village of Sunnis. He had - also abandoned his own village where majority of the inhabitants were Shias and bad also abandoned his own relatives and had gone to live in village Marali wit his followers, he used to teach Qur'an to children. In these circumstances, no error of law or of procedure seems to have been committed b the lower appellate Court in arriving at its conclusion that Said Ali was Sunni. 13. In view of the above discussion, I do not find any merit in this second appeal, which is accordingly dismissed. However, consider ing the circumstances of the case, the parties are left to bear their own costs. M.Y.M. Appeal dismissed.