P L D 2000 Supreme Court (A K) 25 (PLP)

BASHARAT AHMAD SHAIKH, J.

A Succession Certificate was issued in favour of respondent Robina Shaheen. It was challenged by the aellant by filing appeal which has been dismissed by the High Court. Hence this appeal by leave of the Court.

2. Respondent Robina Shaheen filed an application to obtain a Succession Certificate in respect of estate left by her father Syed Ghulam Rabbani Shah Kazmi. Rs.66,205.10 were deposited in Account No.5030/3 in the name of the deceased and, according to the application, he also left behind landed propertyn different villages. She stated that there was no other legal heir. The learned District Judge passed an order granting the certificate in favour of Mst. Robs Shaheen after recording evidce of two PLn witnesses produced by her. Mst. Robins shaheen peared as her own witness and also examined Talib Hussain. Both of them stated that two brothers of the deceased Lal Hussain Shah and Maqbool Hussian Shah weralive but they could not inherit from .the deceased because she (Robins Shaheen) was a "Shia". The application for Succession Certificate also contained an averment that she was a "Shia" and therefore, was entitled to inhet the.whole estate of her fath. The learned District Judge accepted the contention of Mst Robins Shaheen that she belonged to "Shia" sect and held that to her presence no other person was entitled to inherit the estate oher father

3. The appellant, one of the two brothers of the ceased, filed an application in the Court of District Judge on 27th January under section 151 of Civil Procedure Code for canceation of the Succession Certificate mentioned above as well as for cancellation of the order passed by the learned District Judge. It was stated in the application that the certificate had been obtained by making misrepresentations and that Robina Shaheen purposely did not disclose the names of the brothers of the deceased, Lal Hussain Shah and Maqbool Hussain Shah. It was stated that the Certificate had been issued in light of the 'Shia' rules of inheritance by showing that the deceased was a ' Shia' . It was averred that the deceased s a 'Sunni' for which proof wi be furnished whenever called upon. Objections were called, issues were framed and parties were asked to lead evidence.

4. The appell;.nt examined Muhammad Altaf, Alla Ditta and Lal Hussain Shah while Jafar Hussain Shah, Muhammad Sadiq and: Bank Manager, National, Bank of Pakistan Muhammad Razzaq were examined by Mst. Robins Shaheen and she also appeared as her own witness. The Bank Manager produced a copy of an affidavit Exh. 'DA' sworn ir by the deceased on 25th April, 1993 in which he deposed that he belonged to 'Fiqa Jafaria' and he wanted to distribute his Zakat privately amongst his relatives. This Affidavit has been belved by the learned District Judge as well as the High Court. The learned District Judge also gave weight to the other evidence to which we will be adverting at a later stage but the High Cou has only relied on this -affidavit as being sufficient to prove that the deceased was a ' Shia' . -

5. Appellant's witness hammad Altaf belongs to the same village to which the parties long, Abdupur. He said that deased Ghulam Rabbani Shah belonged to 'Sunni' sect and his ' Jaza' prayer was led by a 'SunniImam according to the 'Sunni' y. He stated in cross-examination that he joined the 'Janaza' prayer which was attended by a large number of people. The second witness was Alla Ditta, also from the same village. He made the same statement that the deceased was a 'Sunni' and his 'Janaza' prayer was led by a 'Sunni' Imam with four ' Takbeers' . He also stated that he was buried in general graveyard of 'village Abdupur. In cross-examination the witness stated that there was only one graveyard in the village ich belongs to the people belonging to 'Sunni' sect. Appellant Lal Hussain Shah also made the same statement. In cross-examination he stated that not a singleShin' joined the 'Janaza' prayer of the deceased. While cross-examining all the aforementioned three witnesses the statement that the 'Janaza' prayer was le c a 'Sunni' Imam and also that it was performed according to the 'Sunni' way was not challenged. In fact Mst. Robina Shaheen was asked this question and she admitted that the 'Janaza' prayer was led by a 'Sunni' Imam. .

6. The first witness produced by Mst. Robiba Shaheen was Jafar Hussain Shah who is a man aged 65166 years belonging to village Jatlan. He stated that he had relations with the deceased from 1970nd used to visit him quite often and the deceased also used to come to this house. He took litature relating to ' Fiqa Jafaria' from the witness as he (the tness) belongs to 'Shin' sect. According to this witness in 1990 the deceased went with him to Sheikhupura on the occasion of 'Jashan-e-Eid Milad-un-Nabi' where. he met Agha Sardar Ali Jahan Shah, head of the 'Shin' sect. The meeting took place in his presence. The deceased was so impressed that he joined the 'Shin' sect. He further stated that eve year the deceased used to attend 'Muharum', 'Chaleeswan' and other 'Majalis'. In August, 1990 the deceased hosted the 'Alain of Ghazi Abbas Alain Bardar' which is still hosted there. 'Majalis' used to be held at his house. He also joined the 'Anjuman-e Sadat', Mirpur in presence of the witness. In cross-examination Jafar Hussain Shah denied the suggestion that the deceased had faith in all the four friends of the Holy Prophet, namely, Hazrat Abu Bakar Siddique, Hazrat Umar Farooq, Hazrat Usman Ghani and Hazrat Ali.

7. The second witness was Muhammad Sadiq who belongs to village Abdupur where the parties reside. He also stated that the deceased became a 'Shin' in 1990 and after the witness and the deceased used to attend 'Majalis' at Sheikhupura together. .The deceased used to take the witness alongwith him to Sheikhupura and this happened many times. The deceased told the witness that Sheikhupura was the centre of 'Shins'. The witness also stated that 'Alain' was hosted at the house of the deceased in 1990 and'continued to be hosted there till the making of the statement. This witness also admitted that the Janaza' prayer of the deceased was led by Imam of localosque. Muhammad Sadiq stated icross-examination that before 1990 the deceased had faith in all the four 'Khulfa-e-Rashdeen' but after 1990 he had more faith in Hazrat Ali although he accepd Hazrat Abu Bakar Sidique, Haat Umar Farooq and Harat Usman Ghani as 'Khulfa-e-Rashdeen'.

8. Similar statement was made by respondent Robina Shaheen when she appeared as a witness. She stated that she herself was a 'Shin' and that the deceased used to hold 'Majalis' in his house. S also produced in evidence a ctificate issued by 'Wafaq Ulma-e-Shia Pakistan', Punjab Province that the deceased was a 'Shin' and used to attend all religious functions and used to attend 'Azadari' and 'Majalis' with gza fervour. She stated that 'Alain' was hosted many years ago on house of the deceased.

9. As stated above, the High Court has placed implicit reliance on the affidavit filed by the deceased the Bank. The learned counselor the appellant, Mr. Abdul Aziz Chaudhry, vehemently contendebefore us that no reliance could be placed on the aforesaid document. He raised various objections and also submitted that it not uncommon for 'Sunnis' to file such affidavits so that ' Yat' may not be deducted from their deposits. P. W. Muhammad Razaq, Manager National Bank Branch at Jatlan, produced this document in the Court. He brought the original with him and exhibited a copy of which was marked as Exh.DA. He also produced a copy othe Bank statement of the deceed which is Exh.DB. This witness was subjected to lengthy cross-examination in which he admitted that the original affidavit wch forms part of the Bank reco is not signed by any Bank Offer. He also admitted that when a customer produces a document the Bank it is signed by the nk Officer. He stated that frothe record of Bank it could nobe ascertained as to when the .affidavit was filed in the BankHe was asked about the authenticity of the affidavit to which he replied that it was part of the Bank record. He stated that the affidavit did not carry any seal of a Bank Officer but stated that there were a large number of affidavits in the Bank which are included. in the computer list and could be produced if required. The witness repudiated the suggestion that affidavit was not sworn in by the deceased.

10. Mr. Abdul Aziz Chaudhry, the learned counsel for the appellant, submitted in his arguments that the authenticity of the affidavit has not been established and it had been wrongly taken into consideration but we find no weight in the objection. The original affidavit forms.part of the qord of National Bank of Pakistan which has presumption of truth under the Bankers' Books Evidence Act. The original affidavit s brought from the bank record and was duly inspected by the Crt and its copy was made part of the judicial record as Exh.DA. It contains the signature of the deceased. It also carries the signature of the petition-writer Abdul Rehman Kiani. The affidavit is duly attested by Oath Comssioner at Mirpur and seal of e Oath Commissioner alongwith his signatures and attestation are also duly --affixed. In our view the document carries presumption of truth which could be rebutted but no such attempt has been made. The fact that the affidavit is not signed by any officer of the bank does not destroy s authenticity of the affidavit itself.

11. When a person makes a statement about his faith, s general rule is that his statent has to be accepted. In theresent case the deceased signed an affidavit and made the statent on oath that he was a 'Shin'. This affidavit is supported by witnesses who have been produced in the Court. We have already incorporated a gist of their stements which show that he converted to 'Shia' sect in 1990, used to attend 'Majalis' and 'Azadaris' specially of Sheikhupura. It is. stated that he not only held 'Majalis' at his house but also hosted an 'Alam' at his house. In fact it is admitted by the witnesses produced by the appeant that the 'Alam' was still flying on the house of the deceased but their explanation is that it was hosted after his death but it is also in evidence that the deceased used to beat his chest which is a sure sign of being a ' Shia' . The witnesses produced by the respondent are independent and there is no reason to disbelieve them as corroboration of the affidavit. The certifice issued by the President of s Provincial 'Ulma e-Pakistan Shia', Punjab is also corroborative piece of evidence. So far as the witnesses of the appellant are concerned they do not state that the deceased used to offer prayer in a 'Sunni' mosque. However, it is an admitted fact that the 'Janaza' prayer of the deceased was led by 'Sunni' Imam. It is explained by the learned counsel for the respondent, Ch. Yaqo Javed Batalvi, that the number of 'Shias' in village Abdupur negligible. In our view the mere fact that the 'Janaza' prayer was led by a 'Sunni' Imam, an act which was done after the death of the deceased without his permission, does not destroy the value of the evidence led by the respondent. In our view the evidence led by the respondent anile affidavit of the deceased clearly carry more weight. Therefore, the finding recorded by the gh Court and that of the Court below cannot be disturbed. 12.r. Abdul Aziz Chaudhry, the learned counsel for the appellant, vehemently contended in the alternative that even if it be found that the deceased was a ' Shiathe respondent was not entitled to inherit the full estate because such a situation would be against the clear injunction of 'Allah' as laid down in the 'Holy Qur'an'. In this connection Mr. Abdul Aziz Chaudhry relied on 'Sura Nisa' Aya 11 to

13. It was contended by him that in presence of the clear Was' of 'Holy Qur'an' no other law contrary to it can -operate: The learned counsel mentioned in the concise statement that in a judgment delivered by Sindh High Court it was held that the share of daughter should be increased from one-half to full but the Islamic Ideologyouncil of Pakistan took a serious note of this judgment and recommended that the learned Judge should be removed from his offi for expressing the aforesaid ew which was contrary to the Gy Qur'an. The learned counseonso relied on two newspaper clippings one is from 'Nawa-i-Waqt', Rawalpindi dated 8th May, 1999 in which the aforesaid recommention of the Islamic Ideology Cncil of Pakistan was published and the other is editorial comment published in the same issue of 'Nawa-i-Waqt', Rawalpindi. The learned counsel has relied on various 'Tafaseer of the, Holy Qur'an. In short the point is that the 'Shia' law under which if a deceased is survived by a dauger as sole heir she inherits the whole estate is against the clear 'Nas' of the Holy Qur'an.

13. To examine this contention we may first refer to the 'Nas' rerred by him translated in Englh it reads as follows:-- "(i) Share of a son is double than the daughter; (ii) if the heirs of the deceased are only two or more daughters then they will get 2/3rd of the estate and if there is only one daughter she takehalf of the estate ... ... ... ... ... ... ..".

14. All commentators are agreed that the interetation of the above is that a Muslim dies leaving behind one daughter and no other heir then she takes half of the estate. When we turn to Shia Law of Inheritance we find that it is also the same. According to Shia Law if there is no son and there ionly one daughter her share isne half; if there are two daugers or more they inherit 2/3rd. Sunni law is the same. However, in Shia law, unlike the Sunni law, if there is one daughter she excludes all other heirs including brothers of the deceased. This rule is not inconsistent with rules of D inheritance ordained by Allah in the Holy-Qur'an. When therb are no other heirs, half of the estate would still be available after giving one half to the daughter. In this situation doctrine of return ("Radd") alies and the residue is also allotted to the daughter. It may be mentioned that doctrine of return ("Radd") is not peculiar to the 'Shias' but is also a part of the 'Sunni' system of inheritce. In this view of the matter we do not find any force in the contention of Mr. Abdul Aziz Chaudhry that Shia law on the subjt is inconsistent with Holy Qur'an. For the reasons stated above, this appeal is dismissed with no order as to costs. H.B.T./461/SC(AJ&K) Appeal dismissed.