PLD 165 Supreme Court 134 (PLP)

S. A. RAHMAN, J.‑This appeal, by special leave, arises out of a suit brought by Pathana appellant, for possession of 3/8th share of the property left by one, Salara, who died on the 18th of June 1951. The suit was resisted by Mst. Wasai, widow or the deceased, and Mst. Mehrajan, his daughter. The plaintiff's case was based on the allegation that Salara professed the Sunni (Hanafi) faith. The defence to the suit was founded on the counter‑plea that he died a Shia. The trial Judge found the issue in favour of the respondents and dismissed the suit with costs. On appeal, the District Judge reversed the finding and held that Salara was governed by the Hanafi Law. He therefore decreed the suit with costs. In second appeal, the respondents succeeded before the High Court of West Pakistan. The judgment of the District Judge was reversed and that of the trial Judge restored. Special leave to appeal was granted in this case to consider the question whether the High Court were right in interfering in second appeal, with what was essentially a finding of fact, in the circumstances of this case. The crucial question in the case was whether the deceased Salara died professing the Hanafi creed or he belonged to the Shia sect. If the former was the case, then the appellant was entitled, as a residuary, to 3/8ths of the property left by the deceased, he being his cousin. The remaining property would then have gone to the two heirs, namely, the widow and the daughter. If, however, Salara was a Shia by faith, then the appellant was not entitled to any share in his property. Second appeals from appellate decrees are dealt with in section 100 of the Code of Civil Procedure, 1908. This section is expressed in these terms:‑ "(1). Save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:‑ (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits." Subsection (2) of this section clarifies that an appeal may lie under this section from an appellate decree passed ex parte. This section has to be read with section 101 of the Code which declares that no second appeal shall lie except on the grounds mentioned in section 100. It is common ground between the parties that the instant case did not attract clauses (a) and (b) of subsection (1) of section 100 of the Code. Justification for interference in second appeal could therefore have been found only in clause (c) of that subsection. The learned Single Judge who disposed of the appeal in the High Court, held that the judgment of the District Judge in appeal, was vitiated for two reasons. In his opinion, firstly, the learned District Judge had completely missed the statement given by Mst. Allah Wasai, defendant, as her own witness, and secondly, "he had failed to take into consideration important circumstances arising out of the evidence produced in the case". He therefore felt that it was open to him to re‑assess the evidence in the case, afresh. He then discussed the evidence and recorded the finding that the deceased had died a Shia and consequently the plaintiff's suit merited dismissal. In support of the first ground that prevailed with the learned Single Judge, he relied on an observation occurring in the judgment of the District Judge in the following passage:‑ "Nizam has gone to the length of saying that all the relations of the deceased, professed Shia faith, including the plaintiff. Plaintiff repudiates this allegation and the two defendants have not come into the witness‑box to assert themselves as Shias." Apparently, the last sentence in this extract from the judgment, was construed to mean that the learned District Judge was under the impression that Mst. Allah Wasai had not been examined as a witness in the case at all. It is explained, however, that what the learned District Judge meant was merely that she had not stated from the witness‑box that she herself was a Shia. This contention appears to be well‑founded. In the paragraph preceding the one which contains the above extract, the learned District Judge has indicated how the case was presented to him. He states:‑ "He has come up in appeal and the learned counsel who represented him, vehemently contended that the learned trial Court did not properly appreciate the evidence produced before it. He, therefore, took me through the evidence which the parties had produced on the record." This obviously means that the learned District Judge went through the whole evidence on record, which was not voluminous in nature, consisting as it did, of seven witnesses on behalf of the plaintiff and six examined by the defendants, including Mst. Wasai as D. W. 1. It is not conceivable therefore that he was unaware of Mst. Wasai having been examined as a witness in this case. The interpretation of the sentence in question advanced by learned counsel for the appellant, appears consequently to be correct. Mst. Wasai did not, in so many words, assert that she herself was a Shia and this is apparently what the learned District Judge was commenting on. The second defendant had not offered herself as a witness in the case at all. The learned Single Judge in the High Court appears to have misconceived the position in this respect. Mr. Abdur Rashid who appeared for the respondents before us, attempted to argue that the learned District Judge was guilty of misreading of evidence in the case and therefore the High Court had jurisdiction to reopen the finding of fact arrived at by him. In support of this position, he invited our attention to the observation of the learned District Judge, to the effect that Maulvi Zahoor Ahmad, P. W. 3, had asserted that he was the ancestral Maulvi of the plaintiff's family. Learned counsel suggested that this witness had merely averred that he was himself an ancestral Maulvi, i.e., his own forefathers were also Maul vis. We have perused the statement of this witness, and the context in which this sentence occurs, lends itself to the construction which was adopted by the learned District Judge. The witness started by saying that the deceased was known to him to belong to the Sunni sect of Islam, that he was ancestral Maulvi and that he had officiated as Imam at the funeral prayers on the death of a sister of Gulsher, P. W. 2, who is a cousin of the deceased. It is apparent that Zahoor Ahmad was trying to make out that he was the Maulvi who performed various religious services for the family of the plaintiff. At best, the sentence was capable of either interpretation and the District Judge could not be said to B have misdirected himself by adopting one of them. Another instance of the alleged misreading of evidence that learned counsel for the respondents pressed into service, was said to consist in the District Judge's remark, while discussing the testimony of Imam Bakhsh, D. W. 4 and Singar Khan, D. W. 6, that they had not disclosed their own faith. It is pointed out that D. W. 4, Imam Bakhsh, had stated in his cross‑examination that he was himself a Shia though such an assertion is absent from the testimony of Singar Khan, D. W. 6. In this respect, D apparently, the learned District Judge had committed a slight error. Even if the correct position had, however, been present to his mind on this point, we do not consider that the main line of his reasoning would have been affected materially. This would be borne out by the following observations in his judgment: "Some other evidence was also led by the defendants to show that the deceased was in his lifetime a Shia by faith because he used to hold majalis in the Shia fashion and used to say his prayers without folding his hands, and in this respect, reference may be made to the testimony of Imam Bakhsh (D. W. 4) and Singar Khan (D. W. 6). If he was really holding Shia majlisses as is alleged by these witnesses, he must have been inviting some zakirs because without them the majlis could not be held. Not a single zakir had come forward to support this allegation. The evidence of these witnesses that they had occasions to say their prayers with the deceased, cannot be properly checked. They have not disclosed their own faith. If they themselves were not Shias, it is very doubtful that they had many occasions to say their prayers along with the deceased because the Shias do not say their prayers after a Sunni Imam; and if these witnesses are Shias they must be knowing the Shia Maulvis after whom they said prayers jointly with the deceased. No such Maulvi has been mentioned and I am not prepared to believe these bald statements without the relevant details to make them convincing." The omission to note therefore that D. W. 4., Imam Bakhsh, had claimed to be a Shia, made no difference to this reasoning. It is to be observed that only a substantial error or defect in the procedure, which may possibly have produced error or defect in the decision of the case upon the merits, would fall within the purview of clause (c) of subsection (1) of section 100 of the Code of Civil Procedure. The mistake pointed out here was certainly not of that character. As regards the "important circumstances", which, according to the learned Single Judge, the District Judge had ignored, it was mentioned before him that the mutation in favour of the respondents was sanctioned by the Revenue Authorities on the 8th of June, 1952, and that the plaintiff‑appellant had raised no objection to its sanction at that time. He had waited till the 21st of February 1956, to bring his suit. It was suggested that he did so only because his relations with Mst. Allah Wasai had become strained, as she had married off her daughter with one, Farid, instead of to a son of a nephew of the plaintiff, despite the latter's protests. The point was also given prominence in the High Court judgment that the funeral prayers of the deceased were performed by Sakhi Muhammad or Sakha Muhammad, D. W. 1, a Shia Maulvi, with the permission of the deceased's widow and that Pathana was present on that occasion and does not appear to have objected. Moreover, "the positive statements" of the D. Ws. to the effect that they had been participating in majalis organised by the deceased and had offered prayers in his company in the Shia mode, were said to be preferable to the evidence "of negative character" given by the plaintiff's witnesses. The phrase "of negative character" in this context appears to be inapt to describe the positive allegation of the P. Ws., that Salara was a Sunni. All these circumstances were matters of inference from the evidence, which was duly considered by the District Judge and furnished no ground for interference in second appeal. In a similar case reported as Mst. Durga Choudhrani v. Jawahir Singh Choudhri (171 A 122), the Judicial Committee of the Privy Council held that an erroneous finding of fact is a different thing from an error or defect in the procedure and that there is no jurisdiction to entertain a second appeal on the ground of such an erroneous finding, however gross or inexcusable the error may seem to be. Their Lordships observed that where there is no error or defect in the procedure, the finding of the first Appellate Court, upon a question of fact, is final, if that Court had before it, evidence proper for its consideration, in support of the finding. This principle was also affirmed by the Federal Court of Pakistan in a case reported as Abdul Majid v. Khalil Ahmad (PLD1955FC38). It was pointed out in that case that a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. With respect, we find ourselves in agreement with these dicta. It was, in our opinion, therefore, not open to the learned Single Judge to set aside the finding as to the faith of the deceased, Salara, recorded by the District Judge, on the grounds mentioned by him. It may be added that the finding of the District Judge was reasonably supported by the evidence on record. In the Indo‑Pak~ Sub‑continent there is the initial presumption that a Muslim is governed by Hanafi Law, unless the contrary is established by good evidence (vide Mulla's Muhammadan Law, Section 28) Even Sakhi Muhammad, D. W., who was the star witness of the respondents and had officiated at the funeral prayers of the deceased Salara, at the instance of his widow, was careful enough to say that he did not know what faith the deceased professed. He led the funeral prayers for him merely because his widow had asked him to do so. The widow might have been anxious to make out that Salara was a Shia, to serve her own property interests. In fact, it appears from the evidence that the services of Sakhi Muhammad were requisitioned as the Sunni Mauld was not available on this occasion. Sakhi Muhammad admitted that Zahoor‑ud‑Din or Zahoor Ahmad (who was examined as P. W. 3 in this case) was a Sunni Mauld who used to officiate at nikah ceremonies of the family of the plaintiff and the defendants and also used to lead funeral prayers for members of that family. Sakhi Muhammad himself being a Shia Maulvi should have been aware of the true position if Salara belonged to his sect and could not have hesitated to claim him as a member of his fold. After going through the whole evidence on record, we have reached the conclusion that the inference drawn by the learned District Judge fairly arose on that evidence and was indeed, in all probability, in accord with the facts. No fault could therefore be found with the appreciation of the evidence by the District Judge, in second appeal. The appeal succeeds and is hereby allowed. The order of the High Court will be set aside and that of the learned District Judge restored. In the circumstances of the case, we leave the parties to bear their own costs. A. H. Appeal allowed.