P L D 1981 Supreme Court 56 (PLP)

The food , of the people of the Book Is lawful unto you And yours if lawful Unto them . (Lawful unto you in marriage) Are (not only) chaste women who are believers but Chaste women among The People of the Book, Revealed before your time,-- ..." We regret our inability to understand how this Sura can lead to the inference that Mr. Ihsanul Haq's submission is contrary to the express tent of the Holy Qur'an, and on the .other hand, Mr. Ihsanul Haq did not challenge the principle that a Muslim can marry a Christian lady, but he challenged the inference which Mr. Ghias Mohammad attempted to draw from the fact that a Muslim male could marry a Christian, and the real controversy between the learned counsel was about the inference to be drawn from the principle that a Muslim male can marry a Christian. Because a Muslim male can marry a Christian, a possible and reasonable view is that a wife's renunciation of Islam for Christianity should not automatically dissolve her marriage, because her husband is free in any event to marry a Christian. But, on the other hand, although a Muslim male can marry a Christian, apostasy from Islam to any religion, including Christianity, was a crime. No doubt, the penalties on the woman apostate was not so severe as those on the male, but as this did not alter the fact that conversion to Christianity by a Muslim female was an offence (see Amir Ali's Mohammadan Law, fourth Edition, pp. 444-445), the view that a wife's apostasy automatically dissolved her marriage with a Muslim was also a reasonable and possible view, and this was the view which had been held in India for centuries before the advent of British rule. As Mr. Ghias Mohamma relied on the sixth edition of Amir Ali's Mohammadan Law, we may point out that at page 350 of this edition, the learned author observes :- "Among the Hanafis, according to the old lawyers, whose views are enunciated in the Hedaya, the Fatawai Alamgiri and other work, apostasy from Islam of either husband or wife whether it takes place before or after consummation dissolves, ipso facto, the marriage-tie." Similarly, Tanzilur Rehman in his Code of Personal Law (1978 Edition) observes at page 637 ;.- "In connection with the dissolution of marriage on account of apostasy the point of view of classical jurists, as stated in Fatawa Alamgiriyyah and al Hidayab, is that apostasy of any one of the couple shall make the marriage contract dissolved of itself. Indian Courts, prior to the enforcement of the Dissolution of Muslim Marriages Act, 1939 decided cases in accordance with this point of view." The observations state the law as it stood before the said Act and that is why Mulla, Tyabji, Wilson and Baillee all subscribed to the view that a Muslim Marriage stood dissolved, before the promulgation of the said Act, on a wife's apostasy from Islam. Nor was disputed by Mr. Ghias Mohammad, who merely invited us to follow Amir Ali's views. But, whilst later editions of Amir Ali support Mr. Ghias Mohammed's submission, even Amir Ali had said in the first edition of his Treatise on Mohammadan Law, page 276 : - "Under the Mohammadan Law, if a Moslem husband or a Moslem wife apostatise from Islam, the apostasy has the effect of dissolving the marriage-tie between the parties." This observation is fatal to Mr. Ghias Mohammad's submission, and it was only after more than a quarter of a century that Amir Ali changed his views in his third edition. However learned counsel relied on the sixth edition of the author's work, therefore, we would now quote the passage at page 351 which is relevant to the question under examination. This passage reads :-- "As regards the effect of the wife's abjuration of Islam on the status of marriage there is the same divergence of opinion between the ancient and the modern jurists. The lawyers of Bokhara, who adhere to the doctrines of the ancients (mutakkadamin) hold that whatever the religion she adopts, she should be imprisoned until she returns to the Faith, when she should be constrained to re-marry her former husband on a very small dower. The object of the doctrine they propounded as they declared, was to prevent woman from trying the escape from the bonds of matrimony by the abandonment of Islam. The jurists of Balkh and Samarkand, on the other hand, have laid down that when a woman abjures Islam for a Scriptural or revealed religion like Judaism or Christianity, her renunciation of the Faith does not dissolve the marriage. Their arguments in support of their contention are as already stated, two-fold. In the first place, they say that as a marriage between a Moslem and a Scripturalist woman (Kitabia) is lawful under the Musulman Law, the adoption of a revealed religion by a Moslem woman cannot affect the status of marriage. In the second place, they contend that when the circum stances of the age are such that a woman abandoning Islam can neither be imprisoned nor constrained to re-enter the fold of the Faith, to hold that abjuration of the Islamic Faith dissolves the marriage tie would further the very object for which she apostatises, viz. to 'release herself of the burden of marriage'." Although the Indian Courts have preferred to follow the extreme Bokhariot view, I submit the more reasonable enunciations of the jurists of Balkh and Samarkand, furnish the guiding principle for tribunals who have by their constitution to act according to "justice, equity and good consdience." In the first place, there is nothing in these observations to lend any support to Mr. Ghias Mohammad's submission that the old view, which Tanzilur Rehman describes as the view of the classical jurists, was contrary to the express text of the Holy Qur'an. Secondly, the consideration which led Amir Ali to abandon the view which he had held for more than twenty -five years were mostly of a practical nature. Thirdly Amir Ali was trying to change the law of centuries, and as we were invited to overrule the judgments of the High Courts of British India solely on the basis of the view taken by Amir Ali from his third edition onwards, we wanted to know when the other jurists of British India had followed Amir Ali in abandoning their adherence to the view of the classical jurists. But, learned counsel, who was not aware that Amir Ali had himself subscribed for a very long time to the classical view, could not give us the name of any person, much less the name of any jurist, who had subscribed to the views of Balkh and Samarkand jurists before 1925. Learned counsel only relied on the fact that the said Act gave effect to the views taken by Amir Ali from his third edition onwards. It is true that the said Act reflects the view taken by Amir Ali from his third edition onwards, but ideas change rapidly and there are times when ideas change very rapidly, therefore, because Amir Ali's views had been accepted by the Legislature in 1939, we cannot hold that his views have been accepted half a generation earlier. As we have had no assistance on this aspect of the case, we have tried to ascertain the position ourselves, and we found that the Courts were invited for the first time to follow the views of the jurists of Balkh and Samarkand in Imam Din v. Hassan Bib! (1), a case in which Mr. Shahdin, later Mr. Justice Shahdin, had appeared for one of the parties. After referring to the differences between the view of the classical jurists and the jurists of Balkh and Samarkand, the learned Judges of the Lahore High Court observed :- "We cannot take upon ourselves to declare which version of the law on the subject is correct, unless we are assured that there is d' considerable body of persons belonging to the class to which the parties belong who are governed by the doctrine of the Balkh and Samarkand jurists . . . . . . . There is no allegation that this opinion is accepted by them generally as the more orthodox and correct." The last sentence of this passage clearly indicates that there was no real challenge to the views of the classical jurists in India as late as 1906. However, four years later, as Amir Ali had meanwhile revised his views, an attempt was made to persuade the Allahabad High Court to follow the view of the jurists of Balkh and Samarkand in Amin Beg v. Saman (2). The attempt failed, and it is clear from the judgment of the Court that Amir Ali's views were not supported by any jurist in the sub-continent as late as 1910. This background is essential to the proper appreciation of the case law on the effect on marriage of apostasy from Islam and with this observation, we would examine the judgments of the High Courts. (1) 1906 Pb. Rec. 85 (21 I L R 33 All. 90 More than a hundred years ago in Zuburdust Khan v. His wife (1876) 2 N W P H C Rep. 370, the North-West Frontier Province High Court held that "the effect of the apostasy of a Muhammdan wife was to dissolve the marriage contract" automatically. But, as we pointed out, this view was challenged forty years later in Amir Beg's case on the basis of the view taken by Amir Ali in his third edition, therefore, the learned Judges of the Allahabad High Court examined the views of the jurists of British India an rejected the appellant's plea with the observation:- "We have heard the argument of the learned counsel for the plaintiff appellant, which was based on a passage to be found in the third edition of Mr. Ameer Ali's work on Muhammadan Law. Mr. Ishaq Khan admits that there is no authority to be found in support of his contention outside the writings of the jurists of Balkh and Samarkand, and this apparently is so. In the second edition of Mr. Ameer Ali's work it is definitely stated that "under the Muhammadan Law if a Moslem husband or a Muslem wife apostatize from Islam, the apostasy has the effect of dissolving the marriage-tie between the parties". Baillie in his digest of Muhammadan Law at page 182 also states that "apostasy from Islam by one of a married pair is a cancellation of their marriage". In Hamilton's translation of the Hedaya at page 66 is the passage :-"If either husband or wife apostatize from the faith a separation takes place without divorce according to Haneefa and Aboo Yoosuf." Sir Roland Wilson in his work on Anglo-Mahomedan Law, at page 156, writes as follows:-"It seems that the effect of either or both of the parties to a Mabomedan marriage renouncing the Mahomedan religion is to dissolve the marri age ipso facto, so far as the British Courts are concerned . . . . . . . . . As the learned Judges saw no reason to dissent from the view taken by their predecessor Court, they held that apostasy from Islam automatically dissolved a Muslim marriage. The Calcutta High Court took the same view in Abdul Ghani v. Azizul Haq (1) and after referring to the Fatawa Alamgiri and other authorities Sharfuddin, J., observed at page 416 :.- "On reference to the different authorities, we are of opinion that Mst. Jaitan's marriage with the complainant became absolutely null at the moment he apostatised, and that from the date of his apostasy he was not her husband, . . . . . . . ." We now turn to the Punjab cases. In Nowroz All v. Aziz Bib! (2), after examining the Fatawa Alamgirl, the Hedaya and the other authorities, a Full Bench of the Punjab Chief Court held that apostasy from Islam automatically dissolved a Muslim marriage. This judgment was followed in Khan Bibi v. Pir Shah (3) and in Allah Bakhsh v. Amir Begum (4). Next, as we pointed out, the validity of the view taken in these judgments was challenged in Imam Din v. Hassan Bibi on the basis of the view of the jurists of Balkh and Samarkand. But, on the authority of the Fatawa Alamgiri and other authorities, the learned Judges re-affirmed their earlier view that apostasy from Islam automatically dissloved a Muslim marriage. (1) I L R 39 Cal. 409 (2) 1876 Pb. Rec. 124 (3) 1884 Pb. Rec. 132, (4) .1899 Ph. Rec. 61 The same view was taken in Ghaus v. Fajji and others (1), in Mt. Bakho v. Lal (2) and in Mst. Rehmat v. Nikka (3). However, despite the clear trend of authority, and attempt was again made in Sardar Mohammed v. Mt. Maryam Bibi (4) to persuade the Lahore High Court to alter its view. In repelling this plea, Agha Haidar, J., observed :- "Apart from authorities and as a matter of first impression the fact that a Mussalman wife embraces Christianity during wedlock ought not to make any difference for the obvious reason she has gone over from one religion which, believes in a Kitab, namely, the Mahomedan religion, to another similar religion. This view has been entertained by a very eminent jurist of Bulkh and Samarkand, and the distinguished commentator on Mahomendan Law, the late Right Hon'ble Sayed Ameer Ali, seemed to be inclined to the same view. But the current of judicial opinion in this country seems to be uniform and it has been held in numerous cases that if the wife of a Mahomedan who, had married her husband when both of them professed the Mahomedan faith, during the subsistance of marriage, abjures Islam and becomes Christian, the marriage is ipso facto, dissolved; . . . . . . . . . ." This judgment was followed in Mst. Saidan v. Sharaf (5) and in Mst. Resham Bib! v. Khuda Bakhsh (6). Thus the trend of authority before the promulgation of the said Act is clear consistent and uniform, and is fatal to the claim of the first two respondents. Mr. Ghias Mohammad's next submission was that the first appellant's apostasy could not automatically dissolve her marriage with Allahdewaya, because of section 4 of the said Act, and as this Act was promulgated fifteen years after the first appellant's renunciation of Islam, learned counsel's further submission was that the said Act was retrospective, because it was a declaratory statute. The argument is fallacious for more reasons than one. In the first place, even when the text of the statute makes it clear that the statute is declaratory, the extent of the retrospectivity of the statute is another matter, and the question is far too complicated to be disposed of by the sweeping formulated by learned counsel. In Young v. Adams (7), the respondent had advanced a somewhat similar proposition. He relied on section 58 of the Public Service Act, 1895 and because this section was declaratory, he submitted that it was retrospective. In rejecting this submission, Lord Watson, who delivered the judgment of the House, observed :- (1) A I R 1915 Lah. 14 (2) A I R 1924 Lah. 397 (3) A I R 1928 Lab. 954 (4) A I R 1936 Lah. 666 (5) A I R 1937 Lah. 769 (6) A I R 1938 Lah. 482 (7) 1898 A C 469 "It was argued for the appellant that the provisions of S. 58, being deelaratory, must of necessity be enforced by the Courts of the Colony in every case whether arising before or after the date of their enact ment; . . . It may be true that the enactments are declaratory in form; but it does not necessarily follow that they are therefore retrospective in their operation, and were meant to apply to acts which had been completed or to interests which had vested :before they became law. Neither the context of the statute, nor the terms of the clause itself, appear to their Lordships to favour that result .... It does not seem to be very probable that the Legislature should intend to extinguish, by means of retrospective enactment, rights and interests which might have already vested in a very limited class of persons, consisting, so far as appears, of one individual, namely, the respondent. In such cases their Lordships are of opinion that the rule laid down by Erie C. J. in Midland Ry. Co. Pye. (30 I. J C P 315) ought to apply. They think that, in a case like: the present, the learned Chief Justice was right in saying that a retrospective operation ought not to be given to the statute, "unless the intention of the Legislature that it should be so construed is expressed .in plain and unambiguous language, because it manifestly shocks one's sense of justice that an act legal at the time of doing it should be made unlawful by some new enactment." We agree with this statement of the law, and .as the consequences of accepting Mr. Ghias Mohammad's submission, are obviously shocking to one's sense of justice, we would examine section 4 of the said Act in order to see whether the language of the section lends any support to learned counsel's submission. The section reads :- "

4. Effect of conversion to other faith.-The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage." Provided that after such renunciation, or conversion the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2." There is nothing in the language of this section to suggest that it is declaratory. On the contrary, as pointed out by Monroe, J., in Mt. Rashi v. Tufail Muhammad A 1 R 1941 Lab, 2,91, the use of the future tense, the words "the renuncia tion . . . . shall not by itself operate to dissolve her marriage" are renunciation with the construction sought to be placed on the section by Mr. Ghias Muhammad. Similarly, the proviso also indicates that the section was intended to be prospective and not retrospective. Thirdly, we observed earlier that the consequences of accepting Mr. Ghias Mubammad's submission were shocking to one's sense of justice. The reason for this observation is obvious. Under the law before the said Act came into force, as a Muslim wife's apostasy automatically dissolved her. marriage, she was entitled to marry again accord ing to the personal law of her new faith. Therefore, if the section is given retrospective effect, it would mean that marriages which were valid when con tracted suddenly became invalid on 17-3-1939, the day the said Act cam into force. Similarly, it would mean that children born of wedlock, which had been lawful according to the law of centuries, suddenly became illegiti mate on 17-3-1939. No Legislature would have enacted a law entailing such consequences without using language which manifested beyond doubt its intention to cause such havoc. But, there is nothing whatever in the section to indicate that it was intended to be retrospective or to annul marriages which had been valid when contracted. This is so obvious that learned counsel did not attempt try base his sub missions on the language of the section. Instead he relied' on the preamble, and the submission was that the said Act was retrospective, because the preamble was declaratory. But, there is a great difference between the text of a statute, which is declaratory, and the preamble of a statute which is declaratory. Turning however to the preamble, it reads :- "Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. Although, this preamble states that the object of the said Act was the con solidation and clarification of Muslim law relating to suits for dissolution of marriage, the statement in the preamble, which is relevant to section 4, is the statement that this section was enacted "to remove doubts about the effect of the renunciation of Islam by a married Muslim woman on her marriage tie." These are not words from which a retrospective intent can be inferred. Secondly, a preamble is relevant to the construction of a statute only when there is an ambiguity in the statute, and we cannot do better than quote a passage from the speech of Lord Normand in Attorney-General v. H. R. H. Prince Ernest Augustus of Hanover 1957 A C 436, at page 467 :- "When there is a. preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is, therefore, clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond or it may fall short of the indications that may be gathered from the preamble . . . . . . It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail." As a preamble cannot be resorted to when the statute itself is clear and un ambiguous, even on the footing that the preamble to the said Act is declaratory, it is of no assistance to Mr. Ghias Muhammad's submission, because section 4 is clear and unambiguous and as the section is clear and unambiguous, we cannot fall back on the preamble or on the statement of the objects of the said Act in order to rafter the plain meaning of the words in the section itself. The only other point which remains for consideration is whether we should set aside; the view taken in the judgments cited merely because they are not binding on us, and Mr. Ghias invited us to overrule the case-law of more than a hundred years because the judgments were of the High Courts and were, therefore, not binding on us. On the other hand, Mr. Ihsanul Haq submitted that we should not overrule the law laid down by a long line of eminent Judges over a period of more than a century. This very point was examined by this Court in Mian Muhmnmad v. Ghulam Mustafa P L D 1973 s C 394, where the question was of the meaning of the word "serai". The respondent relied on the interpretation placed on this: word by High Courts, and his submission was that the interpretation thus placed on the word for a long period should not be disturbed by this Court. In accepting this plea, Anwarul Haq, J. (as he then was, now the Chief Justice) observed at page 494 :-- "Before we conclude, we may mention a point raised by the learned counsel for the respondent that, in the absence of any compelling reason to the contrary, we ought to maintain the interpretation which has been consistently given by judicial authorities to the term "serai", as any variation at this stage would have the effect of unsettling valuable property rights which have accrued to various parties under the law of pre-emption in respect of buildings which fall within or outside the popular meaning of the term `serai'. We consider that there is substance in this submission, as the doctrine of stare decisis does apply to a matter of this kind, when judicial authorities, at least from 1895 onwards, have consistently given a'' particular meaning to the term "serai" . . . . ." We respectfully agree with these observations and we would not overrule view which goes back more than a hundred years to Zuburdust Khan's case. We are, therefore, satisfied that the first appellant's conversion to Christianity automatically dissolved her marriage with Alladewaya and after her conversion, she was free to marry again. Her claim is that she re embraced Islam and married the deceased. Now, it is no body's case that she was not a Muslim at the time of her re-marriage, but according to the learned Judges, on the evidence "on the record it cannot be said that the marriage in question between Mst. Zainab and Riaz Hussain Shah was prove beyond reasonable doubt." With the utmost respect, the first appellant did not have to prove her marriage with the deceased beyond all reasonable doubt, because the question had arisen in civil proceedings, and as observed by Munir "in a civil case a mere preponderance of probability is a sufficient basis of decision". Accordingly, we would now examine, in the light of Munir's dictum, the evidence produced by the parties on the question of the; first appellant's marriage with the deceased. The first appellant had examined a witness by the name of Haji Khuda Bakhsh to prove her nikah with the deceased, but as both the Courts have disbelieved this witness, his evidence is of no help to the first appellant's case. Both parties had also examined cousins of the deceased in support of their respective contentions, but as the learned Judges have not placed any reliance on the witnesses examined by the parties, we would only examine the docu mentary evidence produced by them, and it would be convenient to examine first the documentary evidence produced by the first respondent. The first respondent had relied on two affidavits, which Allahdewaya was alleged to have executed on the 1st of August, 1945, in a suit between the fourth respondent and Makhdum Muhammad Yusuf Shah Gardezi. As the affidavits were not proved-according to law, and as Allahdewaya denied having executed any such affidavits, the learned Judges rightly held (we say so with respect) that "no reliance can be placed on these affidavits." The first respondent had also produced a copy of an F. I. R. (Exh. P. 21), alleged to have been filed by Allahdewaya on 18-12-1939, and Allahdewaya's com plaint in the F. I. R was that his wife (the first appellant) had been abducted by the deceased about five or six years earlier. Allahdewaya denied having lodged any complaint whatsoever with the Police, and as the learned counsel for the first respondent had conceded that the copy (Exh. P. 21) of the F. I. R. was not admissible, the learned Judges held that this copy was rightly excluded from the evidence. Mr. Ghias Muhammad feebly attempted to argue that the copy of the F. I. R. was admissible. But, even if it be assumed that it was admissible, learned counsel did not dispute the fact that no action what ever had been taken on this alleged complaint. The failure to take any action whatever on the complaint leads to the inference that it was false, therefore, in the circumstances, even if the copy (Exh P. 21), is admissible, it is of no evidentiary value whatsoever. Next, according to the first respondent, Allahdewaya had made an application to the District Magistrate, Multan on 1-8-1945, in which he had alleged that the deceased had abducted his wife and given birth "to respondents '2 to 6 from him", whilst he was employed as a domestic in the house of the deceased. A copy of this complaint was produced (Exh. P. 19) and also the copy of the report, (Exh. P. 20) submitted by the Tehsildar to the District Magistrate on this complaint. Allahdewaya denied having made any application against the deceased to the District Magistrate, and he denied having appeared before the Tehsildar. In these circumstances, as the Tehsildar was not examined, the learned Judges rightly held (we say so with respect) that "the plaintiff has failed to legally prove the application' (Exh. P. 19), and the report of the Tehsildar, Exh. P. 20". The first respondent had also relied on the vaccination certificates of the other appellants, because according to her, the other appellants were shown in these certificates as the children of Allahdewaya. But, as the learned Judges have rightly rejected this evidence as inadmissible, we would turn to the two pieces of evidence produced by the first respondent by which they were very highly impressed. Syed Nasir Muhammad Shah, a cousin of the deceased's father, had fully supported in his evidence the first appellant's claim, that she had married the deceased. But, he said in his cross-examination that relations between the deceased and Syed Mehdi Hussain Shah (the fourth respondent) were strained and that on the death of the deceased, the "dastar was tied on the head of Syed Mehdi Hussain Shah by Syed Muhammad Yusuf. No dastar was tied on the head of any of the sons" of the deceased. The learned Judges took this admission of the witness to mean "that the deceased was taken to have died without any male issue and Syed Mehdi Hussain Shah was recognised as his next of kin", therefore, according to the learned Judges, this admission was fatal to the claim of the appellants. But, with all respect to the learned Judges, the dastarbandi of the fourth respondent was capable of more than one explanation. Thus, for example, the learned Judges have pointed out that the Gardezi family belonged to the nobility of the Province, therefore, as the deceased was of noble birth, his cousins may have decided not to give the dastar to his sons, because they disapproved of his marriage with a Merasi ; there could of course be other explanations also for the dastar bandi of the fourth respondent, but it was for this respondent to go in the witness box and give an explanation. He did not, and, on the other hand, as it is no body's case that the dawar bandi of the fourth respondent was in accordance with the wishes of the deceased, this dastar band! is a piece of evidence which lends very little support to the claim of the first two respondents that their father had not married the first appellant. The other piece of evidence which impressed the learned Judges very much was the evidence of the birth certificates of the first appellant's children, and we would recall here that the first respondent's claim is that the other appellants are shown in these birth certificates as the children of Allahdewaya. The certificates were proved through Allahyar, the Chowkidar of village Amirpur Shadianwala, and the children of the first appellant are stated to have born in this village. On the other hand, according to the first appellant, her children were born at the house of the deceased in Multan and not in village Amirpur Shadianwala, but as she did not produce the birth entries of her children from the birth register of Multan city, this leads to an adverse inference against the claim of the appellants. However, those would not by itself prevent the appellants from showing that the birth entries produced by the first respondent were not fit to be relied upon and that was Mr. Ihsanul Haq's submission. Mr. Ihsanul Haq took us through the birth entries and submitted that they directly relate to only three out of the five appellants. This was also admitted by Mr. Ghias Muhammad, who also conceded that there were mistakes in the names of male children. But, learned counsel submitted that the entries fell under section 35 of the Evidence Act. That is correct. and as the entries were made at the time of the birth of the three children, the learned Judges were of the view that the presumption under section 114 of the Evidence Act was attracted to these entries. We respectfully agree with this view, and, at first sight, these entries lend support to the plea of the first two respondents. But, in the first place, these entries relate to only three of the other appellants. Secondly, any presumption under section 114 is always rebuttable, and the nature of the evidence required to rebut this statutory presumption will always depend on the facts and circumstances of the case. Now, in the instant case, although it was the duty of the village Chowkidar to make the entries, as the entries were made on reports submitted to the Chowkidar, their evidentiary value depends on the authenticity of the information supplied to the Chowkidar, and if the information supplied be incorrect or false, the entries would be false. That is elementary, secondly, these entries are being relied upon to rebut the acknowledgements of paternity made by the deceased in favour of the other appellants. but it is nobody's case that these birth entries were made on the basis of information supplied by the deceased. Thirdly, even a casual perusal of Allayar's evidence led the trial Court to conclude that the witness was going out of his way to support the claim of the first two respondents. Now, although the learned Judges did not fully agree with this appreciation of the witnesses' evidence by the trial Court, they observed that the witness "deposed that he knew Allahdewaya and during his tenure as the Chowkidar three sons, Ghulam Hussain, Muhammad Hussain and Muhammad Raza were born to him from his wife, Msr. Zainab. They were all brought up by Allahdewaya. He further deposed that Allahdewaya had never divorced Mst. Zainab " Now, although the witness claimed to have made these entries when he was Chowkidar, the learned Judges have pointed out that he admitted "in his cross-examination that he worked as a Chowkidar in the village from 1935-36 to 1941 when he was dismissed." But, as pointed out by the learned Judges, Ghulam Hussain, Muhammad Hussain and Muhammad Raza "were born from 1928 to 1934 even before his appointment as the Chowkidar of the village and in this respect, the statement of P. W. 7 Allahyar stands falsified." Thus, as even, according to the learned Judges, Allabyar was not a witness of truth, this finding necessarily reacts against the evidentiary value of the birth entries on which Mr. Gbias Muhammad placed so much stress. Therefore, we would only observe that these entries are of limited assistance to the claim of the first two respondents. However, it was for the appellants to produce evidence in rebuttal, and we would now turn to the documentary evidence produced by them in rebuttal. On the footing that the other appellants were his children, it was the duty of the deceased to have them educated, and, therefore, as they were educated at the Middle School Nirhal, the first appellant examined Mr. Fazaluddin, the Headmaster of this School, in order to prove that the deceased was looking after the other appellants as his children. Now, Muhammad Ali Shah is the second appellant in the appeal before us, and Mr. Fazaluddin said in his evidence :- "Muhammad Ali Shah was admitted to my school, on the 15th June, 1938. An application was put in by Syed Riaz Hussain Shah in his own handwriting and I have got the original with me now. Counsel for the defendants tenders the copy, exhibit D.

1. This application was written and signed by Syed Riaz Hussain Shah in my presence. An admission form was also filed by Syed Riaz Hussain Shah in my presence and was signed by him. I brought it with me " The witness was cross-examined at length, but the cross-examination only proved his veracity, therefore, the witness's evidence is sufficient to prove that the deceased had applied for and successfully prosecuted the application for the admission of his first son, Muhammad Ali Shah, in the Nirhal Middle School. Mr. Fazaluddin's evidence also proves that the deceased had got the third and fourth appellants admitted in the Nirhal Middle School as his children, and the witness produced the relevant admission forms, etc., which had been signed by the deceased. Similarly, it is common ground between the learned counsel that Exh. .D. 7 is the application form for the admission of the sixth appellant, and the deceased had signed this application in his capacity as her father. However, the application forms of Muhammad Haider Shah, the fifth appellant, are not available. But, in his letter dated 9-3-1946 (Exh. D. 9), the deceased has referred to Muhammad Haider Shah as his son. This letter is a very ordinary letter of the type written by fathers to son, therefore, there cannot be any doubt about its authenticity, and in all fairness to Mr. Ghias Muhammad, he did not attempt to criticise this letter or the letter (Exh. D. 8) in which the deceased had addressed the first appellant as his son. Another piece of evidence which impressed both the Courts is Exh. D.

10. This is an application made by the deceased to the Food Controller, Multan for permit for sugar. The deceased has stated in this application that sugar was needed for the circumcision ceremony of his three children which was to take place on the 3rd of August, 1945. Mr. Ghias Muhammad did not contest the obvious fact that the reference to the three children in this letter meant appellants 2 to 4, and, both the Courts attached great importance to this letter of the deceased, as it was countersigned by Muhammad Yusuf Gardezi, who made an endorsement on the letter that the sugar was needed for the circumcision ceremony of his brother's children. Now, as Mr. Muhammad Yusuf Gardezi was an Honorary Magistrate and the head of the Gardezi family, his statement that the sugar was needed for the circum cision ceremony of the children of the deceased means that Muhammad Yusuf Gardezi, as the head of the Gardezi family, was aware of the marriage of the deceased with the first appellant and even if this statement is not sufficient to prove the first appellant's marriage with the deceased, it goes a very long way to proving that marriage. Finally, fortunately for the appellants, the Gardezi family was litigious, so that there was litigation in the lifetime of the deceased, and one of the principal issues in this litigation was the validity of the marriage of the deceased with the first appellant. Therefore, the position taken by the deceased in this litigation should, prima facie, be conclusive on the question of the validity of his marriage with the first appellant. In 1944, the deceased sold some land to Mokhdum Muhammad Yusuf by a registered sale deed and this sale gave rise to two suits. On 30-9-1945, the other appellants filed a suit to 'pre-empt this sale on the ground that they were the children of the deceased. As the deceased admitted their claim in his written statement, the Court passed a consent decree for possession of the land by pre-emption in favour of the other appellants on payment of a sum of Rs. 13,

500. This evidence is important, because it proves that the deceased was publicly asserting that the first appellant was his wife. The second suit against this sale in favour of Makhdum Muhammad Yosuf was, however, filed by the fourth respondent. This suit was based on custom, and, therefore, the fourth respondent challenged the right of the deceased alienate land, except for necessity, and the position taken by him in his plaint was that the sale was without necessity. But, as the other appellants had obtained a pre-emption decree, he challenged that decree in his plaint on the ground that his brother the deceased, was not married to the first appellant, therefore, the other appellants were not the legitimate children of the deceased contested this suit and in his written statement (Exh. D-14), he asserted that the other appellants were his children by his marriage with the first appellant. It would also appear that the deceased made a statement in Court in this suit, and it would be sufficient to refer to the observations of the learned Judges on this solemn statement made by the deceased in Court. The learned Judges have observed :- "In that suit on the 14th [of August 1945, Syed Riaz Hussain Shah also made a statement (Exh. D-22) in Court on solemn affirmation and acknowledged that Mst. Zainab Bibi was his wedded wife and that he has four sons (defendants Nos. 2 to 5) and a daughter from her. He admitted that Mst, Zainab was at first married to Allah Dewaya son of Farid, caste Jhatha Merasi. She became a Christian but afterwards she came back and again embraced Islam." As the suit was hotly contested, the Court framed issues, and the main issue in the suit was of the validity of the first appellant's marriage with the deceased. However, although the first respondent filed a suit inter alia to challenge the validity of this marriage, the suit was dismissed for default, and Mr. Ghias Muhammad admitted that the dismissal of the suit was allowed to become final by the fourth respondent. We pointed out that the fourth respondent's relations with the deceased were strained, and that was also one of the arguments advanced by Mr. Ghias Muhammad. Yet, despite the hostility between him and his brother, the deceased, the fourth respondent accepted as final the dismissal of his suit. although this necessarily implied that he was accepting the validity of the marriage between his brother and the first appellant, Mr. Ghias Muhammad feebly attempted to get round this difficulty by submitting that the deceased had falsely made admissions in favour of the appellants, because of his hostility to his brother, the fourth respondent. We were unable to understand this submission, and when we invited learned counsel to clarify his position, be stated that the fourth respondent was entitled to a share in the inheritance of his brother, therefore, the deceased had falsely acknowledged the other appellants as children in other to do his brother out of his share in his estate. The argument is riddled with fallacies. If the solemn admissions made by the deceased in Court had been made out of spite, the fourth respondent would not have allowed the dismissal of his suit to become final. Secondly, the fourth respondent could have claimed a share in the estate of his brother only if the family had been a Sunni family, but as the deceased was a Shia. even on the footing that the first appellant's marriage with the deceased would have passed to the first three respondents, as decreed in the judgment under appeal. Therefore, we are unable to accept the submission that the deceased had made these solemn admissions in favour of the appellants in Court in order to spite his brother. The submission is entirely fallacious and is based on the erroneous assumption that the deceased was a Sunni. And, on the other hand, there is not a shred of evidence to show that there was any friction between the deceased and his daughters, the first three respondents. Nor was it Mr. Ghias Muhammad's case that the relations between the deceased and the first three respondents were strained, therefore, we are satisfied that the admissions made by the deceased in Court in favour of the appellants were made by him, because he had married the first appellant after her re-conversion to Islam. As these solemn admissions made in Court are of extremely high probative value, it is not necessary for us to refer to the other evidence produced by the first appellant in support or her claim that the deceased had acknowledged her as his wife, and we would only observe that the evidence produced by the first respondent on this question pales into insignificance before the evidence produced by the first appellant. Accordingly, we agree with the view of the trial Court that the first appellant was the wife of the deceased and that the other appellants were the children of her marriage with the deceased. Therefore, we allow the appeal and restore the judgment of the trial Court dismissing the first respondent's suit against the appellants. The other appeal arises out of the administration suit filed by the second respondent and in allowing the second respondent's appeal, the learned Judges had held that only the first three respondents were the legal heirs of the deceased and were each entitled to a third share in the estate of the deceased. This conclusion was based on the finding of the learned Judges that the first appellant had failed to prove her marriage with the deceased, but as we have reversed this finding, it follows that this appeal too is allowed, and the estate of the deceased will be divided in accordance with the Shia law amongst the first appellant and all the children of the deceased, including the first three respondents. As the widow of the deceased, the first appellant has inherited a 1/8th share in the estate of the deceased. The balance of the estate has to be divided between the children of the deceased through his marriages, so that the male child gets double the share of the female child. Accordingly, the appellants 2, 3, 4 and 5 will each get a 14/96 share in the estate of the deceased, whilst the 6th appellant and the first three respondents will each get a 7/96 share in the estate of the deceased. The estate of the deceased has to be divided in accordance with these directions. But as we pointed out the learned Judges had directed the trial Court to appoint "a suitable Administrator" to administer and distribute the estate of the deceased. It is not Mr. Ihsanul Haq's case that an Admi nistrator is not required for the administration and distribution of the estate of the deceased, therefore, we direct the Administrator appointed by the trial Court to administer and distribute the estate of the deceased between the appellants and the respondents in accordance with the direction given herein. In the result, the appeal against the main judgment is allowed and the appeal arising out of the administration suit is allowed to the extent specified herein. As the appellants have been completely successful in both the appeals, we direct that the first two respondents shall pay their costs in these appeals. S. ANWARUL HAQ, C. J.-I agree. ABDUL KADIR SHEII:H, J.-I agree. Q. A. H. Appeals allowed.