2012 PLP 1251 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Facts giving rise to the instant appeal briefly stated are that respondent/plaintiffs filed a civil suit against the appellant for a declaration that they were the legal heirs of one Abdul Rehman deceased who was a Muslim and his estate had to devolve on those entitled to it under the Islamic Law; that they were owner in possession of the suit land left behind by the said Abdul Rehman (52 kanals, 16 marlas in khewat No. 163 situated in Chak No.269 EB) and that the mutation of inheritance dated 22-6-1986 attested in favour of the appellant/defendant Latifan Bibi, who is an Ahmadi was against law. The suit was dismissed by the learned trial Court in terms of the judgment and decree dated 14-10-1992. However, the learned Additional District Judge allowed the appeal by reversing the judgment and decree of the trial Court and decreed the suit primarily in terms of its finding on issue No.4. This judgment and decree has been maintained by the learned High Court.

2. The case of the respondent/plaintiffs as set out in the plaint was that Chajju Khan, the father of Abdul Rehman had two wives i.e. Mst. Hassi and Mst. Karim Bibi; that from Mst. Hassi, Buland Khan and Muhammad Khan were two sons of Chajju Khan who died and from Mst. Karim Bibi, Chajju had three sons namely Abdul Rehman, Abdul Ghafoor and Abdul Haq. Plaintiff No.1 is son of Buland Khan and plaintiffs Nos.2 and 4 are sons of Muhammad Khan whereas the appellant/defendant Latifan Bibi is daughter of Abdul Haq, the brother of Abdul Rehman and therefore his niece. Abdul Rehman, it was contended, was a Muslim and the respondent/plaintiffs being his nephews were entitled to inherit from his estate. The Assistant Commissioner-II, Boorey Wala, it was further maintained, had wrongly attested mutation No.486 first time on dated 3-2-1986 and again on 22-6-1986, whereby the property left by Abdul Rehman deceased was mutated in the name of Mst. Latifan Bibi, appellant/defendant by wrongly holding that he was Ahmadi. The averments made in the plaint were controverted in written statement, wherein it was contended that Abdul Rehman was an Ahmadi and since the defendant was also an Ahmadi, she alone was entitled to inherit. Following issues were framed by the trial Court:-- "(1) Whether the Civil Court is not competent to adjudicate upon the matter? OPD. (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD (4) Whether the plaintiffs are owners in possession of the disputed property and mutation No.486 dated 22-6-1986 is illegal, void and ineffective upon the rights of the plaintiffs? OPD (5) Relief."

3. During the trial, the respondent/plaintiffs produced 5 witnesses; Zahoor Ahmed P.W.1 who produced the record of Registration Office, Vehari and Abdul Ghaffar P.W.2, Record Keeper of the Election Office, Vehari. P.W.3 is Muhammad Aslam. According to him, Abdul Rehman deceased was known to him; that he was Muslim and Ahl-e- Sunnat and not Ahmadi and he used to offer Juma prayers in Muslim Mosque. P.W.4 Muhammad Rafique was a co-villager of the said Abdul Rehman and corroborated P.W.3. P.W.5 is Muhammad Ramzan who is Imam Masjid. He testified that Abdul Rehman used to offer Juma prayers under his Imamat. As against this, the appellant/defendant produced 6 witnesses namely D.W.1 Muhammad Anwar, who was an official of the office of Qanungo. He produced the record pertaining to mutation No.486 dated 22-6-1986. D.W.2 is Abdul Ghaffar who stated that Abdul Rehman was an Ahmadi and that his two brothers were also Ahmadi. He denied that the deceased offered his Juma prayers in Muslim Mosque. According to him, the Imam Masjid had testified before the Tehsildar at the time of attestation of mutation that Abdul Rehman was an Ahmadi. This witness also stated that the deceased had converted into Ahmadiat. However, in cross-examination, he could not recall as to when the said conversion was made. Nevertheless, he admitted that Abdul Rehman was buried in Muslim graveyard. According to him Abdul Rehman used to offer his Eid prayers in 'Ahmadi' Mosque. But in cross-examination he could not tell the name of the Imam Masjid of the said Mosque. Abdul Ghaffar appeared as D.W.3. He too corroborated that Abdul Rehman was an Ahmadi. Abdul Hafeez appeared as D.W.4. According to him, he did not join the funeral of Abdul Rehman because he was an Ahmadi. Defendant herself appeared as D.W.5. According to whom, Abdul Rehman was his paternal uncle and was an Ahmadi. Faqeer Hussain is D.W.6. According to him on 22-6-1986, he was posted as Tehsildar Boorey Wala. He visited the Chak No. 269 EB and having heard the parties, he attested the mutation of inheritance of Abdul Rehman, who according to his inquiries, was an Ahmadi. He named a few persons who appeared before him to testify that Abdul Rehman was an Ahmadi but surprisingly none of those persons appeared during trial to support the case of the appellant/defendant. He further explained that the wife of the brother of the deceased, his brother and his niece were Ahmadees, therefore, he thought that deceased would also be an Ahmadi.

4. Learned counsel for the appellant submitted that there was no documentary evidence to prove that Abdul Rehman was not an Ahmadi; that sufficient evidence was led to show that he was an Ahmadi; that merely because Abdul Rehman is mentioned as Muslim in form "" and "" of the application form for issuance of the Identity Card would not make him Muslim; that the learned Court of Appeal as also the learned High Court have concurrently not appreciated the evidence on record and that the summary inquiry carried out by the Tehsildar preceding the mutation under challenge clearly established that deceased was an Ahmadi.

5. Learned counsel for the respondents, on the other hand, defended the impugned judgment by submitting that the inquiry undertaken by the Assistant Commissioner-II which led to the impugned mutation of inheritance, was summary in nature and to decide the question of inheritance, which was dependent on the religious affiliation of deceased Abdul Rehman, a detailed probe was required, which exercise was carried out by the court of planery jurisdiction and the evidence led clearly established that Abdul Rehman was a Muslim and his estate had to devolve on persons entitled under the Islamic Law. He added that there was evidence to the effect that the deceased used to offer Juma prayers with Muslims; that he described himself as a Muslim in form "" submitted before the National Registration Authority; that he was buried in Muslim graveyard and that the concurrent judgments and decrees being in accord with the weight of the evidence led, did not require interference.

6. Arguments heard. Record perused.

7. Leave was granted by this Court vide the order dated 8-12-2006, which reads as under:-- "The learned Counsel submitted, inter alia, that, the impugned judgment, as regards faith of late Abdur Rehman and inheritance of his property by the parties, suffered from gross misreading and non-reading of evidence on record.

2. Leave to appeal is granted to consider the above and the other submission."

8. Issues of faith and sect of a person have mostly been brought to the Courts after his death by parties having divergent claims over his estate rooted in their respective law of inheritance. In such cases, the Courts have to weigh evidence with care keeping in mind the fact that a great majority of people in Pakistan are Hanfi Muslims and the party alleging otherwise is under a heavy onus. In a case titled Akbarally v. Mahomedally (AIR 1932 Bombay 356), where the question was whether the deceased was a Sunni or Shia, the Court held that "as the great majority of the Mussalamans in India follow the Hanafi School of Sunni law, the Courts presume that Muslims in India follow the Hanafi law unless the contrary is alleged and proved." And in the same judgment, the Court commenting on the circumstances/the evidence which may be taken into consideration to decide the issue, observed that "it is not easy however to conceive of a case so devoid of all other circumstances from which the religions of the parties can be inferred, that this presumption from numbers should effectually come into operation." The afore-referred view was followed in Mst. Sardar Bibi v. Muhammad Bakhsh (PLD 1954 Lahore 480) and in a judgment of this Court in Pathana v. Mst. Wasai (PLD 1965 SC 134), the Court restored the judgment and decree of, the District Judge and upheld the claim of the plaintiffs that the deceased was a Sunni Muslim and observed that "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". This view was reiterated in Ghulam Shabbir v. Bakhat Khatoon (2009 SCMR 644) and the Court candidly held as follows:-- "A Muslim when dies, the moveable or immovable property devolves on his legal heirs which is to be distributed or transferred in accordance with Muslim Law of inheritance. In Sub-continent, Indo-Pak the whole Muhammadan Community is divided into two sects namely, Sunnis and Shias. The Sunnis are divided into four sects namely Hanafis, Malkis, Shafies, and Hanbalis. The Sunni Muhammaden belong to Hanfi School of thought. The great majority of the Muslims of Indo Pak Sub-continent being Sunni, the presumption is that the parties to a suit or proceedings are Sunnis unless it is shown that they belong to Shia sect." In Sakina Bibi v. Nazar (2000 SCMR 1126), the Court dismissed the petition and upheld the concurrent judgments and decrees relying on the evidence to the effect that the funeral prayer of the deceased was led by Sunni Molvi. In Muhammad Bashir v. Latifa Bibi (2010 SCMR 1915), the Court commenting on the quality of evidence, which could weigh with the Court while deciding the question of faith observed at page 1919 as follows:-- "Let we make it clear at the outset that no principle of universal application is available to determine the faith of a person and determination whereof depends on the surrounding circumstances, the way of life, the parental faith and faith of other kiths and kins. It hardly needs any elaboration that "question of sect of a person cannot be determined by opinion of the parties but can be infered from facts creating presumption of one way or the other". In this regard we are fortified by the dictum laid down in cases titled Mst. Sardar Bibi Muhammad Bakhsh and others (PLD 1954 Lah. 480), Pathana v. Mst. Wasai and another (PLD 1965 SC 134), Zohran Mai v. Siftan (1983 CLC 2559). It is worth-mentioning to note that "question whether deceased was Shia or, Sunni cannot be determined merely from sect to which his relative belonged."

9. In the case in hand, admittedly Abdul Rehman was a born Muslim and allegedly he was converted into an Ahmadi. He died issueless. There is no direct documentary evidence with regard to his faith in the form of his own affidavit (except the form submitted before the Registration Authority) or in the shape of his registered membership of an organization of any faith or sect. The evidence led by the appellant/defendant to prove that he was converted into Ahmadi is not credible. First because D.W.2 Abdul Ghaffar who is the only witness of the said alleged conversion, when asked about the date and time of conversion, could not do so though admitted that the father of Abdul Rehman was a Muslim. Secondly, he admitted in cross-examination that he was buried in a Muslim graveyard. None of persons who appeared before Faqir Hussain D.W.6, the Tehsildar who attested mutation of inheritance in favour of appellant/defendant, appeared during trial to say that the said Abdul Rehman was an Ahmadi. As against this, there was strong circumstantial evidence led by the respondent/plaintiffs to prove that he was a Muslim. The opinion of witnesses may not be conclusive to determine the faith of a person. However, the inferences drawn from the circumstantial evidence are pointer to the fact that deceased was a Muslim. The testimony of some of the prosecution witnesses namely P.W.4 (Muhammad Rafique), P.W.3 (Muhammad Aslam) and P.W.5 (Muhammad Ramzan who performed the funeral prayer) with regard to the fact that the funeral prayer of Abdul Rehman was performed by a Muslim Molvi; that he was buried in a Muslim graveyard and that he used to offer his Juma prayers in Muslim Mosque remained unchallenged in cross-examination. The documentary evidence in the form of Form "" and the record of the Election Officer (voters list) are further corroborative of the oral evidence. It was suggested by the defence to P.W.1 Zahoor Ahmed, an official of the National Registration Authority, that even the Ahmadees mention their religion as Islam in the relevant column to which he denied. P.W.2 is an official of the Election Office, Vehari who produced the record which reflected that Abdul Rehman's religion was mentioned as Islam in the relevant column.

10. For what has been discussed above, we are of the view that the concurrent judgments are consistent with the weight of the evidence led. Learned counsel has not pointed out any misreading or non-reading, which could have persuaded us to interfere with these concurrent findings. The appeal having no merit is accordingly dismissed. M.W.A./L-2/SC Appeal dismissed.