P L D 2008 Lahore 90 (PLP)

SYED HAMID ALI SHAH, J.--The petitioner claims himself to be 26th holder of the office of Sajjadanashin of the shrine of Baba Farid Ganj Shakkar (R.A.) and Maulana Badruddin Ishaq (R.A.). He through instituting suit, sought declaration to the effect that the petitioner (plaintiff) is legal Sajjadanashin of the shrine and he had the right to perform all the functions and ceremonies attached to it. A prayer of consequential relief of injunction was also made to the effect that the respondent be restrained from claiming himself as Sajjadanashin of the shrine, performing the duties as Sajjadanashin and interfering in the performance or the duties by the petitioner. The respondent contested the suit, filed written statement, controverted therein the assertions of the plaint and raised various preliminary objections. Learned trial Court, out of the divergent pleadings of the parties, framed 4 (four) issues and directed the parties to lead their evidence. The petitioner/plaintiff got examined 16 witnesses (P. W. 1 to P. W.16) including his own statement as P.W.1, while documentary evidence of the petitioner comprised of Exh.P.1 to Exh.P.13. The respondent (defendant) examined 21 witnesses including his own statement as D.W.

19. The respondent's documentary evidence consisted of Exh.D.W.1 to Exh.D.W.12. Learned trial Court on conclusion of the trial, decreed the suit in favour of the petitioner (plaintiff) vide judgment dated 19-7-1993. The respondent assailed the decree in appeal. Learned Appellate Court while accepting the appeal vide judgment and decree dated 8-5-1996, set aside the findings of the learned trial Court, resultantly the suit of the petitioner was dismissed. The petitioner assailed the judgment of the learned Appellate Court through the instant revision petition, which was allowed by this Court vide judgment dated 29-5-2006. The respondent assailed judgment dated 29-5-2006 through C.P.L.A. No.687/2006. The Civil Petition came up for hearing before the Apex Court on 15-1-2007 when the same was converted into appeal and allowed. Resultantly, the judgment dated 29-5-2006 (2006 YLR 2517) of this Court was set aside and the case was remanded for decision afresh.

2. The case of the petitioner as set out in the plaint, is that the deceased Sajjadanashin (late Dewan Qutab ud Din) associated the petitioner in the ceremonies attached to the shrine quite often and the petitioner as such is acquainted with the affairs of the shrine as well as of the office of Sajjadanashin; that the petitioner had made numerous improvements ate Darbar, rendered services for the visitors like offering feast, Sehr-o-Iftar during Ramzan, besides illumination at Darbar since 1974; that respondent's claim of Sajjadanashin was refuted by late Dewan through citation of public notices, in daily `Nawa-e-Waqat' and daily `Mashriq', in their prints dated 13-9-1981; that the petitioner has performed ceremonies relating to shrine at the time when late Dewan proceeded for Hajj; that Auqaf department affirmed and allowed the petitioner to perform ceremonies in the absence of late Dewan; that the petitioner is valid successor to the office of Sajjadanashin and the respondent has no legal status to claim this office. It was also asserted that the act of the respondent in taking off the turban from the head of the late Dewan and placing it at his head to claim succession to the office of Sajjadanashin, is against the prevailing custom and also against the injunctions of Islam.

3. The respondent resisted the suit anti defended his succession to the office of Sajjadanashin on the grounds that late Sajjadanashin had appointed him as his successor in his life time; that a public notice in this regard was published in daily `Nawa-e-Waqat' in its print dated 14-11-1980; that he was appointed as Sajjadanashin in presence of dignitaries like Governor, Federal Minister and other officials, in a huge gathering of followers (Murids) on the occasions of `Qul' ceremony of late Dewan; that the petitioner and late Dewan had strained relationship, they were locked in litigation and as such there was no occasion for appointment of the petitioner as Sajjadanashin; that the permission to perform ceremonies in 1973 on the basis of letter from Auqaf Department, is result of manipulation; that the petitioner never performed ceremonies; that the petitioner had not attended funeral, Qul ceremony and Chehlum of late Dewan; that the petitioner's presence at the time of `Dastarbandi' of the respondent, works as estoppel; that the respondent's succession was given wide coverage on electronic media and was extensively published in print media as well; that the appointment of the respondent was made according to desire of late Dewan, in presence of family members and according to the custom; that brother in presence of offspring cannot be appointed as Sajjadanashin. The respondent has denied the veracity of notices published in dailies `Mashriq' and Nawa-e-Waqat' on 13-9-1981.

4. Learned counsel for the petitioner has contended that in the absence of `Will', `Khalafatnama' or `Trust Deed', the appointment of successor to the office of Sajjadanashin has to be made according to prevailing usage/custom or tradition. He has added that the principles of Muhammadan Law as to succession, principles of primogeniture or will of followers/Murids, have no application to the appointment in question. Learned counsel, in this respect, has found support from the dictum of judgment in the case of Abid Arif Nomani and others v. Chief Administrator, Auqaf, Punjab and others (2004 SCMR 1050). Learned counsel emphasized that the Sajjadanashin holding the office during the lifetime, nominates his successor, which in the instant case is petitioner, who was permitted to perform ceremonies, in the absence of his predecessor, which speaks of his nomination as successor. Letter of Auqaf Department (Exh. P.1) further affirms the nomination. Learned counsel referred to improvements, which the petitioner made at Darbar, defiance of claim of the respondent by late Dewan and publishing of public notice to this effect and role of the petitioner in performing ceremonies, sufficiently prove the claim of the petitioner as to the succession. It was submitted that the respondent is incapable of performing the duties of Sajjadanashin and in this respect referred to incident of stampede during Urs, which is reflected in Mark-A. Learned counsel has submitted that the deathbed declaration statetily made in favour of the respondent in presence of relatives, has no legal value, as the fact despite being in knowledge, was not pleaded. Learned counsel has submitted further that the witnesses, who appeared to prove it, are interested witnesses and performance of ceremonies by the respondent in presence of dignitaries does not prove the validity of his claim qua the succession. Learned counsel has submitted that Exhs.D.1 to D.6 were not confronted to the petitioner, therefore, cannot be read in-evidence. Learned counsel explained that Saints and Soofies do not involve their personal likes and dislikes in spiritual affairs. A Soofi can appoint a competent person as his successor, ignoring his personal dislikes or personal disputes. It was added that these people, keep each aspect of their life separate from the other. The dispute between the two during lifetime of late Dewan, has no bearing regarding appointment of the petitioner as his successor to office of Sajjadanashin. Learned counsel has submitted further that instant revision is against the judgments at variance ands in such situation, this Court in its revisional jurisdiction, has to examine and compare both the judgments and see reasonability therein. Cases of Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302), Aloo v. Sher Khan and others (PLD 1985 SC 382) and Gogai and others v. Siraj Ahmad and others (1991 SCMR 1152), were referred to support this contention. Learned counsel went on to argue that comparison of two judgments reflects that the judgment of the learned trial Court is well reasoned and devoid of any legal infirmity, while appellate judgment lacks the element of reasoning. It was also argued that the judgment of this Court, rendered in pre-remand proceedings, was not set aside on merits but on technical question and findings thereon carry weight. It was contended that the instant controversy does not relate to matwaliship of shrine, as the property vesting in shrine has already been taken over by the Auqaf Department. The dispute pertains to the appointment of Sajjadanashin, which can be made either by nomination or by conduct during the lifetime of predecessor or through oral declaration. It was contended with vehemence that the evidence produced by the respondent was neither confidence inspiring nor cogent, it was shaky and inadmissible. Reference was made to the statement of Syed Shamsher Ali (D.W.15), which according to learned counsel, is contradictory to the statement of respondent. It was submitted that the respondent had deposed that a written Will was executed, whereby he was nominated, but no such Will was produced and this fact alone proves that the witness had deposed falsely. It was also contended that videocassette was admittedly edited and as such it cannot be considered as authentic piece of evidence. He emphasized that the respondent's inability to hold the office of Sajjadanashin could be ascertained from the fact that hundreds of persons died due to mismanagement at the time of Urs during the year 2001. While placing reliance on the case of Diwan Ghulam Rasul v. Ghulam Qutab-ud-Din (AIR 1942 Lah. 142), it was contended that turbanisation is not root of title but a ceremony of installation and it does not prove the title.

5. Mr. Iftikhar Gillani, learned counsel for the respondent, on the other hand, has submitted that Dewan Alla Jawaya died and office of Sajjadanashin was succeeded by Dewan Said Muhammad and thereafter, the late Dewan Qutab ud Din (father of the respondent and brother of the petitioner) was installed in the office of Sajjadanashin. The appointment of Sajjadanashin, had throughout been by way of nomination. The incumbent has unrestricted powers to appoint his successor. While quoting Muhammedan Law by Syed Amir Ali, it was submitted that incumbent has the privilege to appoint temporary Sajjadanashin during his lifetime, the appointment of successor on permanent basis, is made when incumbent is on deathbed. Reference to para 205 of principles of Mohammedan Law by D.F. Mulla, was made, wherein it is expressed that Mutawali for the time being, may appoint his successor on his deathbed. He then referred to an extract from Ruddul Mukhtar to the effect that absolute appointment of successor could be made by the incumbent on his deathbed or during death illness. Learned counsel has submitted that Pir Allah Jawaya, who had no male issue, appointed his grand son (daughter's son) namely Dewan Said Muhammad Chishti as his successor. The appointment was upheld by the Privy Council. The appointment of Dewan Ghulam Qutab-ud-Din was challenged but the same was upheld. He has submitted that it is evident from these judgments that appointment of successor is made by incumbent through nomination. Learned counsel referred to the statement of Pir Ghulam Farid Qureshi (D.W.20), who deposed that late Dewan appointed the respondent as his successor, in presence of his family members namely Pir Ghulam Sabir, Pir Muhammad Masood Chishti, Baddar Moeen and himself. According to learned counsel, the statement of D.W.20 remained un-rebutted as the witness was not cross-examined in this regard. He has submitted that the statement of D.W.20, stands corroborated by deposition of D.W.19. The ceremony was recorded on videotape, which according to Article 164 of Qanun-e-Shandat Order, 1984, is admissible in evidence, moreso when witness who recorded it deposed about its contents. Learned counsel has submitted that the petitioner's claim of Sajjadanashin is on the premises that he performed functions/ceremonies of shrine, in the absence of late Dewan, when the latter had proceeded for Hajj' during 1973. Performance of functions or rituals at shrine cannot be the declaration of the petitioner as successor to the office of Sajjadanashin. Learned counsel explained that the performance of functions at shrine, does not give cause to the petitioner to claim succession. The respondent was accompanying his father during Hajj and in his absence if the petitioner had performed rituals, is inconsequential. Secondly, the permission (Exit. P.1)' was accorded by the Auqaf Department, to perform rituals and not by late Dewan. The appointment to perform rituals, .was rescinded by late Dewan, in the year, 1980. The petitioner in is statement as D.W.1, stated that late Dewan conferred him powers to perform rituals, expressly but failed to produce any written document in this respect. Learned counsel has submitted that relations interse the petitioner and late Dewan were strained, which fact can be ascertained from pendency of criminal complaint filed by the petitioner against late Dewan. He submitted further that late Dewan appeared as witness in a case against the petitioner and stated that the petitioner had defamed whole family due to his shameful acts. It was contended that the petitioner remained aloof from affairs of Darbar. He has not attended funeral, Qul ceremony and Chehlum of late Dewan. Learned counsel has submitted that P.W.4 (Atta Farid) has admitted that late Dewan has not appointed -anyone as his successor, in his lifetime, but he showed his desire to appoint his successor amongst his sons. This admission proves the case of the respondent. Learned counsel for the respondent has summed up his arguments with the submission that learned trial Court discarded the statement of D.W.20 on the ground that the statement was outside pleadings of defendant/respondent. Learned counsel' referred to para.2 of the written statement and stated that deposition of D.W.20 was in line with the pleadings of the respondent and the judgment of the learned trial Court is thus erroneous.

6. Heard learned counsel for the parties and record perused. 7. "Soofi trace back their origin from Ashab-e-Suffa, the group of educators who devoted their lives for imparting education and relinquished themselves from worldly affairs. The following verse of Holy Qur'an was revealed in their praise:-- The word "Taasawaf" is derived from "Saffa", which means cleanliness and the dress which Soofi wears is "Sof" which is ordinary woollen ware, a dress, which portrays humbleness and poverty. The way companions of Hazrat Issa (A.S.) were called "Havaari" because of the white wearing. Hazarat Ali Hajveri (Data Ganj Bakhsh R.A.) in his book Kashf-ul-Majoob has quoted a saint, who defined Soofi in the following terms:-- Meaning thereby a person who cleans himself in love of Allah is called "Saafi" and a person whom Allah Almighty cleans becomes "Soofi". According to him. Hazrat Data Ganj Bakhsh R.A.), one C whose inner self is clean is called the Saint. The signs and reference of "Wali" is that he possesses cleanliness of heart. Hazarat Abu Muhammad Murtaesh, in this regard has expressed:-- It means; Soofi is one whose mind and steps are in unison. That is to say, his thinking, his heart, and the deeds are in one direction and go side by side. According to Abdul Hassan Noori:-- Soofis are free from worldly desire and their spirits are far E away from human vices. Hazarat Junaid Baghdadi (R.A.), has expressed) about the qualities of Soofi that: "Tasawaf" partakes of eight (8) characteristics namely generosity, condescension/Will, patience, guidance, poverty/self-negation, ordinary wearing, travel/drifting and abstention.

8. Unfortunately both the parties to this petition do not qualify to the-test of "Tasawaf" but they cannot be dislodged from their respective claims, in the instant proceedings (revisional jurisdiction), on the above noted parameters. I, therefore, confine myself to the questions raised and arise out of the judgment impugned, in this petition.

9. This shrine has the history of dispute on the appointment of successor to the office of Sajjadanashin. The 23rd holder of the office, Dewan Allah Jawaya, appointed his daughter's son Dewan Said Muhammad, as his successor, through expression made during the year 1882. The appointment was challenged and terminated in favour of the nominee through a decision of the Privy Council in the case of Sayad Muhammad v. Fatteh Muhammad (22 ILR 24 [Calcatta]). Dewan Said Muhammad (24th Dewan) breathed his last, on 26-12-1934 and on the strength of this nomination (father of the respondent and brother of petitioner), Dewab Qutan-ud-Din, had assumed the office of Sajjadanashin. His succession was challenged and resolved in favour of the nominee through judgment of this Court reported as AIR 1942 Lah.

142. According to ratio of these judgments, incumbent of the shrine of Baba Farid Ganj-e-Shakkar (R.A) has absolute authority to appoint and nominate his successor. Besides the case of Abid Arif Nomani (Supra), needs mention, wherein the Apex Court has enunciated that custom and usages attached to shrine determine the appointment of successor, rather than law of inheritance as envisaged in the Islamic law, or principle of primogeniture. There is plethora of case law on the subject. Opinion of Muslim Jurists, on this issue is the same. Reference in this respect can further be made to the verdict in the case of Sayad Muhammad v. Fatteh Muhammad (22 ILR 24 [Calcatta]) relating to this shrine and the cases of Nazeer Ahmad v. Haji Muhammad (1987 MLD 2278), Gahne Shah v. Maula Shah and others (AIR 1930 Lah.723) and Mooleka Bibi and another v. Syed Zynul Abedin (1904) 6 Bombay Law Reports 1050).

10. It is discernible from the aforesaid survey of law that the appointment of Sajjadanashin is not governed under Mohammedan law or on the principles of primogeniture. There is also no dispute that the appointment of Sajjadanashin in the case in hand, rests solely within the discretion of the incumbent Sajjadanashin. Both the petitioner and respondent claimed to have been appointed/nominated by late Dewan. Their respective competing claims, need a closer examination. The petitioner based his claim on Exh.P.1, which is a letter of Auqaf Department, permitting the petitioner to perform ceremonies at Darbar in the absence of late Dewan, who proceeded for Hajj during 1973. The petitioner cannot justifiably lay claim of his succession to the office of Sajjadanashin, on this isolated and incidental act. Firstly the Auqaf Department has no authority to appoint a Sajjadanashin. There is galaxy of rulings of Superior Courts in this respect. As authority for this proposition, cases of Mian Ahmed Ali and others v. Rehabilitation Authorities etc. (PLD 1964 SC 229), Ch. Altaf Hussain v. Chief Settlement Commissioner and others (PLD 1965 SC 68) and Sheikh Inayat Ullah v. M.A. Khan and others (PLD 1964 SC 126) can be referred. Secondly Exh.P.1 cannot be used against the respondent, because the respondent had accompanied late Dewan during Hajj. The petitioner performed ceremonies in the absence of late Dewan and also is the absence of the respondent. Thirdly the appointment, if any, stood revoked when another person (respondent) was nominated subsequently. Fourthly the petitioner despite his claim that while proceeding for Hajj, late Dewan appointed petitioner through written instrument but the petitioner failed to produce such instrument. Lastly, mere a solitary event does not entitle the petitioner to claim succession, when his subsequent conduct contradicts his previous act.

11. The petitioner has also claimed his entitlement to the office of Sajjadanashin, on the plea that he had made improvements on Darbar/shrine and has regularly been arranging meals, for the visitors of shrine. Such plea is untenable and misconceived. Such act has never been considered relevant for appointment of Sajjadanashin. Mostly the shrines are built and improvements/construction raised thereon, is through donations of followers/Murids. But they (Mureeds) have no say in the appointment of Sajjadanashin.

12. The petitioner's claim of succession to the office, is also based on the ground that he had throughout been performing ceremonies/rituals at Darbar with late Dewan. Cogent evidence/proof, in this respect is lacking. There is however material and credible evidence on record to show that relations between the petitioner and late Dewan were strained and both remained locked in litigation. The petitioner had filed a criminal complaint against late Dewan. The latter did not lag behind the petitioner and appeared as witness against him to allege that the petitioner had disgraced entire family due to his shameful act, Exh.D.16 is the copy of the statement of late Dewan, in which he minced no words in expressing his aversion towards the petitioner. It was for this reason that the petitioner did not attend funeral, Qul and Chehlum of late Dewan. The petitioner has himself admitted in his criminal complaint that an old enmity existed between him and late Dewan. It can reasonably be concluded that the petitioner in such strained relationships had not been allowed by late Dewan to perform ceremonies with him.

13. Sajjadanashin is head of institution, the superior of endowment and the teacher of religious doctrine. He is spiritual preceptor and curator of shrine. Mutawali as against Sajjadanashin is incharge of secular office of a shrine/institution. He manages the worldly affairs of institution, its properties and superintends its beneficial interests. Learned Appellate Court has rightly observed that Sajjadanashin has privilege of imparting to his disciples knowledge, whereas the Mutawali is incharge of the institution in temporal affairs. Sajjadanashin is spiritual while Mutawali is secular office. Term "Sajjadanashin" is derived from Turkish language, it comprises two words namely "Sajjada" and "Nashin" means Drug for prayer or carpet/rug on which a Mohammaden offers "Sajda". "Nashin" means seated thereon. To succeed to a spiritual office one has to establish his fitness, at least in the eyes of incumbent.

14. It has to be examined whether late Dewan had considered the petitioner worthy enough to succeed him in a spiritual office or take his place on his carpet/rug. The petitioner's wife (Dur-e-Shehwar) instituted proceedings of Qazaf under section 7 of Ordinance VIII of 1979 against the petitioner. Late Dewan appeared as witness in these proceedings on 27-7-1984, (His statement is available on record as Exh. D.16) and deposed that:

15. It can be ascertained from this statement alone, that late Dewan could not, and as a matter of fact had not, considered the petitioner to succeed to a spiritual office. Additionally, the petitioner had not announced/claimed his appointment, on the occasion of Qul or Chehlum, rather absented himself from these ceremonies for a simple reason that he had no valid claim to make. There is no justification that in such strained relationship, there was any chance for nomination of the petitioner as Sajjadanashin. A person can be installed or nominated in a spiritual office only when appointee considers him to be pious, righteous and faithful.

16. As against it, viewing the case of the respondent, Ghulam Farid Qureshi (D. W-20) has categorically stated that respondent was nominated as Sajjadanashin by the late Dewan, shortly before death, D.W.19 and D. W.21 have materially supported him on this score. Having not been cross-examined (D. W.20), the aforesaid evidence goes unrebutted. Surprisingly, this evidence was not considered by the learned trial Court being beyond the pleadings, while doing so learned Court lost sight of paragraph 2 (Bay) of the written statement, which makes the aforesaid stance of the respondent, within the contemplation of pleadings. Tenor of case-law and opinion of Muslim Jurists, discussed in the former part of ihis judgment, shows that the successor is nominated when incumbent Sajjadanashin is on the deathbed. In the case in hand, late Dewan is shown to have nominated the respondent on his deathbed. As such this nomination overrides, all previous nominations, if any. The installation of respondent to the office of Sajjadanashin and ceremony of Dastarbandi, which took place in full glare of media and in presence of family elders, notables of the area, respectables/Gaddinashins of other shrines and also in the presence of followers/Murids, proves that the nomination of the respondent as Sajjadanashin by late Dewan, was a known fact. Besides, the then President of Pakistan, Prime Minister and Governor of the Province attended that function. The petitioner was not heard saying on that occasion or soon thereafter that he was nominated and appointed as Sajjadanashin. Here at this point, judgment of Privy Council in the case of Piran v. Abdool Karim (19 Cal. 203), which has identical features, needs specific mention, where the appointment of Sajjadanashin on the basis of nomination, and appointment made in a ceremony which took place on third day of death of incumbent, attended by Murids, respectables and Gaddinashins of various shrines of the locality, was held valid and according to recognized mode.

17. Petitioner's contention that the respondent is disqualified for appointment as a Sajjadanashin, as during his tenure a stampede had taken place, in which many lives had been lost, has no merits, as this matter came up for consideration before this Court in its writ jurisdiction and the observation made by the Court speaks to the contrary.

18. The above discussion brings me to conclude, that respondent has proved his case that he was validly nominated as Sajjadanashin, from the deathbed by the incumbent. The findings of the learned appellate Court in this respect are based on correct appreciation of the evidence on record. Impugned judgment of the appellate Court, does not suffer from the defects of misreading/non reading of evidence or from wrong assumption of law. The petitioner has failed to make out a case for interference in the revisional jurisdiction.

19. For the foregoing, this revision petition has no force, merits dismissal and the same is accordingly dismissed, with no orders to costs. M.B.A./D-11/L Petition dismissed.