2008 PLP 1687 (CLC)

ALI AKBAR QURESHI, J.

The petitioners through this civil revision have questioned the vires of the judgment and decree, dated 2-6-1998 'and 7-3-1996 passed by the learned Courts below whereby the suit for declaration regarding the agricultural land was dismissed.

2. The backdrop of the controversy is that the petitioners claiming themselves collectoral of deceased Khuda Bukhsh, filed a suit for declaration to the effect that Mst. Bholi widow of Khuda Bukhsh was limited owner of the property left by her husband in India; after partition of the subcontinent, a claim was filed by said Mst. Bholi being legal heir of Khuda Bukhsh who died issueless in India; against the claim, Mst. Bholi was allotted Claim Form in Mauza Easher Kay, Tehsil and District Sheikhupura, deposited usual fee and other charges and obtained propriety rights along with the possession. The petitioners/plaintiffs are legal heirs of Ilam Din who deposited the usual fee and they are also in possession after his death; the mutation of inheritance entered in the name of Mst. Bholi was submitted before the Revenue Officer and lastly she was declared full owner and mutation was also sanctioned in her favour; against the said order, Ilam Din predecessor of the petitioners filed an appeal and the case was remanded to the Tehsildar Consolidation who after investigation, on 16-5-1969 sanctioned the mutation in favour of Mst. Bholi but as limited owner and the petitioners/plaintiffs were given 3/4 shares and the predecessor namely Ilam Din of the petitioner remained in possession as co-sharer; against the said order, dated 16-5-1969, an appeal was filed before the Collector Consolidation, which was allowed and declared that Mst. Bholi was widow of Khuda Bukhsh, Noorjahan was her maternal-granddaughter, Mst. Bholi also declared as full owner by this Court. It was declared that Mst. Bholi was Shia and in result of that Mst. Noorjahan became full owner as legal heirs of Mst. Bholi. In result of a decision given by this Court on 10-2-1973 in a constitutional petition, the matter was sent to the Board of Revenue with the direction to hold an inquiry whether Khuda Bukhsh and Mst. Bholi were of Shia creed. The matter was ultimately came to the Assistant Collector of the area who after inquiry came to the conclusion that Khuda Bukhsh and Mst. Bholi were used to profess Shia faith but the Additional Commissioner being dissatisfied of the inquiry, directed the parties to approach to the Civil Court on 30-12-1990. The order of the Additional Commissioner, whereby the parties to the suit were directed to approach the Civil Court, was challenged by the petitioners, wherein it was submitted, that the petitioners being the collectoral of deceased Khuda Bukhsh are entitled to the inheritance of the legacy of the deceased Khuda Bukhsh as the Khuda Bukhsh and Mst. Bholi were not Shia by faith but Sunni.

3. The suit was contested vehemently by the respondents/ defendants. During proceedings, the respondent No.18/defendant, who purchased the property in question, also filed an application, to be impleaded in the array of defendants. The respondents mainly contested the suit on the ground that Khuda Bukhsh and Mst. Bholi deceased was Shia by faith and Noorjahan has already been declared full owner and the suit is not maintainable on the ground that the petitioners are not in possession. The learned trial Court, out of the divergent pleadings of the parties, framed as many as seven issues. Both the parties adduced their oral as well as documentary evidence in detail. The learned trial Court heard the arguments, appreciated the evidence and finally dismissed the suit with costs. The petitioners being not satisfied of the findings recorded by the learned trial Court, preferred an appeal but the same was too dismissed by the learned 1st Appellate Court, hence this civil revision.

4. Learned counsel for the petitioners contended that the concurrent findings of the learned Courts below are result of misreading and non-reading of evidence, material irregularity as the material evidence available on the file has not been surveyed, appreciated and interpreted in true perspective. Next added that the respondents were required to discharge their burden on Issue No.4 but they are badly failed to prove by any cogent and convincing evidence that Khuda Bukhsh and Mst. Bholi deceased were related to Shia Faith. Further contended that the oral evidence produced by the respondents on Issue No.4 is self-contradictory as one of the witnesses stated that Mst. Bholi died in Sheikhupura whereas D.W.2 stated that she died in Gujranwala. Further contended that the respondents even otherwise could not place any documentary evidence to the effect that Khuda Bukhsh and Mst. Bholi were Shia by faith. Further added that all the evidence produced on behalf of the respondents is hearsay and no direct evidence in the shape of ocular or documentary evidence was submitted so in this way, the respondents have badly failed to prove the Shia faith of deceased Khuda Bukhsh and Mst. Bholi. It is also contended that all the Muslim citizen of Pakistan are presumed to be Sunni unless otherwise proved and the burden to prove lies on the persons who claimed otherwise, so in this case the respondents failed to prove that the said Khuda Bukhsh and Mst. Bholi were not Sunni by faith. Lastly contended that there is no evidence on record that Mst. Saleeman died in Pakistan so the respondents or otherwise were not entitled of the legacy of Khuda Bukhsh or for that matter Mst. Bholi. Reliance has been placed on Shahzado Shah through Legal Heirs and another v. Mst. Sardaro and 4 others 2004 SCMR 1783, Amir Ali v. Gul Shaker and 10, others PLD 1985 Kar. 365, Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480 and Pathana v. Mst. Wasai and another PLD 1965 SC 134.

5. Conversely, the learned counsel for the respondents supported the concurrent findings recorded by both the Courts below and submitted that the respondents have fully' discharged their responsibilities by producing confidence-inspiring evidence and has succeeded to prove that Khuda Bukhsh and Mst. Bholi was Shia by faith. The learned counsel also referred particularly the statement of D.W.2 who was related to Mst. Bholi. The learned counsel has also placed reliance on Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300.

6. I have heard the learned counsel for the parties and perused the record.

7. The petitioners, claiming the inheritance of deceased Khuda Bukhsh being collectoral and mainly on the ground that deceased Khuda Bukhsh and Mst. Bholi were not Shia by faith, so they are entitled to the inheritance of deceased Khuda Bukhsh to the extent of 3/4 share. The learned trial Court to resolve this controversy framed an issue which is Issue No.4 and reproduced here:

Issue No.4. Whether Bholi and Khuda Bakhsh were Shia by faith, if so, its effect, OPD (Nos.1A to 12, 16 and 17).

8. The respondents to discharge their burden on Issue No.4 produced three witnesses (D.W.1 to D.W.3) whereas in rebuttal, the petitioners produced two witnesses (P.W.1 to P.W.2). D.W.1 who appeared on behalf of the respondents stated in examination-in-chief that both Khuda Bukhsh and her wife Mst. Bholi were Shia by faith and they have only one daughter namely Saleeman. In cross-examination, although he stated that Both Khuda Bukhsh and Mst. Bholi died before his birth but maintained, that late Khuda Bukhsh and Mst. Bholi were Shia by faith. The said witness further cross-examined and stated that both were Shia by Faith. D.W.2, who is paternal-cousin of Saleeman stated in examination-in-chief that late Khuda Bukhsh and Mst. Bholi who were parents of Mst. Saleeman were Shia by faith and also stated that petitioners never remained in possession of property in question. He was cross-examined by respondents Nos.13, 14 and 19 and the said witness corroborated the statement and said that Mst. Saleeman was Shia by faith and his "Namaz-e-Janaza" was offered by Imam of both the sects i.e. Shia and Sunni. The said witness also cross-examined by the petitioners wherein he stated that the Imam/Maulvi who offered the "Namaz-e-Janaza" of Mst. Saleeman, has died. Further stated in response of question 'that her paternal-and Mst. Saleeman told him that she is Shia by faith and also her husband. The most important part of the cross-examination is when the said witness (D.W.2) stated that he used to pay the funds in favour of Shia sect but did not know whether the said office is still in existence or not. Lastly, he stated that he also used to give the receipt of said fund to Mst. Bholi. The relevant para. is reproduced here:

8.(sic) Although, D.W.3, one of the respondents who purchased the land in question also stated that Saleeman was Shia by faith but the most important witness in these circumstances is defendant No.2.

9. On the other hand, the petitioners to discharge their responsibilities and also to substantiate their contentions produced two witnesses. I myself has perused the evidence and noted, that both the witnesses have not uttered even a single word to the effect that late Khuda Bukhsh, Mst. Bholi and Mst. Saleeman were Sunni by faith and not Shia. Even in cross-examination, they did not support the contentions taken by the petitioners in their pleadings, that Mst. Saleeman was not Shia by faith. Although, it was the responsibility of the respondents to prove that Khuda Bukhsh, Mst. Bholi and Saleeman were Shia by faith, who in relation to this produced a close relative of Saleeman (relation not denied by the petitioners) but this does not absolve the petitioners to discharge their responsibility at least to the extent to prove the stance and contention taken in the plaint. The petitioners specifically asserted at the time of filing the suit, that the above-said persons are not Shia by faith. Thus, they are supposed at least to prove those contentions and assertions by way of independent, impartial and confidence-inspiring evidence taken by them. The overall survey of the material available on the record shows that the petitioners badly failed to discharge their responsibility to prove the contentions raised in the plaint. In the judgment delivered by this Court as Mst. Latifa Bibi and 8 other v. Muhammad Bashir and 10 others 2006 CLC 1076 which is reproduced hereunder (at relevant page 1083:

"(7) The above survey leads me to the conclusion that no hard and fast test can be laid to ascertain one's belief or faith. It cannot be ascertained on the basis of one or more events. The faith of a person has to be determined either by what he professed during his life time or by what he confessed verbally or otherwise in his daily course of life or by conduct that is to say by performance of his religious rites in a particular manner. In the event these elements are silent, his faith can be determined: (i) By birth i.e. faith of his parents; (ii) By family i.e. faith of his brother, sister or kiths and kins; (iii) By nationality i.e. faith of majority of a country of which he was national."

10. The faith of any Muslim can only be determined by what he professed during his life time and that can only be proved after his death by producing any close relative of the said person. In this case the respondent during the course of recording the evidence produced D.W.2 who is first paternal-cousin of Mst. Saleeman who through his evidence proved, that Mst. Saleeman was Shia by faith. Both the Courts below have also dealt with other issue after appreciating the evidence available on the file and finally concluded to a decision, that the petitioner has failed to prove their case in any manner whatsoever. Even otherwise, both the learned Courts below have not committed any jurisdictional defect, material irregularity, misreading and non-reading of evidence, so in these circumstances as observed by the Honourable Supreme Court of Pakistan in many judgments that the revisional jurisdiction cannot be exercised in such-like cases. It has already been ruled in Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 that even erroneous findings recorded by the learned Courts below on the facts and mixed question of fact and law cannot be interfering by reappraising and re-appreciating the evidence.

11. Resultantly, this petition has no force and is dismissed with no orders as to costs. H.B.T./M-329/L Petition dismissed.