2016 PLP 1672 (CLC)

IBAD-UR-REHMAN LODHI, J.

Before arguing the revision petition on merits, the learned counsel for the petitioners objected to the maintainability of the first appeal before the learned District Judge, filed by the present respondent, as being barred by time, which at the time of its original filing, was not accompanied with an application under Section 5 of the Limitation Act, 1908, and when subsequently during pendency of. appeal, such application was moved, the same was supported with a defective and unauthorized affidavit and no plausible explanation was extended for condonation of delay in filing of appeal.

2. The application and reply filed thereto available on the file of present revision petition, have been gone through, which reveals that the appeal before the learned first appellate court. was barred by one day, which point of limitation has elaborately been discussed by the learned first appellate court in paragraphs Nos.21 and 22 in the impugned judgment and, therefore, keeping in view the valuable rights of present respondent, the learned first appellate court has proceeded to decide the appeal on merits.

3. The Hon'ble Supreme Court of Pakistan in Hyderabad 'Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 Supreme Court 84) and Board of Governors, Area Study Centre for Africa and others America, Quaid-e -Azam, University, Islamabad and another v. Ms. Farah Zahra (PLD 2002 Supreme Court 153), on the subject of condonation of delay, has held that in suitable cases, the Court can exercise suo motu powers to 'enlarge the time and condone the delay and that the Court should not be reluctant in condoning the delay depending upon the merits of the case, under consideration.

4. I find that the learned first appellate courts, in view of the peculiar circumstances of the case, had rightly proceeded to adjudicate the matter on merits by ignoring the delay of one day in filing of the first .appeal. The objection, as has been raised by the petitioners on the maintainability of first appeal before the learned District Judge is, thus, overruled.

5. As far as merits of the present revision petition are concerned, it was the respondent Mst. Asif Sultana, who filed a suit for partition/ administration by claiming her 7/40 shares in the leftover estate of late Mohammad Ayyub Khan, with a claim that she is daughter of said Mohammad Ayyub Khan, from his earlier marriage. Said Mohammad Ayyub Khan breathed his last on 29.09.1989.

6. The learned trial court, after full-fledged trial, dismissed the suit vide judgment and decree dated 22.11.2004. In appeal; however, the suit was decreed, when the appeal was allowed by the learned first appellate court on 08.05.2009.

7. The main thrust of the challenge to the findings of the learned first appellate court by the petitioners is that, the plaintiff has failed to provide the details of the stated marriage of late Mohammad Ayyub Khan with Mst. Fatima Bibi (mother of the plaintiff-Mst. Asif Sultana), as also her own date of birth, and the date of divorce in between Mohammad Ayyub Khan and Mst. Fatima Bibi; therefore, according to the petitioners, the plaintiff/respondent herein, has failed to justify her claim to be the daughter of Mohammad Ayyub Khan from his marriage with Mst. Fatima Bibi and, thus, was rightly deprived by the learned trial court from her stated shares of 7/40 in the leftover estate of Mohammad Ayyub Khan.

8. The learned first appellate court, while passing a decree in favour of the plaintiff-Mst. Asif Sultana, mainly placed reliance on two documents viz. Ex.P.2-birth certificate of the plaintiff and Ex.P.3-a gift deed, stated to have been entered into by late Mohammad Ayyub Khan along with his brother Mohammad Sadiq.

9. The learned, counsel for the petitioners has objected to the validity of Ex.P.2, on the assertion that the same was ordered to be deleted, after an inquiry conducted by the District Health Officer.

10. The learned counsel for the respondent has pointed out that the said birth entry was ordered to be deleted by the District Health Officer, but the effect of such order was not 'being reflected by the relevant' quarters in the Birth Register, which constrained the petitioners to file 'Writ Petition No.8550 of 2010, before this Court, which ultimately was dismissed as withdrawn by the petitioners on 24.01.2001 and, thus, the, challenge, if any to such birth entry, was left nowhere and now at this belated stage, the petitioners are estopped to raise again such plea, challenge to which has already been withdrawn by them.

11. Ex.P.3 is a document i.e. a gift deed registered against No.6357 on 07.09.1960, in the office of Sub-Registrar, Lahore, showing a gift by 'Mohammad Ayyub Khan in favour of his real daughter Mst. Asif Sultana and by Mohammad Sadiq, in favour of her niece-Mst. Asif Sultana, a property noted in the said deed. The said document was made part of the record on 22.07.1997 during proceedings of recording of evidence in the (trial and, if not earlier, at least on 22.07.1997, the defendants in the suit (present petitioners) became aware of the execution and registration of said gift deed, accepting Mst. Asif Sultana, as his .real daughter by Mohammad Ayyub Khan, but to-date, the said document has never been challenged independently. Even the witness, who produced such document in. evidence, was not even cross-examined as to the genuineness or otherwise of such document. It is a settled rule of law that, a fact deposed during examination-in-chief, if not properly checked by the cross-examiner, is deemed to have been accepted by the side, which was afforded an opportunity to cross-examine the witness.

12. The findings of the learned first appellate court on Issues No.1 and 7-A are result of correct appreciation of evidence, available on record, which findings are made basis for the decree passed in favour of the plaintiff.

13. The learned first appellate Court has rightly noted in the impugned judgment that, Mst. Asghari Begum widow of late Mohammad Ayyub Khan, was alive at the time of recording of evidence in this case, but was not produced, who being an old lady, was supposed to know all the facts of the case, as according to the plaintiff, Mst. Asghari Begum was the second wife of late Mohammad Ayyub Khan. Had such lady been in the witness-box, truth was expected to come out of her mouth and, therefore, it can easily be held that, the best evidence in the shape of Mst. Asghari Begum was withheld by the defendants.

14. The people of Pakistan are conscience of their responsibility before Allah. Almighty and men, through their representative in the National Assembly adopt, enact and give to themselves the Constitution. Article 2-A of the said Constitution provides that the. Objectives Resolution will be a part .of substantive provision, which provides that sovereignty over the entire universe belongs to Allah Almighty alone and the authority which he has delegated to the State of Pakistan, through its people for being exercised with the limits prescribed by Him is a sacred trust. The Objectives Resolution, inter-alia, ensures the social justice as enunciated by Islam to be fully observed and Muslims are expected to be enable to order their lives in individual and collective spheres in accordance with the teachings and requirements of Islam as settled in the Holy Quran and Sunnah. We are the followers of Hazrat Mohammad (Peace Be Upon Him) through whom the command of Allah transferred to Muslims till the Day of Judgment. In order to provide legitimacy to a child, Islam leans in favour of legitimization rather than stigmization and if in case of any doubt, there is any acknowledgement of affirmation of parentage on the part of the father, then such child follows the status of father. As a civilized system of law, we, the Muslims, must see towards legitimization, particularly, when a stigma of illegitimacy seems to be attempted to have been casted upon a female child only in order to achieve some worldly benefits in shape of some land, etc. Present case seems to be a classic example of taking such worldly benefit by stigmizing the legitimacy of the respondent. In presence of a clear acknowledgment of paternity by late Mohammad Ayyub Khan in favour of the respondent Mst. Asif Sultana by means of gift deed (Ex.P.3), the effect of which has been discussed herein-above, there should be no question left to doubt the parentage of the respondent Mst. Asif Sultana.

15. In the sermon delivered by our Holy Prophet (SAW) on Ninth Day of Zil-Hajj 10 A.H. in the valley of Mount Arafat in Mecca City, which is commonly known as "Khutbah of Hajja-tul-Wida", and is considered always a pattern of life to be observed by the Muslims, all times to come. Following texts from the said sermon, which are very important and relevant for the present purposes, are highlighted as It is, thus, clear that it would be binding for us not to usurp the right of others and also to pay all respect to our womenfolk, who was being dealt with during the period of ignorance as non-entity and were even being in having foot in the grave without waiting their death only in order to deprive them from their share in the relevant estates. In our present claimed modern age, it cannot be allowed to repeat the nefarious customs of period of ignorance. If this is allowed, the ladies even in this 21st Century, would remain to be allowed to be treated as non-entity again and by doing so, we would be inviting wrath of Allah Almighty, and for such like attitude and behaviour, sanction cannot be given by the Court.

16. No evidence has been produced by the defendants to show as to who was the real father of Mst. Asif Sultana-plaintiff. Her birth is not denied and Ex.P.2 and Ex.P.3, have never been rebutted, in any manner, by the defendants and, therefore, in my view, the findings of the learned first appellate court are justified, whereas, the findings of the dismissal of the suit, as were arrived at by the learned trial court are not sustainable.

17. Resultantly, this revision petition is dismissed. The judgment and decree dated 08.05.2009, passed by the learned first appellate court is upheld and that of passed by the learned Civil Judge 1s Class, Lahore, on 22.11.2004 is set-aside. The suit filed by the plaintiff-Mst. Asif Sultana, present respondent, stands decreed. There will be no order as to costs. MM/S-36/L Suit decreed.