2006 SCMR 1916 (PLP)

SYED JAMSHED ALI, J.

Leave is sought against the order, dated 2-12-2005 of the learned Peshawar High Court in the following circumstances.

2. The petitioners were sent up for trial for an offence under sections 302/34/109 registered vide F.I.R. No.238, dated 30-5-2004 at Police Station Shergarh, at the instance of Muhammad Yousaf, the father of the deceased namely Muhammad Ishtiaq. The petitioners were acquitted by the learned Additional Sessions Judge, Takht-Bhai vide order, dated 18-12-2004 on the basis of a compromise entered into by Muhammad Yousaf, the father of the deceased.

3. Respondents Nos.1 to 6 who are brothers, sisters and step-mother of the deceased filed a revision petition before the learned High Court which was allowed with the observation that except the step-mother, the other respondents were legal heirs, being real brothers and sisters of the deceased but they were not examined. Accordingly, revision petition filed by respondents Nos. 1 to 6 was allowed vide order, dated 18-10-2004 and the case was remanded to the learned trial Court to ascertain that all the legal heirs had entered into a compromise. The petitioners seek leave to appeal.

4. The learned counsel for the petitioners submits that the father excluded the brothers and sisters of the deceased, therefore, they were not the legal heirs and the father of the deceased being his only legal heir was competent to enter into a compromise within the contemplation of section 345 of the Criminal Procedure Code. In support of his submission, he referred to the table of sharers given in Mahomedan Law by D.F. Mulla, according to which in the absence of a child or child of a son, the father inherits as a residuary. Reliance is also being placed on Bashir Ahmed v. The State PLD 1995 Kar. 5 and Niaz Muhammad v. The State PLD 1997 Quetta 17.

5. On the other hand, the learned counsel for respondents Nos.1 to 6 has relied upon Tafseer Mazhari by Hazarat Allama Qazi Muhammad Sanaullah Usmani, Vol.I. The view of Hazrat Ibne-Abbas noted at page 336 is as follows:--

6. The submissions made by the learned counsel for the parties have been considered. We have also consulted other authoritative treatises. The first to be referred is Mahomedan Law (1965 Edition) by Syed Ameer Ali whose view is reproduced hereunder:-- "When the deceased leaves behind him a father, a mother, and brothers (or one brother and two sisters; or four sisters), the mother takes one-sixth and the father takes the reminder, to the total exclusion of the brothers or brothers and sisters." (Section IX page 71)." In his treatise titled the "Muslim Law of Inheritance" by Al-Haj Mohomed Ullah Ibn S. Jung (1934 Edition), and in the "Muslim Law as administered in India and Pakistan" by Kashi Prasad Saksena, 3rd Edition (1934), same view has been expressed. In the case of Bashir Ahmed (supra), the facts of the case were similar as in the instant case. The contention in the said case before the Sessions Court was that since the deceased was not married, the father could lawfully enter into a compromise. It was, however, refused on the ground that deceased had left behind a brother and two sisters. On a revision petition before the learned High Court, the following view was taken: "However, I considered it appropriate to seek guidance from the views of religious scholars belonging to the same school of thought to which the deceased and his family belonged. The learned counsel for the applicant has assisted the Court by bringing on record the Fatawas (Religious decrees) from different religious institutions which show that all of them possess unanimous view that, in the present case, father of the deceased would inherent all the rights over the properties of the unmarried deceased, and remaining heirs, such as sisters and brothers, stand excluded from possessing anything of the deceased's property as legal heirs." It was followed in the case of Niaz Ahmed (supra) by a learned Division Bench of the Balochistan High Court.

7. The only contrary opinion is of Hazarat Ibn-e-Abbas, as noted by the learned author in his treatise mentioned above. However, preponderance of opinion has been in favour of total exclusion of brothers and sisters by the father of the deceased. According to the said opinion, it is 'respectfully observed, the father inherits as a sharer with the mother which is not accepted by any renowned author of Islamic Law. In this case, undisputedly, the step-mother is not an heir of the deceased and we have no doubt in our mind that the brothers and sisters of the deceased are also not the legal heirs of the deceased. We may also observe that there is no difference of opinion in the Sunni and Shia schools of thought as far as exclusion of brothers and sisters of the deceased by the father is concerned. The impugned judgment of the learned High Court was, therefore, based on mistaken assumption as to the correct legal position. It is, therefore, not sustainable.

8. Accordingly, this petition is converted into appeal, is allowed, the impugned judgment of the learned High Court is set aside and the judgment of the Additional Sessions Judge is restored with no order as to costs. M.H./S-53/SC Appeal allowed.