1987 PLP 976 (SCMR)

Mst. Beguman and 2 others v. Saroo and another P L D 1964 W.P. 451; Kenchava Kom Sanvallappa Hosmani and another v. Girimalloppa Somasagar A I R 1924 P C 209; Aminullah v. The State PLD 1982 S C 429 and Khan Gul Khan v. Mst. Karam Nishan and others AIR 1940 Lah. 172 ref. Muhammad Rashid Chughtai, Advocate Supreme Court for Petitioners. Nemo for Respondents. Date of hearing: 25th January, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 18‑11‑1979 of the Lahore High Court; whereby petitioners' Regular Second Appeal arising out of an inheritance case, was dismissed.

2. Mahia petitioner was convicted under section 302, P.P. C. for the murder of his father Ramzan. His appeal partly succeeded. The conviction was altered to 304 Part‑II, P.P. C. and sentence was accordingly reduced. It is not necessary to give the details of the entire litigation. Suffice it to state that the case of inheritance of Ramzan was ultimately decided against the petitioners on the ground that petitioner No.1 being himself the murderer, he would be excluded from heirs on the basis of Muslim Law of Inheritance to the effect that a murderer would not inherit the property of his victim. Petitioners Nos. 2 to 6 who are sons and daughters of petitioner No.1 have also been deprived of the inheritance on the ground that although under the Family Laws Ordinance, 1961, after the exclusion of their father on the assumption that he had in the meanwhile died, they as grand‑sons and grand‑daughters of Ramzan would have ordinarily obtained their father's share; but, the Muslim Law of Inheritance deprives the progeny of a murderer also in as far as inheritance of the victim is concerned. While rendering a decision against the petitioners, the High Court has relied upon two judgments Mst. Beguman and 2 others v. Saroo and another P L D 1964 (W.P.) 451 and Kenchava Kom Sanvallappa Hosmani and another v. Girimalloppa Somasagar A I R 1924 P C 209.

3. Learned counsel has tried to distinguish the aforenoted two judgments. He has, inter alia, contended that the petitioner No.1 having ultimately been found guilty only of culpable homicide not amounting to murder, the rule of Muslim Law pressed in service against them petitioners would not be attracted. And further that, in any case, there is difference of opinion amongst the Muslim Jurists and Aima on the question whether the heirs of the murderer would also be excluded from inheritance or not.

4. Although, the learned counsel was unable to cite any other case, however, the Court Research Assistant has brought to our notice; Aminullah v. The State P L D 1982 S C 429 and Khan Gul Khan v. Mst. Kararr Nishan and others A I R 1940 Lah.

172. An observation at page 443 of the report of the Supreme Court judgment goes against petitioner No.1 in so far as his case is concerned. But there is no reference to the progeny of a murderer, in which position the petitioners Nos. 2 to 6 are. The 1940 Lahore case relied upon in the Privy Council case noted above which related to Hindu succession. This is a case of first impression in so far as this Court is concerned. We accordingly grant leave to appeal. Security Rs.2,

500. The petitioners, if in possession of the Muslim Law share of property, it shall not be disturbed during the pendency of the appeal subject to their furnishing security for mesne profits to the satisfaction of the trial Court from the date of the decree passed by the First Appellate Court. M.I./M‑64/S Leave granted.