1993 CLC 109 (PLP)

(i) Whether Ghulam Bismillah deceased had divorced defendant No.l during his lifetime and as such she is not entitled to inherit him? OPP. (ii) Whether Mst. Kaniz Begum defendant No.2 is the daughter of the deceased Ghulam Bismillah? OPD. (iii) Whether Ghularn Bismillah propositus was governed by custom at the time of his death in matter of succession? If so, what was the said custom? OPP

4. The parties led oral as well as documentary evidence in order to substantiate their respective pleas. On the scrutiny of the evidence, so adduced by the parties, the learned trial Court decided Issues Nos.l and 2 together and held that defendant No.l was not divorced by Ghulam Bismillah and that defendant No.2 was his daughter. While holding so, it was observed:‑‑ "The onus of Issue No.l that Ghulam Bismillah had divorced Amina Begum in 1936 was on the plaintiffs. They have to prove beyond any shadow of doubt that he had divorced her in India. The only witness on the point of divorce are P.W.1, Fateh Muhammad and P.W.2 Ch. Muhammad Ali, both have stated that Ghulam Bismillah was a literate man and remained as Honourary Magistrate and President of the Municipality. They have stated that he had given the divorce orally to Amina begum. P.W.1 says that the divorce was given about 30/35 years ago. The statement of the witness was recorded on 23‑9‑1967. In this way the period of divorce become 1932 to 1937. P.W.2 says that she was divorced in 1928‑29 while according to the para. 9 of the plaint, she was divorced in ,1936. So both these witnesses have given the contradictory evidence on this point. Furthermore, the plaint shows that she was divorced before the Brathery. Admittedly none of the P.W.1 and P.W.2 is the relative of the parties. P.W.1 is Rajput by caste and admits in the cross‑examination that he is living with the plaintiff in Chichawatni and previously he had been living in Phalore where Ghulam Bismillah used to provide him food and clothes. Muhammad Ali P.W.2 was a Head Constable in Police Station Ludhiana which was at a distance of 8/9 miles from Phalore. P.W.1 has stated that Kaneez Begum used to observe Pardah from Muhammad Ali P.W.2 while P.W.2 says that she did not use to observe Pardah from him. The other witnesses P.W.3, Sher Muhammad. P.W.4, Ghulam Muhammad, P.W.5, Mazhar‑ul‑Haq, P.W.6, Riaz‑ul‑Haq and P:W.7 Muhammad Ahsan are not the witnesses of the divorce. They have stated that they have merely heard that she was divorced. The statement of Mazhar‑uld‑Haq P.W.5 is very important who is the nephew of Ghulam Bismillah and Mst. Hafiza Begum the daughter of defendant No.l was married with his brother Ata‑ul‑Haq. He has stated that Ghulam Bismillah had left two widows Amina Begum and Rashida Begum and that he has heard that Amina Begum was divorced by Ghulam Bismillah. No documentary evidence on the point of divorce has been placed on record by the plaintiffs. Admittedly Ghulam Bismillah was a literate man and he could easily divorce her wife through a written deed. The plaintiffs have, therefore, miserably failed to prove that defendant No.l was divorced by Ghulam Bismillah in 1936." On these conclusions, the suit filed by the appellant was dismissed,

5. Feeling aggrieved, the appellants filed appeal which was dismissed by the learned District Judge, Rahimyarkhan by impugned decree dated 18‑10‑1988. .

6. Learned counsel for the appellants, in support of this appeal, raised following points:‑‑ (i) That the first appellate Court had passed a judgment of affirmance without application of mind to the objections raised in memo. of appeal. According to the learned counsel, the judgment of the first appellate Court was, in fact, reproduction of the judgment of the first Court. According to the learned counsel under Order XX, Rule 5 of the Code of Civil Procedure read with Order XLI, Rule 33 ibid, the first appellate Court was required to give its fording on each and every issue separately. This was not done, hence the decision of the first appellate Court was contrary to law. Reliance was placed on Muhammad Akhtar v. The State (PLD 1957 SC 297), Askar Ali and others v. The State (PLD 1959 SC 251), Gouranga Mohan Sikdar v. Collector of Import and Export (PLD 1970 SC 158), Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173) and Shamas‑ud‑Din v. Ali Jan (1984 CLC 1456). (ii) That Fateh Muhammad P.W.1, Muhammad Ali P.W.2, and Haji Sher Muhammad, P.W.3 were the witnesses who belonged to the family of Ghulam Bismillah and possessed special means of knowledge with respect to the relationship of Mst. Amena Begum and Mst. Kariiz Begum with late Ghulam Bismillah. According to the learned counsel, these witnesses had stated affirmatively that Mst. Amena Begum was divorced by Ghulam Bismillah (deceased) in 1936 in their presence. According to the learned counsel the two Courts below have discarded the evidence of afore‑noted witnesses without legal reasons. (iii) That the two Courts below have committed error of law by placing reliance upon Exh. D‑1, D‑2 and D‑

3. These documents which are, in fact, letters alleged to have been written by late Ghulam Bismillah to Mst. Amena Begum, were neither mentioned in the written statement nor referred in the list of reliance filed alongwith the. written statement. It was stressed that these letters were not proved under section 67 of the Evidence Act and were, therefore, inadmissible in evidence. The learned two Courts below erred in law by taking into consideration this inadmissible evidence.

7. On the contrary, learned counsel appearing on behalf of the respondent, supported the impugned decision by saying that the two Courts below after taking into consideration the material produced by both the parties had come to the conclusion that Mst. Amena Begum and Mst. Kaniz Begum were widow and daughter of late Ghulam Bismillah. This being, finding of fact, was not open to exception under section 100, C.P.C. Reliance was placed on Keramat Ali and others v. Muhammad Younus Haji and others (PLD 1963 SC 191), Mumtaz and 3 others v. Mian Khan (PLD 1973 Lahore 47) and Ghulam Ali and 2 others v. Ghulam Sarwar Naqvi (PLD 1989 Lahore 372).

8. It was next contended that neither P.W.1 nor P.W.2, nor P.W.3 belong to the family of late Ghulam Bismillah. As such, according to the learned counsel, these witnesses did not possess special means of knowledge within the ambit of section 50 of the Evidence Act to give evidence with respect to the relationship of respondent with Ghulam Bismillah (deceased).

9. Last but least, it was contended that the Muslim Law leaned in favour of legitimacy. Undisputedly Mst. Amena Begum had not contracted second marriage with any one. She had continued to claim herself to be wife of late Ghulam Bismillah. In such circumstances, there was no material warranting the conclusion that she was divorced by her husband in 1936 in India. Reliance was placed on Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) and Bashir and others v. Ilam Din and others (PLD 1988 SC 8). 10. 1 have heard the learned counsel for the parties in great detail and have minutely examined the record of their case with their capable assistance. After giving may anxious consideration to the first point of the learned counsel for the appellants, I feel substance in it. Under Order XLI, Rule 31 of the Code of Civil Procedure, the first appellate Court is bound to decide each and every issue separately by objective apprasial of evidence in consonance with law. The perusal of the judgment of the first appellate Court shows no independent exercise was made by the first appellate Court. The question for decision is "as to whether in such a circumstance, this Court had the power under section 100, C.P.C. to review the evidence and decide the case or remand the case for decision afresh on merits to the first appellate Court." It is a settled principle of law that all the roads in the procedural law lead to sacred task of dispensation of justice. There is abundant authority in support of the proposition that the second appellate Court and even the revisional Court had a power to decide the lis by taking into consideration the whole oral as well as documentary evidence on record if it is sufficient for the purpose of deciding the case. Reference be made to Pramatha Nath Chaudhary v. Kamir Mondal etc. (PLD 1965 SC 434), Fateh Ali v. Pir Muhammad and another (1975 SCMR 221), Nazir Ahmad and another v. Khuda Bakhsh and another (1976 SCMR 388), Mushtaq Ahmad, etc. v. Muhammad Hussain (1990 ALD 442) and Muhammad Sadiq and, others v. Faqir Muhammad (1992 CLC 172). In view of this legal position, I feel it proper to review the evidence on the record and decide the second appeal. 11 Having dealt with the first contention of the learned counsel for the appellants I come to the merits of the case. The case of the appellants/plaintiffs rests upon the testimony of Fateh Muhammad P.W.1, Ch. Muhammad Ali P.W.2, Haji Sher Muhammad P.W.3 and Mazhar‑ul‑Haq P.W.5. Fateh Muhammad, in cross‑examination showed total ignorance about the names of sons and daughter of late Ghulam Bismillah: he stated that he knew only the name of Rias‑ul‑Haq who had brought him to the Court for giving evidence. He further admitted that he was not from the Birathari of late Ghulam Bismillah. From this statement, it is quite clear to me that this witness is a partisan one, has no knowledge whatsoever with respect to the family of late Ghulam Bismillah and had come to the Court just to support the cause of a person, who had brought him. As regards P.W.2, his position is not better than P.W.1. He admitted in cross‑examination that Mst. Amena Begum was a Parda‑observing lady but she did not do the same from him. He stated that Mst. Amena Begum was divorced in 1928‑

29. He further stated that he was a head constable at Police Station Ludhiana which was at distance of 8 to 9 miles from Phalore. He stated that Ghulam Bismillah (deceased) was well read person and was a Magistrate in Phalore. This witness too, was brought by Riaz‑ul‑Haq to give testimony in support of the plaintiffs. In my humble view, the testimony of this witness does not inspire confidence. Can it be assumed safely that a well read person holding a responsible office can pronounce divorce in presence of persons of this description. The answer is no. After dealing with the P.W.1 and P.W.2, I am left with the testimony of Mazhar‑ul Haq. This witness seems to be important one. He stated that he was a real brother of the husband of Mst. Hafizan who was born from Mst. Amena Begum from late Ghulam Bismillah_ On the question of divorce, he stated that he had heard about the factum of divorce by Ghulam Bismillah to Mst. Amena Begum. This being a hearsay evidence is not helpful to the case of the appellants/plaintiffs. From the aforesaid survey of the evidence, I have no doubt in my mind that the trial Court was correct in coining to the conclusion that Mst. Amena Begum was the widow of late Ghulam Bismillah and Mst. Kaniz Begum was his daughter. It is a well‑settled principle of law that Muslim Law leans in favour of legitimacy and abhors the contention of illegitimacy. In l Shah Nawaz v. Nawaz Khan (PLD 1976 SC 767), it was held:‑‑ "Under the Muslim Law, paternity of a child is attributed to the person who is actually responsible for its conception after his marriage with the child's mother. The stress, therefore, is on the `time of conception' of the child and it is essential condition that it should be conceived by the purported father after his marriage with the child's mother... The presumption of paternity from marriage follows the bed, that is to say, the paternity of a child born in lawful wedlock is presumed to be the husband of its mother, if certain conditions are satisfied. Therefore, ordinarily proof of marriage between the parents of a child is very cogent evidence to establish his paternity. It may be that conditions attached to legitimacy are more strict under Muslim Law than under other systems but the Muslim jurisconsults as also the Courts have generally been very reluctant to stigmatize a child as illegitimate and therefore, as far as possible every presumption is made in favour of its legitimacy. Courts therefore, have been reluctant to declare a child bastard and have generally refused to admit illegitimacy when legitimacy can be inferred from the surrounding circumstances." The rule laid down in Shah Nawaz's case supra, was reiterated in Nazir Fatima v. Ghulam Fatima and others (1987 CLC 2073) and Bashir and others v. Ilam Din and others (PLD 1988 SC 8).

12. Applying this principle to the facts and circumstances of this case, it is manifest that onus to prove that Mst. Amena Begum was divorced by late Ghulam Bismillah in his lifetime rested heavily rather exclusively on the appellants. As already noted above that the testimony of the appellant/plaintiff is not sufficient in quality as well as quantity to support the appellants' case that Mst. Amena Begum was divorced by late Ghulam Bismillah in year 1936, in India.

13. There is yet another circumstance which completely demolishes the claims of the appellants. Mst. Amena Begum appeared in the witness‑box and affirmatively stated that she was never divorced by Ghulam Bismillah. She was subjected to lengthy cross‑examination but the same could not shake her credit. It is interesting to note at this stage that Mutation No.8 relating to Chichawatni was reported at the instance of Riaz‑ul‑Haq. He gave the genealogical table of the legal heirs of late Ghulam Bismillah stating therein that Mst. Amena Begum was widow of Ghulam Bismillah and Kaniz Begum was his daughter. The mutation of inheritance relating to Khanpur land was got entered almost 1 year after i.e. on 24‑12‑1963. Riaz‑ul‑Haq admitted in cross‑examination that there was a dispute between appellants and Mst. Amena Begum before the Revenue Authorities regarding the distribution of profits of land in Khanpur and he never raised the claim before the Revenue Authorities that Mst. Amena Begum was not the widow of late Ghulam Bismillah. Apart from it, Exh. D‑5 vernacular certificate of Mst. Kaniz Begum shows that she was the daughter of late Ghulam Bismillah. This document was received in evidence without any objection from the appellants/plaintiffs. From the circumstances noted above, it is safe to conclude that these contentions were framed after a considerable time while filing the suit. It is, thus clear to me that the appellants had miserably failed to prove their case set up in the plaint. The learned trial Court was thus justified in coming to the conclusion that Mst. Amena Begum was the widow of the propositus of the parties. After close scrutiny of the evidence of both the parties on record, I find no reason to interfere with the finding of fact recorded by the learned trial Court. 14. .In the light of foregoing discussion, this regular second appeal is found to be without merit and the same is accordingly dismissed. The appellants shall bear the costs of the proceedings throughout. AA./M‑617/L Appeal dismissed,