PLJ 2006 Lahore 1062
Present: Syed Hamid Ali Shah, J.
Mst. LATIFAN BIBI and others--Appellants
versus
MUHAMMAD BASHIR and others--Respondents
R.S.A. 92 of 1989, heard on 19.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Qanun-e-Shahadat Order, (10 of 1984), Art. 46--Evidence Act, 1913 S. 32--Suit for possession filed by collaterals basing their claim on Sunni law as deceased was issue less--Dismissed by trial Court--Finding reversed by First Appellate Court was upheld by Hon'ble High Court an second appeal--Hon'ble Supreme Court set aside the order of High Court--Remand matter to determine whether documents were proved and further deceased was having Shia faith or not in view of evidence produced--Determination by Hon'ble High Court--Oral evidence adduced by the plaintiffs did not prove that deceased was Sunni and not Shia--Deceased was Sunni and not Shia--From the appraisal of evidence of the parties, assertions made in plaint and from the statement of Mst. R before the revenue authorities--Held: Documents have been duly proved--Exh-documents were executed and sworn by deceased, much before the controversy between the parties--The statements made in Exh. were covered by Art. 46 of the Order, 1984 Item Nos. 5 & 6 and statement in these documents coupled with the statement of Mst. R at the time of attestation of mutation, prove sufficiently that I.B. was Shia and followed Shia school of faith in his life time--Appeal accepted. [Pp. 1068, 1069, 1070 & 1071] D, E, G, I & J.
PLD 1954 Lah. 480; AIR 1915 Madras 217; AIR 1938 Oudh 26; AIR (38) 1951 Pepsu 82; AIR 1950 Madras 486, ref..
(ii) Janaza--
----Determination of faith of a person--Janaza prayer as determining factor--Held: Janaza prayer is no determining factor of one's behalf, being an act done after the death of a person and without his permission. [P. 1067] A
PLD 2000 SC (AJK) 25; PLD 1985 Kar. 365; 1983 CLC 2559;
AIR 1933 Lah. 80, rel.
(iii) Obiter Dictum--
----A person knows about his faith more than the others, no matter, how close are others, with that person. [P. 1070] H
(iv) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----S. 46--Determination of faith--Father 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 jealousy rites in a particular manner--Held : 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 brothers, sisters or kiths and kins.
(iii) By nationality:-- i.e. faith of majority of a country of which he was national. [Pp. 1067 & 1068] B & C
(v) Qanun-e-Shahadat Orders, 1984 (10 of 1984)--
----Art. 46--Relevancy of evidence--Held: Eight item mention in Art. 46 of Qanun-e-Shahadat Order, 1984 are exception to the general rule of evidence that all oral evidence must be directed within the contemplation of Art. 71 of the Orders, 1984--Further held: Safeguard of cross-examination and element of prosecution for perjury, is absent in the cases covered under exceptions to Art. 46 and the maker of the statement is not to be examined as a witness at all--Art. 46 relates only to the relevancy of evidence and not to the manner to it's proof. [P. 1069] F
Mr. Taqi Ahmad Khan, Advocate for Appellants.
Malik Noor Muhammad Awan, Advocate for Respondents.
Date of hearing : 19.4.2006.
Judgment
Syed Hamid Ali Shah, J.--The apex Court has remanded this case for a fresh decision, on the following questions:--
(i) As to whether documents Exhibits D/1, D/2 and D/3 have been duly proved.
(ii) As to whether statement made by Imam Bakhsh in Ex. D. 1 and D.2 confirming that he belongs to Shia School of thought and the statement of Mst. Resham Bibi got recorded before the Revenue Authorities at the time of attestation of the inheritance mutation Ex. D.3 was not sufficient to hold that Imam Bakhsh belongs to Shia Sect in terms of Section 32 of the Evidence Act, 1913 read with Items 5 and 6 of Article 46 of Qanun-e-Shahadat Order, 1984."
(2) The backdrop of the above controversy is that mutation of inheritance was attested according to Shia Law, in favour of the appellants, being sons of Hayat Bibi, the real sister of Imam Bakhsh. The respondents being claimants of the property as collaterals, to the extent of 3/4th share, basing their claim on Sunni Law, instituted the suit for possession on 15.4.1978. It was claimed by respondents that the appellants have no concern with the property and impugned mutation is liable to be cancelled while possession is to be delivered to them. The appellants resisted the suit by filing written statement controverting therein the averments made in the plaint. Learned trial Court framed issues, recorded evidence of the parties and vide judgment and decree dated 19.5.2985, dismissed the suit. The impugned judgment was reversed in appeal and learned lower appellate Court, while accepting the appeal, decreed the suit on 31.7.1989. The second appeal was dismissed on 8.2.2001, which order was challenged before Hon'ble Supreme Court. The impugned order was set aside by the Apex Court and the case was remanded vide order dated 16.3.2005 to this Court for fresh decision on the above noted questions.
3. Learned counsel for the appellants has contended that Mutation No. 28 attested on 11.9.1977 (Ex. D3) was challenged by the respondents on the plea that Imam Bakhsh did not belong to Shia School of Thought and transfer of his land by way of inheritance to the appellants is illegal. Faith of Imam Bakhsh stood proved from Ex. D. 1 (Wassiat Nama), the statement on Oath of deceased Imam Bakhsh, i.e., affidavit sworn by him on 17.2.1969 i.e. Ex. D.2 and from Ex. D.3 i.e. the copy of mutation of inheritance of Imam Bakhsh. There are two marginal witnesses of Ex. D.1, Muhammad Akbar and Bashir Ahmad son of Imam. Latter, had since died while former appeared as DW.3 and supported the document. DW.3 has stated further that he personally knew Imam Bakhsh, Ex. D.1 was read over to him in his presence and he signed the document after going through it. DW.4, who was an advocate by profession, has admitted that he attested the document as Notary Public. Learned counsel has submitted that at the time of the attestation of impugned mutation, Mst. Raisham Bibi the widow of deceased recorded her statement and deposed that Imam Bakhsh was Shia by faith; used to attend "Majlis" and procession of "Matim". Learned counsel has emphasized that statement of Raisham Bibi is of vital importance to ascertain faith of Imam Bakhsh. He in support of his contention, has referred to the cases of "Syed Lala Hussain Shah vs. Mst. Robina Shaheen and another (PLD 2000 S.C. (AJ&K) 25), "Riaz Hussain and others vs. Board of Revenue and others" (1991 SCMR 2307) and "Mst. Sahib Bibi and others Vs. Lal" (1992 CLC 807) and "Nazir Ahmad and others vs. Abdullah and others" (1997 SCMR 281). Learned counsel has then submitted that "Wassiyat Nama" dated 17.2.1969 and affidavit of Imam Bakhsh were executed, prior to the controversy between the parties, thus, the matter falls within the ambit of Article 46, Items Nos. 5 & 6 of the Qanun-e-Shahadat Order, 1984. He went on to argue that Ghulam Ali one among the plaintiffs, in his statement has deposed that Imam Bakhsh was not Shia but Ahl-e-Tashi ( ) sufficiently proves the faith of the deceased. Muhammad Shafi (PW-2) who led the Jinaza prayer of Imam Bakhsh has stated that there was possibility that Imam Bakhsh had embraced Shia Faith. Mst. Latifan Bibi who appeared as DW.8, stated that Imam Bakhsh was Shia. The statement of Mst. Latifan Bibi was not cross-examined in this regard, her statement thus stands admitted. Learned counsel in support of this contention, invited attention to the cases of "Mst. Nur Jehan Begum through Legal Representatives vs. Syed Mujtaba Ali Naqvi" (1991 SCMR 2300), "Mst. Manzoor Mai vs. Abdul Aziz" (1992 CLC 235). Learned counsel with particular reference to the cases of "Patinharkuru Vallaban Chattan Rajah Amergal vs. Raman Varma and others" (AIR 1915 Madras 217), "Fazal Haq and others vs. Mt. Said Nur and others" (AIR (35) 1948 Lahore 113) and "Syed Lal Hussain Shah vs. Mst. Robina Shaheen and another" (PLD 2000 S.C. (AJ&K) 25) contended that Jinaza prayer is an act done subsequent to the death of a person, without his permission, cannot in any manner prove that he in his life time was follower of the school of throught according to which, his Jinaza prayer was offered.
4. Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment of the learned appellate Court. He has submitted that the respondents are admittedly collaterals of deceased Imam Bakhsh who has died issueless, the respondents are as such, entitled to inherit his property and the appellants have no concern with his property. Learned counsel for the respondents/plaintiffs has referred to the statements of PWs I & II, who have admitted that the Jinaza prayer was offered according to Sunni Faith. PWs III to VI with specific reference to their personal knowledge have submitted that Imam Bakhsh was the follower of Sunni school of thought. PW. VII is present of "Anjuman-e-Shian" and has stated that Imam Bakhsh was not member of the Anjuman. PW. VIII Maqbool Ahmad, General Secretary of "Anjuman-e-Shian" stated that Imam Bakhsh was not Shia. PW-6 & XII stated that the appellants were Ahmadi. The signatures on Nikahnama Ex. P5/1 were admitted by PWs V & VI, which proves that the appellants are Ahmadis. Learned counsel while referring to Ex. D/1 and D/2, has submitted that such documents have no evidentiary value and the High Court in the judgment dated 8.2.2001 has held that Ex. D1 does not prove anything, while Ex. D2 is not admissible. Learned counsel has referred to the case of "Sher Zaman Vs. Mst. Nawab Khatoon and 7 others" (1998 SCMR 133) to contend that findings of the appellate Court, as to the faith of deceased Imam Bakhsh, do not call for any interference. Learned counsle has submitted that the so called admission of Ghulam Ali/plaintiff that Imam Bakhsh deceased was Ahl-e-Tashi, is due to illiteracy and as such cannot be deemed as admission on his part. His statement cannot be considered as admission, because it was made in the course of cross-examination, being out of context and belied by earlier statement. Learned counsel while referring to the cases of "Sardar Muhammad vs. Muhammad Akram etc." (2000 NLR Civil 345), "Amir Ali vs. Gul Shaker and 10 others" (PLD 1985 Karachi 365), "Sabir Hussain and others vs. Afrasayyab and others" (1989 CLC 1591) and "Ahmad Khan and 4 others vs. Sikandar" (1999 YLR 2692) contended that every Muslim citizen in Pakistan is presumed to be Sunni unless otherwise proved and burden to prove lies on the person who claims otherwise. The respondents have not rebutted the presumption through cogent evidence. It was contended that Ex. D.1 is attested by two witnesses but only one marginal witness has been produced. The scribe has also not been produced. Marginal witness Muhammad Akbar DW3 has not denied that he has been held be to ( ). The case of "Mst. Rasheeda Begum and others vs. Muhammad Yousaf and others" (2002 SCMR 1089) was referred to contend that Ex. D. 1 was to be proved in accordance with law. Proof set forth by the respondents does not meet the mandatory requirement of the provisions of Articles 79 and 17(2) of the Qanun-e-Shahadat Order, 1984. It was submitted that a will in favour of a legal heir is even otherwise void. Ex. D. 2 has not been proved through the evidence of scribe and the person who has identified him. DW4, the Oath Commissioner, has stated that neither Imam Bakhsh nor Allah Rakha has signed Ex. D. 2 in his presence. Ex. D2 is thus not proved. Learned counsel supported this contention from the principal of law laid down in the case of "Habib Bux vs. Zahoor ul Hasan" (1986 CLC 1119). It was submitted that the affidavit of a person who has not been cross-examined with regard to the contents of an affidavit, cannot be taken into consideration. Learned counsel found support from the cases of "Zafar Mirza vs. Mst. Naushina Amir Ali" (PLD 1993 Karachi 775) and "Barkat Ali vs. Muhammad Nawaz" (PLD 2004 S.C. 489) in this respect. Learned counsel while referring to Ex. D.3 has submitted that mutation cannot be used as evidence against the respondents, entries in mutation register are administrative proceedings and have no evidentiary value. Learned counsel while referring to the case of "Abdul Rahim and others vs. Muhammad Hayat and others" (2004 SCMR 1723) has submitted that mutation and entires therein need proof through leading primary or secondary evidence. The contents thereof have evidentiary value in terms of Articles 75 and 76 of the Qanun-e-Shahadat Order, 1984, only when proved. Learned counsel has referred to Article 46(V) and submitted that provisions of Item (5) relate to the statement regarding existence of any relationship. This provision of law does not provide anything with regard to the faith of a person. The documents are fictitious and fabricated and do not fall within the ambit of Items (5) of Article 46 of the Qanun-e-Shahadat Order, 1984. It was added that Item 6 (ibid) is also not applicable to the case of the appellants.
5. I have heard the learned counsel for the parties and perused the material available on the record.
6. The faith of Imam Bakhsh deceased, who has died issueless, is material in the instant matter, for the reasons that in case it is proved that Imam Bakhsh deceased was Shia, his property vests with the appellants and on the contrary, the respondents become entitled to inherit his estate. Pakistan, being in abundance of Sunni Muslims, the initial presumption is that every Muslim citizen is a Sunni unless other proved. The duty is cast upon the person who claims that a person is Shia, to prove it, through cogent and consistent evidence. The majority of Muslims in Pakistan, being Sunnis, it cannot, therefore, be ascertained that a person belongs to Suni school of thought, from the surrounding circumstances, i.e., offering of "Janaza Prayer" or funeral ceremonies of deceased by Sunni Alim or his birth and life existence. A person is not required to give his consent, as to where he has to take birth and by whom his "Janaza Prayer" is to be performed. Janaza Prayer is no determining factor of one's belief, being an act done after the death of a person and without his permission. The reference in this context can be made to the cases of "Syed Lal Hussain Shah vs. Mst. Rubina Shaheen and another" (PLD 2000 SC (AJK) 25) and "Amir Ali vs. Gul Sher and 10 others" (PLD 1985 Karachi 365). It was ruled in the case of "Amir Ali vs. Gul Shakar and 10 others" (PLD 1985 Karachi 365) that expressions and the conduct of deceased is relevant for the determination of one's Faith. Opinion of the parties and the faith of close relative has been held "not determining factor" by this Court in the case of "Zohran Mai vs. Mst. Siftan and others" (1983 CLC 2559). It was further observed by the Learned Court that the sect of a person cannot be determined by opinion of the parties but can be inferred from prevalent circumstances. The principle enunciated in the case of "Mt. Iqbal Begum vs. Mt. Syed Begum and others" (AIR 1933 Lahore 80) was that a person who used to visit shrine of Hazrat Data Ganj Bakhsh and participated in the "Khatam Sharif of Giyarveen" was declared as Shia, on the basis of his conduct and what he confessed, by holding that broad minded men of either sect, tolerate and even respect the observance of others.
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, sisters or kiths and kins,
(ii) By nationality i.e. faith of majority of a country of which he was national.
8. Now, I will revert to main issue and take up the first question: whether Ex. D/1, D/2 and D/3 have been duly proved. The evidence led by the respondents/plaintiffs as to the faith of the deceased Imam Bakhsh is oral and no documentary evidence in this respect was produced. None among the plaintiffs entered in the witness-box while leading affirmative evidence. Ghulam Ali who recorded his statement in rebuttal, has admitted that Imam Bakhsh was not a Shia but Ehl-e-Tashi. PW-Munir Ahmad in his cross-examination has admitted that he is ignorant about Ahmadi faith and also about Shia Faith. He further deposed that he does not know how Ahmadis offer their prayer. PW.II Muhammad Shafi son of Allah Din also admitted in his cross-examination that he had no knowledge about Shia Faith. PW. III, PW.IV & PW.V. have, however, stated that they know Imam Bakhsh who belonged to Ahl-e-Sunnat Wal-Jamaat and was not Shia. PW.III lodged a complaint against the appellant Muhammad Sharif, on which an inquiry was held and the complaint was dismissed. PW.IV is read uncle of PW.I and PW.V who are resident of another village. PW.VI is President of Anjuman-e-Hussaini and PW.VII is General Secretary of Anjuman-e-Shia. Both have stated that Imam Bakhsh was not member of their Anjuman/Association. They have admitted that is not essential that a Shia must be member of any Anjuman. Statement of PW.IX was not recorded completely. PW.V and PW.VI have recorded statements as to the faith of the appellant and not of the deceased. Oral evidence adduced by the plaintiffs do not prove with absolute certainty that deceased Imam Bakhsh was Sunni and not Shia. Most of the witnesses hardly knew the difference between Sunni and Shia. As against that the statement of Mst. Raisham Bibi before revenue authorities carries much weight. She being widow, spent most of the time with the deceased, was aware of the faith of her husband more than anyone else. It has not been asserted in the plaint that Ex.D/1 and Ex.D/2 are forged documents. Any evidence beyond the scope of pleadings cannot be considered. When the parties to the lis, stand to gain a loose valuable property, the oral evidence is to be approached with caution. It was held in case of "Mst. Sardar Bibi vs. Muhammad Bakhsh" (PLD 1954 Lahore 480) that in such circumstances it will be safer to rely on the evidence which is in accord with admitted circumstances. All the witnesses of the plaintiffs have not stated with corroboration about the faith of the deceased. Their statements were not flawless for one reason or the other. Muhammad Akbar (DW.3) a marginal witness of "Wassiyat Nama" (Ex.D/1) has admitted his thumb-impression on the document. He has stated that Bashir son of Imam Din, the other marginal witness has passed away, he recognized his thumb mark on the document and further affirmed that other marginal witness has affixed his thumb mark in his presence. DW. 3 has however stated that there is a possibility that his thumb mark can be forged and did not deny the suggestion that when he appeared in a family suit, the Court declared him hired witness. Syed Irfan-ul-Haq (DW.4) is a frank witness who in his examination-in-chief deposed that Allah Rakha put his thumb mark on Ex.D/2 and Imam Bakhsh signed the same before him but corrected his statement in cross-examination at his own by deposing that both the persons have admitted the thumb mark and signature on Ex.D/2 in his presence. He admitted that he in capacity of Notary Public has attested Ex.D/2. Ex.D/1 Wassiyat Nama and Ex.D/2 affidavit of Imam Bakhsh, the execution whereof, stands proved through statements of DW.3 and DW.4. Mst. Raisham Bibi recorded her statement before revenue authorities that Imam Bakhsh was Shia at the time of attestation of Ex.D/3 and thereafter never denied the factum of her statement. From the appraisal of evidence of the parties, assertions made in the plaint and from the statement of Mst. Raisham Bibi before revenue authorities, I have no hesitation to hold that the documents exhibits D/1, D/2 and D/3, have duly been proved.
9. The other question on which the case was remanded for re-writing the judgment is that the statement of Imam Bakhsh in Ex.D/1 and D/2 confirming that he belongs to Shia school of faith and the statement of Mst. Raisham Bibi recorded before revenue authorities at the time of attestation of Ex.D/3, sufficiently proves Imam Bakhsh's faith in terms of Article 46 (Items 5 & 6) of Qanun-e-Shahadat Order, 1984. Eight (8) items mentioned in Article 46 of the Qanun-e-Shahadat Order, 1984 are exception to general rule of evidence that all oral evidence must be direct within the contemplation of Article 71 of the Order, 1984. Generally, a witness who makes statement on Oath can be tested through cross- examination so that there is some sort of guarantee of truth to such statement. The safeguard of cross-examination and element of prosecution for perjury, is absent in the cases covered under exceptions to Article 46 and the maker of the statement is not to be examined as a witness at all. Article 46 of the Order, 1984 relates only to the relevancy of evidence and not to the manner of it's proof.
10. Imam Bakhsh belonged to a Sunni Family, he was resident of a village, where predominately the population is follower of Sunni Fiqa. He was a Patwari and remained posted in neighboring village Sayyadanwali for about 25 years. Whole village of Sayyadanwali, follows Shia school of faith. The respondents have neither produced any witness to disprove Exhibits D/1 & D/2, nor have requested the Court for the comparison of disputed documents through expert's opinion. Wassiyat Nama (Ex.D/1) and affidavit (Ex.D/2) were respectively executed and sworn by Imam Bakhsh on 17.2.1969, much before the controversy between the parties arose. Statements (Ex.D/1 and D/2) were admittedly made anti-litam motam and prior to litigation. It has been mentioned in D/1 by the deceased that he is issueless, had two wives of whom one has died, a sister Mst. Hayat Bibi, who has two sons namely Muhammad Sharif and Noor Ahmad. He thereafter conveys his intentions and reason for the execution of Ex.D/1, to rule out any dispute after his death among those who are concerned with him. It was then stated in Ex.D/1 that after his death his property be given to his legal heirs according to Shia law. Bare perusal of Ex.D/1 reveals that statement made in Ex.D/1 relates to affairs of Imam Bakhsh. Such statement falls within the ambit of Article 46 Item No. 6 of Qanun-e-Shahadat Order, 1984. In the case of "Patinharkuru Vallaban Chattan Rajah Amergel vs. Raman Varma and others" (AIR 1915 Madras 217). It was held that the statement of deceased relating to matter of his succession is admissible under Section 32 clause 5 of the Evidence Act not only to prove relationship by blood, marriage or adoption but also date of birth and mode of succession on the same principle. In the case of "Ram Bharose and others vs. Diwan Rameshwar Prasad Singh" (AIR 1938 Oudh 26) it was held that the deceased donor has made a statement in his will that the deed of gift was fictitious one. A similar statement was also made by daughter-in-law of the donor in a deed of relinquishment in his favour, the statement were held admissible u/S. 32 of the Evidence Act and such statements were held to be relevant u/S. 11(1) of the Evidence Act. In case of "Hira Lal Jwala Sahai vs. Sitla Kahna and another" (AIR (38) 1951 Pepsu 82) it was laid down that the statement of deceased for correction of pedigree table in previous proceedings to avoid dispute, falls within the ambit of Section 32(5) of the Evidence Act, Principal of law was enunciated in the case of "S. Veeraraghava Lyer vs. J.D. Muga Sait" (AIR 1950 Madras 486) that a statement made in the will is a statement within the meanings of Section 32(5 & 6) of the Evidence Act. Viewing the case in hand, in the above scenario, statements made in Ex.D/1 and Ex.D/2 are relating to the affairs of family to which deceased belonged, consequently are covered by Items Nos. 5 & 6 of the Qanun-e-Shahadat Order, 1984. A person knows about his faith more than the others, no matter how close are others, with that person. The affidavit of Imam Bakhsh has more evidentiary value than a person who claims to be his relative or friend. Despite a specific mention of these documents in the plaint, nothing has been asserted as to the genuineness of these documents. In the above perspective, it is concluded that the statements made in Exhibits D/1 & D/2 are covered by Article 46 of the Order, 1984, Items Nos. 5 & 6 and statement in these documents coupled with the statement of Mst. Raisham Bibi at the time of attestation of Mutation No. 28, prove sufficiently that Imam Bakhsh was Shia and followed Shia school of faith in his life time.
10. This points/questions framed by Hon'ble Supreme Court of Pakistan in the remand order dated 16.3.2005 are decided accordingly. Resultantly, the appeal is accepted, impugned judgment and decree of the lower Appellate Court dated 31.7.1989 is set aside, judgment and decree of learned trial Court dated 19.5.1985 is up held. Parties to bear their own costs.
(M. Ajmal Rana) Appeal accepted.
Present: Syed Hamid Ali Shah, J.
Mst. LATIFAN BIBI and others--Appellants
versus
MUHAMMAD BASHIR and others--Respondents
R.S.A. 92 of 1989, heard on 19.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Qanun-e-Shahadat Order, (10 of 1984), Art. 46--Evidence Act, 1913 S. 32--Suit for possession filed by collaterals basing their claim on Sunni law as deceased was issue less--Dismissed by trial Court--Finding reversed by First Appellate Court was upheld by Hon'ble High Court an second appeal--Hon'ble Supreme Court set aside the order of High Court--Remand matter to determine whether documents were proved and further deceased was having Shia faith or not in view of evidence produced--Determination by Hon'ble High Court--Oral evidence adduced by the plaintiffs did not prove that deceased was Sunni and not Shia--Deceased was Sunni and not Shia--From the appraisal of evidence of the parties, assertions made in plaint and from the statement of Mst. R before the revenue authorities--Held: Documents have been duly proved--Exh-documents were executed and sworn by deceased, much before the controversy between the parties--The statements made in Exh. were covered by Art. 46 of the Order, 1984 Item Nos. 5 & 6 and statement in these documents coupled with the statement of Mst. R at the time of attestation of mutation, prove sufficiently that I.B. was Shia and followed Shia school of faith in his life time--Appeal accepted. [Pp. 1068, 1069, 1070 & 1071] D, E, G, I & J.
PLD 1954 Lah. 480; AIR 1915 Madras 217; AIR 1938 Oudh 26; AIR (38) 1951 Pepsu 82; AIR 1950 Madras 486, ref..
(ii) Janaza--
----Determination of faith of a person--Janaza prayer as determining factor--Held: Janaza prayer is no determining factor of one's behalf, being an act done after the death of a person and without his permission. [P. 1067] A
PLD 2000 SC (AJK) 25; PLD 1985 Kar. 365; 1983 CLC 2559;
AIR 1933 Lah. 80, rel.
(iii) Obiter Dictum--
----A person knows about his faith more than the others, no matter, how close are others, with that person. [P. 1070] H
(iv) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----S. 46--Determination of faith--Father 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 jealousy rites in a particular manner--Held : 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 brothers, sisters or kiths and kins.
(iii) By nationality:-- i.e. faith of majority of a country of which he was national. [Pp. 1067 & 1068] B & C
(v) Qanun-e-Shahadat Orders, 1984 (10 of 1984)--
----Art. 46--Relevancy of evidence--Held: Eight item mention in Art. 46 of Qanun-e-Shahadat Order, 1984 are exception to the general rule of evidence that all oral evidence must be directed within the contemplation of Art. 71 of the Orders, 1984--Further held: Safeguard of cross-examination and element of prosecution for perjury, is absent in the cases covered under exceptions to Art. 46 and the maker of the statement is not to be examined as a witness at all--Art. 46 relates only to the relevancy of evidence and not to the manner to it's proof. [P. 1069] F
Mr. Taqi Ahmad Khan, Advocate for Appellants.
Malik Noor Muhammad Awan, Advocate for Respondents.
Date of hearing : 19.4.2006.
Judgment
Syed Hamid Ali Shah, J.--The apex Court has remanded this case for a fresh decision, on the following questions:--
(i) As to whether documents Exhibits D/1, D/2 and D/3 have been duly proved.
(ii) As to whether statement made by Imam Bakhsh in Ex. D. 1 and D.2 confirming that he belongs to Shia School of thought and the statement of Mst. Resham Bibi got recorded before the Revenue Authorities at the time of attestation of the inheritance mutation Ex. D.3 was not sufficient to hold that Imam Bakhsh belongs to Shia Sect in terms of Section 32 of the Evidence Act, 1913 read with Items 5 and 6 of Article 46 of Qanun-e-Shahadat Order, 1984."
(2) The backdrop of the above controversy is that mutation of inheritance was attested according to Shia Law, in favour of the appellants, being sons of Hayat Bibi, the real sister of Imam Bakhsh. The respondents being claimants of the property as collaterals, to the extent of 3/4th share, basing their claim on Sunni Law, instituted the suit for possession on 15.4.1978. It was claimed by respondents that the appellants have no concern with the property and impugned mutation is liable to be cancelled while possession is to be delivered to them. The appellants resisted the suit by filing written statement controverting therein the averments made in the plaint. Learned trial Court framed issues, recorded evidence of the parties and vide judgment and decree dated 19.5.2985, dismissed the suit. The impugned judgment was reversed in appeal and learned lower appellate Court, while accepting the appeal, decreed the suit on 31.7.1989. The second appeal was dismissed on 8.2.2001, which order was challenged before Hon'ble Supreme Court. The impugned order was set aside by the Apex Court and the case was remanded vide order dated 16.3.2005 to this Court for fresh decision on the above noted questions.
3. Learned counsel for the appellants has contended that Mutation No. 28 attested on 11.9.1977 (Ex. D3) was challenged by the respondents on the plea that Imam Bakhsh did not belong to Shia School of Thought and transfer of his land by way of inheritance to the appellants is illegal. Faith of Imam Bakhsh stood proved from Ex. D. 1 (Wassiat Nama), the statement on Oath of deceased Imam Bakhsh, i.e., affidavit sworn by him on 17.2.1969 i.e. Ex. D.2 and from Ex. D.3 i.e. the copy of mutation of inheritance of Imam Bakhsh. There are two marginal witnesses of Ex. D.1, Muhammad Akbar and Bashir Ahmad son of Imam. Latter, had since died while former appeared as DW.3 and supported the document. DW.3 has stated further that he personally knew Imam Bakhsh, Ex. D.1 was read over to him in his presence and he signed the document after going through it. DW.4, who was an advocate by profession, has admitted that he attested the document as Notary Public. Learned counsel has submitted that at the time of the attestation of impugned mutation, Mst. Raisham Bibi the widow of deceased recorded her statement and deposed that Imam Bakhsh was Shia by faith; used to attend "Majlis" and procession of "Matim". Learned counsel has emphasized that statement of Raisham Bibi is of vital importance to ascertain faith of Imam Bakhsh. He in support of his contention, has referred to the cases of "Syed Lala Hussain Shah vs. Mst. Robina Shaheen and another (PLD 2000 S.C. (AJ&K) 25), "Riaz Hussain and others vs. Board of Revenue and others" (1991 SCMR 2307) and "Mst. Sahib Bibi and others Vs. Lal" (1992 CLC 807) and "Nazir Ahmad and others vs. Abdullah and others" (1997 SCMR 281). Learned counsel has then submitted that "Wassiyat Nama" dated 17.2.1969 and affidavit of Imam Bakhsh were executed, prior to the controversy between the parties, thus, the matter falls within the ambit of Article 46, Items Nos. 5 & 6 of the Qanun-e-Shahadat Order, 1984. He went on to argue that Ghulam Ali one among the plaintiffs, in his statement has deposed that Imam Bakhsh was not Shia but Ahl-e-Tashi ( ) sufficiently proves the faith of the deceased. Muhammad Shafi (PW-2) who led the Jinaza prayer of Imam Bakhsh has stated that there was possibility that Imam Bakhsh had embraced Shia Faith. Mst. Latifan Bibi who appeared as DW.8, stated that Imam Bakhsh was Shia. The statement of Mst. Latifan Bibi was not cross-examined in this regard, her statement thus stands admitted. Learned counsel in support of this contention, invited attention to the cases of "Mst. Nur Jehan Begum through Legal Representatives vs. Syed Mujtaba Ali Naqvi" (1991 SCMR 2300), "Mst. Manzoor Mai vs. Abdul Aziz" (1992 CLC 235). Learned counsel with particular reference to the cases of "Patinharkuru Vallaban Chattan Rajah Amergal vs. Raman Varma and others" (AIR 1915 Madras 217), "Fazal Haq and others vs. Mt. Said Nur and others" (AIR (35) 1948 Lahore 113) and "Syed Lal Hussain Shah vs. Mst. Robina Shaheen and another" (PLD 2000 S.C. (AJ&K) 25) contended that Jinaza prayer is an act done subsequent to the death of a person, without his permission, cannot in any manner prove that he in his life time was follower of the school of throught according to which, his Jinaza prayer was offered.
4. Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment of the learned appellate Court. He has submitted that the respondents are admittedly collaterals of deceased Imam Bakhsh who has died issueless, the respondents are as such, entitled to inherit his property and the appellants have no concern with his property. Learned counsel for the respondents/plaintiffs has referred to the statements of PWs I & II, who have admitted that the Jinaza prayer was offered according to Sunni Faith. PWs III to VI with specific reference to their personal knowledge have submitted that Imam Bakhsh was the follower of Sunni school of thought. PW. VII is present of "Anjuman-e-Shian" and has stated that Imam Bakhsh was not member of the Anjuman. PW. VIII Maqbool Ahmad, General Secretary of "Anjuman-e-Shian" stated that Imam Bakhsh was not Shia. PW-6 & XII stated that the appellants were Ahmadi. The signatures on Nikahnama Ex. P5/1 were admitted by PWs V & VI, which proves that the appellants are Ahmadis. Learned counsel while referring to Ex. D/1 and D/2, has submitted that such documents have no evidentiary value and the High Court in the judgment dated 8.2.2001 has held that Ex. D1 does not prove anything, while Ex. D2 is not admissible. Learned counsel has referred to the case of "Sher Zaman Vs. Mst. Nawab Khatoon and 7 others" (1998 SCMR 133) to contend that findings of the appellate Court, as to the faith of deceased Imam Bakhsh, do not call for any interference. Learned counsle has submitted that the so called admission of Ghulam Ali/plaintiff that Imam Bakhsh deceased was Ahl-e-Tashi, is due to illiteracy and as such cannot be deemed as admission on his part. His statement cannot be considered as admission, because it was made in the course of cross-examination, being out of context and belied by earlier statement. Learned counsel while referring to the cases of "Sardar Muhammad vs. Muhammad Akram etc." (2000 NLR Civil 345), "Amir Ali vs. Gul Shaker and 10 others" (PLD 1985 Karachi 365), "Sabir Hussain and others vs. Afrasayyab and others" (1989 CLC 1591) and "Ahmad Khan and 4 others vs. Sikandar" (1999 YLR 2692) contended that every Muslim citizen in Pakistan is presumed to be Sunni unless otherwise proved and burden to prove lies on the person who claims otherwise. The respondents have not rebutted the presumption through cogent evidence. It was contended that Ex. D.1 is attested by two witnesses but only one marginal witness has been produced. The scribe has also not been produced. Marginal witness Muhammad Akbar DW3 has not denied that he has been held be to ( ). The case of "Mst. Rasheeda Begum and others vs. Muhammad Yousaf and others" (2002 SCMR 1089) was referred to contend that Ex. D. 1 was to be proved in accordance with law. Proof set forth by the respondents does not meet the mandatory requirement of the provisions of Articles 79 and 17(2) of the Qanun-e-Shahadat Order, 1984. It was submitted that a will in favour of a legal heir is even otherwise void. Ex. D. 2 has not been proved through the evidence of scribe and the person who has identified him. DW4, the Oath Commissioner, has stated that neither Imam Bakhsh nor Allah Rakha has signed Ex. D. 2 in his presence. Ex. D2 is thus not proved. Learned counsel supported this contention from the principal of law laid down in the case of "Habib Bux vs. Zahoor ul Hasan" (1986 CLC 1119). It was submitted that the affidavit of a person who has not been cross-examined with regard to the contents of an affidavit, cannot be taken into consideration. Learned counsel found support from the cases of "Zafar Mirza vs. Mst. Naushina Amir Ali" (PLD 1993 Karachi 775) and "Barkat Ali vs. Muhammad Nawaz" (PLD 2004 S.C. 489) in this respect. Learned counsel while referring to Ex. D.3 has submitted that mutation cannot be used as evidence against the respondents, entries in mutation register are administrative proceedings and have no evidentiary value. Learned counsel while referring to the case of "Abdul Rahim and others vs. Muhammad Hayat and others" (2004 SCMR 1723) has submitted that mutation and entires therein need proof through leading primary or secondary evidence. The contents thereof have evidentiary value in terms of Articles 75 and 76 of the Qanun-e-Shahadat Order, 1984, only when proved. Learned counsel has referred to Article 46(V) and submitted that provisions of Item (5) relate to the statement regarding existence of any relationship. This provision of law does not provide anything with regard to the faith of a person. The documents are fictitious and fabricated and do not fall within the ambit of Items (5) of Article 46 of the Qanun-e-Shahadat Order, 1984. It was added that Item 6 (ibid) is also not applicable to the case of the appellants.
5. I have heard the learned counsel for the parties and perused the material available on the record.
6. The faith of Imam Bakhsh deceased, who has died issueless, is material in the instant matter, for the reasons that in case it is proved that Imam Bakhsh deceased was Shia, his property vests with the appellants and on the contrary, the respondents become entitled to inherit his estate. Pakistan, being in abundance of Sunni Muslims, the initial presumption is that every Muslim citizen is a Sunni unless other proved. The duty is cast upon the person who claims that a person is Shia, to prove it, through cogent and consistent evidence. The majority of Muslims in Pakistan, being Sunnis, it cannot, therefore, be ascertained that a person belongs to Suni school of thought, from the surrounding circumstances, i.e., offering of "Janaza Prayer" or funeral ceremonies of deceased by Sunni Alim or his birth and life existence. A person is not required to give his consent, as to where he has to take birth and by whom his "Janaza Prayer" is to be performed. Janaza Prayer is no determining factor of one's belief, being an act done after the death of a person and without his permission. The reference in this context can be made to the cases of "Syed Lal Hussain Shah vs. Mst. Rubina Shaheen and another" (PLD 2000 SC (AJK) 25) and "Amir Ali vs. Gul Sher and 10 others" (PLD 1985 Karachi 365). It was ruled in the case of "Amir Ali vs. Gul Shakar and 10 others" (PLD 1985 Karachi 365) that expressions and the conduct of deceased is relevant for the determination of one's Faith. Opinion of the parties and the faith of close relative has been held "not determining factor" by this Court in the case of "Zohran Mai vs. Mst. Siftan and others" (1983 CLC 2559). It was further observed by the Learned Court that the sect of a person cannot be determined by opinion of the parties but can be inferred from prevalent circumstances. The principle enunciated in the case of "Mt. Iqbal Begum vs. Mt. Syed Begum and others" (AIR 1933 Lahore 80) was that a person who used to visit shrine of Hazrat Data Ganj Bakhsh and participated in the "Khatam Sharif of Giyarveen" was declared as Shia, on the basis of his conduct and what he confessed, by holding that broad minded men of either sect, tolerate and even respect the observance of others.
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, sisters or kiths and kins,
(ii) By nationality i.e. faith of majority of a country of which he was national.
8. Now, I will revert to main issue and take up the first question: whether Ex. D/1, D/2 and D/3 have been duly proved. The evidence led by the respondents/plaintiffs as to the faith of the deceased Imam Bakhsh is oral and no documentary evidence in this respect was produced. None among the plaintiffs entered in the witness-box while leading affirmative evidence. Ghulam Ali who recorded his statement in rebuttal, has admitted that Imam Bakhsh was not a Shia but Ehl-e-Tashi. PW-Munir Ahmad in his cross-examination has admitted that he is ignorant about Ahmadi faith and also about Shia Faith. He further deposed that he does not know how Ahmadis offer their prayer. PW.II Muhammad Shafi son of Allah Din also admitted in his cross-examination that he had no knowledge about Shia Faith. PW. III, PW.IV & PW.V. have, however, stated that they know Imam Bakhsh who belonged to Ahl-e-Sunnat Wal-Jamaat and was not Shia. PW.III lodged a complaint against the appellant Muhammad Sharif, on which an inquiry was held and the complaint was dismissed. PW.IV is read uncle of PW.I and PW.V who are resident of another village. PW.VI is President of Anjuman-e-Hussaini and PW.VII is General Secretary of Anjuman-e-Shia. Both have stated that Imam Bakhsh was not member of their Anjuman/Association. They have admitted that is not essential that a Shia must be member of any Anjuman. Statement of PW.IX was not recorded completely. PW.V and PW.VI have recorded statements as to the faith of the appellant and not of the deceased. Oral evidence adduced by the plaintiffs do not prove with absolute certainty that deceased Imam Bakhsh was Sunni and not Shia. Most of the witnesses hardly knew the difference between Sunni and Shia. As against that the statement of Mst. Raisham Bibi before revenue authorities carries much weight. She being widow, spent most of the time with the deceased, was aware of the faith of her husband more than anyone else. It has not been asserted in the plaint that Ex.D/1 and Ex.D/2 are forged documents. Any evidence beyond the scope of pleadings cannot be considered. When the parties to the lis, stand to gain a loose valuable property, the oral evidence is to be approached with caution. It was held in case of "Mst. Sardar Bibi vs. Muhammad Bakhsh" (PLD 1954 Lahore 480) that in such circumstances it will be safer to rely on the evidence which is in accord with admitted circumstances. All the witnesses of the plaintiffs have not stated with corroboration about the faith of the deceased. Their statements were not flawless for one reason or the other. Muhammad Akbar (DW.3) a marginal witness of "Wassiyat Nama" (Ex.D/1) has admitted his thumb-impression on the document. He has stated that Bashir son of Imam Din, the other marginal witness has passed away, he recognized his thumb mark on the document and further affirmed that other marginal witness has affixed his thumb mark in his presence. DW. 3 has however stated that there is a possibility that his thumb mark can be forged and did not deny the suggestion that when he appeared in a family suit, the Court declared him hired witness. Syed Irfan-ul-Haq (DW.4) is a frank witness who in his examination-in-chief deposed that Allah Rakha put his thumb mark on Ex.D/2 and Imam Bakhsh signed the same before him but corrected his statement in cross-examination at his own by deposing that both the persons have admitted the thumb mark and signature on Ex.D/2 in his presence. He admitted that he in capacity of Notary Public has attested Ex.D/2. Ex.D/1 Wassiyat Nama and Ex.D/2 affidavit of Imam Bakhsh, the execution whereof, stands proved through statements of DW.3 and DW.4. Mst. Raisham Bibi recorded her statement before revenue authorities that Imam Bakhsh was Shia at the time of attestation of Ex.D/3 and thereafter never denied the factum of her statement. From the appraisal of evidence of the parties, assertions made in the plaint and from the statement of Mst. Raisham Bibi before revenue authorities, I have no hesitation to hold that the documents exhibits D/1, D/2 and D/3, have duly been proved.
9. The other question on which the case was remanded for re-writing the judgment is that the statement of Imam Bakhsh in Ex.D/1 and D/2 confirming that he belongs to Shia school of faith and the statement of Mst. Raisham Bibi recorded before revenue authorities at the time of attestation of Ex.D/3, sufficiently proves Imam Bakhsh's faith in terms of Article 46 (Items 5 & 6) of Qanun-e-Shahadat Order, 1984. Eight (8) items mentioned in Article 46 of the Qanun-e-Shahadat Order, 1984 are exception to general rule of evidence that all oral evidence must be direct within the contemplation of Article 71 of the Order, 1984. Generally, a witness who makes statement on Oath can be tested through cross- examination so that there is some sort of guarantee of truth to such statement. The safeguard of cross-examination and element of prosecution for perjury, is absent in the cases covered under exceptions to Article 46 and the maker of the statement is not to be examined as a witness at all. Article 46 of the Order, 1984 relates only to the relevancy of evidence and not to the manner of it's proof.
10. Imam Bakhsh belonged to a Sunni Family, he was resident of a village, where predominately the population is follower of Sunni Fiqa. He was a Patwari and remained posted in neighboring village Sayyadanwali for about 25 years. Whole village of Sayyadanwali, follows Shia school of faith. The respondents have neither produced any witness to disprove Exhibits D/1 & D/2, nor have requested the Court for the comparison of disputed documents through expert's opinion. Wassiyat Nama (Ex.D/1) and affidavit (Ex.D/2) were respectively executed and sworn by Imam Bakhsh on 17.2.1969, much before the controversy between the parties arose. Statements (Ex.D/1 and D/2) were admittedly made anti-litam motam and prior to litigation. It has been mentioned in D/1 by the deceased that he is issueless, had two wives of whom one has died, a sister Mst. Hayat Bibi, who has two sons namely Muhammad Sharif and Noor Ahmad. He thereafter conveys his intentions and reason for the execution of Ex.D/1, to rule out any dispute after his death among those who are concerned with him. It was then stated in Ex.D/1 that after his death his property be given to his legal heirs according to Shia law. Bare perusal of Ex.D/1 reveals that statement made in Ex.D/1 relates to affairs of Imam Bakhsh. Such statement falls within the ambit of Article 46 Item No. 6 of Qanun-e-Shahadat Order, 1984. In the case of "Patinharkuru Vallaban Chattan Rajah Amergel vs. Raman Varma and others" (AIR 1915 Madras 217). It was held that the statement of deceased relating to matter of his succession is admissible under Section 32 clause 5 of the Evidence Act not only to prove relationship by blood, marriage or adoption but also date of birth and mode of succession on the same principle. In the case of "Ram Bharose and others vs. Diwan Rameshwar Prasad Singh" (AIR 1938 Oudh 26) it was held that the deceased donor has made a statement in his will that the deed of gift was fictitious one. A similar statement was also made by daughter-in-law of the donor in a deed of relinquishment in his favour, the statement were held admissible u/S. 32 of the Evidence Act and such statements were held to be relevant u/S. 11(1) of the Evidence Act. In case of "Hira Lal Jwala Sahai vs. Sitla Kahna and another" (AIR (38) 1951 Pepsu 82) it was laid down that the statement of deceased for correction of pedigree table in previous proceedings to avoid dispute, falls within the ambit of Section 32(5) of the Evidence Act, Principal of law was enunciated in the case of "S. Veeraraghava Lyer vs. J.D. Muga Sait" (AIR 1950 Madras 486) that a statement made in the will is a statement within the meanings of Section 32(5 & 6) of the Evidence Act. Viewing the case in hand, in the above scenario, statements made in Ex.D/1 and Ex.D/2 are relating to the affairs of family to which deceased belonged, consequently are covered by Items Nos. 5 & 6 of the Qanun-e-Shahadat Order, 1984. A person knows about his faith more than the others, no matter how close are others, with that person. The affidavit of Imam Bakhsh has more evidentiary value than a person who claims to be his relative or friend. Despite a specific mention of these documents in the plaint, nothing has been asserted as to the genuineness of these documents. In the above perspective, it is concluded that the statements made in Exhibits D/1 & D/2 are covered by Article 46 of the Order, 1984, Items Nos. 5 & 6 and statement in these documents coupled with the statement of Mst. Raisham Bibi at the time of attestation of Mutation No. 28, prove sufficiently that Imam Bakhsh was Shia and followed Shia school of faith in his life time.
10. This points/questions framed by Hon'ble Supreme Court of Pakistan in the remand order dated 16.3.2005 are decided accordingly. Resultantly, the appeal is accepted, impugned judgment and decree of the lower Appellate Court dated 31.7.1989 is set aside, judgment and decree of learned trial Court dated 19.5.1985 is up held. Parties to bear their own costs.
(M. Ajmal Rana) Appeal accepted.
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