2012 S C M R 1251

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

Mst. LATIFAN BIBI---Appellant

Versus

REHMAT ALI and others---Respondents

Civil Appeal No.2384 of 2006, decided on 17th May, 2012.

(On appeal from the judgment dated 28-3-2000 passed by Lahore High Court, Lahore in Civil
Revision No.1496-D of 1994).

(a) Islamic Law---

----Constitution of Pakistan, Art. 185(3)---Faith---Inheritance---Leave to appeal was granted

to consider the submission inter alia that judgment of High Court as regards faith of the
deceased and inheritance of his property by the parties, suffered from gross misreading and
non-reading of evidence on record

(b) Islamic Law---

----Faith---Inheritance---Dispute over inheritance of property of the deceased--- Faith of the

deceased-- - Determination--- Scope---Plaintiffs/respondents (nephews of the deceased)
claiming that the deceased was a Muslim, therefore, they were entitled to inherit his
property-- Defendant/appellant (niece of the deceased) being an 'Ahmadi' claiming that the
deceased converted into an 'Ahmadi', therefore, she alone was entitled to inherit---Plaintiffs
filed a declaratory suit in regard to said dispute, which suit was dismissed by the Trial Court
but was allowed in appeal by both the Appellate courts below---Contentions of the
defendant/appellant were that sufficient evidence was available to show that the deceased was
an 'Ahmadi'; that merely because deceased was mentioned as a Muslim in his application
form for the issuance of Identity Card did not make him a Muslim; that the summary inquiry
carried out by the Tehsildar preceding the impugned mutation clearly established that the
deceased was an 'Ahmadi'---Validity---Admittedly the deceased was born a Muslim and
allegedly he converted into an 'Ahmadi'---No direct documentary evidence existed with
regard to the faith of the deceased in the form of his own affidavit or in the shape of his
registered membership of an organization of any faith or sect---Evidence led by the defendant
to prove that the deceased was converted into an 'Ahmadi' was not credible---Witness to the
alleged conversion could not mention the date and time of the allegedconversion,
but admitted that the father of the deceased was a Muslim and that he was buried in a
Muslim graveyard---None of the persons who appeared before the Tehsildar, during the trial
stated that the deceased was an 'Ahmadi'---Plaintiffs had led strong circumstantial evidence to
prove that the deceased was a Muslim---Testimony of the some of the witnesses appearing on
behalf of the plaintiff with regard to the fact that the funeral prayer of the deceased was
performed by a Muslim moulvi; that the deceased was buried in a Muslim graveyard, and that
he offered his Friday (Juma) prayers in a Muslim mosque, remained unchallenged in cross-
examination---Documentary evidence of application form of the deceased for the issuance of
Identity Card and record of the Election Officer (voters list) further corroborated the oral
evidence---Defendant had not pointed out any misreading or non-reading in the impugned
concurrent judgments of both the Appellate Courts below---Appeal was dismissed, in
circumstances.

Akbarally v. Mahomedally AIR 1932 Bombay 356; Mst. Sardar Bibi v. Muhammad Bakhsh
PLD 1954 Lah. 480; Pathana v. Mst. Wasai PLD 1965 SC 134; Ghulam Shabbir v. Bakhat
Khatoon 2009 SCMR 644; Sakina Bibi v. Nazar 2000 SCMR 1126 and Muhammad Bashir v.
Latifa Bibi SCMR 1915 ref.

(c) Islamic Law---

----Faith---Inheritance---Dispute over inheritance of property of the deceased--- Faithof the

deceased--- Determination--- Principle--- In such cases, the courts have to weigh evidence
with care keeping in mind the fact that a great majority of people in Pakistanwere Hanfi
Muslims and the party alleging otherwise was under a heavy onus.

Akbarally v. Mahomedally AIR 1932 Bombay 356; Mst. Sardar Bibi v. Muhammad Bakhsh
PLD 1954 Lah. 480; Pathana v. Mst. Wasai PLD 1965 SC 134 and Ghulam Shabbir v.
Bakhat Khatoon 2009 SCMR 644 ref.

(d) Islamic Law---

----Faith---Determination---Principle---No principle of universal application was available to

determine faith of a person---Determination of faith depended on surrounding circumstances,
way of life, parental faith and faith of kiths and kins---Question of sect of a person could not
be determined by opinion of parties but could be inferred from facts creating
a presumption one way or the other.

Muhammad Bashir v. Latifa Bibi 2010 SCMR 1915 rel.

(e) Islamic Law---

----Faith---Inheritance---Dispute over inheritance of property of the deceased--- Faith of the

deceased--- Determination--- Evidence of witnesses---Evidentiary value---Opinion of
witnesses might not be conclusive to determine the faith of a person.
Sh. Naseer Ahmad, Advocate Supreme Court for Appellant.

Dr. Danishwar Malik, Advocate Supreme Court for Respondents.

Date of hearing: 17th May, 2012.

ORDER

TASSADUQ HUSSAIN JILLANI, J.---Facts giving rise to the instant appeal briefly
stated are that respondent/plaintiffs filed a civil suit against the appellant for a declaration that
they were the legal heirs of one Abdul Rehman deceased who was a Muslim and his estate
had to devolve on those entitled to it under the Islamic Law; that they were owner in
possession of the suit land left behind by the said Abdul Rehman (52 kanals, 16 marlas in
khewat No. 163 situated in Chak No.269 EB) and that the mutation of inheritance dated 22-6-
1986 attested in favour of the appellant/defendant Latifan Bibi, who is an Ahmadi was
against law. The suit was dismissed by the learned trial Court in terms of the judgment and
decree dated 14-10-1992. However, the learned Additional District Judge allowed the appeal
by reversing the judgment and decree of the trial Court and decreed the suit primarily in
terms of its finding on issue No.4. This judgment and decree has been maintained by the
learned High Court.

2. The case of the respondent/plaintiffs as set out in the plaint was that Chajju Khan,
the father of Abdul Rehman had two wives i.e. Mst. Hassi and Mst. Karim Bibi; that from
Mst. Hassi, Buland Khan and Muhammad Khan were two sons of Chajju Khan who died and
from Mst. Karim Bibi, Chajju had three sons namely Abdul Rehman, Abdul Ghafoor and
Abdul Haq. Plaintiff No.1 is son of Buland Khan and plaintiffs Nos.2 and 4 are sons of
Muhammad Khan whereas the appellant/defendant Latifan Bibi is daughter of Abdul Haq,
the brother of Abdul Rehman and therefore his niece. Abdul Rehman, it was contended, was
a Muslim and the respondent/plaintiffs being his nephews were entitled to inherit from his
estate. The Assistant Commissioner-II, Boorey Wala, it was further maintained, had wrongly
attested mutation No.486 first time on dated 3-2-1986 and again on 22-6-1986, whereby the
property left by Abdul Rehman deceased was mutated in the name of Mst. Latifan Bibi,
appellant/defendant by wrongly holding that he was Ahmadi. The averments made in the
plaint were controverted in written statement, wherein it was contended that Abdul Rehman
was an Ahmadi and since the defendant was also an Ahmadi, she alone was entitled to
inherit. Following issues were framed by the trial Court:--

"(1) Whether the Civil Court is not competent to adjudicate upon the matter? OPD.

(2) Whether the suit is not maintainable in its present form? OPD

(3) Whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD
(4) Whether the plaintiffs are owners in possession of the disputed property and mutation
No.486 dated 22-6-1986 is illegal, void and ineffective upon the rights of the plaintiffs? OPD

(5) Relief."

3. During the trial, the respondent/plaintiffs produced 5 witnesses; Zahoor Ahmed P.W.1
who produced the record of Registration Office, Vehari and Abdul Ghaffar P.W.2, Record
Keeper of the Election Office, Vehari. P.W.3 is Muhammad Aslam. According to him, Abdul
Rehman deceased was known to him; that he was Muslim and Ahl-e- Sunnat and not Ahmadi
and he used to offer Juma prayers in Muslim Mosque. P.W.4 Muhammad Rafique was a co-
villager of the said Abdul Rehman and corroborated P.W.3. P.W.5 is Muhammad Ramzan
who is Imam Masjid. He testified that Abdul Rehman used to offer Juma prayers under his
Imamat. As against this, the appellant/defendant produced 6 witnesses namely D.W.1
Muhammad Anwar, who was an official of the office of Qanungo. He produced the record
pertaining to mutation No.486 dated 22-6-1986. D.W.2 is Abdul Ghaffar who stated that
Abdul Rehman was an Ahmadi and that his two brothers were also Ahmadi. He denied that
the deceased offered his Juma prayers in Muslim Mosque. According to him, the Imam
Masjid had testified before the Tehsildar at the time of attestation of mutation that Abdul
Rehman was an Ahmadi. This witness also stated that the deceased had converted into
Ahmadiat. However, in cross-examination, he could not recall as to when the said conversion
was made. Nevertheless, he admitted that Abdul Rehman was buried in Muslim graveyard.
According to him Abdul Rehman used to offer his Eid prayers in 'Ahmadi' Mosque. But in
cross-examination he could not tell the name of the Imam Masjid of the said Mosque. Abdul
Ghaffar appeared as D.W.3. He too corroborated that Abdul Rehman was an Ahmadi. Abdul
Hafeez appeared as D.W.4. According to him, he did not join the funeral of Abdul Rehman
because he was an Ahmadi. Defendant herself appeared as D.W.5. According to whom,
Abdul Rehman was his paternal uncle and was an Ahmadi. Faqeer Hussain is D.W.6.
According to him on 22-6-1986, he was posted as Tehsildar Boorey Wala. He visited the
Chak No. 269 EB and having heard the parties, he attested the mutation of inheritance of
Abdul Rehman, who according to his inquiries, was an Ahmadi. He named a few persons
who appeared before him to testify that Abdul Rehman was an Ahmadi but surprisingly none
of those persons appeared during trial to support the case of the appellant/defendant. He
further explained that the wife of the brother of the deceased, his brother and his niece were
Ahmadees, therefore, he thought that deceased would also be an Ahmadi.

4. Learned counsel for the appellant submitted that there was no documentary evidence to
prove that Abdul Rehman was not an Ahmadi; that sufficient evidence was led to show that
he was an Ahmadi; that merely because Abdul Rehman is mentioned as Muslim in form "
" and " " of the application form for issuance of the Identity Card would not make him
Muslim; that the learned Court of Appeal as also the learned High Court have concurrently
not appreciated the evidence on record and that the summary inquiry carried out by the
Tehsildar preceding the mutation under challenge clearly established that deceased was an
Ahmadi.
5. Learned counsel for the respondents, on the other hand, defended the impugned judgment
by submitting that the inquiry undertaken by the Assistant Commissioner-II which led to the
impugned mutation of inheritance, was summary in nature and to decide the question of
inheritance, which was dependent on the religious affiliation of deceased Abdul Rehman, a
detailed probe was required, which exercise was carried out by the court of planery
jurisdiction and the evidence led clearly established that Abdul Rehman was a Muslim and
his estate had to devolve on persons entitled under the Islamic Law. He added that there was
evidence to the effect that the deceased used to offer Juma prayers with Muslims; that he
described himself as a Muslim in form " " submitted before the National Registration
Authority; that he was buried in Muslim graveyard and that the concurrent judgments and
decrees being in accord with the weight of the evidence led, did not require interference.

6. Arguments heard. Record perused.

7. Leave was granted by this Court vide the order dated 8-12-2006, which reads as under:--

"The learned Counsel submitted, inter alia, that, the impugned judgment, as regards faith of
late Abdur Rehman and inheritance of his property by the parties, suffered from gross
misreading and non-reading of evidence on record.

2. Leave to appeal is granted to consider the above and the other submission."

8. Issues of faith and sect of a person have mostly been brought to the Courts after his death
by parties having divergent claims over his estate rooted in their respective law of
inheritance. In such cases, the Courts have to weigh evidence with care keeping in mind the
fact that a great majority of people in Pakistan are Hanfi Muslims and the party alleging
otherwise is under a heavy onus. In a case titled Akbarally v. Mahomedally (AIR 1932
Bombay 356), where the question was whether the deceased was a Sunni or Shia, the Court
held that "as the great majority of the Mussalamans in India follow the Hanafi School of
Sunni law, the Courts presume that Muslims in India follow the Hanafi law unless the
contrary is alleged and proved." And in the same judgment, the Court commenting on the
circumstances/the evidence which may be taken into consideration to decide the issue,
observed that "it is not easy however to conceive of a case so devoid of all other
circumstances from which the religions of the parties can be inferred, that this presumption
from numbers should effectually come into operation." The afore-referred view was followed
in Mst. Sardar Bibi v. Muhammad Bakhsh (PLD 1954 Lahore 480) and in a judgment of this
Court in Pathana v. Mst. Wasai (PLD 1965 SC 134), the Court restored the judgment and
decree of, the District Judge and upheld the claim of the plaintiffs that the deceased was a
Sunni Muslim and observed that "in the Indo-Pak Sub-continent there is the initial
presumption that a Muslim is governed by Hanafi Law, unless the contrary is established by
good evidence". This view was reiterated in Ghulam Shabbir v. Bakhat Khatoon (2009
SCMR 644) and the Court candidly held as follows:--
"A Muslim when dies, the moveable or immovable property devolves on his legal heirs
which is to be distributed or transferred in accordance with Muslim Law of inheritance. In
Sub-continent, Indo-Pak the whole Muhammadan Community is divided into two sects
namely, Sunnis and Shias. The Sunnis are divided into four sects namely Hanafis, Malkis,
Shafies, and Hanbalis. The Sunni Muhammaden belong to Hanfi School of thought. The great
majority of the Muslims of Indo Pak Sub-continent being Sunni, the presumption is that the
parties to a suit or proceedings are Sunnis unless it is shown that they belong to Shia sect."

In Sakina Bibi v. Nazar (2000 SCMR 1126), the Court dismissed the petition and upheld the
concurrent judgments and decrees relying on the evidence to the effect that the funeral
prayer of the deceased was led by Sunni Molvi. In Muhammad Bashir v. Latifa Bibi
(2010 SCMR 1915), the Court commenting on the quality of evidence, which could weigh
with the Court while deciding the question of faith observed at page 1919 as follows:--

"Let we make it clear at the outset that no principle of universal application is available to
determine the faith of a person and determination whereof depends on the surrounding
circumstances, the way of life, the parental faith and faith of other kiths and kins. It hardly
needs any elaboration that "question of sect of a person cannot be determined by opinion of
the parties but can be infered from facts creating presumption of one way or the other". In
this regard we are fortified by the dictum laid down in cases titled Mst. Sardar Bibi
Muhammad Bakhsh and others (PLD 1954 Lah. 480), Pathana v. Mst. Wasai and another
(PLD 1965 SC 134), Zohran Mai v. Siftan (1983 CLC 2559). It is worth-mentioning to note
that "question whether deceased was Shia or, Sunni cannot be determined merely from sect to
which his relative belonged."

9. In the case in hand, admittedly Abdul Rehman was a born Muslim and allegedly he was
converted into an Ahmadi. He died issueless. There is no direct documentary evidence with
regard to his faith in the form of his own affidavit (except the form submitted before the
Registration Authority) or in the shape of his registered membership of an organization of
any faith or sect. The evidence led by the appellant/defendant to prove that he was converted
into Ahmadi is not credible. First because D.W.2 Abdul Ghaffar who is the only witness of
the said alleged conversion, when asked about the date and time of conversion, could not do
so though admitted that the father of Abdul Rehman was a Muslim. Secondly, he admitted in
cross-examination that he was buried in a Muslim graveyard. None of persons who appeared
before Faqir Hussain D.W.6, the Tehsildar who attested mutation of inheritance in favour of
appellant/defendant, appeared during trial to say that the said Abdul Rehman was an Ahmadi.
As against this, there was strong circumstantial evidence led by the respondent/plaintiffs to
prove that he was a Muslim. The opinion of witnesses may not be conclusive to determine the
faith of a person. However, the inferences drawn from the circumstantial evidence are pointer
to the fact that deceased was a Muslim. The testimony of some of the prosecution witnesses
namely P.W.4 (Muhammad Rafique), P.W.3 (Muhammad Aslam) and P.W.5 (Muhammad
Ramzan who performed the funeral prayer) with regard to the fact that the funeral prayer of
Abdul Rehman was performed by a Muslim Molvi; that he was buried in a Muslim graveyard
and that he used to offer his Juma prayers in Muslim Mosque remained unchallenged in
cross-examination. The documentary evidence in the form of Form " " and the record of
the Election Officer (voters list) are further corroborative of the oral evidence. It was
suggested by the defence to P.W.1 Zahoor Ahmed, an official of the National Registration
Authority, that even the Ahmadees mention their religion as Islam in the relevant column to
which he denied. P.W.2 is an official of the Election Office, Vehari who produced the record
which reflected that Abdul Rehman's religion was mentioned as Islam in the relevant column.

10. For what has been discussed above, we are of the view that the concurrent judgments are
consistent with the weight of the evidence led. Learned counsel has not pointed out any
misreading or non-reading, which could have persuaded us to interfere with these concurrent
findings. The appeal having no merit is accordingly dismissed.

M.W.A./L-2/SC Appeal dismissed.