Stereo. H C J C A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT

Civil Revision No.524 of 2003

(Saleema Bibi through legal heirs etc. Vs. Govt; of Punjab etc.)

JUDGMENT

Date of hearing 21.3.2013

Petitioners by Ms.Sadia Malik, Advocate

Respondents No.3 to 6 by Mr. Ali Raza and Mr.Noor ul Hassan,

Advocates.

ABDUS SATTAR ASGHAR J:- Through this Civil

Revision under Section 115 of Code of Civil Procedure 1908 the
petitioners impugn the judgment and decree dated 05.7.2001 passed
by learned Civil Judge Sialkot whereby petitioners’ suit for
declaration, etc. was dismissed. It further assails the judgment and
decree dated 02.1.2003 passed by learned Additional District Judge
Sialkot whereby petitioners’ appeal against the said judgment and
decree was also dismissed.

2. Succinctly the facts leading to this petition are that

Saleema Bibi petitioner No.1 (since died and represented by her
daughters and petitioners No.2 to 5) lodged suit for declaration etc.
alleging that Khadim Hussain husband of Saleema Bibi and father of
petitioners No.2 to 5 belong to ‘Shiya’ sect therefore petitioners were
entitled to inherit his property as legal heirs in accordance with
‘Fiqah-Jaffaria’ and that Muhammad Hussain and Talib Hussain
respondents No.6 and 7 have no concern whatsoever with the property
of Khadim Hussain deceased. The suit was resisted by respondents
with the contentions that Khadim Hussain was ‘Sunni’ by faith and
that inheritance mutation of Khadim Hussain deceased bearing
No.606 dated 07.9.1994 was lawfully attested.
Civil Revision No.524-2003 2

3. Pivotal issue with regard to controversy of faith of

Khadim Hussain deceased was framed by the learned trial Court as
under:-

“Issue No.2.

Whether Khadim Hussain deceased was ‘Shiya’ by

faith?OPP”

Concurrent findings of both the learned Courts below on

the said issue were against the petitioners.

4. It is argued by learned counsel for the petitioners that

concurrent findings of learned Courts below are based on misreading
and non-reading of the material evidence available on the record; that
statement of Mian Muhammad Hussain (DW-2) has not received the
consideration of learned Courts below; that the impugned judgments
and decrees passed by learned Courts below based on mis-
appreciation and non-appreciation of evidence against law and facts
are liable to set aside.

5. It is resisted by learned counsel for the respondents with

the contentions that learned Courts below have appreciated the parties
evidence in a salutary manner while passing the impugned judgments
and decrees with concurrent findings of facts and law and that the
impugned judgments not suffering from any jurisdictional error,
factual or legal infirmity doe not call for any interference through
invoking the revisional jurisdiction of this Court.

6. Arguments heard. Record perused.

7. Burden of proof regarding above quoted issue No.2 is

upon the petitioners. To discharge the onus probandi Razia Bibi one
of the petitioners appeared in the witness box as PW-1 and stated that
her father belong to ‘Fiqah-Jaffaria’. While facing cross-examination
she admitted it correct that ‘Janaza’ prayer of her father was offered in
a ‘Sunni’ manner by Molvi Muhammad Hussain resident of the same
village Marakewal. She admitted it correct that there are about 4/5
Civil Revision No.524-2003 3

‘Molvies’ relating to ‘Shiya’ Sect residing in the said village. She

denied that in-laws of her sister Rasheeda Bibi one of the petitioners
also belong to ‘Sunni’ Sect.

8. Petitioner’s witness Alamdar Hussain (PW-2) deposed

that he is ‘Matwali’ of ‘Imam-Bargah’ village Marakewal; that
Khadim Hussain deceased belonged to ‘Fiqah-Jafferia’ and used to
participate in their ‘Majlis’ and had been paying ‘Chanda’. While
facing the cross-examination he admitted that ‘Janaza’ of Khadim
Hussain was offered by Muhammad Hussain who belong to ‘Sunni’
Sect. He also admitted it correct that Khadim Hussain usually used to
offer his regular prayers in ‘Charhdi Masjid Mohallah Goongian’. He
also admitted that there is only one Mosque namely ‘Ali Masjid’
relating to people of ‘Fiqah-Jafferia’ in the village and that ‘Imam’ of
the said mosque is also ‘Shiya’. He admitted that Hafeez Begum one
of the petitioners is wedded in a ‘Sunni’ family. He also stated that
‘Imam-Bargah’ has no register or receipt book maintaining account of
‘Chanda’. He also admitted that Muhammad Yousaf (PW-3) is his
‘Behnoi’ (husband of sister).

9. Muhammad Yousaf (PW-3) deposed that Khadim

Hussain belonged to ‘Fiqah-Jafferia’. He stated that relatives of
Khadim Hussain deceased are ‘Ahl-Sunnat’. While facing the cross-
examination he admitted that he is ‘Behnoi’ of Alamdar Hussain
(PW-2). During cross-examination he could not remember the name
of deceased i.e. Khadim Hussain. He admitted that ‘Janaza’ prayer of
Khadim Hussain was offered by ‘Molvi’ belonged to ‘Ahl-Sunnat’
however he could not tell the name of the ‘Movli’. He further stated
that accounts of ‘Imam-Bargah’ are maintained in writing by one
Murtaza who resides in the village. He also claimed himself as
‘Matwalli’ of ‘Imam-Bargah’.

10. In rebuttal to the above respondents produced

Muhammad Hussain (DW-2) aged about 86 years who had offered
‘Janaza’ prayer of Khadim Hussain deceased deposed as under:-
Civil Revision No.524-2003 4

11. Learned counsel for the petitioner has laid much

emphasis on his argument that Muhammad Hussain (DW-2) in his
above quoted statement has admitted that Khadim Hussain deceased


had accepted ‘Shiya’ Sect. I am afraid learned counsel for the
petitioner is misconceived. Statement of the witness is to be evaluated
in a true perspective as a whole. Context of the statement cannot be
ignored. Bare reading of the above quoted statement of Muhammad
Hussain (DW-2) makes it crystal clear that Khadim Hussain deceased
was ‘Sunni’ till the time of his death and not ‘Shiya’. Argument of
learned counsel for the petitioner is devoid of any force and thus
repelled.

12. There is no cavil to the proposition that mere fact of

‘Janaza’ prayer having been offered in ‘Sunni’ manner is no criterion
for determination of sectarian belief. Similarly question whether
deceased was ‘Shiya’ or ‘Sunni’ cannot be determined merely from
Sect to which his relatives belong. Needless to say that the
controversy regarding sect of a person cannot be determined by
opinion of the parties rather it can be inferred from the facts creating
presumption on one way or the other. Reliance is made upon Pathana
Vs. Mst.Wasai and another (PLD 1965 Supreme Court 134). In the
cited case of Pathana the Hon’ble Apex Court has laid down that in
the Indo-Pak Sub-continent there is initial presumption that a Muslim
is governed by a Hanfi Law unless contrary is established by good
evidence. In another case titled Mst.Sardar Bibi Vs. Muhammad
Bakhsh and others (PLD 1954 Lahore 480) with regard to
determination of Sect of a person it was held that court may presume
that a deceased person was a Hanafi till the contrary was proved and
that when both the parties stand to gain or lose valuable property the
oral evidence is always to be approached with caution and it is safer to
Civil Revision No.524-2003 5

rely on that evidence which is in accordance with admitted

circumstances and probabilities.

13. Alamdar Hussain (PW-2) in his testimony has stated that

Khadim Hussain deceased used to contribute ‘Chanda’ to the ‘Imam-
Bargah’ however during cross-examination he categorically stated
that no register of accounts of ‘Imam-Bargah’ or receipt book for
‘Chanda’ were maintained. Contrary to the above his ‘Behnoi’
Muhammad Yousaf (PW-3) while facing the cross-examination stated
that accounts of ‘Imam-Bargah’ were maintained by one Murtaza
resident of the same village. Said Murtaza was not produced with any
record of accounts of ‘Imam-Bargah’ to establish that Khadim
Hussain ever contributed any ‘Chanda’. It is pertinent to mention that
‘Shiyas’ in Marakewal village have their own mosque namely ‘Ali-
Masjid’. It is admitted by Muhammad Yousaf (P.W-3) that Khadim
Hussain deceased used to offer his regular prayer in ‘Charhdi Masjid’
which belongs to ‘Sunni’ Sect. It is no where asserted by said P.Ws.
that deceased Khadim Hussain had ever offered his regular prayers in
‘Ali-Masjid’ which belongs to ‘Shiya’ Sect. It is also admitted by
Alamdar Hussain (PW-2) that there are 5/6 Movlies who belong to
‘Shiya’ Sect in the village Marakewal. There is nothing on record to
show that ‘Janaza’ prayer of Khadim Hussain was offered by any
‘Molvi’ relating to ‘Shiya’ Sect. Testimonies of Alamdar Hussain
(P.W-2) and Muhammad Yousaf (P.W-3) therefore become doubtful
on account of their inconsistencies. No independent and reliable
witness was produced by the petitioners to establish that Khadim
Hussain deceased belonged to ‘Shiya’ Sect. Needless to say that in
civil cases once the parties have advanced their respective ocular and
documentary account controversy is determined on the basis of
preponderance of evidence of the parties. Therefore concurrent
findings of facts of both the Courts below on the controversy with
regard to identity of Sect of Khadim Hussain deceased are based on
true appreciation of the ocular account available on the record and do
not call for any interference by this Court through invoking the
revisional jurisdiction.
 Civil Revision No.524-2003 6

14. For all above, the impugned judgments and decrees

passed by learned Courts below do not suffer from any factual
infirmity, illegality or jurisdictional error. I do not find any misreading
or non-reading of material evidence to call for any interference by this
Court through exercise of revisionsal jurisdiction.

15. For the above reasons, this Civil Revision having no

merit is dismissed.

(ABDUS SATTAR ASGHAR)

JUDGE

Approved for reporting.

JUDGE

‘Ejaz’