' Through this single order, I propose to decide the present revision petition (C.R. No, 2584 of 2001) and the connected three revisions petitions (C.Rs, Nos. 2585, 2586 and 2587 of 2001), as common questions of law and fact are involved in all the petitions, they are between the same parties and have arisen out of a consolidated judgment.
2. Mst. Farrah Chaudhry, widow of late Mehmood Ahmed Malik, and two others, through the filing of the present revision petitions, have called in question judgments and decrees dated 16-11-2001, whereby the learned Additional District Judge partly accepted their appeals and modified the judgments and decrees dated 5-7-1999, passed by the learned trial Court, through which it decreed two suits and disposed of applications for the grant of succession certificates with the directions that all the legal heirs of Mehmood Ahmed Malik deceased will inherit the estate left by him according to their respective shares.
3. Facts relevant for the decision of the present revision petitions are that these petitions have arisen out of dispute regarding inheritance/succession of Mehmood Ahmed Malik, who died on 8- 1-1998, leaving behind certain debts, securities, certificates of investment and immovable properties, as detailed in the impugned judgment. Some of the legal heirs of Mehmood Ahmed Malik filed applications for the grant of succession certificates regarding the debts and securities, held in the name of Mehmood Ahmed Malik, while the others filed civil suits claiming certain declaration and ownership qua immovable properties. The learned trial Court consolidated all the matters, framed certain issues and after coming to the conclusion that there is no need to record the evidence, proceeded to decide the said matters through single judgment dated 5-7-1999, recorded in the application for the grant of succession certificates titled "Mst. Farrah Malik and others v. Public at Large and others" decreed the suits and also disposed of the succession certificate's applications with the directions that all the legal heirs will inherit the estate according to their respective shares. Mst. Farrah Chaudhry, the petitioner, felt aggrieved and filed four appeals against the said judgments and decrees and the learned Additional District Judge modified the judgments and decrees of the learned trial Court, after finding (i) that nominations did not create any right to the petitioners, (ii) that section 4 of the Muslims Family Laws Ordinance, 1961 is applicable to the parties, (iii) that Ahmadis are governed by Ahmadia Fiqa in the law of inheritance, (iv) that Mumtaz Khalid, widow of Khalid Mehmood is not entitled to inherit out of the estate of deceased Mehmood Ahmed Malik and (v) that the parties are entitled to inherit the estate of the deceased according to the shares determined in para.20 of the impugned judgment, vide judgments and decrees dated 16-11-2001, hence the present revision petitions.
4. When these revision petitions were taken up for hearing at motion stage, on 12-12-2001, the learned counsel for the petitioners made a statement that he is assailing the impugned judgment only to the extent of share given to respondent No,6. It would be appropriate to reproduce the portion of the said order, which reads as. Follow:-- "Learned counsel at the very outset submits that he is assailing the impugned judgment through the present revision petition only to the extent of share given to respondent No,6 and is satisfied with the rest of the judgment."
5. Learned counsel for the petitioners, while reiterating his statement, as noted above, has submitted that the respondent No,6, Mehwish Khalid, who is the daughter of predeceased son of the prepositus namely Mehmood Ahmed Malik, is not entitled to inherit from the estate of Mehmood Ahmed Malik, as Muslims Family Laws Ordinance, 1961 is not applicable to "Ahmadis". He, while referring to the provisions of Muslim Laws Ordinance, 1961, has contended that the said Ordinance is only applicable to Muslim citizens of Pakistan, as such, respondent No,6, who is admittedly Ahmadi, is not entitled to inherit from the estate left by her grand-father namely Mehmood Ahmed Malik. Conversely, the learned counsel for the respondent, while referring to a book known as "Fiqa Ahmadia", has submitted that even if respondent No,6 is not found entitled to inherit, due to non-applicability of the provisions of section 4 of the Muslims Family Laws Ordinance, 1961, yet as per Fiqa Ahmadia, she being the granddaughter of Mehmood Ahmed Malik is entitled to inherit from his estate.
6. Admittedly,. In view . Of the categorical stance taken by the petitioners, the present revision petitions now only proceed against the portion of judgment, which relates to the share of respondent No,6 and according to the petitioners, they are satisfied with the rest of the judgment.
7. The foremost question, which arises for determination by this Court is as to whether the provisions of Muslims Family Laws Ordinance, 1961 are applicable to Ahmadis. Admittedly, the parties to the instant petitions and all the persons claiming the inheritance of Mehmood Ahmed Malik are Ahmadis by faith. It is also admitted by the parties that in view of amendment made in the Constitution of Islamic Republic of Pakistan, Ahmadis were declared as non-Muslims. Section 1 of Muslims Family Laws Ordinance, 1961, provides that it applies to all Muslim citizens of Pakistan wherever they may be. It would be appropriate to reproduce section 1 of the said Ordinance, which reads as under:--
(1) Short title, extent, application and commencement.---(1) This Ordinance may be called the Muslims Family Laws Ordinance, 1961.
(2) It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.
(3) It shall come into force on such date as the (Federal Government may, by notification in the official Gazette, appoint in this behalf.
' It flows from the above that the provisions of Muslims Family Laws Ordinance, 1961 have only been made applicable to Muslims citizens of Pakistan, therefore, the provisions of the said Ordinance would not be attracted in the case of non-Muslims. As Ahmadis have been declared as non- Muslims by the Constitutional Amendment, therefore, the only irresistible conclusion, which can be drawn is that the provisions of Muslims Family Laws Ordinance, 1961 are not applicable to Ahmadis.
The above view is fortified by the judgment reported as Muhammad Rashid Ahmad v. Mst. Musarat Jehan Begum 1986 M LD 1010, wherein this Court has held that Muslims Family Laws Ordinance, 1961 does not apply to Ahmadis. As all the provisions of the said Ordinance are not applicable to Ahmadis, therefore, obviously section 4 of the Ordinance will also not be attracted in the case of succession of non-Muslim. The findings of the learned lower Appellate Court, regarding the applicability of section 4 of Muslim Family Laws Ordinance in the present case, are neither in accordance with law nor the principles laid down in the case of Muhammad Rashid Ahmed (ibid), therefore, the said findings are set aside. Admittedly, Mehwish Khalid is laying her claim, qua the estate of Mehmood Ahmed Malik, only on the basis of being the daughter of predeceased son of the prepositus. In view of the above findings that section 4 of the Muslims Family Laws Ordinance, is not applicable, to my mind, Mehwish Khalid is not entitled to inherit from the " estate of Mehmood Ahmed Malik in the capacity of his granddaughter.
8. If it be taken that Ahmadis follow Hanfi Law, even then Mehwish Khalid, being the grand- daughter, is not entitled to inherit from the properties left by Mehmood Ahmed Malik, as according to Hanfi Law nearer in degree excludes the more remote. According to this principle daughter of predeceased son is not entitled to inherit from the estate of the grandfather. It has been held above, that section 4 of the Muslims Family Laws Ordinance, is not applicable in this case, therefore, Mehwish Khalid even according to Hanfi Law is not entitled to inherit from the estate of Mehmood Ahmed Malik.
9. Confronted with the above narrated legal position, the learned counsel for the contesting respondents has fall back upon a book known as "Fiqa Ahmadia" and while referring to Clause 6 of Chapter IV and Chapter 13 regarding inheritance, has submitted that in the absence of the applicability of section 4 of the Muslims Family Laws Ordinance, the granddaughter is entitled to inherit from the estate of her grand-father and, thus, the respondent No,6 could not be excluded from the inheritance. It appears appropriate to reproduce the above referred Chapters, which read as follow:-- {{URDU TEXT}} ' As regards Clause 6 of Chapter IV, bare reading of it manifests that the same is only applicable, when no other son and daughter of the prepositus is alive. In the present case, as the sons and daughters of Mehmood Ahmed Malik are alive, therefore, the said clause is not applicable.
' So far as Chapter 13 is concerned, it has been stated in the said Chapter that Qazi can give the estate to the orphan to the extent of 1/3rd share, provided it does not cause any loss to the other legal heirs. In the present case, the said Chapter is also inapplicable, because the same relates to paternal grand-son or maternal grand-son and not to grand-daughter and secondly Qazi has only been authorized to give 1/3rd share to the orphan in case it does not cause any loss to the other legal heirs. Obviously if some share would be given to the grand-thus, on the basis of said chapter, it cannot be held that she is entitled to inherit from the estate of Mehmood Ahmed Malik.
10. In the above perspective, I have examined the impugned judgment and find that the findings, with regard to the applicability of section 4 of the Muslims Family Laws Ordinance and the grant of share to Mehwish Khalid, are not sustainable in law and, thus, the impugned judgment need modification and to that extent the impugned judgment and decree deserves to be set aside. The respondent No,6 is not entitled to inherit from the estate left by Mehmood Ahmed Malik, however, this judgment will not debar her from inheriting the estate from his father.
11. Upshot of the above discussion is that the present revision petitions are partly allowed and findings of the learned lower Appellate Court, with regard to applicability of section 4 of Muslims Family Laws Ordinance, 1961 and grant of share to respondent No,6, are set aside and the impugned judgments and decrees stand modified in the said terms. However, the rest of the findings, the remaining judgment and decree and the shares awarded to the parties are maintained and shall hold the field. There is no order as to costs.