ORDER: IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition for leave to appeal has been filed against the judgment, dated 25th October, 2002 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Civil Revision No,536 of 2001 filed by petitioner has been dismissed.
2. Succinctly stating the facts of the case are that petitioner/plaintiff Mst. Asma Naz filed a suit against respondent/defendant Muhammad Younas Qureshi to the effect that she is legitimate child of respondent/defendant,therefore, permanent injunction may be issued, restraining him to deny the relationship so exists between them. The suit was contested by the respondent/defendant. Learned trial Court based after framing issues and recording evidence, led by both the sides in support of their respective pleas dismissed the suit vide judgment, dated 25th October 2000. It is important to note that learned trial Court based its judgment upon the document (Exh.D.1) submitted by petitioner/ plaintiff to the S.S.P., Rawalpindi, wherein she denied her relationship with respondent/defendant, followed by a criminal complaint against respondent/defendant before the Illaqa Magistrate Rawalpindi (Exh.D.9), under sections 468/500, P.P.C. Wherein ultimately he was acquitted from the charge by the Illaqa Magistrate and High Court, respectively and a Criminal Petition No,19 of 1996 filed by her was also dismissed as withdrawn with permission to this Court.
3. Feeling aggrieved from the judgment of the, trial Court dated 25th October, 2000, the petitioner/plaintiff preferred appeal but without any success as the same was dismissed by Additional District Judge vide judgment, dated 25th June, 2001. A Civil Revision filed by her before the High Court also failed vide impugned judgment, As such instant petition for leave to appeal has been filed.
4. Learned counsel appearing for petitioner/plaintiff contended that learned High Court has not interpreted Article 64 of the Qanun-e Shahadat Order, keeping in view the law laid down by this Court in the case of Mst. Hamida Begum v. Murad Begum and others PLD 1975 SC 624, therefore, interference is called for in the impugned judgment in the interest of justice.
5. The respondent/defendant contended that the custody of petitioner/plaintiff was given to him by one Syed Wasi Ahmed Rizvi, who had accepted her being an unclaimed child, vide letter No,C.M.J. 5626, dated 14th December, 1965 from the Court of A.D.M., Karachi (Exh.D.12). Undoubtedly, he had been treating her to be his daughter but she herself repudiated the relationship with him by involving him in criminal litigation and in failing to prove allegations of fraud etc. She filed a suit for declaration but her claim that she is his legitimate child has not been accepted by the High Court and subordinate Courts. Therefore, he prayed that petition be dismissed being without merits.
6. We have heard the petitioner's counsel and the respondent in person and have also gone through the pleadings of the parties, evidence produced before the trial Court, impugned judgment as well as the judgment of the trial and Appellate Courts carefully. A perusal whereof indicates that prior to filing of the suit, which has culminating in present proceeding, there had been a litigation on criminal side between the parties which ensued on the criminal complaint (Exh.D.1) filed by the petitioner/plaintiff against respondent/defendant and it ultimately ended into smoke as petitioner/plaintiff could not prove stated allegation of deceiving her or committing fraud with her by the respondent/defendant, therefore, he was acquitted of the charge, It is pertinent to point out that during the course of criminal litigation, vide application dated 9th May, 1992, respondent/defendant produced letter (Exh.D.12) dated 14th December, 1965 and-on the basis of the same he asserted that one Syed Wasi Ahmed Rizvi son of Syed Rashid. Ahmed Rizvi got custody of a child from the City/District Magistrate, Karachi through S.H.O., Jamshed Quarters and the said child is the petitioner/plaintiff, therefore, she is not his real daughter. It may be noted that this document was received in evidence under objection, however, we will deal with this question after a while. On the end of criminal case, the petitioner/ plaintiff realized that the respondent/defendant had denied her paternity on the basis of the letter (Exh.D.12), therefore, she instituted a civil suit for declaration that she is legitimate daughter and heir of respondent/defendant, therefore, by issuing a permanent injunction, respondent/defendant be restrained to disown her as his legitimate daughter. In response to plaint, respondent/defendant filed written statement. It is important to note that in the written statement respondent/defendant had not averred about the personal status of petitioner being a legitimate child or otherwise. For convenience relevant paras. From The preliminary objections raised in written statement are reproduced hereinbelow:--- "(5) That the suit is replete with false version and distortion of facts. Factual position of the matter is that the answering defendant married Rashida Khatoon in December, 1948. It was the sheer misfortune of both the spouses that this wedlock could not result into the birth of any child and being issueless, they were keenly interested to adopt any child. In December, 1965 Mr. Wasi Ahmed -Rizvi, one of the colleagues of the answering defendant in Naval Headquarters, Karachi found a female baby lying near his house. She was unclaimed and on his application, the Additional District Magistrate, Karachi, entrusted custody of the baby to him (Syed Wasi Ahmed Rizvi) through S.H.O., Jamshed Quarters Police Station. Since the answering defendant and his wife were issueless they made a request to the said Syed Wasi Ahmed Rizvi for the custody of the baby. Syed Wasi Ahmad Rizvi and his wife Mst. Razia Bano had the blessings of Almighty Allah in the form of two daughters and one son, therefore, they were gracious enough to hand over the baby to the answering defendant and his wife Rashida Khatoon in February, 1966. This minor baby was named as Asma Naz by the answering defendant and got recorded her date of birth as 20th February 1966 in the passport when the answering defendant and his wife proceeded firstly to Jakarta (Indonesia) and then to Kuala Lumpur (Malaysia) in connection with official duties. The answering defendant also gave her baby his own parentage as in absence of the same, the very purpose of adopting her would have been defeated coupled with the fact that her identification in the society was possible only and only with the parentage. Her date of birth was also got recorded in the school at Kuala Lumpur as being 20-2-1966. However, when the answering defendant returned to the country, visualizing the educational set back as the baby had suffered during her stay abroad, her date of birth was got recorded as being 20-2-1967 in the education record in Pakistan as well as in Registration Form-B so as to save her from being deprived of admission in the school on the basis of her being overage at that time. It is pertinent to submit that from abroad, the answering defendant has been sending photographs of Asma Naz to Syed Wasi Ahmed Rizvi who pasted one of the photograph on the letter, dated 14-12-1965 issued by the ADM, Karachi for the sake of identification.
(6) That the plaintiff was brought up by the answering defendant and his wife with all love and affections and at no stage of her life, she was made to realize that she was not their daughter. She was educated up to Graduation and was married to Mr. Abdullah Khan son of Dr. Muhammad Tufail. The answering defendant and his wife departed the plaintiff from their house with all gift and dowry and in Nikah Nama even the answering defendant had got himself mentioned as father of the plaintiff. This all was done in the betterment and welfare of the plaintiff without any mala fide on the part of the answering defendant. It be graciously appreciated that without giving the plaintiff parentage the very object of her adoption would not have been served.
(7) That it was indeed a very unfortunate juncture in'the life of the parties when the plaintiff having heard some whispering within the family, started compelling the answering defendant to let her know as to whether she was his real daughter or not. The answering defendant has been avoiding the situation and that too in the better interest of the plaintiff but she having been instigated by her in-laws, particularly her father-in-law, remained persistent to her demand. The plaintiff in the fits of anger and fury, moved an application to the S.S.P., Rawalpindi levelling filthy allegations against the answering defendant and his wife. It is worth submission that the answering defendant and father- in4aw of the plaintiff were politically affiliated to Jamat-i-Islami. A Jirga of respectablefamilies of the Jamat-iIslami was constituted at the behest of Dr. Muhammad Tufail, father-in-law of the plaintiff. In view of these compelling situations, the answering defendant was left with no alternative but to reveal the truth and produced documentary evidence in this behalf."
7. It is equally important to note that in the Court statement on oath respondent/defendant remained consistent to the stand taken by him in the written statement, dated 1.1th May, 2000.
Learned trial Court, after having gone through the pleadings of the parties, framed issues including the one i,e, Whether the plaintiff is legitimate daughter of the defendant, as asserted in the plaint and is entitled for the decree prayed for? (OPP). Although, in the written statement the respondent/defendant had not questioned the legitimate status of the petitioner/plaintiff, therefore, issue should have been "Whether the plaintiff is real daughter of the defendant and entitled for the decree prayed for? However, learned trial Court proceeded to decide the issue in affirmative holding that she is not the legitimate daughter of the respondent/defendant and in.
This matter unnecessarily put in jeopardy the legitimate status of the petitioner/plaintiff. Similarly, learned Appellate and Revisional Courts, without having looked into this aspect of the case had endorsed the judgment of the trial Court.
8. It is an undisputed reality that respondent/defendant and his wife Mst. Rashida Khatoon had always treated the petitioner/ plaintiff as their real daughter impliedly and expressly. In this behalf, a perusal of following documents, duly issued by the concerned functionaries reveals that petitioner was publicly known and acknowledged being the daughter of the respondent/ defendant:---
1. Exh.P/1. Secondary School Certificate Examination, 1982 issued by the Federal Board of Intermediate and Secondary Education, Islamabad
2. Exh.P/2. Higher Secondary School Certificate Examination 1984, issued by the Federal Board of Intermediate and Secondary Education, Islamabad
3. Exh.P/3 Nikahnama between petitioner/plaintiff and her husband Mr. Muhammad Abdullah Khan.
4. Exh.P/4. Investigation Card issued by respondent/defendant on the eve of marriage of petitioner/plaintiff.
5. Exh.P/5 Form 'Bunder section 4(I)(b) of the National Registration Act, 1973, issued by the Directorate General of Registration, (Interior Division) Government of Pakistan.
6. Exh.P/6 Copy of I.D. Card No.211-67-506319 of petitioner/plaintiff. (Parentage as not mentioned).
7. Not Exhibited documentsForm 'Adated 28th January, 1959, Nomination of Gratuity by respondent/defendant. (Name of petitioner/plaintiff is not mentioned). Nomination of Benevolent Grant and sum-insured dated 8th August, 1969. (name of petitioner/plaintiff is mentioned to the extent of 25% and 25 %respectively). Form Adated 16th May, 1972. Nomination of Benevolent Grant and sum-insured, (name of petitioner/plaintiff is mentioned to the extent of 25% and 25 % respectively). Form 'Adated 12th March, 1982 Nomination of Benevolent Grant and Group Insurance (name of petitioner/plaintiff is mentioned to the extent of full share in the event of death of wife of respondent/defendant).
The authenticity of above document has not been doubted or questioned in any manner by the respondent/defendant thus on the basis whereof inescapable conclusion can be drawn that respondent/defendant never denied his paternity to petitioner/plaintiff and always treated her to be his daughter for all intends and purposes. In this regard, one of the most important document amongst the noted hereinabove is the nomination by the respondent/defendant in favor of petitioner/plaintiff in terms of section 2 of the Central Employees Benevolent Fund and Group Insurance Act, 1969, out of which in respect of 25% of Benevolent Grant and 25% of Insurance amount, petitioner/plaintiff has been nominated being his daughter. This document leads to conclusion .That respondent/defendant accepted her to be one of his legal heirs in his legacy, benefit of which would be drawn by the petitioner/plaintiff, Mst. Rashida Khatoon and Mst. Maryam Bibi, being daughter, wife and mother of respondent/defendant, respectively, after his death. It may be noted that according td Mahomedan Law right of inheritance is extended to heir whose legitimate status is accepted, otherwise, such right neither can be extended nor acquired. It is also a settled proposition of law that the legitimate or illegitimate status of a person is established in view of the proof of birth but in a case where such proof is not coming forward, then on the rule of acknowledgement by an acknowledger, in respect of status of a person, a conclusive presumption can be drawn that he/she is his/her legitimate child and once such status is confirmed, it cannot be destroyed by any subsequent act of the acknowledger. Or of anyone claiming through him, as it has been held in the case of Muhammad Allandad Khan and another v. Muhammad Ismail Khan and others 1888 ILR Vol. X Allahabad 289. In this report another important question was also highlighted i,e, "if a man acknowledges another to be his son and other be nothing, which obviously renders it impossible that such relation should exist between them, the parentage will be established." Reference may also be made to the case of Muhammad Azmat Ali Khan v. Lalli Begum and others (I.L.R. Vol. IX page 8) where their lordships of Privy Council observed that "according to Mahomedan Law the acknowledgement and recognition of children by a father as his sons gives them the status of sons, capable of inheriting as legitimate sons. Such acknowledgement may be in the express or implied, in the latter case the inference from the acts of father must depend upon the circumstances of each particular case." Applying the principle highlighted In this judgment on the case in hand in the light of documentary evidence, noted hereinabove, it can safely be held that petitioner/plaintiff had always been treated/acknowledged by the respondent/defendant as his daughter and she was also married by him, exercising his right of paternity in 1985 and thereafter as well up to 1991 when unfortunate episode of initiating criminal proceedings against him, commenced at the behest of petitioner/plaintiff. It seems important to trace the reasons, which created a gulf between petitioner/plaintiff and respondent/defendant after about 5/6 years from former's marriage. In this context following paras from the plaint, dated 10th April, 1997 need consideration:--- "(2) ... It may be mentioned that earlier before plaintiff's marriage, the defendant had purchased a plot located in Karachi in her name which subsequently, proved a bone of contention between the parties as the defendant subsequently tried to deprive her of the said plot.
(3)That in Mid 1991, the plaintiff asked the defendant to hand over the documents of the aforesaid plot so that she, after disposing it off, might purchase a piece of land at Islamabad. It proved a turning point in their relations and as such in order to deprive the plaintiff from the ownership of the plot, the defendant first posed that the instalments of the plot were yet to be paid and after their clearance, he would hand over the required documents. Subsequently, the defendant went on putting the plaintiff off on lame excuses in this regard.
(4) That when in J.Une, 1992 the plaintiff pressed hard for securing the documents of the plot, the defendant flatly refuted the claim of the plaintiff, as being his legitimate daughter and started imputing upon her that she was obtained by him at the age of 3 months from one Wasi Ahmed of Karachi. The Defendant further claimed that even Wasi Ahmad had obtained her from the S.H.O., Police Station, Jamshed Quarters, Karachi vide ADM and City Magistrate, Karachi's letter No, C.M./J 5626/65, dated 14-12-1965.
(5) That in order to further establish his aforesaid false imputation, the defendant submitted an application, dated 9-5-1992 (Appendix-F) to the S.S.P., Rawalpindi along with an attested photostat copy (Appendix-G) of the forged original letter, dated 14-12-1965. Besides the plaintiff's father-in- law Dr. Tufail Ahmed and others tried their level best for reconciliation but their efforts ended in a smoke.
(6) Then even thereafter, the plaintiff made several efforts to persuade the defendant not to deny the paternity of the plaintiff simply to usurp her plot, but the defendant remained adamant in his claim and finally refused to own the plaintiff as his legitimate daughter in June, 1992 hence the plaintiff was constrained to file a criminal complaint under section 468/500, P.P.C. In the Court of Mr. Sultan Shahzad, the then Illaqa Magistrate, Rawalpindi, which was however, illegally dismissed vide his order, dated 29-12-1994. It may be mentioned that original letter, dated 14-12-1965 was never filed by the defendant in the criminal trial Court. However, a copy (Appendix-G) of the said letter was produced which was illegally relied upon by the Magistrate."
In the written statement respondent/defendant denied that no plot of land was purchased in the name of petitioner/plaintiff etc. A careful perusal of relevant paras of pleadings of the parties abundantly makes it clear that on account of the demand of the petitioner/plaintiff to transfer the plot of land purchased by respondent/defendant in her name, provided an occasion to respondent/defendant to deprive the petitioner/plaintiff from her paternity. There is nothing on record to understand as to why petitioner/plaintiff all of sudden started insisting for the transfer of the plot of land, situated in Karachi on her name, knowing well that she being the daughter of the respondent in view of the available record would inherent the same at the appropriate time. Her such abrupt demand could be the persuasions of the element, who by then have acquired vested rights in the dealing and deeds of the petitioner/plaintiff. However, by all means, action of the petitioner/plaintiff of instituting criminal proceedings against the respondent/defendant is condemnable in view of her affiliation with the respondent/defendant since birth, as it has been demonstrated hereinabove. Be that as it may, question for consideration is whether on account of such unwarranted conduct of the petitioner/plaintiff, which could be a outburst of her anger with the respondent/defendant, due to non-transferring of plot of land, situated at Karachi in her name or on account of unseen pressure upon her, whether the respondent/defendant can deny his paternity to her by raising the plea which he, subsequently, had incorporated in the written statement, relevant paras. Therefrom have already been reproduced hereinabove. Legally speaking, on the basis of oral and documentary evidence, petitioner/plaintiff had established that she is the daughter of respondent/defendant but if the latter denies the same, then burden shifts upon him to prove the same. In this behalf he has mainly relied upon the document (Exh.D.12), dated 14th December, 1965. This document was received by the trial Court under objection but while disposing of the matter, its status was not determined nor it was decided as to whether it is admissible under the law because the contents of the same have been denied by the petitioner/plaintiff. A perusal of this document indicates that by means of it, the S.H.O. Jamshed Quarters, Police Station, Karachi was directed to hand over an unclaimed infant child (female) to one Syed Wasi Ahmed Rizvi. A photograph, however, is also pasted on this document. Photocopy of it, containing its original text is scanned hereinbelow for convenience:--- Court of the City and Additional District Magistrate Karachi City To The S.H.O. Jamshed Quarters, P.S., Karachi.
Sub: Keeping of infant unclaimed child (female) found lying nea their Quarter No,86/F on 24-11- 1965. The applicant Syed Wasi Ahmad Rizvi son of Syed Rashid Ahn-tad Rizvi, has filed an application requesting therein to adopt the said child, which has been adopted.
You should hand over the said child to Mr. Syed Wasi Ahmad Rizvi son of Syed Rashid Ahmad Rizvi.
(Sd.) Rashid Ahmad), P.C.S. City and A.D.M. Karachi Copy forwarded to Syed Wasi Ahmad Rizvi for information with the direction to adopt her till further orders.
Assuming for sake of arguments that the above document has come on record according to the provisions of Articles 75 and 76 of the Qanun-eShahadat Order, even then it is not possible to draw inference on its basis that it pertains to the petitioner/plaintiff. As far as the portion of the photograph is concerned, it clearly indicates that it was pasted on it later on and it was of a child who isnot a new born. It seems that this photograph was pasted on this document subsequently over a photograph already exist on it. The version of the respondent/defendant in his examination also does not stand proved that a female child was given to him by one Syed Wasi Ahmad Rizvi because latter has not come forward to prove its contents. Similarly no other material is available on record to connect the petitioner/plaintiff with this document (Exh.D.12), therefore, 'it has not advanced the case of respondent/defendant in any manner and the Courts below may have rejected its contents considering it to be inadmissible and irrelevant to resolve the controversy between the parties.
9. It may be noted that learned High Court has non-suited the petitioner/plaintiff in view of the fact that in her complaint (Exh.P.1) she made admission that respondent fraudulently claimed himself to be her father. In our view such admission would not be relevant it cannot be considered to be conclusive evidence to hold that respondent had no paternal relationship with the petitioner, particularly when overwhelming evidence is available on record and respondent/defendant throughout his life himself had been recognizing the status of the petitioner/plaintiff to be his daughter. Moreover, any admission which otherwise seems to be wrong would not be considered conclusive proof to draw inference that no relationship exists between the petitioner/ plaintiff and respondent/ defendant. In this behalf reference may be made to the case of Hamida Begum v.
Murad Begum PLD 1975 SC 624 and Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749.
10. Learned High Court under the facts and circumstances of the case may have ignored the conduct of the petitioner/plaintiff because evidence available on record abundantly makes it clear that petitioner/plaintiff till 1991, when she filed a criminal complaint against respondent/defendant had been enjoying the status of daughter of the respondent/defendant, which he never denied and their such relationship has always been accepted publicly by everyone in terms of Article 64 of the Qanoon-e-Shahadat Order.
11. Learned trial Court and the High Court while misreading the evidence available on record decided the question of legitimacy or illegitimacy of the petitioner, which was not the subject- matter of the case, in view of the pleadings of the parties. In this behalf reference may be made to the plaint wherein petitioner/plaintiff stated that she is the legitimate child of the respondent and in the written statement, respondent/defendant did not question her legitimacy but only raised the plea that she was 'Perwardah'. It may be noted that as far as legitimacy or illegitimacy of the petitioner/plaintiff is concerned, it depends upon the valid proof or otherwise of marriage between the spouses. In this behalf reference may be made to the case of Hamida Begum (Ibid). The facts of the case are that status of Hamida Begum was alleged to be a illegitimate child of Sheikh Mehr Din as during the trial sufficient material was brought on record including the 'Muafi Namaof former's mother, Mst. Ghulam Zainab, tendered by her on account of dereliction, committed by her before marriage, which resulted in birth of Hamida Begum, after six months from the marriage, but ultimately, in view of the principle of acknowledgement, she was treated to be the legitimate child of Sheikh Mehr Din. Similarly there are so many other cases in which legitimacy of a child is questioned on account of proof of valid marriage but in the case in hand such assertion has not, at all, been made by the respondent/defendant in the written statement. Learned trial Court instead of determining the legitimacy of the petitioner/plaintiff may have examined the question as to whether she is the daughter of the respondent and the document (Exh.D.12), dated 14th December, 1965 can deprive her to claim paternity rights from the respondent/defendant. However, in view of above discussion, we are of the considered opinion that the judgment of learned High Court, dated 25th October, 2002 and judgments passed by the Courts below are not sustainable because the document (Exh.D.12), dated 14th December, 1965 has got no evidentiary value and on the basis of the same, petitioner/plaintiff's status being daughter of the respondent/defendant cannot be denied.
12. Thus for the foregoing reasons, petition is converted into appeal and allowed as a result whereof impugned judgment, dated 25th October, 2002 passed by the Lahore High Court, Rawalpindi Bench, is set aside. Consequently, the decree as it has been prayed for by the petitioner/plaintiff is granted. No order as to costs.