MAULVI ANWARUL HAQ, J.---The parties are admittedly the sons and daughter of Ahmad Khan. In the first instance on 3-5-1972, the respondents filed a suit against the petitioner seeking a declaration that she is Ahmadi or Mirzai their father Ahmad Khan and that the and is not entitled to inherit the estate of A entries in the Revenue Records to the contrary are illegal and void. On 4-12- 1972, the petitioner-lady appeared before the learned trial Court to state on oath that she is the daughter of Ahmad Khan and sister of the plaintiffs and that she is a Sunni Muslim and is her faith that Hadrat Muhammad (p.b.u.h.) is the last prophet of Allah and that Mirza Ghulam Ahmad is not such prophet. On the same date, respondent No.1 and the learned counsel for other plaintiffs withdrew the suit unconditionally. On 7-9-1977, respondent No.1 again filed a suit against the petitioner and impleading other brothers and sister as co-defendants for the same relief. The suit was contested by the petitioner. She filed, written statement in Court on 5-10-1977 which was signed and verified on oath by her. In para.2 of written statement she stated as follows:-- {{URDU TEXT}} ' Apart from the said categorical statement one of the objection raised was that the suit is barred under Order XXIII, rule 1, C.P.C. Learned trial Court framed the following issues:--
(1) Whether the instant suit is barred by virtue of section 12 read with Order 23 Sub-rule (3), C.P.C.?
(2) Whether the suit is mala fide, if so, whether the defendant is entitled to special costs under section 35-A, C.P.C.?
(3) Whether the suit is time barred?
(4) Whether the suit is wrongly valued for the purpose of court-fee and jurisdiction? If So, its effect and what is the correct valuation?
(5) Whether Mst. Bhagri defendant was non-Muslim on her conversion as Mirzai or Qadiani at the time of death of her father Ahmad Khan?
(6) Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 14-1-1981, learned trial Court decreed the suit of the respondent No.1 declaring the petitioner to be Mirzai/Quadiani. First appeal filed by the petitioner was dismissed by learned District Judge, D.G. Khan on 15-5-1983.
2. Earlier I had allowed this C.R. Ex parte vide my judgment dated 8-2-2000. Pursuant to C.M. No.1637 of 2000, filed by the petitioner a rehearing was ordered. I have reheard the case accordingly.
3. Learned counsel for the petitioner contends that the petitioner categorically stated professing to be a Muslim, believing in oneness and unity of Allah Almighty and the finality of the prophethood of Hadrat Muhammad (PBUH). He contended that the said categorical statement of the lady professing to be a Muslim could not have been questioned at all and could not have been probed into and that the learned Courts below have acted without jurisdiction while holding the petitioner to be a non-Muslim despite her said statement. He relies on the case of Maula Buksh v. Charuk and others PLD 1952 Sindh 54. Learned counsel for the respondent No.1 on the other hand, contends that it has come on record that the lady married with a Quadiani and that her progeny is also Quadiani and as such the learned Courts below have very correctly declared that she is not a Muslim as defined in Article 260 of the Constitution of the Country. According to the learned counsel since the first suit was withdrawn in view of misrepresentation made by the petitioner-lady the second suit was not barred.
4. I have gone through the available copies of the records with the assistance of the learned counsel for the parties. I have already noted above the statement made by the petitioner-lady. On the first occasion the suit was withdrawn on the statement made by her. She reiterated and professed to be a Muslim in her written statement which was signed and verified by her on oath.
Now Article 260(3) of the Constitution defines a Muslim and a non-Muslim respectively as follows:-- "(a) "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (p.b.u.h.) the last of the - prophets and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (p.b.u.h.); and
(b) "Non-Muslim" means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Budhhist or Parsi community, a person of the Quadiani Group or the Lahori Group who call themselves "Ahmmadies" or by any other name or a Bahai, and a person belonging to any of the Scheduled castes."
5. Now it will be seen that according to the Constitution of our country a Muslim means a person professing belief in the unity of Almighty Allah and in the absolute and unqualified finality of the Prophethood of Hadrat Muhammad (p.b.u.h.), the last of the prophets and further does not believe in or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or any definition whatsoever, after Muhammad (p.b.u.h.).
6. Now going by the said definition of the Muslim it has to be seen as to how the faith is to be expressed by a person. Now any person who professes Muhammadan religion and acknowledges that there is no God but one Allah and that Hadrat Muhammad (p.b.u.h.) is his last Prophet is Muhammadan. Further terms are that such a person has absolute belief in absolute finality of Prophethood of Hadrat Muhammad (p.b.u.h.) and does not believe or recognize any other person claiming to a prophet.
7. Now to my mind, the petitioner-lady does profess to be a Muslim in strict terms laid down in the Constitution of the Country. Now if she so professes can she be questioned? Answer has to be in the negative. Learned counsel for the petitioner has very correctly relied upon the judgment of the Chief Justice (Tyubji) in the said case of Maula Bukhsh. I deem it proper to reproduce the following observations of his Lordship appearing at page 56 of the said report:-- "The question raised before the Magistrate was whether Maula Buksh, who professed and claimed to be a Sunni Muslim, was a Sunni Muslim. Evidence of the character given by Syed Abdul Rehim, besides being inadmissible, was wholly beside the point. For, it is well settled law, and one of the fundamental principle of the Muhammadan Law itself, that no Court can test or gauge the sincerity of religious belief, as in order to hold that a person was Sunni Muslim, it was sufficient for a Court to be satisfied that he professed to be a Sunni Muslim. It is not permissible to any Court to enquire further into the state of the mind and the beliefs of a person who professed to belong to a particular faith and inquire whether his actual beliefs conformed to the orthodox tenets of that particular faith of (MuIla Muhammadan Law, 1944 Ed. P.17 para. 14, and Tyabji Muhammadan Law 3rd Edn. Pp. 56-57)."
8. I may further note here that Sub-Article 3 was added to Article 260 of the Constitution vide section 3 of the Constitution (Second Amendment) Act, 1974 and then was substituted vide Article 6 of the Constitution (Third Amendment) Order 1985. Even where there are statutory requirements that certain act can be done only by a Muslim and that certain rights or privileges are available only to a Muslim, they are required to express the faith in the terms stated in the Constitution and to my mind such expression has never been questioned. This course is in accord with the settled state of 1/.
9. Now so far as question of marriage of the petitioner-lady with a Quadiani or Ahmadi is concerned, it may affect the validity of her marriage but it certainly does not affect her right to inherit her father.
10 Now the learned Courts below have further acted without lawful authority in holding the suit to be competent. There is no manner of doubt in my mind that earlier suit was withdrawn unconditionally and the present suit was barred by law and was not Ecompetent.
11. In view of the aforesaid reasons, this C.R. Is allowed. Both the impugned judgments and decrees are set aside and the suit filed by respondent No.1 is dismissed with no orders as to costs.