' SYED ASGHAR HAIDER, J.--- One Qalab Ali was owner of the disputed land, he died issueless and was succeeded by the petitioner (widow) and the respondents (brothers and sisters). An inheritance mutation in accordance with Fiqa Hanfi was sanctioned, the petitioner was granted 1/4 share as widow, in his estate, the rest devolved upon the respondents. This mutation was challenged, after a lapse of two years, by the respondent No,1, pleading that it was got surreptitiously sanctioned, without his knowledge, the deceased Qalab Ali was a Shia, and therefore, mutation ought to have been sanctioned in accordance with Fiqa Jaffria. According to which, the petitioner was not entitled to inheritance of agricultural land. The A.C./Collector, Samundari accepted this contention and reviewed initial Mutation No,305, reversed it and sanctioned it, in accordance with Fiqa Jaffria. This order was challenged before the Additional Commissioner, Faisalabad, who observed that the matter relates to complicated questions of law and fact and therefore, should be adjudicated by a Court of proper jurisdiction. Thereafter, the respondents/ plaintiffs filed two suits challenging these mutations. The petitioner contested the suits, of the divergent pleadings of the parties, issues were framed, they were put to trial and after contest, the trial Court dismissed the suits of the plaintiff/respondents. Aggrieved thereof, the respondents filed appeal, which after contest was allowed, the judgment and decree of the trial Court was set aside and the suit decreed. Hence, the present petition by the petitioners.
2. The learned counsel for the petitioners contended that the judgment passed by the trial Court is well-reasoned and .In consonance with the evidence tendered by the parties, while the impugned judgment is a result of gross misreading of evidence, the deceased was a Sunni and the petitioner being wife, was the star-witness in this matter, her testimony was ignored without any cogent and plausible reason, material documentary evidence was misread by the lower Appellate Court to the disadvantage of the petitioner, thus, the judgment and decree be set aside. He relied on the following precedents:-- ' Mst. Latifan Bibi and others v. Muhammad Bashir and others 2006 CLC 1076, Mst. Rashidan Bibi (deceased) through Legal Heirs v. Mst. Jantay Bibi and others 2005 CLC 1733, Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270, Government N.-W.F.P. Through Chief Secretary and 3 others v Abdul Malik 1994 SCMR 833, Sarwar Khan v. Mir Ali and 10 others 1980 CLC 110, Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820, Province of Punjab through Collector, District Gujrat and 2 others v. Muhammad Bashir and another 1997 MLD 806, Messrs Jugotekstil Impex 61001, Lubuana Yugoslavia v. Messrs Shams Textile Mills Ltd. 1990 MLD 857, Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Haji Muhammad v. Jehan Khan and 3 others 1995 SCMR 197.
3. The learned counsel for the respondents contended that there is incontrovertible documentary evidence to establish that the deceased Qalab Ali was a Shia, he specifically referred to Exhs.P.6 and 7 and the testimony by the P.W.'s and lastly urged that the judgment and decree of the trial Court was fraught and fractured with errors of fact and law, therefore, it was rightly set aside. He relied on the following precedents:-- Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286, Mst. Sharifan Bibi through Special Attorney and another v. Allah Rakha and others 2006 CLC 1750, Naheed Ahmad v. Asif Riaz and 3 others PLD 1996 Lah. 702, Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Atiq-ur-Rehman through (real father) and another v. Muhammad Amin PLD 2006 SC 309, Fateh Sher and others v.
Muhammad Hayat and others PLD 2005 Lah. 578, Muhammad Boota and 48 others v. Allah Ditta and 14 others 1998 SCMR 2764, Mst. Hajran through Mst. Umatul Hafeez v. Abdul Aziz and another 1996 SCMR 138 and Muhammad Khan and 6 others v. Mst . Ghulam Fatima and 12 others 1991 SCMR 970.
4. I have heard the learned counsel for the parties and perused the impugned judgment and decree as well as the judgment and decree of the trial Court.
5. The learned counsel for the respondents, initially objected to the maintainability of this petition, pleading, that it was filed with delay and is, therefore, by afflux of time. The assertion was adequately rebutted by the learned counsel for the petitioner, from record, which reflects, that the petition was filed within time. Therefore, the objection is overruled.
6. The pivotal question for adjudication is, whether the deceased Qalab Ali was a Shia or a Sunni?
According to Fiqa Jaffria, a childless widow is not entitled to inheritance in the agricultural land of the deceased, except, the benefits which accrue from it, while in accordance with Fiqa Hanfi, a childless widow, is entitled to inheritance in it, to the extent of 1/4.
7. The plaintiffs, to prove that deceased was a Shia, produced five witnesses (P.W.1 to P.W.5) and tendered in evidence Exh.P.1 to Exh.P.9 and Mark "A" to "C". The defendant/petitioner appeared as D.W.1 and tendered in evidence Exh.D.1, (attested copy of Mutation No,287 dated 29-7-1993) Exh.D.2 (Copy of Nikahnama), Exh.D.3 (copy of respondent's notification of Chairman Usher and Zakat Committee), Exh.D.4 (copy of State Life Insurance receipts) and Exh.D.5 (copy of certificate of insurance).
8. It stands admitted from record that initial mutation for inheritance, was sanctioned in accordance with Fiqah Hanfi, the petitioner was granted 1/4 share in the estate of the deceased.
This mutation was challenged after a lapse of two years, by the respondent No,l. As the Courts below gave varied judgments, therefore, it is IE essential to reappraise the entire evidence tendered by the parties. P.W.1 stated that deceased Qalab Ali (his brother) was Shia, he was Member of Anjuman-e-Imamia, (Registered) and also its Secretary, Information, he used to pay donations for Majlis the Register of Anjuman-e-Imamia, was kept in office and consisted only of one file, which was not subjected to inspection by any Government Department, he admitted that he was Chairman of Usher and Zakat Committee but denied suggestion that a Shia cannot hold office as Chairman, Zakat and Usher Committee, he admitted that Qalab Ali's wife was Sunni, he himself married a Sunni wife, his sisters were also married into Sunni families.
9. P.W.2 stated that he performed the Namaz-e-Jinaza of Qalab Ali in accordance with Shia rituals but admitted that he was on very friendly and cordial terms with P.W.1 and had been helping him in his cause, he accepted, that there was no record available qua any donation ever given by the deceased Qalab Ali for Majlis etc. He also admitted that deceased was married into a Sunni family.
10. P.W.3 adopted a similar stance but made an admission that initial mutation in accordance with Fiqah Hanfi, was got recorded by respondent No,1, he also admitted that he was on very cordial terms with the respondent No,1, the evidence tendered by P.Ws.4 and 5 is of not much consequence.
11. In documentary evidence, the mainstay of the plaintiff was Exh.P.6 (list of office-bearers) which stated that the deceased was Secretary, Information of Anjuman-e-Imamia, (therefore, a Shia).
12. D.W.1 is wife of the deceased, she stated that she remained married to him for 27 years, she was a Sunni, her Nikah with the deceased was performed in accordance with Sunni ritual, she placed a copy of Nikahnama on record (Exh.D.2) and also stated that the deceased was not a Shia, never gave any donation in this context or attended any Majlis etc., the initial mutation in her favour was got sanctioned by the respondent No,1 himself and finally, Rajab Ali (respondent No,1) proposed her for marriage and upon refusal re-acted, by filing the instant suit.
13. The lower Appellate Court primarily was convinced, that deceased Qalab Ali was Shia on basis of Exh.P.6 (list of office-bearers). It is clear from evidence tendered by the parties that Rajab Ali was President of Usher and Zakat Committee, it is common knowledge, that followers of Fiqah Jafria stand exempted from the provisions of Usher and Zakat Ordinance, therefore, obviously, they cannot hold office of Chairman, under this enactment, as such, it clearly comes out that respondent._No,1 Rajab Ali was a Sunni, as he had held this office.Exh.P.6 reflects that Rajah Ali is President of Anjuman-e-Imamia, his name is reflected at serial No,1, therefore, if a Sunni can be President of the Anjuman, the Membership, is not exclusive to Shias, thus, the mention of Qalab Ali as Information Secretary of the Organization, does ID not conclusively establish that he was Shia, deep appraisal of evidence tendered by the plaintiff shows that the register of members was in custody of persons, who were friendly to the cause of the plaintiff, therefore, reliability of this register is doubtful and further eroded. The oral evidence tendered by the plaintiffs themselves reveals that Qalab Ali wedded a Sunni wife, the respondent No,1 was married into a Sunni family, sisters were also married into a Sunni families, the respondent E No,1 himself got recorded the initial mutation of inheritance, in accordance with Sunni Fiqah (this stands conclusively proved) from the statement of P.W.3, the witnesses produced by the plaintiffs were close friends and have so stated in their evidence, therefore, their evidence is unreliable.
14. The D.W.1 is a natural witness and best person to dilate upon the Fiqah of the deceased, her evidence was wrongly ignored by the lower Appellate Court, though she gains advantage if deceased, is declared Sunni but on this benchmark, the evidence of P. W.1 and his witnesses, does not deserve any credence, because they gain same advantage if he is declared a Shia. The material which stands out to determine the faith and Fiqah of the deceased, is Nikahnama (Exh.D.2) read with the statement of D.W.1, this position is fortified by the fact that initial mutation of inheritance in accordance with Sunni Fiqah, was got recorded by the respondent No,1, the admission by both parties that deceased was married to a Sunni wife, the respondent No,1 (plaintiff) is also married to a Sunni wife, the deceased and respondent No, l's sisters are married into Sunni families, establish by preponderance of evidence, that deceased was a Sunni. The impugned judgment therefore, is a result of complete misreading of evidence and cannot sustain.
The precedents referred to by the learned counsel for the respondents are distinguishable on facts.
15. This petition, therefore is allowed, the judgment and decree dated 18-7-2006 passed by the learned lower Appellate Court is set aside, the judgment and decree, dated 16-2-2006 passed by the trial Court is restored. No order as to costs.