' MUHAMMAD AKHTAR SHABBIR, J.--- This appeal by leave of the Court is directed against the judgment of a learned Single Judge of the Lahore High Court, Lahore dated 12-10-2005 passed in Civil Revision No,182 of 1996.
2. The brief resume of the case is that Fateh Muhammad son of Muhammad Khan (deceased) owned land in Khata No,38 Khatuni Nos.78-89, Khata No,48 Khatuni No,111, Khata No,60 Khatuni Nos.138-139, Khata No,61 Khatuni No,140, Khata No,62 Khatuni No,141, Khata No,67 Khatuni No,152, Khata No,71 Khatuni No,156 situated in village Tankey Wala Tehsil Shahpur, District Sargodha. After his death Mutation of Inheritance No,272 dated 29-4-1987 was attested declaring him belonging to Shia sect, depriving his two widows Mst. Bakhat Khatoon and Mst. Sultan Bibi. One of the widows filed appeal before the Assistant Commissioner/Collector, Shahpur, claiming her share, who accepted the same vide order dated 15-12-1987. The said order had also been maintained by the Additional Commissioner, vide order dated 6-8-1988. Plaintiffs/appellants herein filed a civil suit against the respondents/defendants, challenging sanctioning of the mutation on the orders passed by Assistant Commissioner/Collector and the Additional Commissioner, who contested the suit, filed their written statements, denying the averments of the plaint. On the divergent pleadings of the parties, the learned trial Court/Civil Judge 1st Class, Shahpur framed various issues, recorded evidence, pro and contra, and vide the judgment dated 15-10-1991 decreed the suit. The respondents feeling aggrieved preferred an appeal against the judgment and decree of the trial Court, which came up for bearing before an Additional District Judge, Sargodha who vide, his judgment and decree dated 11-12-1995 accepted the appeal reversing the findings of the trial Court and dismissed the suit. This judgment/decree of the appellate Court had been assailed by the appellants before the Lahore High Court, Lahore through Civil Revision No,182 of 1996, which has been dismissed, vide the impugned judgment.
3. Learned counsel for the appellants contended that the judgment of the High Court is non speaking as the learned Judge has not considered the evidence produced by the parties and failed to apply his independent judicial mind to, the controversy involved in the matter. Further contended that the appellants had produced oral as well documentary evidence to prove their assertion that deceased Fateh Muhammad was follower of Athna-Asharias' sect and he was 'Shia' at the time of his death, his funeral ceremonies were performed according to 'Shia' school of thought. Added that while sanctioning the mutation, the Revenue Officer has recorded the statement of Mst. Sultan Bibi, second wife, of deceased Fateh Muhammad, who supported the appellants' case. While on the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the appellants contending that the Revisional Court was not bound under the law to reappraise the evidence of the parties. The Revisional Court has to consider only the misreading or non-reading of evidence, jurisdictional defect or gross illegality in the judgment impugned before it. Further contended that there is ample evidence on the file of this Court that the deceased, predecessor-in-interest/husband of the respondents Mst.
Bakhat Khatoon and Mst. Sultan Bibi was a 'Sunni' Muslim and his Nimaz-e-Jinaza was offered by a 'Sunni' Paish Imam. Lastly, contended that the documents produced by the appellants had not been considered in accordance with the provisions of Qanun-e-Shahadat Order, 1984 and no sanctity was attached to the said documentary evidence, therefore, it was rightly ignored by the Appellate Court as well as the Revisional Court.
4. We have heard the learned counsel for the parties, perused the record with their kind assistance.
5. We find that the learned Judge of the High Court has not passed a well-reasoned judgment and has disposed of the Civil Revision by observing that the First Appellate; Court has correctly given weight to the fact only that Fateh Muhammad (deceased) had been paying Zakat, Ushr of his crops. It was a contradictory judgment, the Revisional Court has rejected the judgment of the trial Court and accepted the judgment of the Appellate Court without assigning sufficient reasons in agreeing with the same. It is a settled proposition that when there are contradictory findings by two Courts, Revisional Court would interfere to examine that the judgment of which Court is correct.
Learned counsel for the appellants has made stress to set aside the impugned judgment and remand the case to the High Court for re - writing the judgment. Though this Court cannot interfere in the concurrent findings of fact recorded by the Courts below but we, with assistance of the learned counsel for the parties have gone through the evidence produced by the parties and are inclined to decide this appeal after evaluation the evidence of the parties instead of remanding the case to the High Court for decision afresh, to save the precious time of the parties as well as the Court
6. The question that requires consideration by this Court is whether the deceased Fateh Muhammad son of Muhammad Khan was a 'Sunni' Muslim or belonged to 'Shia' faith. Both the parties have produced oral as well as documentary evidence in respect of their respective version.
A Muslim when dies, the moveable or immovable property devolves on his legal heirs which is to be distributed or transferred in accordance with Muslim Law of inheritance. In Subcontinent, Indo-Pak the whole Muhammadan Community is divided into two sects namely, Sunnis and Shias. The Sunnis are divided into four sects namely Hanafis, Malkis, Shafies, and Hanbalis. The Sunni Muhammaden belong to Hanfi School of thought. The great majority of the Muslims of Indo Pak Sub-continent being Sunni, the presumption is that the parties to a suit or proceedings are Sunnis unless it is shown that they belong to Shia sect.
7. The Shias are divided into three main sects, namely AthnaAshrias', Ismailyas and Zaidyas. Most Shias are Athna-Ashrias, therefore, presumption is that the Shias are governed by Athna Ashrias exposition of law. After death of Fateh Muhammad, Mutation No,272 of his inheritance has been attested by the Revenue Officer in favour of his brothers, Sikandar Khan, Ata Muhammad and sister Mst. Alam Khatoon who claimed before the Revenue Officer that deceased Fateh Muhammad was a Shia. The mutation was challenged by Mst. Sultan Bibi, one widow of deceased, before the Collector who accepted the appeal directing the Revenue Officer to sanction the mutation of inheritance of the deceased in accordance with Hanafi law of inheritance. The appeal filed by the appellants before the Additional Commissioner has been dismissed maintaining the order of the Collector. The appellants in support of their case, produced eight witnesses and some documents.
Sarfraz Maikan, Naib Tehsildar P.W.2, who had attested the mutation, produced before the Court Exhs.P.1 and P.2, invitation cards issued in the name of deceased Fateh Muhammad pertaining to years 1977 and 1982. He admitted before the Court that the persons who had issued these invitation letters did not appear before him. He also admitted that Exhs.P.1 and P.2 do not contain parentage, caste and place of residence of the invitee. He also admitted that the name of deceased is entered in the list of those persons who made payment of Ushr'. Syed Zakir Hussain, P.W.3, appeared in the Court only to substantiate the factum that deceased has travelled with him for Ziaraats along with his wife Mst. Sultan Bibi. Bagh Ali Shah, P.W.4 who claimed to be a Zakir/Orator, stated that Fateh Muhammad deceased had been seen by him joining the Majalis of Shia sect, but he admitted that Fateh Muhammad deceased never offered prayers with him. Ali Muhammad Patwari P.W.5, deposed in line with P. W.4 and admitted that Maulvi Muhammad Din, a Sunni Alam, led the Nimaz- e-Jinaza of the deceased. He frankly admitted that all the three plaintiffs, (brothers and sister of the deceased) and his two widows Mst. Bakhat Khatoon and Mst. Sultan Bibi, were belonging to 'Sunni' school of thought. He also admitted that brothers of widows of the deceased attended the last ceremonies of the deceased. Gul Pir Shah, P.W.6, also admitted that Nimaz-e-Jinaza of the deceased was led by a Sunni Maulvi. Atta Muhammad, one of the plaintiffs appearing as P.W.7, admitted that his two brothers are not `Shias' rather are 'Sunnis'. Widow of the deceased, Mst. Alam Khatoon is also Sunni. He also admitted that they have been jointly making payment of Ushr with the deceased. He also admitted that their father was a Sunni and the other widow of the deceased Mst. Sultan Bibi also belonged to Hanfi school of thought. The statement of P.W.7 was contradicted by Ghulam Hussain Shah P.W.8, who categorically stated that father of Fateh Muhammad deceased, Muhammad Khan and brothers (plaintiffs) and sister of the deceased all were Shias. He produced receipts of payments subscription to Anjaman Ghulaman-e-Aseeran Sham Exhs . P/9-11 dated 17-6-1984, 15-1-1985, 11-1-1986.
8. On the other hand the plaintiffs/appellants produced Amir Khan, Chairman Ushr, Zakat Committee, D.W.-1 who stated that the deceased had been paying Ushr. The certified copies of register of receipts of Ushr had been placed on record without any objection of other side. Rab Nawaz, D.W.2 brother-in-law, Abdur Rauf, D.W.3, brother-in-law (brother of Mst. Sultan Bibi) and Mst.
Sultan Bibi one of the defendants D.W.4 are close relatives of the deceased. They vehemently stated before the Court. That the deceased was not follower of Shia sect, rather he was a Hanfi Sunni Muslim. They have also proved that funeral ceremonies of the deceased were performed in accordance with 'Sunni' rites and Maulvi Muhammad Din who is 'Sunni' Alam performed his `Nimaz- e-Jinaza'. While examining the evidence and documents produced by the parties in juxtaposition, we find that the evidence of the respondents is straightforward, reliable and convincing. D.Ws.2 to 4 are the close relatives of the deceased including his wife. Their testimony cannot be discarded on the ground that the deceased had gone with one of the witness for Ziaraat and has been paying contribution to some Shia Anjamans for few times, he has attended religious meetings/Majalis of the Shia sect. The brothers and sister of the deceased namely, Sikandar Khan, Atta Muhammad, and Mst. Alam Khatoon, are Sunnis. Two widows of the deceased, Mst. Bakhat Khatoon, Mst. Sultan Bibi respondents herein are also Sunnis, as admitted by one of the plaintiffs/appellants, Atta Muhammad P.W.7 and father of the deceased was also a Sunni Muslim. As enshrined in Article 28 of the Mahomeden Law which deals with sects, sub sects of Mahomedens in the Sub-Continent. It is settled proposition of law as held by the superior Courts that majority of the Muslims belong to Hanfai School of Thought and the Court may presume that a deceased person was Hanfi till contrary is proved and ordinarily it will raise such presumption. In case of Mst. Sardar Bibi v.
Muhammad Baksh PLD 1954 Lah: 480, Mr. Justice Kaikaus and Mr. Justice M.A. Sufi, relying on Akbarally v. Mahomedally AIR 1932 Bom. 356, observed that there will be no case so devoid of circumstances from which religions of parties may be inferred, that there should be a necessity for the application of the presumption even after evidence is led but held that the presumption is however one of fact and the Court may refuse to give effect to it in the circumstances of a particular case. In the absence of any required proof F to the contrary, it must be presumed to be a Muhammadan and, therefore, governed by Hanfai Law.
In case of Pahatan v. Mst. Wasai and another PLD 1965 SC 134, it has been observed by a larger Bench of this Court that in Indo Pak Sub-Continent there is initial presumption that a Muslim is governed by Hanafi Law unless the contrary is G established by good evidence. The same principle has been laid down by a Division Bench of the Lahore High Court in Nur Ali and another v. Malik Sultan and others PLD 1961 (W.P.) 431 and Syed Muhammad Noor Shah and others v. Amir Hussain Shah and others 1999 CLC 1712 (Lahore).As the plaintiffs raised question of faith of deceased claiming that he died being a member of Shia community and as observed in preceding paragraph the initial presumption in Pakistan is that a Muslim is a Sunni until the contrary is proved, the burden of proof was on the H plaintiffs appellants as laid down in the case of Mt. Iqbal Begum v.
Mt. Syed Begum and others AIR 1933 Lah. 80 and Hussain v. Mansoor and 5 others PLD 1977 Kar. 320 the burden to prove that the deceased was I Shia is on the person alleging him to be not Sunni but Shia. We have considered and reappraised the evidence produced by the parties, documents Exhs.P.1, P.2 and P.9, P.10 i,e, the invitation cards/letters and receipts of payments, contribution to an Anjuman of Shia sect, respectively are not the conclusive proof of the faith of the deceased as these are the private documents and had been produced by the plaintiffs/appellants. These documents i,e, invitation cards and receipts of contribution had not been proved on record in accordance with the provisions of the Qanun-e-Shahadat Order, 1984. The counterfoils of subscription of receipts had not been produced, so the same cannot be j taken into judicial consideration. Another document Exh. P.8, Annual Report of Jamia "Hadriya Bab-e-Hyder", Jhang Road, Sargodha has been placed on record and from minute scrutiny of file of the trial Court, we have no hesitation to observe that the report Exh.P.8 has not been exhibited on the file by the order of the Court, as per statement of the counsel for the plaintiffs/appellants dated 12-6-1990, he has produced passport of the deceased which is Exh.P.8. There is no evidence to prove the fact of production of alleged report Exh.P.8 on the record.
9. As provided in Article 29 of Muhammandan Law the Shias are divided into three main sub sects but there is no evidence on record as to which sub sect of Shias the deceased belonged to, whether AthnaAshria', Ismailya or Zaidiya. The whole evidence produced by the appellants is silent on this aspect. There is also no evidence on the file as to when the deceased denounced his faith.
The appellants have not been able to produce evidence in this respect. Admittedly, his father, brothers, sister, close relatives and his two widows all were Sunnis and to their extent Hanfai law of inheritance is attracted. The respondents, two widows of the deceased claimed their share of inheritance out of the property left by their deceased husband. The evidence of D.Ws.2 to 4 and documents, certified copies of register Ushr pertaining to year, 1985-1986, Exhs.D.4 and D.5 is sufficient and convincing evidence to believe that the deceased was a Sunni Muslim and he died as such. The appellants have not been able to rebut the evidence produced by defendants/respondents. Plaintiffs/appellants suit had been decreed and findings were recorded that the deceased was a Shia but such findings were, however, reversed in appeal and the revision, wherein deceased was treated to be Sunni and his property was divided according to law of inheritance applicable to that sect. Findings of fact rendered against the plaintiffs/appellants by the two higher Courts 'notwithstanding' acceptance of their plea by the trial Court, were unexceptionable and this Court would not interfere in such findings unless some infirmity, legal or of principle, having been discovered and there is no justification to interfere in the concurrent findings recorded by the two Courts below. Reference in this context can be placed on Mst.
Rukhsana Bibi and others v. Lal Hussain and others 1991 SCMR 2049. The initial presumption that a Muslim is Sunni, follower of Hanafi school of thought unless contrary is proved, has not been rebutted by the appellants. In view of the above discussion, we find that the judgment of the First Appellate Court as well as that of the High Court is unexceptionable, the Courts have rightly, validly observed that the deceased was a Sunni Muslim.
10. For the foregoing reasons, we do not find any substance in his appeal which is dismissed. No order as to costs.