' ALI AKBAR QURESHI, J.--- This order shall dispose of Civil Revision No,286 of 2008 filed by petitioner Muhammad Rafiq to assail the legality of judgment and decree, dated 7-11-2007 whereby learned Additional District Judge, Faisalabad dismissed petitioner's appeal against the judgment and decree, dated 1-2-2006 of the learned Civil Judge, Faisalabad through which suit filed by the petitioner against defendants/respondents was dismissed.
2. Muhammad Rafiq, petitioner instituted a suit against respondents/defendants seeking declaration and permanent injunction reiterating that on 19-11-1982 his real brother namely Sadiq Ali (now deceased) was married to Mst. Mumtaz Akhtar alias Allah Rakhi, respondent No,1, and after one month of the marriage, Sadiq Ali went to Libya and purportedly twice visited Pakistan, firstly in November/ December, 1984 and secondly in June, 1990. Out of said wedlock two children namely respondents 2 and 3 were born on 24-1-1968 and 16-5-1990 respectively. It was asserted that Sadiq Ali never met his wife prior to the birth of respondents 2 and 3 and divorced respondent No,1 on 22- 9-1990 due to her bad character and that respondents 2 and 3 remained in the custody of respondent No, 1 . Eventually, Sadiq Ali expired on 21-7-2003 and subsequently respondent No,1 got mutated his land in the name of respondents Nos.2 and 3, purportedly the illegitimate children of Sadiq Ali deceased, which she was not entitled to do so.
3. Respondents contested and resisted the suit controverting the averments and accusations enumerated in the suit by the petitioner. It was categorically asserted that respondents 2 and 3 were the legitimate children of Sadiq Ali deceased who time and again visited Pakistan. Learned trial Court framed as many as four issues, recorded evidence of the parties thereon and consequently dismissed the suit. Being aggrieved, petitioner filed an appeal but it too met with the same fate and dismissed by means of judgment and decree impugned herein.
4. Learned counsel for the petitioner contends that judgments and decrees of both the Courts below are totally against the facts on record on the sole ground that petitioner's deceased brother namely Sadiq Ali went to Libya one month after his marriage with respondent No,1, and came back to Pakistan firstly in December, 1984 and secondly in June, 1990, whereas, both the children (respondents 2 and 3) were born on 24-1-1988 and 16-5-1990 respectively, hence, were not the legitimate children and not entitled to inherit anything from the legacy of Sadiq Ali deceased. Adds that both the Courts below did not appreciate the evidence produced by the petitioner, particularly documentary evidence with reference to the, visitation of deceased Sadiq Ali from Libya to Pakistan. In this context, learned counsel refers to copy of the passport of Sadiq Ali to state that he visited Pakistan only twice on the dates mentioned above. It was next contended that respondents had filed a suit for maintenance in the year 1990 before the Family Court at Chichawatni, wherein deceased Sadiq Ali had filed his written statement and though did not deny the parentage of respondents 2 and 3 but specifically disowned paternity of respondent No,2 and that the suit was disposed of in consequence of a compromise to the effect that deceased will not claim the custody of respondents 2 and 3 and in return respondent will not press her claim for maintenance against him, so apparently deceased Sadiq Ali disowned his paternity at least to the extent of respondent No,2. In these circumstances, it was maintained that mutation of inheritance got recorded in favour of respondents by the revenue functionaries be invalidated.
5. I have heard the learned counsel for the petitioner and gone through the facts of the case and judgments/decrees of both the Courts below. It goes without saying that petitioner instituted the suit but after the demise of Sadiq Ali deceased and at the time when respondents got recorded legacy of their late father in their name. It may be noticed that Sadiq Ali deceased in his life time never ever challenged the paternity of respondents 2 and 3 nor disowned them in any manner whatsoever, rather compromised with his ex-wife respondent No,1 with regard to maintenance and custody of the children before Judge, Family Court at Chichawatni. Unquestionably, children were also born during subsistence of marriage between respondent No,1 and deceased Sadiq Ali who divorced her on 20-9-1990, whereas, the last child was born on 16-5-1990.
6. The plea as raised by the petitioner with reference to determination of legitimacy of the child entails far-reaching impact. Paternity of a child born out of the lawful wedlock invariably carries presumption of truth in its favour and mere simple denial can hardly take away the status of legitimacy. According to Mohammadan Law "child follows the bed". Every presumption is made in favour of legitimacy of the child, is presumed to be an issue of his parents without acknowledgement or affirmation of the parentage on the part of father, the child follows bed (Firash).
7. According to sections 146 and 149 of Majmooa-e-Qawaneen-eIslam by Dr. Tanzeel-ur-Rehman, evidence of woman would be sufficient to prove parentage of a child. To elaborate this view, I am fortified by the case reported as Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 wherein, it was held that to establish the legitimacy of the child, evidence of the mother and the child is sufficient, and the superior Courts invariably leaned in favour of the legitimacy of the child in absence of any cogent and credible evidence to the contrary. Reliance can also be placed on Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073, Bashir Ahmed v. Ilam Din and others PLD 1988 SC 8, Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275, Muhammad Tallat v. Mst. Yasmin Zohra and another PLD 1992 CLC 1180, Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 108, Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others PLD 1993 Lah. 575 and Muhammad Pervez v. Additional District Judge and others 2000 CLC 1605.
8. There is hardly any tangible evidence or proof whatsoever to affirm that respondents 2 and 3 were born after divorce, nor any evidence exits on record that respondent No,1 had been living in adultery. Apparently, children are being disowned and harassed by the petitioner who unfortunately happens to be their real paternal uncle with an object and intention to deprive them of their legitimacy and legacy from their father Sadiq Ali. Had the deceased not owned landed property, respondents might not have been landed in trouble. Petitioner is callously stigmatizing respondents 2 and 3 who by now are grown up children without realizing the consequences as to how both of them would move around in the society. This Court is mindful of the fact that a perpetual custom and tradition prevails in our society that on the demise of brothers, their children and particularly female, are protected and safeguarded jealously by the rest of the brother(s) of deceased by taking upon themselves the role of their natural guardian in place of their deceased father, and their love and affection lasts for the rest of their lives. But role of the petitioner in the instant case is totally unbecoming of a responsible and conscientious person so as to grab a small piece of land measuring a few Kanals by dragging and harassing his own kith and kin for scandalous and wild accusations.
'But quite interestingly rather consistently petitioner has been pleading respondents 2 and 3 by adding the name of Sadiq Ali as their father right from the trial Court upto this Court in the relevant memo. Of parties. Moreover, it is evident from the record that petitioner before the attestation of mutation in favour of respondents 2 and 3 did not object to their parentage and paternity, and even at this stage, it is being reiterated that if the respondents relinquish their right of inheritance, petitioner is ready to accept and acknowledge them as the legitimate children of his late brother Sadiq Ali.
9. In any case scrutiny and analysis of petitioner's version is found to be in direct conflict with the principles of Fiqa, inasmuch as, according to Sunni school of thought, a child born after six months of the marriage or within two years of dissolution thereof, would be presumed to be a legitimate child of his father. Reliance in this context can be placed on the case of Mst. Hamida Begum v. Mst.
Murad Begum and others PLD 1975 SC 624, Mst. Ghulam Fatima v. Mst. Inayat Bibi and 4 others 1987 MLD 172 and Muhammad Hussain v. Abdur Rehman and others PLD 1995 Pesh.
124. On this particular issue, Verse No,15 Surrah Ahqaf (Part XXVI) provided the period of carrying child and his weaning is 30 months. The Verse of Holy Qur'an is quoted as under:--- {{URDU TEXT}}
10. A reference from Majmoo e-Qwanee-e-Islam edited by Dr. Tanzeel-ur-Rehman is quoted for ready reference, wherein the following Hadith has been narrated at page 870:--- {{URDU TEXT}}
11. In the above quoted case of Mst. Hamida Begum (ibid) the apex Court observed that according to Hanfi school of thought, a child born in wedlock is of his parents even if the husband has no access to the wife. In any case, it is obligatory upon the husband who repudiates the child so born can only have resort the procedure of Liyan, by swearing before Qazi that child is illegitimate and result of adultery, and in that eventuality, the Court will pass two-fold decree by dissolving the marriage and declaring the child as illegitimate. Such type of husband has to disown the child immediately on the birth of child or on having the knowledge thereof, and very strong and unimpeachable evidence is required to substantiate the factum of illegitimacy by proving that child was born after the lapse of three consecutive period of "Tohar" following the death or divorce by husband, as the Idat comprises of three period of "Tohar". {{URDU TEXT}}
12. There is not an iota of evidence on record to substantiate the accusation as to the illegitimacy of respondents 2 and 3, and that admittedly petitioner did not have recourse to the Court of competent jurisdiction for Liyan, thus, respondents 2 and 3 having born out the wedlock between Sadiq Ali and respondent No,1 would inevitably be deemed to be legitimate children, and as such lawfully entitled to the legacy and inheritance of their late father.
13. This Court is further fortified by judgment delivered by the apex Court in the case reported as Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291, laying down that concurrent anding of fact of the Courts below could not be disturbed by the High Court either in second appeal or in revisional jurisdiction, unless the Courts below while recording finding of fact either misread the evidence or ignored any material piece of evidence on record or that the same was perverte, and on the ground that Courts below assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that the Court below acted with material irregularity affecting its jurisdiction.
14. Similar view was expressed in the case reported as Abdul Qayyum through Legal Heirs v. Mushk- e-Alam and another 2001 SCMR 793, that where appraisal of evidence undertaken by the lower Court was perfectly in accordance with the principles settled by the superior Courts in civil cases, and the same did not suffer from any legal infirmity, it could not be interfered by the High Court under section 115, C.P.C. By -taking different view of evidence and raising inferences of its own.
15. In yet another recent pronouncement by the apex Court in the case reported as Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 it was held that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by on question of fact was erroneous and that revisional power of the High Court was exercised for correcting an error committed by subordinate Courts, and mere erroneous decision would not call for interference, unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice.
16. The upshot of the foregoing resume of facts and reasons leads to the one and the only irresistible conclusion that the captioned civil revision being palpably misconceived and devoid of any merits, stands dismissed with cost of Rs,25,000 which shall be paid by the petitioner to respondents forthwith.