1. ' MUZAFFAR ALI, J.---The petitioners are daughters and grand sons and grand daughters of late Sangi Khan resident of Hunza who departed leaving no male issue except 4 daughters. The respondent No, 1 is nephew of late Sangi Khan. Sangi Khan was proprietor of the suit land bounded in the plaint and the land went into the possession of respondent No, 1 after death of Sangi Khan.
2. The living daughters, sons and daughters of passed away daughters of late Sangi Khan filed Suit No,55/93 claiming themselves heirs of propositus under Islamic Law of inheritance. The respondent refused their claim and pleaded himself to be the heir of late Sangi Khan under the custom prevailing in Hunza State, whereby daughters had been allegedly deprived of their heirship and collaterals in consanguinity were entitled to hereditament, if propositus leaving no male issue behind him and passes away from this world. Since the respondent No, 1 is nephew of late Sangi Khan as such he claimed to be in possession of the suit land as legal heir under the custom.
3. ' The suit was tried by the learned Civil Judge and after going through the procedure, he relied on plea of custom and de-suited the present petitioners. The findings of the learned trial Judge were challenged before the learned District Court concerned by the present petitioners in Ist appeal. The learned District Judge agreed with the findings of the learned Civil Court and dismissed the Ist appeal too, hence this revision petition before this Court against the concurrent findings of both the lower Courts.
4. ' When this revision was put up before the then learned Chairman Chief Court, he constituted Division Bench to hear the revision, as both the Counsel were armed with two Judgments of the then Judicial Commissioners, having apex judicial authority at that time for Gilgit-Baltistan. The first Judgment with the title. "Mirbaz Khan v. Mst Gulandam etc." was passed by the learned Judicial Commissioner Mr. Justice Sardar Muhammad Raza, the honourable Judge served august Supreme Court of Pakistan later on an eminent Judge and recently got his retirement from the august Supreme Court of Pakistan, the learned Judge reviewed his own findings in the above case and held that, the custom was apparently prevailing at Hunza State prior to enforcement of Islamic Law in Hunza in the year 1974 while the second judgment in case titled "Shakoor Muhammad etc. v. Mst.
5. Raheal" was passed by the then Judicial Commissioner Mr. Muhammad Nawaz Khan, who though discussed the above judgment passed by the learned Judicial Commissioner Mr. Justice Sardar Muhammad Raza, but reached to the diversion view and held otherwise. The "authoritative importance" of both the judgments would be discussed in detail in preceding paras of this judgment as for this important point, Justice Raja Jalal-ud-Din the present Chief Judge of this Court has also constituted full Court Bench to hear the matter, including his good-self too.
6. ' This Bench heard both the learned counsel for the parties at length, they assisted the Court with the force of above cited cases in support of their divergent pleas but we deem it proper to draw a historical sketch of Hunza State, "Ist as it was ruled by Mirs (Rajas) of Hunza who were having exclusive powers of law making, judiciary and administration within the State. The Mirs of Hunza and Nagar enjoyed the above powers even after accepting the sovereignty of Pakistan. The peoples of both the states were administered, adjudged under the traditions and customs framed by the Mirs and regular laws were not extended even by the Government of Pakistan untill the Rajgi System was dissolved by the regime of late Zulfiqar Ali Batho in the year 1974 and then regular laws were extended to both the states including the Islamic law of inheritance".
7. ' The above historical account makes acquainted ones mind to understand the legal System of the Hunza State and after the above historical note we are in better position to understand and discuss both the judgments passed by the learned Judicial Commissioners to reach into conclusion to give a finding note of our agreement or disagreement with one of the above judgments. We are agreed with both the learned Judicial Commissioners about the "jurisprudential requirement" of a custom as they have discussed, although the learned Mr. Justice Sardar Muhammad Raza has discussed it in a light handed way, but the learned judicial Commissioner Mr. Muhammad Nawaz Khan has elucidated Pic same with citation of case law even of august Supreme Court of Pakistan and there can be no second opinion on the point that: "Party claiming under custom is obliged to establish valid custom by showing that it was ancient, invariable, uniform and continuous. It must be proved through clear and unambiguous evidence. Quantum of evidence necessary to prove existence of custom is greater than that required to negate, otherwise the personal law of inheritance would be presumed to be prevailed in the area if the area is Muslim populated".
8. ' The learned Mr. Justice Sardar Muhammad Raza was also well versed of the above "jurisprudential standard" of proof of a custom in a certain area and that was the reason he denied the existence of the custom in Hunza State and decreed the suit in his hand in favour of the ladies vide his Judgment dated 25-11-1984, by applying Muslim Personal Law presumably but he compelled to review his own judgment when his review jurisdiction was invoked by discovery of strong proof of custom prevailing in the State as claimed by the petitioners, the learned Judicial Commissioner has discussed the discovered proof which is comprising of text books as under:-- "What is the custom in a certain area is always a question of fact. It was denied to the petitioner in the order under review mainly on the ground that the witnesses were not unanimous and some of the witnesses had also accepted Shariah as a rule of practice in the area. This is challenged vehemently in the present petition that the custom, as alleged by the petitioner, was so strongly prevalent in the area that the flimsy evidence in the case could not operate to negate or refute the same. That there are text books of admitted worth and authenticity which prove the custom, and which in spite of best efforts could not be made available at the previous occasions. The text or treatises relied upon in this behalf were the authentic works of the Brithish and German writers who extensively visited the Northern Areas and minutely studied the origin, habits and customs of the tribes of this area. It is unfortunate that no such publication by any locals/Pakistanis are so written and available. The recognized publications were produced as follows;--
(i) Tribes of the Hindoo Koosh by John Biddulph, Indus Publications Karachi Edn, 1977.
(ii) Between Oxus and Indus by R.C.F. Schomberg, Al-Biruni, 65 the Mall, Lahore (Respondent- printed) First Edn, London 1.935.
(iii) Materialien Zur Ethnographie von Dardistan (Pakistan) by DLR Lorimer. Printed in Austria, 1979.
9. ' We also have gone through the above treaties and are in consonance with the view taken by the learned Judicial Commissioner that all the above three authors are unanimous on the point "that the custom was rule of inheritance under which no female heir of a" propositus having any Share in hereditament, if propositus died without male issue and the property was inherited by male collaterals whichever was nearest to the propositus and the custom remained in practice having force of law all over the Rajgi System in the State but with a positive modification by the ruler Mir Muhammad Nazim Khan, who made female heirs entitled to a limited Share not under Islamic Shariah, but under the custom itself, "which is one "Chuqe" out of seven chuqe of land". The learned Judicial Commissioner Mr. Muhammad Nawaz Khan was moved to decide the same point of custom or Islamic Shariah "in the Hunza State during Rajgi System, the learned Judicial Commissioner discussed the judgment passed by the learned Mr. Justice Sardar Muhammad Raza in detail and also the text books cited by the learned Justice in his judgment, but has divergently held with the reasons in his own words as"; "The above judgment would show that he had left the matter open for certain fresh better finding either way in future. The judgment would further show that there was no 'custom' as this term is considered in the jurisprudence (both English and Islamic), There had been changes of practices from time to time as is evident from discussion in para-5. Earlier ladies were altogether deprived during the days of Mir Nazeem Khan but thereafter ladies were given some share in the days of Mir Mohammad Nazim, All this would show that there was no 'custom' in the estate and each and every case used to be attended on the facts obtaining therein".
10. ' We have visited the above reasons and have legal and logical excuses to disagree with the learned judicial Commissioner with the reasons that (a) indeed every judicial verdict is always open to review or contradict as such, the learned Mr. Justice Sardar Muhammad Raza Khan has very rightly kept his judgment open to be reviewed or contradict his view f in future some better research is produced in a case before a competent Court to prove change in law of inheritance otherwise, and he kept the doors open in his own words as under:-- "This order shell not be a rule in such future cases where the change of inheritance is proved through better research work than the above, after 1935".
11. In the case in hand and even in the case before the learned Judicial Commissioner, not a single research work has been put forward by the parties claiming Sharie shares to rebut the research work produced in the case before the learned Justice Sardar Raza who relying thereby reviewed his own finding and unless a strong proof is brought into the notice of a competent Court otherwise.
12. The judgment passed by Justice Raza holds sanction of "judgment in rem" in respect of the people belonging to Hunza State as the cited books had not been written only in respect of the parties to the Suit No, 55/1993, but have been written about the prevailing of custom in Hunza State at large.
(b) The learned Judicial Commissioner has not discarded the above research on the bases of new and more authentic books but has reached to the conclusion after discussing the research work cited by the Justice Sardar Raza that, initially lady members were deprived of their Shares altogether but at the time of Mir Muhammad Nazim Khan their rights were accepted to some limited share in the inheritance. The change or the amendment, in his opinion shows no custom, and each and every case used to be attended on the facts obtaining therein. We cannot second this view as it has no substance to rely. We have drawn the historical sketch in Para-3 of this judgment that, the Mirs in Hunza State had exclusive powers to make laws and to enforce them along with having exclusive administrative powers; as such Mir Muhammad Nazim Khan introduced some amendments into prevailing customary laws and under the amendment, he made the lady members of the families entitled to limited share under the customary law itself and not in recognition of Islamic right of inheritance of female members. So it cannot be termed as change of custom into personal law or dis-continuation of custom. The custom once proved in a s s ecific area then it a flies to all similar cases and it varies not from case to case in respect of particular families if pleaded categorically in defense.
13. ' It is true that in the case before the learned Judicial Commissioner Mr. Muhammad Nawaz Khan, the custom of the area was not pleaded categorically but in the case before us, the custom has been pleaded categorically.
14. ' The only point, that was raised by the leaned Counsel for the petitioners, which appealed our judicial mind, is that, both the lower Courts have ignored the amendment made to the custom by the then law maker of the State and have deprived the petitioners even from the limited share granted by the custom itself as such, we are inclined to modify both the impugned decrees as such that the petitioners shall be entitled to 1/7th share of the property of propositus under the custom and the suit is decreed to the above extend.