' JAVED IQBAL, J.---This appeal is directed against judgment dated 19-4-2006 passed by learned single Judge of Lahore High Court, Lahore, in chambers whereby Regular Second Appeal preferred on behalf of respondents has been accepted.
2. Precisely stated the facts of the case are that "mutation of inheritance was attested according to Shia Law, in favour of the appellants, being sons of Hayat Bibi, the real sister of Imam Bakhsh. The respondents being claimants of property as collaterals, to the extent of 3/4th share, basing their claim on Sunni Law, instituted the suit for possession on 15-4-1978. It was claimed by respondents that the appellants have no concern with the property and impugned mutation is liable to be cancelled while possession is to be delivered to them. The appellants resisted the suit by filing written statement controverting therein the averments made in the plaint. Learned trial Court framed issues, recorded evidence of the parties and vide judgment and decree dated 19-5-1985, dismissed the suit. The impugned judgment was reversed in appeal and learned lower appellate court, while accepting the appeal, decreed the suit on 31-7-1989. The second appeal was dismissed on 8-2-2001, which order was challenged before Hon'ble Supreme. Court. The impugned order was set aside by the apex Court and the case was remanded vide order dated 16-3-2005 to this court for fresh decision on the above noted questions." The learned single Judge in chambers has accepted the appeal and judgment/decree of learned lower Appellate court dated 31-7-1989 has been set aside hence this appeal.
3. Ch. Khurshid Ahmed, learned Advocate Supreme Court entered appearance on behalf of appellants and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is submitted that the Will (Exh.D/1) could not be substantiated and no forthright evidence could be led which aspect of the controversy went unnoticed causing serious prejudice against the appellants. It is next contended that affidavit allegedly sworn in by Imam Bakhsh (Exh.D/2) could not be proved in accordance with the relevant provisions as enumerated in the Qanun-e-Shahadat Order, 1984 as neither the scribe nor any person identifying Imam Bakhsh before the Notary Public could be produced hence affidavit (Exh.D/2) should have been discarded but on the contrary it has been relied upon by the learned single Judge in chambers which resulted in serious miscarriage of justice. It is argued with vehemence that during mutation proceedings (Exh. D/3), the statement of Mst. Resham Bibi was never recorded and therefore, the question of any admission made by Mst. Resham Bibi during mutation proceedings would have no bearing on merits of the case as it has got no binding effect. It is also argued that the Will (Exh.D/1), affidavit (Exh.D/2) and mutation (Exh.D/3) has no relevancy whatsoever with the provisions as enumerated in Article 46 (items Nos.5 and 6) of the Qanun-e-Shahadat Order, 1984 which has been misinterpreted and misconstrued by the learned single Judge in chambers. It is argued that the judgment of learned lower Appellate court has been reversed without assigning any cogent reasoning and thus the judgment impugned though voluminous in nature yet without any reasoning is liable to be set aside being violative of the provisions as enumerated in section 100 of CPC. It is next ,argued that it is well entrenched legal proposition and initial presumption that every Muslim citizen in Pakistan is Sunni unless proved otherwise but no concrete proof could be produced inferring that Imam Bakhsh (late) was a Shia Muslim. It is pointed out that the statement of plaintiff has also been misread as no categoric admission whatsoever has made qua faith of Imam Bakhsh (late) and besides that the examination-in-chief should have been read along with cross-examination but only a sentence that too out of context was picked up by the learned single Judge in chambers which is against the principles of appreciation of evidence.
4. Mian Allah Nawaz, learned Senior Advocate Supreme Court and Mr. Tariq Mehmood, learned Senior Advocate Supreme Court entered appearance on behalf of respondents and vehemently controverted the view-point as canvassed at bar by Ch. Khurshid Ahmed, learned Advocate Suprme Court for the appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that respondents have proved the faith of Imam Bakhsh (late) by producing cogent and concrete oral and documentary evidence. In this regard reference has been made to Wasiyat Nama (Exh.D/ 1), affidavit of Imam Bakhsh (Exh.D/2) and mutation (Exh.D/3). It is also contended that the evidence as led by the respondents could not be contradicted and hence the conclusion as arrived at by the learned single Judge in chambers being well-based does not warrant interference.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the judgment and decree of learned Civil Judge dated 19-5-1985, judgment and decree of learned lower Appellate court dated 31-7-1989 as well as the judgment impugned. The pivotal question which needs determination would be as to whether Imam Bakhsh was Sunni or Shia by faith as the fate of legal heirs qua distribution of the property of Imam Bakhsh hinges on the determination of said question. In case Imam Bakhsh (late) is declared as Sunni by faith, his estate could be devolved upon the appellants and if he is declared as Shia, the properly would be devolved on the respondents. Let we make it clear at the outset that no principle of universal application is available to determine the faith of a person and determination whereof depends on the surrounding circumstances, the way of life, the parental faith and faith of other kiths and kins. It hardly needs any elaooration that "question of sect of a person cannot be determined by opinion of the parties but can be interfered from facts creating presumption of one way or the other". In this regard we are fortified by the dictum laid down in cases titled Mst. Sardar Bibi Muhammad Bakhsh and others (PLD 1954 Lah. 480), Pathana v. Mst. Wasai and another (PLD 1965 SC 134), Zohran Mai v.
Siftan (1983 CLC 2559). It is worth-mentioning to note that "question whether deceased was Shia or.
Sunni cannot be determined merely from sect to which his relative belonged". (Zohran Mai v. Siftan 1983 CLC 2559, Pathana v. Mst. Wasai and another PLD 1965 SC 134). At this juncture it is also to be kept in view that it is not necessary that a "Mussalman" must either be a Sunni or a Shia and it may well be that he is free from all sectarian feelings, sentiments and faith". (Amir Ali v. Gul Shaker PLD 1985 Karachi 365). "It cannot be overlooked that, in the first 150 years of the history of Islam, sects were unknown. In fact, the four Schools of Law, viz. Hanafi, Maliki, Shafi and Hanbali, were founded in the second century Hijra. Some books, which propounded Sunni beliefs, were composed in the 4th and 5th Century Hijra. The position, therefore, is crystallized that the formation, or division of the Muslim populace in the world among several sects took place long after the revelation and death of the Prophet. In such circumstances, we have found ourselves unable to hold that every Mussalman must either be a Shia, or, a Sunni. (Amir Ali v. GuI Shaker PLD 198 Karachi 365).
6. On the touchstone of the criterion as mentioned herein above the case of appellants has been examined which mainly hinges on the oral statements of witnesses showing that Imam Bakhsh was Sunni by faith. The evidence led in this regard has been scrutinized with care and caution.
Munir Ahmed (P.W.1) has stated in a categoric manner that Imam Bakhsh used to offer his prayer in the mosque under the Imamat of Hafiz Sahib who was Sunni by faith. He has stated without any ambiguity that Imam Bakhsh was Sunni by faith. He was subjected to somewhat lengthy cross- examination but nothing beneficial could be extracted. The statement of Muhammad Shafi (P.W.2) is really significant as he is Imam of the mosque where Imam Bakhsh used to offer his prayer including Juma prayer. We are conscious of the fact that "all mosques are free and remained open to the members of all sects as there is neither any prohibition nor any distinction between Sunni and Shia to offer prayer in such mosque, however, it cannot be presumed that offering prayer at any particular mosque by majority of the participants may belong to Shia or Sunni." In this regard reference can also be made to case titled Mst. Iqbal Begum v. Mst. Syed Begum (AIR 1933 Lahore 80). We may mention that offering prayer continuously under the Imanat of a Sunni Imam cannot be ignored. Muhammad Shafi (P.W.2) has also stated that Namaz-e-Janaza of Imam Bakhsh was performed in his Imanat and besides that he has never heard that Imam Bakhsh has changed his faith from Sunni to that of Shia. No principle of universal application car, however, be evolved on the basis of performance of Nimaz-e-Jinaza and all other factors shall be considered while determining the faith of a person as mentioned hereinabove. While discussing a similar proposition it was held in case titled Amir Ali v. Gul Shaker (PLD 1985 Karachi 365) that "we are also of the view that the mere fact of Jenaza prayers having been offered in the Sunni manner or Shia manner is no criterion for determination of the sectarian beliefs of the deceased. It may well be that a non- Muslim is following a funeral congregation, and he too recites the prayers for a soul of the deceased, but in accordance with his own form of prayers. Can it be said that, because some non- Muslims said their prayers in a particular manner, would be a relevant factor for considering, or, determining the religious, or, sectarian beliefs of the deceased. In our view, the answer has to be in the negative." Muhammad Shafi (P.W.2) has made it clear that Imam Bakhsh stood retired in 1953 and he had never found Imam Bakhsh in any of the Majalis. He was also subjected to cross- examination but nothing advantageous could be extracted. The learned Advocate Supreme Court on behalf of the appellant was asked pointedly that as to why the statement of Muhammad Shafi (P.W.2) being Imam of mosque where Imam Bakhsh (late) used to offer his prayer in his Imamat could be disbelieved, but no satisfactory answer could be given except that the Peer of Imam Bakhsh (late) namely Shabbir Hussain was Shia by faith and thus it can be presumed that Imam Bakhsh (late) cannot be a Sunni by faith. The said answer has been given in oblivion of the fact that the institution of Pirs is unknown amongst the Shias as pointed out by their lordships of the Privy Council in Hayat-un-Nisa v. Muhammad Ali Khan (ILR 122 All. 390). This view also finds support from case titled Sardar Bibi v. Muhammad Bakhsh (PLD 1954 Lahore 480). In our considered view the statement of Muhammad Shafi (P.W.2) being Imam Masjid cannot be discarded merely on the ground that Imam Bakhsh had his Peer who was Shia by faith; Ch. Hasan Din (P.W.3) has also stated that Imam Bakhsh was known to him since his childhood. He was Sunni by faith. He denied the suggestion in a categoric manner that Imam Bakhsh was Shia by faith. Bashir Ahmed has stated that Imam Bakhsh used to offer his prayer with them and they all are Sunni by faith. He has mentioned without any ambiguity that Imam Bakhsh was Sunni by faith and used to offer his prayer in the mosque meant for Ahl-e-Sunnat. Muhammad Sain (P.W.V) has also stated that Imam Bakhsh was Sunni by faith. Younus Ali Shah (P.W.VI) has mentioned that he has heard about Imam Bakhsh who was resident of Sahowali where no Shia lives. He has further mentioned that Imam Bakhsh was not Shia by faith and he had heard about it from his forefathers. Syed Ahsan (P.W.VII) has stated that he has neither visited Sahowali nor Imam Bakhsh was a member of their Anjuman.
He, however, stated while answering one of the questions during cross-examination that it was not mandatory for every Shia to become member of their Anjuman. Maqbool Ahmed (P.W.IX) has stated that he is Shia by faith and General Secretary of Anjuman Tanzeemul-Momineen. He has stated that he could not mention as to whether Imam Bakhsh was Shia by faith or otherwise.
Ghulam Nabi (P.W.X) has mentioned with clarity that Imam Bakhsh son of Hakim was Sunni by faith.
He was also subjected to cross-examination but nothing beneficial could be extracted. Raja Ghafoor Ahmed (P.W.6) has stated that respondents were Ahmedi by faith. Ghulam Ali, one of the plaintiffs, also appeared as a witness and stated that the grandfather of Imam Bakhsh and his grandfather were real brothers and Imam Bakhsh was Sunni by faith. He has also stated that there was no Shia in their village. No doubt that while answering one of the questions during cross- examination, Ghulam Ali admitted that Imam Bakhsh was not Shia but was Ahl-e-Tashi which does not make any sense if examined in the light of examination-in-chief wherein he has mentioned in an unambiguous manner that Imam Bakhsh was Sunni by faith. Let we mention here that much reliance has been placed by the learned single Judge in chambers on the words "Ahl-e-Tashi" uttered during cross-examination by Ghulam Ali by ignoring the fact that a categoric mention was made by him during examination-in-chief that Imam Bakhsh was Sunni by faith. It is worth mentioning that Raja Ghafoor Ahmed (P.W.6), Syed Ahsan (P.W.VII) and Maqbool Ahmed (P.W.IX) are Shia by faith by whom it is confirmed that Imam Bakhsh was not Shia by faith which aspect of the matter was not challenged during cross-examination and where the statements of witnesses went unchallenged in cross-examination then it would be given full credit and accepted as true unless displaced by reliable, cogent and clear evidence. In this regard we are fortified by the dictum laid down in the following authorities:-- ' Monir's Law of Evidence 1969 Edn. P. 494; Halsbury's Law of England, III Ed., Vol. 15, para.801 and C.B.
Fields's Law of Evidence Vol. 5 11th Ed.Para.10 p.4773, Mst. Nazeer Begum v. Abdul Sattar (PLD 1963 Kar. 465), Qasim and others v. The State PLD 1967 Kar. 233, Syed Iqbal Hussian v. Mst. Sarwari Begum PLD 1967 Lah. 1138, Muhammad Mujibur Rehman Siddiqi v. Abdul Bari and 3 others PLD 1981 Kar. 537, Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111, Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110, Muhammad Ibrahim v. Haji Raza Hussain 1987 MLD 515, Karimuddin Shad v. Mst.
Fatima Mian Ahmed 1989 CLC 545, Qamruddin through his legal heirs v. Hakim Mehmood Khan 1988 SCMR 819, AEG Carapiet v. A.Y. Darderian AIR 1961 Cal. 359; Traders Syndicate v. Union of India AIR 1983 Cal. 337 and Nur Jehan Begum v. Mujtaba Ali Naqvi (1991 SCMR 2300).
7. It transpired from the scrutiny of record as mentioned herein above that Raja Ghafoor Ahmad (P.W.6), Syed Ahsan (P.W.VII) and Maqbool Ahmad (P.W.1X) were never cross-examined on the material parts of their statements that Imam Bakhsh was not a Shia by faith and hence their statements cannot be discarded.
8. We have kept the defence version in juxtaposition and examined the entire evidence as adduced by the respondents. It is worth mentioning that the case of respondents mainly hinges on the documentary evidence. A careful scrutiny of record would reveal that much reliance has been placed on Wasiyat Nama (Exh.D/1) which could not be proved by adducing worthy of credence and forthright evidence. A careful perusal of Will (Exh.D/1) would reveal that nothing was mentioned about the distribution of the property which is indicative of the fact that it was a manoeuvred document wherein it was written that the property of Imam Bakhsh would be distributed in accordance with Shia Law of Inheritance.
' The learned Advocate Supreme Court was asked pointedly that if Imam Bakhsh was Shia by faith then what was the justification for writing this Will (Exh.D/1) as apparently there is no logic and reasoning for doing so but learned Advocate Supreme Court could not furnish any justification. It is not understandable as to why Imam Bakhsh has mentioned that the Will shall remain in possession of Muhammad Sharif. Had it been a genuine Will, it could have been handed over to some notable of Shia faith which was not done for some unknown reasons which leads to draw the only conclusion that it was a fictitious document. It may not be out of place to mention here that this Will was written on a blank paper and could not be substantiated by producing any reliable evidence. The scribe of the Will (Exh.D/1) was never produced. One of the witnesses by whom they Will (Exh.D/1) was attested namely Muhammad Akbar who got recorded his statement which does not seem to be worthy of credence as according to him, the Will (Exh.D/1) was got reduced in writing by Muhammad Aslam, petition writer in negation of the record as it was written by Muhammad Sadiq. The said Will (Exh.D/1) was never got registered and thus cannot be considered to determine the faith of Imam Bakhsh (late).
' On the basis of what has been stated herein above the only inference that could be drawn would be that it was a fictitious and maneuvered document prepared to get the property of Imam Bakhsh and besides that it is also indicative of the fact that the only object to reduce this Will in writing appears to remove any doubt that Imam Bakhsh was Shia by faith but the said doubt could not be removed as the Will (Exh.D/1) could not be proved in accordance with the relevant provisions of the Qanun-e-Shahadat Order, 1984. It has further been observed with grave concern and curiosity that why the Will was handed over to Muhammad Shafi, who being a Patwari along with his brothers maneuvered to get the share from the property of Imam Bakhsh by evolving the device of Will (Exh.D/1) on the basis whereof subsequent mutation (Exh.D/3) was got recorded. The authenticity and genuineness of the Will is not above board, hence the question of relying of any mutation on the basis of such a document would have no evidentiary value and such mutation is otherwise required to be proved through independent evidence which could not be led.
9. We have also adverted to the affidavit (Ex.D/2) allegedly sworn in by Imam Bakhsh which could not be proved in accordance with law. It is well-entrenched legal proposition that where the deponent could not be cross-examined qua the contents of affidavit it cannot be equated to that of evidence. There is no cavil to the proposition that if a deponent was not produced for cross- examination the affidavit sworn in would have no substantial bearing on merits of the case having little evidentiary value.
' On arriving this conclusion we are supported by the following authorities:-- ' Mst. Khairunisa and 6 others v. Malik Muhammad Ishaq and 2 others (PLD 1972 SC 25), Nazeer Ahmed Khan and 2 others v. Muhammad Ashraf Khan and 3 others (PLD 1975 Kar. 598), Malik Muhammad Ishaq v. Messrs Erose Theatre and others (PLD 1977 SC 109), Messrs Shalimar Karachi v.
Raeesuddin Siddiqui and 3 others (1979 CLC 338) Muhammad Yousaf Ishaq v. Abdul Majid Khan and 5 others (1984 CLC 243), Abdul Karim Qureshi v. Abdul Khaliq (1984 CLC 259), Mst. Sakina and another v. Hussain and 5 others (1986 CLC 288), Ataullah Khan Malik v. The Custodian, Evacuee Property (West) Pakistan and 5 others (PLD 1964 SC 236), The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585), Rehmatullah v. Tufail Hussain and others (1987 CLC 792) and Zafar Mirza v.
Naushina Amir Ali (PLD 1993 Karachi 775).
' Besides that there was neither any occasion nor justification to sworn in the affidavit. The mode of its delivery to the respondents could not be substantiated on the basis of any document. It was never made in the presence of his sons which makes its credibility more doubtful. In fact it was a deliberate and intentional concealment on the part of respondents to deprive the real legal heirs from the legacy of Imam Bakhsh. In fact the main object for preparation of affidavit was to get it utilized after the death of Imam Bakhsh in order to get his property by showing that he was Shia by faith. Had he been Shia by faith he could have informed regarding the change of his faith to his sons and kiths and kins which was not done. The, learned ASC has placed much reliance on the statement of Syed Irfanul Haq, Advocate (D.W.4) in oblivion of the fact that Syed Irfanul Haq, Advocate has mentioned in a categoric manner while answering one of the questions during cross-examination that Imam Bakhsh had not affixed his thumb impression on the affidavit (Ex.D/2) in his presence. In our considered view no reliance can be placed on the statement of Syed Irfanul Haq, Advocate (D.W.4).
10. After having gone through the entire evidence we are inclined to hold that Imam Bakhsh was Sunni by faith and no concrete evidence could be led showing that he was a Shia by faith. The statement of Muhammad Shafi (P.W.2) who is Imam Masjid of village Sahowali cannot be disbelieved where Imam Bakhsh used to say his prayer under the Imamat of Muhammad Shafi (P.W.2). It hardly needs any elaboration that ordinarily a person who is Shia by faith usually does not offer prayer in the Imamat of a person who is a Sunni by faith. The entire evidence led by the respondents is silent that Namaz-e-Janaza of Imam Bakhsh was performed by any Shia Imam in village Sahowali. This factor can be taken as additional consideration for determining the question as to whether Imam Bakhsh was Sunni or Shia by faith. Had he been Shia by faith, his relatives would have not allowed to perform his Namaz-e-Janaza by a Imam who is admittedly Sunni by faith.
11. The upshot of the above discussion is that the judgment impugned is set aside and judgment and decree passed by learned lower Appellate court on 31-7-1989 shall remain intact. The appeal is accordingly accepted and it is declared that Imam Bakhsh was Sunni by faith and accordingly his property would be distributed in accordance with Hanafi Law in his legal heirs as mentioned by the learned Additional District Judge, Sialkot in his judgment and decree dated 31-7-1989.