The summary of facts of this case is that predecessor-in-interest of the respondents instituted suit for possession in respect of land Measuring 3888 Kanals and 01 Marla, mentioned in the plaint, for partition of 1/6th share out of Haveli and for rendition of accounts being legal heirs of Fateh Khan son of Allah Dad. Fateh Khan died on 3.6.1970. Mst. Anwar Sultan, Defendant No. 1 being the mother; Mst. Qamar Sultan being sister and Mumraiz Khan being collateral were legal heirs of Fateh Khan.
As per averments of the plaint, Fateh Khan was Sunni by faith, therefore, Mumraiz Khan, plaintiff being a collateral was entitled to 1/6th share. It was further averred that Mutation Nos.1764 and 433 having been sanctioned on 14.8.1970 in accordance with Shia law were illegal. In the Written statement filed by present petitioners/defendants, it was averred that the deceased Fateh Khan professed Shia faith, therefore, estate of Fateh Khan devolved upon the petitioners in toto. In view of the pleadings of the petitioners, the learned trial Court framed Issues. The parties led their oral as well as documentary evidence. DW-1 to 5 supported the averments made in the written statement and contended that Fateh Khan was unmarried and died issueless. Mst Anwar Sultan was his mother and Mst. Qamar Sultan was her sister. He professed Shia sect and used to participate in the `Tazia Procession'. Mst. Anwar Sultan appeared as DW-6 and stated that Fateh Khan was Shia by faith from the time of his predecessor. The defendants also produced copy of Mutation No. 1764 sanctioned on 24.8.1971, as Exh.D1 and copy of Mutation No. 433 as Exh.D2, sanctioned on 24.8.1971.
The respondents-plaintiffs produced nine witnesses who deposed that Fateh Khan was 'Sunni' by faith and his Tatiha prayer' was led by a 'Sunni Sect Scholar'. The plaintiffs also produced documentary evidence. The learned Civil Judge, Attock, who vide judgment and decree dated 23.10.2000 dismissed the suit of the plaintiffs-respondents. The appeal filed by the respondents was accepted by the learned Additional District Judge, Attock, who vide judgment and decree dated 22.12.2001 decreed the suit of the respondents.
2. It is contended by learned counsel for petitioners that the learned appellate Court has suffered from misreading and non-reading of evidence that has led to the erroneous conclusions. It is further contended that Mst. Anwar Sultan, mother of Fateh Khan/deceased, appeared as DW-6 and stated that Fateh Khan was Shia by faith since his birth and from the time of his forefathers, but her statement has not been given importance due to it. The best evidence about the faith of a person can be that of its close relatives and none other than mother would be a better cognizant of a person's faith. Her statement could not be discarded and brushed aside in the absence of any other more convincing proof. DW-1, Sher Dil was Sunni by faith. He has stated that Fateh Khan was Shia and used to participate in Tazia' Procession. Komal Shah, President of Ahl-e-Tashee Community, Talagang also stated that Fateh Khan was a Shia by sect. Being a President of Ahlav Tashee, the statement of DW-2 deserves a better appreciation. Similarly, DW-3 to 5 had also deposed in the same manner.
3. On the other hand, learned counsel for the respondents supports the judgment passed by the learned Additional District Judge, Attock and contends that statement 9f Maulvi Muhammad Faazal that Fateh Khan was a 'Sunni' by faith and the former had led the latter's Tateha Prayer', is of real significance PW-2, Mohy-ud-Din has also corroborated the deposition made by PW-3, Muhammad Khan son of Nawab Khan and PW-8, Allah Yar, who themselves were Shias by faith had stated that Fateh Khan was Sunni by faith. PW-5, Muhammad Khan son of Ghulam Muhammad, Numberdar of the village has also deposed in the same line. The learned counsel for the respondents has referred to two documents. Exh.P11 is an application dated 03.03.1966 made by Allah Yar, PW-8, who was Shia by faith, for holding `Azadaari, Procession Exh.P.10 is a joint statement of Fateh Khan and numerous other residents of the village, which contests the above said application. The resistance offered by Fateh Khan is borne out on the order passed by the Deputy Commissioner on the above said application. He has further argued that the 'Sunnis' were in majority where Fateh Khan resided, therefore, presumption about him would be that he professed `Sunni' faith unless contrary is established by the evidence. Reliance is placed on Pathana Vs. Mst.
Wasai and other (PLD 1965 Supreme Court '134).
4. I have heard learned counsel for the parties and have also gone through the record. The plaintiffs claiming Fateh Khan Sunni by faith have produced the witnesses from Shia and Sunni communities. They have categorically stated that Fateh Khan was Sunni by faith and his funeral prayer was led by Maulvi Muhammad Faazal/PW-1, who was a Sunni Sect Scholar. On the other hand the defendants have also produced witnesses from both Sunni and Shia Sect, who have categorically stated that Fateh Khan professed Shia faith and used to part in Tazia Procession. The only edge to the defendants/petitioners in the oral evidence is the statement of Mst. Anwar Sultan, who is mother of Fateh Khan. She has stated that Fateh Khan professed Shia faith.
Although in either eventuality whether Fateh Khan is held to be a Shia or Sunni her 1/3 share remains unchanged but the share of Mst. Qamar Sultan, sister of Fateh Khan daughter of Anwar Sultan increases from to 2/3, if Fateh Khan is declared Shia and resultantly Mumraiz Khan the predecessor of the respondents is deprived of his 1/6 share as a collateral. Mst. Anwar Sultan is an indirect beneficiary. Her daughter's share is increased and her rivals' share extinguishes. Moreover, the petitioners cannot escape a big hump in their way. Exh. 10 an application by the 'Sunni' inhabitants of the village including Fateh Khan was filed to thwart an effort of Allah Yar, PW-8, a Shia by faith to get permission to take out Tazia procession. This application betrays strong abhorrence against those who were trying to hold the procession. These sentiments are a proof of the faith of the applicants including that of Fateh Khan. Did he change his faith from Sunni to Shia after that application and statement? There is neither an assertion in the written statement nor any proof of that in evidence. The principle laid down by the superior judiciary is that great majority of the Muslims in Indo-Pak Subcontinent being Sunnis, the presumption would be that the parties to the suit are Sunnis, unless its proved otherwise. The burden to rebut the presumption would lie heavily on the one who attributes the faith of Shia to any person. Reliance is placed on Pathana Vs. Mst. Wasai and other (PLD 1965 Supreme Court 134) and Ghulam Shabbir and others Vs. Mst. Bakhat Khatoon and others (2009 SCM R 644). As far the dictum laid down in (PLD 2006 S.0 1476) titled (Mst.
Ghulam Ayesha and another Vs. Sardar Sher Khan) and (2009 SCM R 644) titled (Ghulam Shabbir and others. Vs. Mst. Bakhat Khatoon and others), that leading the funeral prayer by a Sunni Imam is no proof of the faith of the deceased; that reduces the strength of the arguments of the respondents only to that extent. The evidence led by the plaintiffs/respondents to this extent may be excluded from their credit. The documentary evidence referred above weighs heavily in favour of the respondents/plaintiffs and against the petitioners/defendants. The only conclusion that may be drawn is that Fateh Khan was a Sunni by faith. I find neither any illegality in the concurrent findings of both the Courts below nor any irregularity in the proceedings.
For what has been discussed above, this revision petition stands dismissed.