' ABDUL LATIF KHAN, J.---Through this single judgment, I ' intend to dispose of instant petition (C.R. No,893/2003) and connected C.R. No,894/2003, titled "Rehan and others v. Mst. Zarbakhta and others" as both the petitions are arising out of one and same judgment I dated 28.06.2003, passed by learned appellate Court whereby appeal filed against the judgment and decree dated 30.11.2002, of learned trial Court, was dismissed.
' Arguments heard record perused.
2. A perusal of record reveals that petitioners filed a suit for joint possession of the property mentioned in the heading of the plant which was decreed on 17.11.1990. Mst. Marso defendant No,2 now dead preferred an appeal before the District Court which was allowed and the case was remanded to the trial Court. One Nawaz Khan s/o Khair Zaman was also impleaded as party in the panel of defendants as defendant No,6 and thereafter the trial Court dismissed the suit on 30.11.2002, against which appeal was preferred by petitioners which also met the same fate by dint of impugned judgment and decree dated 28.6.2003.
3. It is evident from record that the property was originally owned by Muhammad Afzal who had two wives namely Mst. Marso and Mst. Zarbakhta (defendants Nos.1 and 2). The petitioners claimed their entitlement out of the legacy of Muhammad Afzal as residuary and one whereas Nawaz defendant No,6 claimed his Shari share out of legacy. Of Muhammad Afzal, as his son, whereas mutation of inheritance bearing No,2346 was attested in favour of defendants Nos.3 to 5 on 31.10.1987 who have filed a connected Civil Revision No,894 of 2003, claims to be the L.Rs, of Muhammad Afzal as uterine brothers. The plaintiffs and both the set of defendants claimed their entitlement and exclude the other from legacy of Muhammad Afzal.
4. The pivotal question to be resolved in the instant matter is whether Nawaz is the real son of Muhammad Afzal deceased or, otherwise. The Courts below have relied upon certain documents in this regard and observed that said Nawaz was the real son of Muhammad Afzal deceased which is not in consonance with the evidence available on file as the statement of DW.2 Mst.Marso (defendant No,1) widow of deceased, recorded in pre-remand proceedings, had admitted that a minor child was brought by Mst. Zarbakhta with her at the time of marriage with Muhammad Afzal which. Shows that the claim of Muhammad Nawaz that he is son of Muhammad Afzal is not correct. Article 128 of Qanun-e-Shahadat Order, 1984, embodies the rule of law that a child born during the continuance of valid marriage would be the legitimate child of the spouces, but this fact has not been proved at all in the instant case. The Court may presume particular inference regarding a fact or evidence until disproved however in the instant case the child has affirmed to have mentioned the name of his father other than that he claims as his father, which is clear negation to the presumption. He claims to be the son of Mst. Zarbakhta but the most important witness Mst. Marso the elder wife of Muhammad Afzal deceased has deposed against this version.
Needless to mention that Mst. Zarbakhta was previously married to one Khair Zaman and this portion of statement of DW.2, fortify the claim of the plaintiffs and defendants Nos.3 to 5 that Muhammad Nawaz happens to be the son of Khair Zaman and not Muhammad Afzal as he was brought by his mother Mst. Zarhakhta along with her at the time of marriage with Muhammad Afzal. Mst. Marso was not examined after remand nor Mst.Zarbakhta has made statement to this effect and as such best evidence has been withheld by Muhammad Nawaz defendant No,6, leads to the conclusion to take adverse action in terms of Article 129-G of Qanun-e-Shahadat Order, 1984. His birth during subsistence of marriage of Mst. Zarbakhta with Muhammad Afzal has not been proved. This fact is further fortified by the documentary evidence available on file and in this regard reference can be made to Ex.DW.513, Ex.DW.5/4, the surety bonds submitted by Muhammad Nawaz s/o Khair Zaman in case registered against him under sections 419/420/468/471, P.P.C., wherein he has shown himself son of Khair Zaman instead of Muhammad Afzal. The learned counsel for Nawaz, submitted that it was mentioned as such in order to get out from prison which is not appelable to a prudent mind that he changed the name of father in order to get released himself from jail in an offence. Similarly the documents relied upon by the learned Court of appeal are also not considerable to determine the parentage of Muhammad Nawaz. Though Ex.DW.2/2 register "Dakhil Khari j" primary school shows at serial No,1597 as Nawaz son of Haji Muhammad Afzal wherein date of birth has been given 3.4.1974 however Ex..DW. 1/3 'Form Alif' wherein too Muhammad Nawaz was shown son of Muhammad Afzal but the date of .Birth has been shown as 1971 which shows that these entries were made either regarding two different persons as Nawaz, as he cannot claim his date of birth as 1971 as well as 1974 simultaneously. These entries cast heavy doubts as were not made properly and no benefit can be taken out by the defendant Muhammad Nawaz from these documents. Similarly 'Form Dakhla' Ex.DW.2/1 does not contain the name of Muhammad Afzal as father/guardian and only a thumb impression has been affixed without any detail as to who has thumb impressed this document So it cannot be safely held that Muhammad Nawaz was the son of Muhammad Afzal as evidence to this effect is deficient. So far as the claim of plaintiff is concerned, that is also not supported by confident inspiring evidence. The claim of other set of defendants (petitioner in connected C.R. No,894/2003) who claims to be the uterine brothers of Muhammad Afzal have also failed to produce cogent, confidence inspiring evidence and inheritance mutation attested in their favour, however the observations of the Courts below to the effect that mutation cancelled in favour of defendant No,6 Muhammad Nawaz were not in line with law as the evidence to this effect was deficient. None of the parties have proved their claim to the legacy of Muhammad Afzal deceased which is to be devolved upon the legal heirs in accordance with law. Except the defendants Nos.1 and 2 the widows of Muhammad Afzal, no one has proved their relation with the deceased Muhammad Afzal and as such are not entitled for any share out of the legacy of Muhammad Afzal.
5. For the aforesaid reasons, the instant petition along with connected C.R. No,894 of 2003 are partially allowed only to the extent that observations regarding title of Nawaz defendant No,6 are reversed however to the extent of claim of petitioners and other set of respondents (petitioners in connected Petition No,894 of 2003) stand dismissed. Disposed of accordingly.