CH. MUHAMMAD MASOOD JAHANGIR, J.--- By filing the instant writ petition, the petitioner has called in question the vires of the order dated 29.3.2013 passed by the learned trial court whereby application under Section 12(2) of the Civil Procedure Code, 1908 filed by respondents Nos,1 to 3 was allowed, the judgment dated 8.7.2013, whereby, revision petition filed by the petitioner was dismissed and order dated 30.9.2015 whereby review application filed by the petitioner was also dismissed.
2. It is admitted position that the subject matter of the instant file as well as the other property falling in districts Faisalabad and Chiniot was owned by one Mukhtar Ahmed, who died in the year, 1990 leaving behind six daughters and a son and then, the disputed property as well as other property was devolved upon the above mentioned legal heirs by attestation of inheritance mutations. After the death of Mukhtar Ahmed and attestation of inheritance mutations, his son namely Iftikhar Ahmed/respondent No,5 instituted a suit for declaration with the assertion that the land owned by the deceased falling in both the districts had orally been gifted out to him by his deceased father in his life time and inheritance mutations having been attested after his death, being iliegal were liable to be set aside. The said suit was contested by all the sisters except Sairah Bibi. During the proceedings of the said suit, Mst. Kausar Bibi, the present petitioner, who is wife of Iftikhar Ahmed, respondent No,5, instituted a petition under Sections 14/17 of the Arbitration Act, 1940 against her husband/respondent No,5 and Manzoor Ahmed, the alleged arbitrator, regarding the suit property asserting therein that about 18 years ago, the said property had been purchased by her against a consideration of Rs,21,00,000/- (twenty one lac) and since then, she was owner in possession of the same, but on refusal of her husband to transfer the title of the disputed property, they appointed Manzoor Ahmed, the sole arbitrator for amicable settlement of the dispute, who resolved the said dispute by announcing Award dated 22.11.2010 and the same was sought to be made rule of the court. After its institution, the earlier suit filed by respondent No,5/husband of the present petitioner was withdrawn by him.
3.The learned trial court on the basis of conceding statement of respondent No,5 and that of Manzoor Ahmed, the alleged arbitrator, made the Award dated 22.11.2010 rule of the Court vide judgment and decree dated 6.12.2010 while declaring the petitioner owner of the suit property. On becoming aware of the judgment and decree dated 6.12.2010, respondents Nos,1 to 3 (three daughters of Mukhtar Ahmed deceased/sisters of Iftikhar Ahmed, respondent No,5) preferred an application under Section 12(2) of the Civil Procedure Code, 1908 for setting aside of the said judgment and decree. The learned trial court vide order dated 29.3.2013 accepted the same and annulled the judgment and decree dated 6.12.2010 by virtue of which arbitration Award dated 22.11.2010 was made rule of the court. Being aggrieved, the present petitioner filed a revision petition before the learned lower revisional Court, which was dismissed vide impugned judgment dated 08.7.2013. Thereafter, the petitioner filed review application, which was also dismissed by the learned Additional District Judge vide order dated 30.9.2015. Hence the instant writ petition.
4.Arguments heard, record scanned.
5.During the course of arguments, in response to a query put forward by this Court that admittedly the property was owned by six daughters and one son of Mukhtar Ahmad, then how an Award could be passed by the alleged arbitrator regarding the property owned by the said ladies when they had not made any reference to the arbitrator for resolution of dispute or pronouncement of Award and further how a decree could be passed by the learned Civil Court without impleading the said ladies, Mr. Mehdi Khan Chauhan, learned counsel for the petitioner has stated that they were minors and their brother Iftikhar Ahmed respondent No,5 being guardian, referred the matter through arbitration agreement to the arbitrator and on his conceding statement the decree under dispute was passed by the competent court of law. The said contention is not well founded on the ground, firstly, the said ladies were not minors in the year 2010 when the disputed Award was announced and the petition under Sections 14/17 of the Arbitration Act, 1940 was filed by the petitioner, because the alleged guardian (respondent No,5), who happens to be husband of the petitioner had earlier filed a declaratory suit as observed supra against his sisters prior to the pronouncement of said Award as well as institution of the above referred petition. Secondly, for the sake of arguments, if it is assumed that the ladies were minors at that relevant time, even then they were necessary party to be impleaded through their guardian and without impleading them in the reference of the arbitration and proceedings before the Civil Court, a decree regarding the property owned by them could not be passed.
6.The other argument of learned counsel for the petitioner that during the course of proceedings of application under Section 12(2) of the Civil Procedure Code, 1908 before the learned trial court, some of the ladies submitted their affidavits and made statements regarding the withdrawal of their petition under. Section 12(2) of the Civil Procedure Code, 1908, hence to their extent, the decree cannot be set aside, is misconceived because when it was established on record that the impugned decree was product of fraud and misrepresentation, then how it could be justified by procuring conceding statement from some of the affectees as it is being regularly noted by this Court that the male heirs in order to deprive the females of their due share in the legacy of their predecessor often used different tactics, which practice cannot be appreciated. When the disputed decree was obtained from the court by practicing fraud and misrepresentation, then any part thereof cannot be allowed to remain intact.
7.The voracity of respondent No,5 and his wife (present petitioner) is floating on the surface of the record. It is extremely regrettable that our society is commanded by its male members and the female members are treated like sheep and goats. Unfortunately, no male is willing to give the Shari and legal share to his mother, daughter or even his sister notwithstanding the fact that the law of inheritance has been promulgated by our Creature given in the Qur'an in Surah Al-Nisaa (the fourth chapter) verses 11 and 12 and then in verse 176. The translation of the related portions of these verses (as I understand them) is given below: <i>4:11: "Allah enjoins you about [the share of inheritance of] your children: A male's share shall equal that of two females .... in case there are only daughters, more than two shall have two-thirds of what has been left behind. And if there be only one daughter, her share shall be half --and if the deceased has children, the parents shall inherit a sixth each, and if he has no children and the parents are his heirs then his mother shall receive a third, and if he has brothers and sisters then the mother's share is the same one-sixth. [These shares shall be distributed] after carrying out any will made by the deceased or payment of any debt owed by him (the deceased). You know not who among your children and your parents are nearest to you in benefit. This is the law of Allah.
Indeed Allah is wise, all knowing." </i> The Glorious Qur'an contains specific and detailed guidance regarding the division of the inherited wealth, among the rightful beneficiaries. The Qur'anic verses that contain guidance regarding inheritance are: <i>Surah Baqarah, chapter 2 verse 180 Surah Baqarah, chapter 2 verse 240 Surah Nisa, chapter 4 verse 7-9 Surah Nisa, chapter 4 verse 19 Surah Nisa, chapter 4 verse 33 and Surah Maidah, chapter 5 verse 106-108. </i> The mentality of Jahiliyyah that is still continuing in the minds of some people living in the advance era, which was prevailing prior to Islam.
8. In our religion that was propounded by Prophet Muhammad (peace be upon him), women gained dignity, honour and social status. Islam guarantees civil, social, economic and legal rights for women and by raising the status of women as daughters, wives and mothers, gives them rights and privileges equivalent to that of men. Islam has determined the share of women and children in the inheritance. It does not only give them a social and legal personality together with men, but also gives the rights of inheritance to the mother, daughter, sister, grandmother and granddaughter, etc by mentioning their relations/shares separately and such rights cannot be taken away from them through the deceitful and fraudulent act although the same bore a seal of the court. It is well settled by now that fraud vitiates all proceedings and in arriving at this view. I am fortified by the dicta laid down by the apex Court in the judgment reported as Muhammad Younas Khan and 12 others v. Government of N. W.F.P. through Secretary Forest and Agriculture, Peshawar and others (1993 SCM R 618). For ready reference relevant portion of paragraph No,15 of the said judgment is as under:- "15. <i>There is no cavil with the proposition that fraud vitiates all solemn act and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings. Fraud is defined in section 17 of the Contract Act as the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge of belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; and any such act or omission as the law specially declares to be fraudulent...." </i> 9.It is borne out from the record that earlier dispute arose between the brother and sisters and during the pendency of said litigation, the brother used his wife/petitioner as well as the alleged arbitrator as a tool by preparing fraudulent award and procured the disputed decree. The instrument, deed, judgment or decree based on fraud being nullity in the eyes of law has to collapse.
10.Mr. Mehdi Khan Chauhan, learned counsel for the petitioners has finally emphasized with great vehemence that the controversy had arisen in relation to the factual aspect of the case, which could only be decided by the learned trial court after framing of issues and grant of opportunity to produce the evidence. The said contention is also not tenable. The petitioner or her husband had neither placed on record any document through which it could be determined that at the time of referring the alleged dispute to the arbitrator, the brother/respondent No,5 was duly appointed guardian of his sisters or possessing any authority on their behalf regarding the suit property to refer any dispute to the arbitrator nor learned counsel for the petitioner could satisfy that how the arbitrator was within his jurisdiction to announce the award regarding the property of the females.
It is also admitted fact that neither any dispute was referred by the females to the arbitrator nor the learned trial court could make the said award rule of the court in absentia of the said ladies. It is not necessary that all the applications filed under section 12(2) of the Code of Civil Procedure, 1908 be decided after recording of evidence, especially when fraud is apparent and visible from the surface of the record.
11. For what has been discussed above, it is held that substantial justice has been done between the parties by the courts below, therefore, this Constitutional Petition has no force and the same is hereby dismissed in limine.
12.Before parting with this order the agony and pain, I personally feel that the Judicial Officer whoever he may be passed the said judgment and decree involved himself in the sin committed by one brother through his wife along with his real daughters. Such Judicial Officers should not be tolerated any more in our judicial system. The judicature of the State is the custodian of the rights attached with the properties and the person of the public. A Judicial Officer is answerable to his conscious, his appellate/superior court and above all to the Almighty Allah who by his grace has given/delegated some of his powers to an Aadil/Qazi/Judicial Officer to promote and dispense with justice among the litigants. It is my strong belief that the Almighty Allah has provided a third eye with full of light to every Aadil through which he can see and adjudge the merits of the case and the said eye and light prevails till the Aadil/Qazi/Judicial Officer performs his duties diligently and honestly. The moment he becomes dishonest, the said third eye along with light is disappeared although he might have possessed the said post. In the instant case, the Judicial Officer must had lost his third, eye and he passed the impugned decree in hurry while depriving the females from their valuable inherited property. I believe that not only the beneficiaries rather the said Judicial Officer should be made answerable for his acts which are floating on the surface of the record. The District Judiciary is the basic foundation of our judicial system and it is our belief that by leaving some of the members of District Judiciary all of them are performing hard and honestly and their superior court recognizes it at every level but the exception to this have no room in this judicial system which is one of the last hope for the survival of this State.
13. The Registrar of this Court is directed to trace the Judicial Officer, who passed the judgment and decree dated 06.12.2010 and if he is still in service then the matter must be reported to the honourable Administrative Judge concerned for further proceedings and copy of this judgment should also be circulated among every member of the District Judiciary working under the jurisdiction of this Court for care and guidance.