AHMAD NADEEM ARSHAD, J. Through this Civil Revision filed u/s 115 of Code of Civil Procedure, 1908, the petitioners have called in question the validity and legality of judgments & decrees of learned Courts below whereby suit for declaration alongwith consequential relief filed by predecessor of the respondents namely Khushi Muhammad was decreed concurrently.
2. Facts in brevity are that the predecessor of the respondents namely Khushi Muhammad instituted a suit for declaration whereby he called into question the validity & legality of inheritance mutation No.1569 dated 29.05.2001 sanctioned in favour of the petitioners according to 'Fiqah Jafria' by maintaining that he being collateral of Ali Muhammad s/o Malu deceased is entitled to get the respective legal share out of the estate left by the said deceased and the inheritance mutation in favour of petitioners attested according to the `Fiqah Jafria' is against law and facts, in operative to the extent of his legal share and liable to be set aside as the deceased was follower of `Fiqah Hanfia Ahl-e-Sunnat Wal Jama'at'. Further maintained that order dated 30.11.2001 of DDOR Phalia and the order dated 01.07.2003 of EDOR, Sargodha are also against the facts and liable to be set aside. The petitioners being defendants resisted the suit through filing contested written statement by maintaining that their deceased father namely Ali Muhammad belonged to Shia sect. The learned Trial Court framed necessary issues out of divergent pleadings of the parties and invited them to adduce their respective evidence. After recording evidence of the parties, pro & contra, oral as well as documentary, the learned Trial Court decreed the suit vide impugned judgment & decree dated 17.02.2010. Feeling aggrieved, the petitioners preferred an appeal, which was dismissed by the learned Appellate Court vide impugned judgment & decree dated 07.05.2011.
Being dissatisfied, they approached this Court through the instant Civil Revision.
3. I have heard the learned counsel for the parties and perused the record with their able assistance.
4. After hearing learned counsel for the parties and going through the record, this Court has observed that sole point for determination in the instant matter is with regard to the Sect of deceased Ali Muhammad as to whether he was Shia by sect or Sunni-Hanfi.
5. The judicial determination of whether the said presumption of faith of a party, holds or positively stands rebutted, would be adjudged on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person, and thus, to pass any finding thereon, the Courts are to consider the surrounding circumstances; way of life, parental faith and faith of other close relatives.
6. In civil dispensation of justice, Courts are to adjudge the lis on the standard of preponderance of probability of evidence produced by the parties and the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.
7. In a case titled "Pathana V. Mst. Wasai and another." (PLD 1965 SC 134), a five-member Bench of the Hon'ble Supreme Court of Pakistan, held that every Muslim in the Sub-continent is presumed to belong to Sunni sect, unless "good evidence" to the contrary is produced by the party contesting the same. The Court ruled that: "In the Indo Pak Sub-continent there is the initial presumption that a Muslim is governed by Hanafi Law, unless the contrary is established by good evidence (vide Mulla's Muhammadan Law, section 28)"
8. In the case titled "Abdul Rehman and others V. Mst. Allah Wasai and others"(2022 SCMR 399), Hon'ble Supreme Court of Pakistan observed as under: "As per Article 117 of the Qanun-e-Shahadat 1984, the burden of proof lies on a person, who desires a Court to give judgment, as to a legal right or liability dependent on the existence of facts, which he asserts; while under Article 118 (supra), burden of proof in any suit or proceeding lies on a person, who would fail, if no evidence at all were given on either side. Hence, when a plaintiff comes to a Court, and seeks relief on the basis of certain facts, asserted by him in his plaint, the burden of proving those facts is on him; for the relief prayed for cannot be granted, unless the Court holds the existence of those facts proved. However, there is an exception to this general rule.
When the law allows for certain presumptions of facts, provided under Qanun-e-Shahadat 1984, then under clause 7 of Article 2 of the Qanun-e-Shahadat 1984, "the Court may presume such fact as proved, unless, and until it is disproved, or may call for proof of it". Thus, when a party on whom the burden lies under Articles 117 or 118 of the Qanun-e-Shahadat 1984, asserts such fact and the court presumes the same as proved, then it would be for the other party to disprove that fact.
Articles 117 and 118 of the Qanun-e -Shahadat, 1984 are, therefore, to be read subject to such presumptions. The presumptions of facts, which are rebuttable, are thus part of the rules of evidence regulating the burden of proof."
9. In the context of above referred dicta, I have carefully gone through the evidence produced by the parties in support of their contentions.
10. In order to prove their case, respondents produced Muhammad Talib Hussain as P.W.1 who is `Imam Masjid'. He appeared in the witness box and deposed that deceased Ali Muhammad was follower of `Fiqa Hanfi' whose funeral prayer was led him being Imaam. They produced Naazim of the village namely Hamid Ali s/o Muhammad Iqbal who deposed that he know the parties in person. Although, P.W.2 maintained that he is be Shia by sect but he deposed that deceased Ali Muhammad was Sunni Hanfi by sect and supported the claim of respondents. Respondents produced Saif Ullah son and attorney of Khushi Muhammad plaintiff as P.W.3 and Sher Muhammad (relative of the parties as he is Bhanjha of deceased) as P.W.4 who also supported their version.
They also produced certain documents as Exh.P.1 to Exh.P.13 and affidavits of the inhabitants of the locality as Mark-A to Mark-Q.
11. On the other hand, petitioner/defendant Sahib Bibi entered the witness box as D.W.1. In her examination-in-chief she deposed that his father was Shia by sect and died on the same sect. During cross-examination, she admitted that his father was owner of agricultural property and used to give 10th share of the crop to the poor. She was unable to distinguish between the 'Azaan' of Shia and Sunni. She was unable to tell about the Bagh-e-Fidak. She was further unable to give satisfactory answers of the different questions put to her with regard to Shia sect. With regard to the funeral prayer she deposed that funeral prayer of her father was offered by Naqvi sb from Phalia. She admitted that her Nikah as well as Nikah of her brother Muhammad Bakhsh and son Muhammad Ashraf were recited by the Molvi Manzoor Ahmad who was Sunni by sect.
12. With regard to the offering of funeral prayer of Ali Muhammad, D.W.2 Khushi Muhammad deposed that funeral prayer was offered by Molvi Manzoor Ahmad who was Sunni by sect, whereas, D.W.3 Syed Azhar Hussain Shah deposed that the funeral was offered by Syed Ejaz. These contradictions in the statements of DWs cannot be swallowed easily, especially in the circumstances when on the other hand plaintiffs claimed that the funeral of Ali Muhammad was offered by Muhammad Talib Hussain and they also produced him in the witness box as P.W.1.
13. Scanning of the evidence reflects that the respondents/plaintiffs successfully discharged the onus by producing oral as well as documentary evidence that deceased Ali Muhammad was Sunni by sect. Now the burden to prove shifted on the shoulders of defendants/petitioners. In this respect, evidence of defendant Sahib Bibi is of much importance. During cross-examination, she deposed that she turned Shia 30/32 years ago. She further claimed that she attends the Majaalis and also conduct Majlis at her residence. During cross-examination, she was asked as to whether she knows about Bagh-e-Fidak to which she responded that she does not know about Bagh-e-Fidak and can tell nothing about it. It would be unlikely for someone who has been attending Majaalis, particularly as a Shia Muslim, to be entirely unaware of Bagh-e-Fidak. The event of Bagh-e-Fidak, which pertains to the dispute over the garden of Fidak between Fatimah al-Zahra (the daughter of Holy Prophet Muhammad ) and the early Caliphate, is an important historical event in Shia Islam. It is often discussed in Shia lectures, religious gatherings, and texts as a key part of the narrative surrounding the rights of Fatimah and her family, especially in relation to the succession after the Prophet's death. While the depth of one's knowledge on the subject can vary depending on the specific teachings, scholars, or community they follow, it is reasonable to expect that someone who has participated in Majaalis over such a long period would have at least some awareness of Bagh- e-Fidak and its significance in Shia history. However, the extent of understanding can certainly vary depending on individual engagement with the material.
14. There is another important aspect. During cross-examination D.W.1 claimed that her father owned agricultural property and also used to give 10% of the share produce to the poor. Whereas, D.W.3 who is Shia by sect claimed that in their sect they do not pay Ushar rather they pay Khums on the annual savings to the Sadaat. In the Shia sect, the practice of paying Ushar (or Ushur) is not observed. Ushar refers to a tithe, typically a 10% tax on agricultural produce, which is more commonly associated with traditional Islamic practices and laws in some Sunni communities.
However, in the context of Shia Islam, the concept that closely resembles this kind of financial obligation is Khums. Khums is an important obligation for Shia Muslims and is a religious tax that is paid annually, amounting to 1/5 of one's surplus income, which is divided into two parts. 50% goes to the descendants of the Prophet Muhammad , particularly to those who are eligible for this portion. Remaining 50% is used for religious leaders/scholars and for the upkeep of religious institutions.
15. It is matter of record that earlier an inheritance mutation (No.1550 dated 30.01.2001/Exh.P.9) of Ali Muhammad was sanctioned in favour of the petitioners but the same was later on cancelled by the Revenue Officer on 06.02.2001 by observing that they failed to establish the pedigree table . It is also important to note that factum of death of deceased Ali Muhammad was got entered in the relevant register on 26.02.2001 (after cancellation of earlier mutation) and in the said death certificate (Exh.P.11) namely of the deceased is mentioned as under:
16. Mentioning of Fiqa Jafria in the Exh.P.11, especially after cancellation of earlier mutation, can be termed as a deliberate smart move on the part of the petitioners to show Ali Muhammad as Shia by sect which also create doubts.
17. It is also observed that at the time of sanctioning of impugned mutation No.1569 dated 29.05.2001. Three persons appeared before the Revenue Officer, from the petitioners side and contended that deceased Ali Muhammad was Shia by sect and follower of Fiqa Jafria, whereas, four persons negated the petitioners version by claiming that the deceased was follower of Fiqa Hanfi. For facility of reference, order passed by the Revenue Officer is reproduced hereunder:
18. Undoubtedly, the proceedings before the Revenue Officer are "summary" in nature, this does not absolve the officer from ensuring that the proper procedure is followed when faced with a legal dispute. Sanctioning an inheritance mutation based solely on oral testimonies, especially when there is a clear sectarian dispute, is problematic. The matter at hand requires a determination of fact that goes beyond simple administrative duties, as it involves significant implications for the rights of the heirs and the lawful distribution of the deceased's estate. In cases where the sect of the deceased is in dispute, the appropriate course of action would be for the Revenue Officer to refer the matter to a court of competent jurisdiction. This referral would ensure that the dispute is adjudicated by a judicial authority with the expertise and authority to examine the evidence, including testimonies, documents, and make a determination regarding the deceased's sect.
19. For the foregoing reasons, the petitioners/defendants failed to establish, through the presentation of reliable and convincing evidence, that their father Ali Muhammad adhered to the Shia sect. Moreover, during cross-examination, petitioner/defendant Sahib Bibi, was unable to provide satisfactory answers to the basic questions put to her qua Shia sect. In these circumstances, the courts below have justifiably ruled in favor of the respondent/plaintiff, as the lack of credible evidence on the petitioners' part does not support their claims.
20. Learned counsel for the petitioners has failed to satisfy this Court as to how the impugned judgments and decrees suffer from misreading and non-reading of evidence as well as material illegalities and irregularities have been committed by the learned Courts below, rather it has gleaned out that the oral as well as documentary evidence adduced on record by the parties have rightly been appreciated and adjudicated upon. Even otherwise, concurrent findings on facts cannot be disturbed when the same do not suffer from misreading and non-reading of evidence, howsoever erroneous in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908. The findings of the learned courts below on question of facts and law having based upon proper appreciation of oral as well as documentary evidence produced in the suit, are not liable to be reviewed or substituted by this Court while exercising jurisdiction under section 115 of the CPC. In this regard, reliance is placed upon "Syed HUSNAIN NAQVI and others versus Mst. BEGUM ZAKARA CHATHA through LRs and others" (2015 SCMR 1081),"NOOR MUHAMMAD and others versus Mst.
AZMAT-E-BIBI" (2012 SCMR 1373), "Muhammad Akhtar versus Mst. Manna & 3 others" (2001 SCMR 1700), "Ghulam Muhammad & 3 others versus Ghulam Ali" (2004 SCMR 1001), "Abdul Mateen and others versus Mustakhia" (2006 SCMR 50) and "Malik Muhammad Khaqan versus Trustees of the Port of Karachi (KPT) and another" (2008 SCMR 428), "Mst. Zaitoon Begum V.
Nazar Hussain and another" (2014 SCMR 1469), "Cantonment Board through Executive Officer, Cantt. Board Rawalpindi V. Ikhlaq Ahmed and others" (2014 SCMR 161), "Muhammad Farid Khan V. Muhammad Ibrahim, etc." (2017 SCMR 679),"Muhammad Sarwar and others V. Hashmal Khan and others" (PLD 2022 Supreme Court 13).
21. As a corollary of above discussion, instant Civil Revision is dismissed being devoid of any force/substance with no order as to costs.