1. ' ABDUL HAYER KURESHI, C. J.-This is an appeal tinder section 3 of the Law Reforms Ordinance of 1972, whereby the judgment of the learned Single Judge in Suit No, 240/1971, decided on 23-12-1976, on the original side of this Court, is being challenged. The suit was filed by Hussain for administration of the properties belonging to late Mohtarma Fatima Jinnah, the sister of Quaid-e-Azam Muhammad Ali Jinnah. The case of the plaintiff is that he is the son of one Gangjee Walji, who again was the son of Walji Poonja, the paternal uncle of Mohtarma Fatima Jinnah. Defendant Jafferali (defendant No, 2) is stated to be the real brother of the plaintiff, whereas defendants Amirali and Wazirali (defendants 3 and 4) are stated to be the sons of Ghulamali Gangjee, who was again the son of Walji Poonja. One son and two daughters of Muhammadali Gangjee Walji were also arrayed as defendants 1 (a), 1 (b) and 1 (c). Mohtarma Shairinbai Jinnah, the sister of Mohtarma Fatima Jinnah, was arrayed as defendant No,
5. One Mst. Jenabai, widow of Jan Muhammad, had also claimed the share in the estate of Mohtarma Fatima Jinnah, and she had been permitted to be joined as one of the defendants under Order I, rule 10, C. P. C.
2. ' Mohtarma Fatima Jinnah died on 10-7-1967, leaving considerable properties, which were disclosed in Annexure 'A' to the plaint. On 6-2-1968, Mohtarma Shirinbai filed an application under section 370 of the Succession Act on the original side of this Court to obtain a Succession Certificate in respect of the assets of Mohtarma Fatima Jinnah. This application was registered as Miscellaneous Application No, 11/1968. The plaintiff in the suit, as also defendant 1 (a) objected to the grant of Succession Certificate in favour of Mohtarina Shirinbai Jinnah. This application was dealt with by Mr. Justice Abdul Kadir Shaikh, and a detailed reference will be made to the order that was passed in a latter part of this judgment.
3. ' According to the plaintiff, a necessity had arisen for the filing of the suit, because Shirinbai Jinnah, the defendant No, 5, had been allowed the use of some of the properties belonging to Mohtarma Fatima Jinnah.
4. ' In the plaint, the sectarian faith of Mohtarma Fatima Jinnah was adverted to in paragraphs 7, 8 and 9 of the same. It was stated that Mohtarma Fatima Jinnah was following and practised Sunni/Hanafi faith. It will be profitable to reproduce the said three paragraphs :-- "7. The plaintiff states that the deceased Mohtarama Fatima Jinnah, during her lifetime practised the Sunni/Hanafi faith and continued to practice and observe the said Sunni/Hanafi faith uptil the time of her death and as such the deceased was governed by the Sunni/ Hanafi law of inheritance.
8. The plaintiff and defendants Nos. 1 and 2 being Mohatrama Fatima Jinnah's paternal uncle's sons' sons and defendants Nos. 3 and 4 being the paternal uncle's sons' sons are residuaries under the Sunni Law of Inheritance by which the deceased was governed during her lifetime and at the time of her death.
9. The plaintiff and defendants Nos. 1 to 4 being residuaries are entitled to half of the estate of deceased Mohtarams Fatima Jinnah. The applicant states that their shares in the said properties, movable and immovable are being used, and enjoyed, by the defendant and her son and are consequently being wasted and are deteriorating."
5. ' In paragraph 11 of the plaint, shares which each one of the heirs were to inherit have been stated, and for conveying a clearer picture of the claim, the said paragraph 11 is also reproduced. It reads as follows :- "11. The plaintiff submits that by reason of the premises the plaintiff as a residuary is entitled to 1/8th share in the estate left by the deceased and that the plaintiff is entitled to the administration of the estate of the deceased by and under the direction of this Hon'ble Court. Defendants Nos. 1 and 2 are also entitled to 1/8th share each on the estate and defendants Nos. 3 and 4 are jointly entitled to 1/8th share in the estate and defendants Nos. 3 and 4 are jointly entitled to 1/8th share in the estate. Defendant No, 5 is entitled to the other half of the estate left by the deceased."
6. ' Separate written statements were filed by Mst. Shirinbai, defendant No, 5, and by defendants 1 to 4.
7. Mst. Shirinbai (defendant No, 5), and the plaintiff admitted the parentage and proximity of the defendants with deceased Mohtarma Fatima Jinnah. She also admitted that she was in possession of some of the property belonging to deceased Mohtarma Fatima Jinnah, who claimed that she was the original heir. In regard to the religious beliefs of Mohtarma Fatima Jinnah, which were stated in paragraphs 7, 8 and 9 of the plaint, Mst. Shirinbai (defendant No, 5) had submitted a reply in paragraphs 7, 8 and 9 of the written statement. These read as follows : "7. Contents of paragraph 7 of the plaint are mere fiction and imagination. The late Mohtrama Fatima Jinnah was and remained an Asna Ashri Shia Muslim. She lived and died as an Asna Ashri, as such she was subjected to the doctrines of Asna Ashri School and her succession would be governed strictly according to the special laws of the Asna Ashri School.
8. In paragraph 8, the relationship claimed is totally irrelevant for purposes of this suit. The class of relations to which the plaintiff and defendants 1, 2, 3, 4 belong may have a claim under the Sunni Law. They have no right or interest in the assets and properties of the deceased who, not being a Sunni Muslim was not governed by the Sunni Law of Inheritance relied upon by the plaintiff in this paragraph of the plaint.
9. In reply to paragraph 9 it is submitted that no residuaries can claim any right or interest in the estate of Mohtrama Fatima Jinnah. The claim set up by the plaintiff for self and defendants 1, 2, 3, 4 is misconceived and untenable. This defendant being the only surviving real sister of the late Mohtrama Fatima Jinnah is her sole heir. This defendant, to the exclusion of all other remote relations, whether residuaries or otherwise is the only legitimate claimant of all the estate left by the deceased."
8. ' It may be stated that, in the written statement of defendants 1 to 4, paragraph 3 states that Mohtarma Fatima Jinnah practised the Sunni/ Hanafi faith.
9. ' In the nature of pleadings, the main dispute centered around the sectarian belief of Mohtarma Fatima Jinnah, and by consent of all parties, the following four issues were framed :- "(1) Whether the late Mohtarma Fatima Jinnah practised Sunni/ Hanafi faith during her lifetime and remained a Sunni until the time of her death as claimed by the plaintiff in paragraph 8 of the plaint.
(2) Whether the plaintiff and defendants 1 (a) to 1 (c) and 2 to 5 have any interest or share in the property left by the deceased, if so, to what extent and in what proportions.
(3) Whether the suit as framed is misconceived and merits dismissal.
(4) What should be the decree."
10. ' In 1968, ,tist. Shirinbai (defendant No, 5) had made an application on the original side of this Court for grant of a Succession Certificate in respect of the debts and securities belonging to her deceased sister, Mohtarma Fatima Jinnah, who had died in July, 1967. It seems Mst. Shirinbai had made averments in those proceedings that Mohtarma Fatima Jinnah, who was her full sister, was a Shia, and she had made no will. It appears that there was contest in this case. This contest was also related to the sectarian belief of Mohtarma Fatima Jinnah. Evidence had also been recorded in those proceedings, so that, since the issues in the suit related to the sectarian beliefs of Mohtarma Fatima Jinnah, an application was made under section 151, C. P. C. By the Advocate for the plaintiff in the suit that the depositions of ten witnesses recorded in the proceedings under the Succession Act may be taken on record. Such application was granted, by consent. The ten witnesses are "(1) Mr. M. A. H. Ispahani.
(2) Syed Anis-ul-Hassan.
(3) Maulana Muhammad Hussain Baray.
(4) Mr. M. N. Kotwal.
(5) Mr. G. A. Khan.
(6) Mr. Muhammad Hanif Maniar.
(7) Mr. Mirza Akhtar Hussain.
(8) Maulana Ehtishamul Hag Thanvi.
(9) Mr. Syed Sharifuddin Pirzada, and
(10) Mr. Syed Inayat Ali."
11. ' The evidence of these ten persons recorded in S. M. A. No, 11/1968 was, therefore, treated as evidence in the suit. In addition, some more witnesses were also examined during the suit, who are :- "(1) Mr. Muhammad Jafar. (2) Mr. Hussain.
(3) MuftiSuhammad Shafi.
(4) Haji Kaloo.
(5) Fatima Bai.
(6) Raja Maqbool Hussain.
(7) Mr. Mirza Mahmood Beg.
(8) Mr. M. N. Kotwal, and
(9) Mr. Matloob-ul-Hassan Sayed."
12. ' By a judgment, dated 23-12-1976, the suit filed by plaintiff Hussain was dismissed. This judgment has been recorded in PLD 1977 Kar.
13. 320.
14. ' In paragraphs 25 to 51 of the judgment of the learned Single Judge, the evidence of the witnesses has been summarised, and, in paragraph 52 of the same, the learned Single Judge, on the state of evidence, came to hold that the following facts had been established : "(1) That the deceased was born in Ismaili Khoja family ;
(2) that she renounced Ismail faith ;
(3) that she was never seen saying her prayers ;
(4) that she never generally wore mourning clothes during Moharram ;
(5) that she attended Shia Majlises whenever she was invited by friends;
(6) that she did not observe usual Moharram ceremonies like visiting Alam or Imam Baca ;
(7) that she never held Moharram Majlis herself ;
(8) that on the death anniversary of Quaid-e-Azam she always called a Sunni Moulvi ;
(9) that her funeral rites were performed according to Shia faith ;
(10) that her renal prayers were held both according to the Shia as well as the Sunni manner ;
(11) that she declared that she was neither a Shia nor a Sunni but only a Muslim."
15. ' In the rest of the judgment, the learned Single Judge has discussed the evidence, and arrived at the conclusion that Mohtarma Fatima Jinnah was a Shia, so that the plaintiff could not inherit her property. Some reference was also made to the sectarian beliefs of the Quaid-e-Azam himself, and in paragraph 70 of the judgment, the learned Single Judge adverted to some statements made by Mohtarma Fatima Jinnah in relation to Succession Certificate pertaining to the debts and securities of Quaid-e-Azam, and stated as follows :- "70. In view of the above I have no doubt that the statements made by the deceased in the said petition made by her in regard to Succession Certificate relating to Quaid-e-Azam's securities, are admissible pieces of evidence. I have also no doubt that these statements have been legally proved. The fact that in spite of the categorical assertions made by the Quaid-e-Azam on various occasions in his lifetime, that he was a Muslim above sectarianism, the deceased chose to assert in her petition to this Court that he was governed by Shia law, irrespective of the validity of the assertion so far as the religious faith of the Quaid-e-Azam, has, in my reckoning, great probative force that on the same analogy, her own assertions of similar nature were not intended to displace the application of personal law of the sect in the matters governed by personal law. Her declaration therefore, that she was neither a Sunni nor a Shia but a pure Mussalman cannot be construed to mean that she intended to disown the application of the personal law of both schools of law. In this way, to my mind, this circumstance tends to neutralize the effect of the assertion of the deceased under consideration and leaves the matter to be considered on the basis of other circumstances. In some degree this circumstance tends to support the plea that the deceased regarded herself also to be governed by the Shia Law on a parity of reasoning vis-a-vis her assertions about the application of Shia Law to the succession of Quaid-e-Azam."
16. ' On a consideration of the "cumulative effect of all the circumstances", the learned Single Judge held that the preponderance of evidence adduced at the trial leaned in favour of the conclusion that the deceased chose to be governed by the Shia Law, and not by the Sunni Law. It was in these circumstances that the suit had been dismissed.
17. ' Having stated the points of controversy, it would be profitable to appraise the evidence that, was led by the parties during the trial.
18. ' Mr. M. A. H. Ispahani was witness No, I for the plaintiff. He was in the diplomatic service of Pakistan, but he stated that, when he was aged seventeen, or, eighteen years, he came in contact with the Quaid-e-Azam. He stated that, one evening, he had conversation with respect to the sect to which Quaid-e-Azam belonged, and he was told that he had all along been Agha Khani Khoja. This, according to the witness, was a voluntary statement of Quaid-e-Azam. However, in the very next sentence, the witness stated that Quaid-e-Azam told him that he had decided to leave that sect for adoption of Asna Ashari faith. The witness went on to state that he attended the ceremonies on the death of Mohtarma Fatima Jinnah, who, according to the witness, was given her last bath according to the Shia rites, and the Nimaz-e-Jenaza was led by Maulana Ibne Hassan Jarchavi. He went on to state that she was buried after following the Shia rites. To a Court question, he replied that the Quaide-Azam, in his public speeches, always discouraged sectarian distinction, and, on all public occasions, avoided making reference to himself as belonging to one sect, or, another. He, however, stated, in the very next sentence, that it was correct that he called himself a Muslim, pure and simple, and as a result of that policy, he discouraged situations, which could be termed as Tabarrah, or, Madhe Sahaba. This witness, to another Court question, answered as follows :- "It is also correct that he offered his prayers in congregation of Muslims, irrespective of the sects of those congregations. He did this wherever he was, whether, in England or in India, or any other country."
19. ' The witness went on to state that, whenever he met Quaid-e-Azam on occasions of political importance and urgency, he was not in a position to state that he ever manifested, either privately or in public, any indications, which could be ascribed to his sectarian faith. The next fact, which this witness stated, was that, on the death of Quaid-e-Azam, Mohtarma Fatima Jinnah had invited Syed Anis-ul-Hasnain Rizvi for giving the last bath, but, to that extent, he went on to state that he did not see it himself and was told so by many people. Such people have not been named.
20. Curiously, thereafter, the same witness went on to state as follows : - "Miss Fatima Jinnah told me that the Quaid was buried according to the Shia rites. Miss Fatima Jinnah did not tell me all this, but I came to know this additional fact from many others that his Nimaz-e-Jenaza was read according to the Shia rites, and thereafter by the general congregation consisting of all sects of Muslims."
21. ' This witness was cross-examined at some length, and he stated that he was a Shia by birth, although he never attended Majlis, because he thought that it was equally pious to stay at home and offer prayers. He also stated that he had never attended any congregation in a Shia mosque, or in an Imambara, either before partition or after partition, with Quaid-e-Azam. When he was asked, if the Quaid-e-Azam had ever become a Member, or, dorm:, or, advisor of a Shia institution, he replied in the negative. He admitted that two of the sisters of Quaid-e-Azam were married to Sunnis, and, in regard to Mohtarma Shirinbai Jinnah, he stated that she belonged to Asna Ashari sect. Since this witness had stated that Mohtarma Fatima Jinnah was buried in accordance with the Shia rites, he was asked if any relative of hers had objected, and he stated that no relative was present, and therefore there was no objection, so that he was free to do what he liked with the dead body. This witness went on to state that Matam was compulsory on Shias, but, in that context, he stated that Mohtarma Fatima Jinnah did not observe Muharram ; nor did she make any arrangement in her house during Muharram. He want on to state that the Quaid-e-Azam had always aimed at achieving unity of all the Muslims, and he could not have agreed to lend support to any particular sect. Almost at the close of his evidence, Mr. M. A. H. Ispahani accepted the suggestion that the Shia Political Conference in India had put up a candidate to oppose the Quaid- e-Azam, because the latter had declined to give any assurance to Shia community to safeguard and protect its separate rights.
22. ' The next witness was Syed Anis-ul-Hasnain, a Shia Moulvi, who deposed in regard to the last Ghussal to the Quaid-e-Azam in accordance with Shia rites. He stated that he came and gave the last Ghussal to Quaid-e-Azam, and thereafter a Nimaz-e-Jenaza was held in the house, where there were only nine, or, ten persons, and thereafter, as is known to everyone, the Quaid-e-Azam was taken on a State carriage for burial, where lakhs of people had congregated.
23. ' The next witness was Moulana Muhammad Hussain Baray. He stated that, in 1943 or 1945, he had seen Quaid-e-Azam attend the Jenaza prayer of a person in the Jamia Mosque of Bombay. This mosque, according to the witness, was a Sunni mosque, and prayer was led in a Sunni manner. He stated that he attended the residence of Mohtarma Fatima Jinnah for Fateha of Quaid-e-Azam every year, and Fateha used to be led by Moulana Ehtishamul Haq Thanvi in the Sunni form.
24. ' The next witness was Mr. N. M. Kotwal, an Advocate of this Court. He deposed that Mohtarma Fatima Jinnah had asked him to draft a will, and, for the purpose, some sketchy instructions were handed over to him, which he was unable to say were in the handwriting of Mohtarma Fatima Jinnah. To a question, he replied as follows :- "Question.-I assume that she told you that she was a Khoja, and she did not say whether she was a Shia or a Sunni ?
25. Answer.-Yes, Sir. She never gave out that she was either a Shia or a Sunni Muslim."
26. ' The other witness was Mr. G. A. Khan, who stated that he was the Private Secretary of Mohtarma Fatima Jinnah for about ten years. He went on to state that Mohtarma Fatima Jinnah was not associated, or connected with any religious, or, social organisation of Shia exclusively ; nor had she ever told him that she belonged to any sect of Islam, Shia or Sunni. He went on to state that often times some Shia organisacions used to address letters to Mohtarma Fatima Jinnah in connection with invitations by Shia organisations, and, whenever such letter was received, the Mohtarma would be annoyed and would say "what do these people think I am", and would direct the witness to put the letter away. The witness stated that Mohtarma Fatima Jinnah never observed Muharram as Shias do ; nor she ever wore black clothes, although on the first death anniversary of Quaid-e- Azam, and for a full year after the death of Quaid-e-Azam, she regularly wore black clothes. The witness stated that, thereafter, he had seen Mohtarma Fatima Jinnah wearing black clothes only once, or, twice on the death anniversary of Quaid-e-Azam. It was stated by the witness that, for Quaid-e-Azam's death anniversary, Sunni Moulvis used to be called by Mohtarma Fatima Jinnah, and she used to state so specifically, and used to give specific directions that Shia Moulvis should not be sent for. At the end of his evidence, he, stated that more persons of Sunni faith used to attend the death anniversary of Quaid-e-Azam, as compared to persons from Shia faith.
27. ' The next witness was Muhammad Hanif Maniar, who stated that he and his father were the personal friends of Quaid-e-Azam in Bombay. This witness stated that the Quaid-e-Azam used to offer Eid prayers in Azad Maidan, and the prayers were in Sunni mode, viz. By folding hands. He deposed that he had never seen the Quaid-e-Azam, or, Mohtarma Fatima Jinnah wearing black clothes during Muharram days. He added that, when Quaid-e-Azam contested for Central Assembly seat in 1945, he was opposed by Mr. Lalji, who was a Shia, and was supported by Shia Political Conference. In that context, he stated that he had asked the. Quaid-e-Azam as to why were the Shias opposing him in the election, posing a question, whether Quaid-e-Azam himself was not a Shia, whereupon he replied, "I am not a Shia". The witness stated that, immediately after partition in 1947, he met Quaid-e-Azam at the Eid congregation held in Eidgah Maidan, and he saw Quaid-e-Azam offering prayers there. Such prayers were led by Moulana Shabbir Ahmad Usmani, who was a Sunni. In regard to Mohtarma Fatima Jinnah, he stated that he had never seen her wearing black clothes during Muharram, and attending any Shia ceremonies, or, Majlis, so that his impression was that she was a Sunni. In regard to Mohrarma Fatima Jinnah, the witness stated that, when Quaid-elAzam had said that he was not a Shia, Mohtarma Fatima Jinnah was also present. To a question in cross-examination, the witness did state that the Quaid-e-Azam, or, Mohtarma Fatima Jinnah never stated in public that they belonged to Sunni sect. The witness also went on to state that, on an occasion when Mohtarma Fatima Jinnah had been asked to call Moulana Ibne Hassan Jarchavi, a Shia Moulvi, she clearly stated, "I do not want a Shia Alim."
28. ' The next witness was Mr. Mirza Akhtar Hussain an Advocate from Bombay, who practised ultimately in Karachi. This witness claimed to be a close associate of Quaid-e-Azam, and he states that he had worked under him in the political field, because he was also the Joint Secretary in the Provincial Muslim League and provincial parliamentary Board at Bombay. He stated tnat the Quaid-e-Azam always offered his Eid prayers in Azad Maidan, and that was of Sunni Muslims, apart from Imam being a Sunni. He stated that he saw him offering his prayers as the Sunnis do, and never saw Quaid-e-Azam offering prayers in the mode of Shias, and, in fact, he never saw Quaid- e-Azam going to a Shia mosque. The witness stated that Quaid-e-Azam used to discourage as being identified, or, classified as a Shia. The witness recounted that, in 1942, or 1943, a Vaiz meeting was arranged on the 10th of Muharram, and Quaid-e-Azam had declined to attend that meeting, in spite of being told that quite a few lakhs of Muslims would be attending. The witness stated that he had attended the Nimaz-e-Jenaza of Mohtarma Fatima Jinnah, and such Nimaz was in accordance with Sunni rites. He deposed that, in the 1945 elections to the Central Assembly. Mr. Lalji had opposed the Quaid-eAzam, and he had the support of all the Shia leaders from all over India.
29. He repelled the suggestion that any Majlis was ever held by the Quaide-Azam, or, Mohtarma Fatima Jinnah during Muharram ; nor did they ever attend any Majlis. In regard to Mohtarma Fatima Jinnah, he went on to state that her conduct about ten years before her death had convinced the witness that she was following Sunni faith. He explained that Quraan Khawani used to be held and Moulana Muhammad Hussain Baray, who was a Sunni used to conduct the prayers according to Sunni rituals.
30. ' The next witness was Maulana Ehtishamul Haq Thanvi, who stated that he was a Sunni Alim. He deposed that Quaid-e-Azam had joined the Eid prayers at the Eidgah Maidan in 1947, and such prayers were according to Sunni faith. This witness volunteered to make a statement that the Quaid-e-Azam had not associated himself with any particular sect, Shia or Sunni. He stated that Moulana Shabbir Ahmad Usmani had led the Jenaza prayers of Quaid-e-Azam. He went on to state that, on the death anniversary occasion of Quaid-e-Azarn; he never saw any ceremony of the Shia sect. ' The next witness was Syed Sharifuddin Pirzada, the present Attorney-General of Pakistan. He had been summoned as a witness by a party, but he stated that he would like to depose as an independent witness. He stated that he had worked as Honorary Secretary with the Quaid-e-Azam.
31. This witness produced several documents to prove his association with the Quaid-e-Azam. The witness also stated that he had close and cordial connections with Mohtarma Fatima Jinnah, who used to consult him in her private legal affairs, and he had represented her as a lawyer in two suits.
32. He went on to state as follows :- "On the basis of my association with the Quaid-e-Azam, and having gone through his public statements which I had collected from 1906 to 1948 and having perused most of his correspondence, including the sixty voluminous files which he had entrusted to Mr. Shamshul Hassan, the Assistant Secretary of the Muslim League, I say that the Quaid-e-Azam was a true Mussalman, free from any sectarian feelings, sentiment and faith. His ideal was the Holy Prophet (p. b. u. h.). He used to say that the Quraan is a complete Code for every aspect of life of a Mussalman."
33. ' He produced a letter of the Quaid-e-Azam to Mr. Zafar-ul-Mulk of Lucknow, wherein it was stated as follows :- "I did not know that there were still left such narrow-minded Mus salmans as you have displayed yourself to be in your letter. It is not a question at all of Shia belief. Hazrat Ali was the 4th Caliph, and I know, as a matter of fact that the 21st day of Ramazan is observed by a large body of Mussalmans irrespective of the question of Shia or Sunni belief, and I am really surprised that you have taken up the attitude you have shown in your letter."
34. ' The witness stated that he knew that Quaid-e-Azam was an Ismaili Khoja by birth, but he had fallen out with the Ismailis in 1901, when two of his sisters married Sunni Muslims. He quoted a statement by Quaid-e-Azam, which reads as follows :- "I wish to emphasise particularly the following questions :Q.
3. Race, tribe or caste ?
35. ' The answer of every Mussalman should be that he is a Muslim."
36. ' He recalled that the Quaid-e-Azam was, at a meeting of the workers of Muslim League in Meerut, asked a question, whether he was a Shia, or a Sunni, and he answered the question by a counter- question, "What was the Prophet ? He stated that the Quaid-e-Azam had once told him that he followed the Prophet, and that he was a Mussalman. He also stated that Quaid-e-Azam never offered prayers in any Shia mosque.
37. ' The next witness was Syed Inayat Ali, an Advocate from Bombay, who ultimately settled in Karachi, and he stated that he had seen the Quaid-eAzam in 1939 at Azad Maidan, Bombay, and the prayers were held by a Sunni Imam.
38. ' The evidence, which has been referred to in the foregoing paragraphs, was such evidence as had been recorded in Miscellaneous Application No, 11/1968, but even before the learned Single Judge, trying the suit, some witnesses were called. On behalf of the plaintiff, the witnesses were Mr. Muhammad Jafar, Mr. Hussain, Mufti Muhammad Shafi, Haji Kaloo, Fatima Bai, Raja Maqbool Hussain, Mr. Mirza Mahmood Beg, Mr. M. N. Kowa!, and Mr. Matloob-ul-Hasan Syed. Witness Muhammad Jafar, who was the Chairman of the Pakistan Banking Council, stated that he was himself a Shia Asna Ashari, and he had known Mohtarma Fatima Jinnah since the time she lived in Bombay. He states that, in 1964, he had gone to see her at Flag Staff House, and the following talk took place:- "While talking to me she expressed, "You Shias start mourning during Moharram". I said, "Miss Jinnah even you are born a Shia". To this she remarked, "I am not a Shia, I am not a Sunni, I am a Mussalman." She also added that the Prophet of Islam has given us Muslim Religion and not Sectarian Religion. When she referred to the practice of mourning by Shias she always disapproved it. When she referred to me as "you Shias" perhaps she meant Asna Ashri as Ismaili Shias do not mourn during Moharram."
39. ' He went on to state that she used to attend Majlis of Shias in private houses, if invited by her friends, but she never visited Khoja Jamatkhana, and she called herself a Muslim, and not a Shia, or, Sunni. He stated that once His Highness Agha Khan had invited the Quaid-e-Azam and Mohtarma Fatima Jinnah at Poona, and both of them sat with His Highness Agha Khan as equals, unlike Ismailis, who used to sit at a respectable distance. In cross-examination, he had stated that Quaid- eAzam had renounced his Ismaili sect. ' The next witness was Hussain, who claimed to be a distant nephew of Mohtarma Fatima Jinnah.
40. He stated that he used to attend Quraan Khawani on the death anniversary of Quaid-e-Azam, and always either Maulana Muhammad Hussain Baray, or, Maulana Ehtisham-ul-Haq Thanvi used to lead the prayers. He went on to state that Mohtarma Fatima Jinnah-never attended Jamatkhana.
41. He also went on to state that Mufti Muhammad Shafi had led the funeral prayers of Mohtarma Fatima Jinnah.
42. ' The next witness Mufti Muhammad Shafi stated that he belonged to the Sunni sect, and he had led the funeral prayers of Mohtarma Fatima Jinnah, which were in accordance with Sunni prayers. He substantially corroborated Mirza Akhtar Hussain, Advocate, by stating that, although he did not remember the name, he remembered that one Advocate used to visit him. He went on to state that, although he had never talked to the Quaid-e-Azam about his sect, yet the general impression of the people was that he was a Sunni. He also recalled that once the Quaid-e-Azam had stated that, if Ulemas came forward and desired to lead prayers, he would have no objection, and, when invited, the Quaid-e-Azam himself offered prayers after him. He also recalled that he had seen a newspaper cutting. Stating that the Quaid-e-Azam had offered prayers according to Sunni sect. In regard to Mohtarma Fatima Jinnah, he stated that, since she was a sister of Quaid-e-Azam, he believed that she was a Sunni, and he was convinced after he had been asked to lead her funeral prayers. He stated that, although he had led the funeral prayers of Mohtarma Fatima Jinnah, he never came to know that any prayers in accordance with Shia beliefs had earlier been held on her death. He also stated that the general impression of Muslims was that the Quaid-e-Azam had given up his original Shia sect, and had become a Sunni, and such belief was on account of the fact that the Quaid-e-Azam had declared that he would establish a Quraanic system in Pakistan.
43. ' The other witness was Haji Kaloo, who is an employee of Asna Ashari Jamat, and performed the duty of washing the dead bodies before burial. He stated that he had been called for washing the dead body of Quaid-eAzam in the Governor-General's house, and gave a bath to the dead body after obtaining permission from Mohtarma Fatima Jinnah. He stated that he was called through some man from the Army, and, after the bath, one Moulvi Anis-ul-Hasnain led the funeral prayers inside the Governor House. He also claimed to have gone to the house of Mohtarma Fatima Jinnah after her death, and two ladies, one a Khoja and the other a Shia, had given bath to her. He stated that Maulana Ibne Hassan Jarchavi had led the funeral prayers in the house. This witness went on to state that he had obtained the permission of Mohtarma Fatima Jinnah for giving bath to the Quaid-e-Azam and such permission was granted.
44. ' The next witness was Fatima Bai, who claims to have given the final bath to Mohtarma Fatima Jinnah.
45. ' The next witness was Raja Maqbool Hussain, who was the Police Gunman for Mohtarma Fatima Jinnah, and he stated that, after her death, the prayers were held at the residence by Maulana Ibne Hussain Jarchavi, and these were according to Shia formalities. He went on to state that, in Muharram, he had seen Mohtarma Fatima Jinnah wearing black clothes, and he stated that, after her death, two Alams and two Panjas of silver were amongst the articles belonging to Mohtarma Fatima Jinnah. He went on to deny that Maulana Mohammad Hussain Baray used to come for Quraan Khawani on the death anniversary of Quaid-e-Azam.
46. ' The next witness was Mahmood Beg, who was a Librarian in the Department of Archaeology. He had produced the Alams and Panjas stated to have been found from the residence of Mohtarma Fatima Jinnah after her death. He, however, stated that he had no personal knowledge if these articles belonged to her.
47. ' Mr. M. N. Kotwal, Advocate was once again examined, and he stated that, in 1948, he had filed an application for grant of Succession Certificate in respect of the assets of Quaid-e-Azam under the instructions of Mohtarma Fatima Jinnah. This application was registered as Miscellaneous Application No, 54 1948. This witness stated that he was under the impression that Mohtarma Fatima Jinnah was a Shia, because he had found a Panja in her house. In cross-examination, he went on to state that he had never come across any Panja in any other house. Matloob-ul-Hassan Sayed claimed to be the Private Secretary of Quaid-e-Azam between 1940 and 1944. He stated that he had ventured to write a biography of Quaid-e-Azam, but he made it a condition that he must give up the service as Private Secretary, and thereafter the Quaid-e-Azam relieved him. He stated that he had . Written a biography, which was published in 1945. He went on to state that Mohtarma Fatima Jinnah had once told him that she was a Shia. He also stated that he attended the funeral prayers of Mohtarma Fatima Jinnah, which were held according to Shia rites, but he was unable to state who performed the funeral rites. He also stated that, on such question of performance of funeral rites, there was some trouble in the crowd that had collected. He stated that the two sisters of Quaid-e-Azam were married to Sunnis. In the closing part of his cross-examination, he stated that, except on the two occasions when Mohtarma Fatima Jinnah told him about her sectarian beliefs, she had never spoken with him on the subject. He went on to state that, in fact, Mohtarma Shirinbai had resided with him, but still he had not been summoned as a witness by Mohtarma Shirinbai during the proceedings for obtaining Succession Certificate. He stated that, at the time of death of Mohtarma Fatima Jinnah; Mr. M. A. H. Ispahani was present in her house. He went on to state that he participated in the funeral prayers of the Mohtarma, but he went on to state that the prayers were not led by Mufti Muhammad Shafi, though he stated that the prayers were led by Maulana Abdul Hamid Budayuni, a Sunni Moulvi. In regard to the biography written by this witness, he had been asked if he had named such important persons with whom the Quaid-e-Azam had contacts, and he replied in the affirmative, but he stated that he had not mentioned the name of Mr. M. A. H. Ispahani in that book. He even denied that Mr K. H. Khurshid was the Private Secretary of Mohtarma Fatima Jinnah.
48. ' At the time of hearing, some more documents were placed on record, and this was by consent.
49. The first is some pages from the book by Mr. M. A. H. Ispahani, entitled "Quaid-e-Azam Jinnah as I knew him". The second is a collection of letters written by various persons to the Quaid-e-Azam, which has been edited by Mukhtar Masood, and bears the title "Eye-witnesses of History". The third is copy of a telegram sent by Sikander Hayat, a former Prime Minister of undivided Punjab, to the Quaid-e-Azam. Then, there are some four documents, which go to show that Mr. Sharifuddin Pirzada used to work in the personal office of the Quaid-e-Azam. Perhaps, these documents have been placed on the record to show that the averment, to the effect that Mr. Sharifuddin Pirzada was not the Secretary to Quaid-e-Azam, was wrong. The next document is some extracts from a book called "Foundations of Pakistan", which is compiled and edited by Mr. Sharifuddin Pirzada. The next document consists of some compilations or writings of persons in regard to Quaid-e-Azam. The last is a photo copy from the book, "Outlines of Muhammadan Law" by Asaf A. A. Fyzee. It is not necessary to give a summary of all these documents, but the same shall be alluded to in a later part of this judgment.
50. ' In an earlier part of this judgment, all such facts as form the cannons of evidence, according to the learned Single Judge, have been reproduced. These are stated in paragraph 52 of the judgment of the learned Single Judge. The learned Single Judge approached the evidence in the matter by referring to the following eight cases :--
(1) Pathana v. Vasai PLD 1965 SC 134.
(2) Noor All v. Malka Sultana PLD 1961 Lah.
51. 431.
(3) Sardar Bibi v. Muhammad Bux PLD 1964 Lah.
52. 480.
(4) Mst. Labal Begum v. Mst. Syed Begum AIR 1933 Lah.
53. 80.
(5) Bafatoon v. Biaiti Khanum1 L R 30 Cal.
54. 683.
(6) Mst. Hidayatunnisa v. Syed. Muhammad Ali Khan 17 I A 73.
(7) Jamilunnisa v. Shaikh Muhammad Zia AIR 1937 All.
55. 547.
(8) Akbar Ali v. Muhammad Ali 34 B L R 655.
56. ' Having referred to these cases, the learned Single Judge expressed that he was conscious that a vast majority of the populace in Pakistan, being Sunnis, an initial presumption that a Muslim is a Sunni, subject to the contrary being proved, could be raised. No doubt, a presumption of fact exists that the Muslim populace in Pakistan is Sunni, but, if the contrary is proved, he shall be held to be a Shia. There is also no doubt that, in so many cases, the facts have been approached with such a presumption, but the presumption has been displaced after the evidence is scrutinised. The learned Single Judge, however, in that context, summed up his view on the point in the following words:- `Therefore, since evidence has been led by the parties this is not one of those cases where the initial presumption stated above would arise. Nor am I confronted with the situation that evidence on each side is so evenly balanced that I am unable to come to a definite conclusion so that the presumption be invoked. I am clearly of the opinion that the evidence is by no means evenly balanced and although it is not possible to come to a conclusive decision, it is nevertheless not difficult to come to a finding upon the principle of preponderance of evidence which is the criterion for decision in civil proceedings. The analysis of evidence adduced at the trial, as discussed in the foregoing part of this judgment, no doubt shows that there are only scattered bits and pieces bearing on question of faith of the deceased and on the whole the case lacks in clear or decisive evidence on the issue. As is well recognized, in civil cases a mere preponderance of probability is a sufficient basis for decision and hence Courts can decide on the balance of probability."
57. ' An argument was raised before the learned Single Judge by Mr. Aziz Munshi, who had appeared for defendants 1 to 4. Even before us, it was contended by the same learned Advocate that, if it was not established that the deceased belonged to either sect of Sunnis or Shias, then she had to be considered a pure and simple Muslim, who is governed by the fundamental source of Muslim Law, as is embodied in the Holy Quran itself. In regard to this argument, the learned Single Judge stated that it was a novel point, not supported by any precedents. It was brought to the notice of the learned Single Judge that Sura Nisa had provided that the right of inheritance of a sole surviving sister is to the extent of half and the remaining half has to go to the agnates of the deceased. The learned Single Judge also referred to the Shariat Act of 1937, and to the Personal Law, governing Khojas, in that context. The learned Single Judge held, in that respect, as follows :- 'Now it is well established by a long line of authorities both in pre-Independence and subsequent decisions that the members of each sect are to be governed by the sectarian law applicable to them. The earlier decision on which I could lay my hands, in this regard is a case of 1841 viz. Rajah Deedar Hussain v. Ranee Zuhoor-Oon-Nissa 13 Moor's I A 441, In this case, their Lordships of the Judicial Committee of the Privy Council were considering the provisions of Regulation XI of 1873 which had a parallel provision providing for the succession and inheritance in the case of Mahomedans to be governed by Mahamedan Law. It was held in that case that according to the true construction of this Regulation, in absence of any Judicial decision or established practice limiting or controlling its meaning, the Mahomedan Law of succession applicable to each sect ought to prevail as to litigants of that sect."
58. ' 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 crystallised 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. In any case, both the deceased in this case, and her brother, the Quaid-e-Azam, are shown to have expressed themselves, by stating that they were neither Sunnis nor Shias, but pure and simple Muslims. This point was also taken up in the case of Shirinbai v.
59. Muhammad AU and others, which case was for grant of Succession Certificate in favour of Shirinbai in relation to the assets of Mohtarma Fatima Jinnah. This case, as stated above, is Miscellaneous Application No, 11/1968, decided on 2-3-1979 by Mr. Justice Abdul Kadir Shaikh (as he then was), and is reported in PLD 1970 Kar.
450. The learned Judge in that case, bad referred to several sayings of the Quaid-eAzam, which have been reproduced at page 455 of the report and the conclusions, which may best be reproduced in the words of Mr. Justice Abdul Kadir Shaikh. It reads as follows :- "The clear position that emerges from the record before me is that the Quaid-e-Azam was, as he always declared himself to be, a true Mussalman, free from any sectarian feelings, sentiment and faith; his ideal was the Holy Prophet; and the Qur'an, according to him, was a complete code of every aspect of life of a Mussalman. This was, in the fitness of things and circumstances, as it had to be in the role that the Quaid-e-Azam was destined to play, and did in fact play, in the unchallenged position that he acquired for himself as the leader of the Mussalmans, of the undivided India, and in the fight for obtaining a separate and independent homeland for the Muslims of this part of the world; not only this, but in the subsequent events that took place, to the marvel of the world leaders the establishment of Pakistan as an independent State-the very idea of which, at the time when conceived, was considered to be impossible for achievement. This was possible, among other reasons, on account of the faith of the Quaid-e-Azam that he was Mussalman first and the last, and that following the Holy Prophet, he was neither a Sunni nor a Shia".
60. It would thus appear that it is not necessary that a Mussalman mus either be a Sunni, or, a Shia, and it may well be that he is free from all sectarian feelings, sentiment and faith. This is more true in a case, where a Mussalman follows the Holy Quraan and the Holy Prophet, who have given complete code to the Mussalmans in every aspect of life. To that extent, we are of the view that, while considering the question of sectarian belief of Mohtarma Fatima Jinnah, this point too has to be considered, whether, if she was not a Sunni or Shia, was she not a Muslim, and, if she was, does the Quraan not provide for distribution of her assets. To that extent, we are clearly of the view that, if it is not established that she was a Sunni, or, Shia, then her estate has to be distributed in accordance with the pure Muslim Law, as is stated in the Quran itself.
61. ' We now proceed to examine the evidence on the point of sectarian belief of the deceased in order to arrive at the findings on the issues.
62. ' All the evidence in this case has been classified by the learned Single Judge in three categories, namely :-
(i) Direct disclosures by words of mouth by the deceased,
(ii) circumstantial evidence of the conduct of the deceased, and
(iii) opinion of witnesses.
63. ' On the first point in relation to direct disclosures by words of mouth by the deceased in relation to her sectarian beliefs, the learned Single Judge referred to the evidence of Muhammad Hanif Maniar, Haji Kaloo and Mr. M.A.H. Ispahani. Muhammad Hanif Maniar has stated, in his evidence.
64. That he had asked the Quaid-e-Azam as to why Mr. Lalji was opposing him, because Mr. Lalji was a Shia, and so was Quaid-e-Azam himself, to which the Quaid-e-Azam reply was that he was not a Shia, and, at that time, Mohtarma Fatima Jinnah was present. The same witness was asked, whether he had come across any public statement, either of Quaid-e-Azam, or, Mohtarma Fatima Jinnah, to the effect that they belonged to Sunni sect, and the reply was that he had not come across any such statement. This witness in another question, replied that he had made a suggestion to Mohtarma Fatima Jinnah to call Maulana Ibne Hassan Jarchavi, a Shia Moulvi, on the occasion of Fateha of Quaid-e-Azam, and she stated that she did not want a Shia Alam.
65. ' The next witness on the point is Haji Kaloo. He is a person, who gives the last bath to the Shias before burial. He had stated that, on the death of the Quaid-e-Azarn, he had gone to the Governor- General's House, where Mohtarma Fatima Jinnah was present, and it was there that he asked for permission of Mohtarma Fatima Jinnah to give a bath to the dead body, and the Mohtarma said that he could give a bath to the dead body, because the deceased was a Shia. He went on to state that he had gone even to give a bath to Mohtarma Fatima Jinnah on her death, and two women, who accompanied him and were Shias, did give a bath to the dead body. He went on to state that Mohtarma Fatima Jinnah said; within his hearing, that they were Khoja Muslims and Shia Asna Ashari. Haji Kaloo had also stated that Syed Anis-ul-Hasnain, a Shia Moulvi was entrusted with the arrangement for giving the corpse of Quaid-e-Azam the last bath. In respect of the evidence of Haji Kaloo, the learned Single Judge himself expressed that he could not place reliance on his evidence.
66. ' To that extent, we may state that Mohtarma Fatima Jinnah was buried after a full public ceremony, which was attended by lakhs of people. This is common knowledge. It is also common knowledge that the Jenaza Nimaz was led by a Sunni Moulvi, just as the Jenaza Nimaz of the Quaid-e-Azam himself. The learned Single Judge, therefore, correctly held Haji Kaloo to be an unreliable witness. What is more that Haji Kaloo was not produced by the parties when the case for grant of Succession Certificate was being contested. In fact, he is not even mentioned by any of those witnesses as the person who had given, or, arranged the last bath, either of Quaid-eAzam or Mohtarma Fatima Jinnah. In regard to Haji Kaloo having stated that Mohtarma Fatima Jinnah herself said that they were Asna Ashari Khojas at the time he had gone to give a bath to the body of Quaid-e-Azam, we must state that such a statement is completely unreliable, and it is very doubtful if Haji Kaloo could ever have an opportunity of seeing Mohtarma Fatima Jinnah at that time. In . Regard to the oral disclosures of Mohtarma Fatima Jinnah in relation to her sectarian beliefs, we have no difficulty in arriving at the conclusion that, on no occasion whatsoever, had she or her great brother, the Quaid-e-Azam, ever said that they were Shias. In fact, the Quaid-e-Azam is on record, likewise Mohtarma Fatima Jinnah, saying that they were neither Shias nor Sunnis, but pure Muslims. On such material, the first category of evidence, relating to direct disclosures by words of mouth by the deceased, cannot lead us to the conclusion that Mohtarma Fatima Jinnah was a Shia. On the other hand, the disclosures of the deceased tend to show that she was neither a Shia nor a Sunni, and she had stated that she was a pure Muslim, following the Quraanic exposition of Islam.
67. ' The second category of evidence, that was formulated by the learned Single Judge, was circumstantial evidence, as appeared from the conduct of the deceased. On this point, the learned Single Judge has considered the fact of funeral prayers for the deceased and her brother Quaid-e- Azam having been held in the Sunni manner. To that extent, the learned Single Judge referred to the evidence, showing that prayers were also offered in Shia manner. The learned Single Judge came to the conclusion that, since there was evidence that two types of prayers were held at the Jenaza of the deceased and even her brother, the evidence does not help the parties. In that context, we are also of the view that the mere fact of Jenaza prayer having been offered in the Sunni manner or Shia manner is no criterion for C 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 the 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. It cannot be overlooked that both Mohtarma Fatima Jinnah and the Quaid-e-Azam held a special status amongst the populace of Pakistan, and therefore there was a huge assemblage of people at the time of burial, some of whom may be Sunnis and some Shias, and this fact that prayers were led in accordance with Sunni rites, or, Shia rites would not be relevant. However, even in that context, we must state that, admittedly, the main congregation for Nimaz-e-Janaza was led by a Sunni Moulvi, and not by a Shia Moulvi, although, as Mr. M. A.. H. Ispahani states, a sort of small Nimaz-e-Jenaza in the Shia style was held on the death of Mohtarma Fatima Jinnah in her house, and, on the death of Quaid-e-Azam, in the Governor- General's House, where the congregation was very small consisting of 9 or 10 persons. This may lead to an inference that Mohtarma Fatima Jinnah was a Sunni, because the main congregation!
68. Of Nimazis prayed in the Sunni manner. Be that as it may, this is no' criterion, and we entirely agree with the learned Single Judge that the, evidence on that point does not help either party.
69. ' The other circumstance, which has been considered by the learned Single Judge, is by reference to the evidence of Quraan Khawani and Fateha Khawani ceremony on the death of Quaid-e- Azam, which was arranged by Mohtarma Fatima Jinnah for nearly twenty years after the death of Quaid-e-Azam, was in accordance with the Sunni sect. In that context also, the learned Single Judge has held that this was a circumstance which does not help in determining the sectarian belief of the deceased, because the majority of the populace in Pakistan consists of Sunnis, and therefore the people, who will gather for Fateha would also be mainly Sunnis. The learned Single Judge, in order to strengthen this argument, also adverted to the evidence that the deceased herself "emphatically and categorically asserted that she was neither a Shia nor a Sunni, but a Mussalman". There is also evidence on the record that the deceased as well as her brother, the Quaid-e-Azam, had always declined any request for patronage from Shias. To that extent also, the learned Single Judge stated that this may have been for the reason that, being in public life, both of them did not think it proper to associate with any sectarian group. Be that as it may, the fact stands that the deceased and her brother, the Quaid-e-Azam, had never expressed their inclination for the Shia sect, and therefore they could not be termed Shias.
70. ' The learned Single Judge, however, based his conclusions on the point of the deceased never wearing black clothes during Muharram, and she sometimes attended Shia Majlis in private houses, if invited by friends, and two Alms and two silver Panjas were recovered from her house. In regard to the recovery of articles, it is stated by the learned Single Judge that, since no inventory was prepared, no value could be attached to this piece of evidence. In regard to the deceased wearing black clothes on two occasions, the learned Single Judge came to the conclusion that this does not establish that the deceased was a Shia. Ultimately, the learned Single Judge on the basis of evidence, recorded his conclusions as follows :- "Keeping the evidence in juxtaposition I have come to the conclusion that the deceased did not categorically express to any of the witnesses who had appeared in this case that she belonged either to the Shia or to the Sunni sects. As against the evidence of opinion adduced on behalf of each side in support of their respective claims that she belonged to one of the sects, there is the testimony of Muhammad Jaffar Pirbhai which cuts right across the entire remaining testimony in bringing to light the oral declaration of the deceased that she was neither a Shia, nor a Sunni but a simple Mussalman. On the whole I have no hesitation to accept the testimony of this witness. There is no reason to doubt the veracity of this. Witness. His evidence has impressed me as true and unbiased. Counsel for all parties accepted the testimony of this witness as unimpeachable and sought to seek support for their respective cases from his evidence."
71. ' Upon a reading of the judgment of the learned Single Judge, we find that he himself had rejected most of the evidence that had been led on the point that Mohtarma Fatima Jinnah was a Shia, and that even the Quaid-e-Azam was a Shia. He has expressed that there were just bits and pieces of evidence on the point. In relation to the statement of Mohtarma Fatima Jinnah that she was above sectarian differences and was a simple Mussalman, the learned Single Judge expressed that the effect of such words "has vexed his mind to a great deal". Having said so, he relied on the principle that, in cases falling in the civil jurisdiction, a decision based on preponderance of evidence and balance of probabilities would be correct. The question, that then arises, is, whether there was preponderance of evidence that Mohtarma Fatima Jinnah was a Shia, and whether the balance of probabilities tilted in that direction. In that respect, what would be relevant isIE the expressions and conduct of the deceased. In regard to expressions, there was a mass of evidence on the record to show that Mohtarma Fatima Jinnah had stated on so many occasions that she was neither a Sunni nor a Shia, but a pure Muslim, following the Quraanic concepts. There is evidence to show that, whenever she had invitations to attend a function, or, assemblage of Shias, she not only declined such invitations, but had even expressed resentment. To that extent, the learned Single Judge has stated that such expression of resentment may have been on account of her public life, or, on account of some reason, which persuaded her not to publicly state that she was a Shia. First of all, there appears to be no good reason to think that Mohtarma Fatima Jinnah, or, her great brother, the Quaid-e-Azam would conceal their religious beliefs, solely because they were in public life.
72. Even' if one were to assume that such concealment was made with a desire to show' to the public that they were not Shias or Sunnis, then it was the duty of the F party, making the averment that they were Shias, to prove by cogent and consistent evidence that they were Shias. This, in our view, the defendant No, 5 has failed to prove.
73. ' The only piece of evidence, on which the learned Single Judge has relied, is that Mohtarma Fatima Jinnah used to attend Shia Majlis in private houses whenever invited by her friends, that she was given her last bath in accordance with Shia rites, the Nimaz-e-Jenaza was led in accordance with Shia belief, and lastly that, in an application for grant of Succession Certificate in respect of the debts and securities belonging to Quaid-e-Azam (Miscellaneous Application No, 54/1948), Mohtarma Fatima Jinnah had instructed Mr. M. N. Kotwal, an Advocate, to state that the deceased viz. The Quaid-e-Azarn, was a Khoja, who was to be governed by the Shia law.
74. ' In regard to the evidence, that Mohtarma Fatima Jinnah some times, which some witnesses state was only once or twice, had attended Majlis of Shias, one must state that the evidence was not reliable, and that this circumstance, by itself, is so weak as cannot lead to a conclusion that Mohtarma Fatima Jinnah was a Shia. The learned Single Judge relied on the evidence of Pirbhai, who had only stated that Motarma Fatima Jinnah used to attend Shia Majlis in private houses, whenever invited by her friends. To that extent, the witness has not disclosed how many times such Majlis was attended, or, where was such Majlis held. It is not his case that Majlis was held in his house. On the other hand, there is evidence that Mohtarma Fatima Jinnah had, perhaps, attended such functions once, or, twice. There is no evidence that she actually did the mourning also at the Majlis. It is common knowledge that even Sunnis do some times attend a Majlis, but that would not be sufficient to show that such Sunni has converted himself in the matter of his belief. It is, therefore, not reasonable to come] to the conclusion that, if Mohtarma Fatima Jinnah had attended Majlis, aG couple of times in her life, she has to be deemed to be a Shia, particularly when she expressed on so many occasions that she was neither a Shia nor 1 Sunni.
75. ' The learned Judge next relied on the piece of evidence that the last bath and burial both of Quaid-e-Azam and Mohtarma Fatima Jinnah were in accordance with Shia rites. In that context, the evidence of Haji Kaloo has been termed to be not reliable. The other piece of evidence, in that regard, is that of Mr. M. A. H. Isphani, who stated that Nimaz-e-Jenaza for Mohtarma Fatima Jinnah was held in the house of the deceased in the Shia manner. He was asked how many people had collected, and he replied that the number of people, offering such Nimaz, was just nine, or, ten. Even this witness had stated that the main congregation was then held, in which the Nimaz-e-Jenaza was led by a Sunni Moulvi. It may well be that Mr. M. A. H. Isphani himself being a Shia, had arranged for Nimaz-e-Jenaza privately at, or, in the house, but, in that case, the main Nimaz, at which lakhs of people congregated, was led by a Sunni Moulvi. This circumstance, in our view, was not at all sufficient to hold that Mohtarma Fatima Jinnah was a Shia.
76. ' The last circumstance, that had been relied on by the learned Single Judge, emanated from an application made by Mohtarma Fatima Jinnah for obtaining Succession Certificate in respect of the assets of Quaid-e-Azam. In paragraph 68 of the judgment, the learned Single Judge has reproduced two paragraphs from that application. It is stated therein that the deceased viz. The Quaid-e-Azam was to be governed by Shia law, as applicable to Khojas. In that case, a reference may be made to the evidence of Mr. M. N. Kotwal himself. He had stated that, in June 1961, he was called by Mohtarma Fatima Jinnah, and was given "sketchy instructions for getting her a draft of a will". He produced the said "sketchy instructions", and he was asked if he could swear whether it was in the handwriting of Mohtarma Fatima Jinnah, and his reply was that he could not swear to it, because he was not conversant with her writing. He went on to state that he never received any communication from her in her own handwriting, *and whatever communication he used to receive, was type-written letters. In regard to the will, he went on to state that he had left the space meant for writing the name of the maker of the will blank, and hi went on to explain that he did not know how she would have described her name and her parentage. In the next question, Mr. M. N.
77. Kotwal clearly stated that 'Mohtarma Fatima Jinnah never gave out that she was either a Shia or a Sunni. When asked, whether he had asked Mohtarma Fatima Jinnah as to how she would want to describe herself, and, to such a question, he replied that he sent up a draft, and the matter ended there. This evidence would show that Mr. M N Kotwal was never told by Mohtarma Fatima Jinnah that she was a Shia, or, a Sunni, the draft of the will prepared by him did not disclose the name, and the instructions in regard to drafting of the will were not in the handwriting of Mohtarma Fatima Jinnah. The same witness was again examined as an Advocate for the defendants during the trial of the suit. He was confronted with the same question as to on what basis he held the opinion that Mohtarma Fatima Jinnah was a Shia, and his only explanation was that, as once he had seen a Panja in her house, he thought she was a Shia. He went on to state that significance of Panja in her house denoted that the persons living therein were Shias, but in the same breath, he stated that he had not come across a Panja anywhere else. He once again stated that he was not familiar with the handwriting of Mohtarma Fatima Jinnah, but he had only seen her signature. The significance of the evidence of Mr. M. N. Kotwal is that, because the Quaide-Azam was a Shia, therefore Mohtarma Fatima Jinnah was also a Shia. He has stated so on the basis of averment recorded by him in the applications for obtaining Succession Certificate. It would appear that defendant No, 5 had led this evidence to show that, since the Quaid-e-Azam, according to Mohtarma Fatima Jinnah, was a Shia, therefore the latter should also be considered a Shia. To that extent, the judgment of Mr. Justice Abdul Kadir Shaikh in the application by Mst. Shirinbai for obtaining Succession Certificate is not only relevant, but concludes the point. In an earlier part of this judgment, a passage has been reproduced from that case, which is reported in PLD 1970 Kar.
450. His Lordship has clearly recorded a finding, "that the Quaid-e-Azam was, as he always declared himself to be, a true Mussalman, free from any sectarian feelings, sentiment and faith ; his ideal was the Holy Prophet ; and the Qur'an." It was after recording such finding that he came to the conclusion that Mst. Shirinbai was entitled to one-half of the estate left by Mohtarma Fatima Jinnah. It would seem that this judgment, delivered by Mr. Justice Abdul Kadir Shaikh, had Concluded the point in regard to the sectarian beliefs of the Quaid-e-Azam, and any reference to the sectarian beliefs of Quaid-e-Azam in the judgment delivered by the learned Single Judge would appear to be superfluous, and not relevant. It is nobody's case before us that this judgment had been challenged. On the contrary, we are told that defendant No, 5, Mst. Shirinbai, has accepted this judgment, and it was on account of the benefits that she obtained by virtue of this judgment that gave a cause of grievance to the plaintiff in the instant case. For these reasons, we are of the view that the making of Miscellaneous Application No, 54/1948 in this Court was absolutely irrelevant to the contest in this case.
78. For the above reasons, we are of the view that the finding of the learned Single Judge on the first issue is not correct. We are of the vie that Mohtarma Fatima Jinnah was neither a Sunni nor a Shia, but she was a Muslim in accordance with the Qur'anic concepts. She was free from sectariad classification, and therefore her property has to be distributed in accordance with the pure Islamic Law, as is contained in Sura Nisa.
79. ' Since we have displaced the finding of the learned Single Judge on issue No, 1, the remaining issues will need to be determined.
80. ' The judgment and decree passed by the learned Single Judge is set aside, and the case is now remanded to the Original Side of this Court for being placed before the learned Judge, hearing such cases, for determination of the remaining issues in this case. Looking to the nature of contest in this case, we shall leave the parties to bear their own costs.
81. C. M. A. 6 of 1983 ' MOLL HAYEE KURESHI, C. J. [26-2-19851.-The judgment was pronounced on 23-12-1984 and within 6 days this application was submitted.
82. ' This application contains three prayers :-
(1) That the matter relating to faith of Quaid-e-Azam be de-linked so that the faith of Mohtarma Fatima Jinnah may be dealt with separately.
(2) The question of faith of Quaid-e-Azam may be decided,
(3) That in relation to the faith of Mohtarma Fatima Jinnah, the case be remanded to the learned Single Judge so that further submissions and further evidence may be lead.
83. ' As far as the first prayer, in relation to de-linking the question of faith of Quaid-e-Azam, the judgment is specific, and distinct findings have been recorded on the evidence on record that Quaid-e-Azam was neither a Shia nor a Sunni but a simple Mussalman. To that extent the observations and findings in the judgment are severable and therefore no order is necessary.
84. ' In regard to the second prayer the question about the faith of Quaid-eAzam has been decided in this appeal, and therefore no orders are necessary.
85. ' All counsel have made this joint application and they seek a consent order to the effect that the case may be remanded to the learned Single Judge, with the direction that if any party wants to lead any evidence or make further submissions in relations to the faith of Mohtarma Fatima Jinnah, he shall be allowed such an opportunity and the question of faith of Mohtarma Fatima Jinnah may be decided independently of the faith of Quaid-e-Azam himself. Since all counsel are seeking a consent order, and they want to lead further evidence we request the learned Single Judge to record evidence and hear the parties if they so wish. Even by the final order passed on 23-12-1984 this case was remanded for recording findings on other issues. In these circumstances, the learned Single Judge, who will be seized of the case, shall allow further evidence to be produced and hear the submissions in relation to faith of Mohtarma Fatima Jinnah also. He shall not be persuaded by what has been stated .3y us in our order dated 23-12-1984 in so far as it relates to faith of Quaid-e- Azam. We may explain that question of faith of Mohtarma Fatima Jinnah shall be p- determined without reference to the findings in relation to the faith of Quaid-e-Azam.
86. ' This application stands disposed of.