' The only question falling for determination, in this Regular Second Appeal is whether Mst. Rabia Bibi, was the real sister of Fazal Ahmad and was so entitled to 2/3rd share in the legal estate left by him.
2. Stripped of non-essentials, material facts are: that one Fazal Ahmad was the owner of Agricultural land falling in Khewat No,48, Khatoni No,144, Khasra Nos.37, 87, 93, 94, 147, 321, 322, 323, 271; 269, 270, 265, 266, 267 (1/2 share) and Khasra No,90 Ghairmumkin Ahata and Mahal Uncha situated in Village Maddopur Wains, Tehsil Pasrur, District Sialkot, according to Record of Rights relating to 1953-54. This land shall be hereinafter described as "Property in dispute" or "suit land".
Fazal Ahmad had not contracted marriage in his lifetime and so he died issueless in the year 1922.
Mutation No,312 was attested wherein the suit land was devolved upon Mst. Hussain Bibi as a limited owner. She thereafter made its sale, to Muhammad Malik, Muhammad Sadiq and Nazir Ahmad/herein respondents, by oral transaction incorporated in Mutation No,1181 dated 29-5-1966.
Feeling aggrieved, Mst. Rabia Bibi sued for seeking declaration that she was a real sister of Fazal Ahmad/propositus; that Mst. Hussain Bibi had been holding the property in dispute as a limited owner; that her limited interest terminated with the promulgation of West Pakistan Muslim Personal Law (Shariat) Application (Act No,V) of 1962; that on 29-5-1966, she had no authority whatsoever to make the sale of the property in dispute to respondents; that as sister, she was entitled to inherit 2/3rd share from the legal estate left by Fazal Ahmad; that the sale embodied in Mutation No,1181 was clearly without any legal authority, fraudulent in nature and so was invalid and of no lawful consequences upon her right. The suit was contested. Respondents filed a joint written statement wherein it was contended that parties, at the time of demise of Fazal Ahmad, were governed by the rules of custom under which the sisters had no right of inheritance; that Mst. Hussain Bibi had inherited the suit land as a full owner and so she was entitled to alienate it in favour of the respondents. The necessary issues were framed. The oral as well as documentary evidence was led by the parties. On the consideration of the same, the learned trial Court held that the parties were governed by the rules of custom in matter of inheritance; that under the custom, Mst. Rabia Bibi as a sister was entitled to inherit to the extent of 2/3rd share from the legal estate of Fazal Ahmad; that she was the sister of propositus. On these conclusions, the learned trial Judge decreed the suit. Against that decree, the respondents preferred an appeal which was accepted by the learned Additional District Judge on 15-2-1971 in view of rule laid down in Barkat Bibi v. Sardar Khan (PLD 1966 Lah. 47) with a finding that Mst. Rabia Bibi had no legal right to challenge the sale made by Mst. Hussain Bibi in favour of respondents. This is how the instant Regular Second Appeal has come to this Court.
3. The learned counsel for the parties, at the outset, fairly agreed that parties were Muslims and were so governed by rule of Muslim inheritance; that Mst. Hussain Bibi had got the property as a limited owner; that her limited interest came to an end in year 1962 with the promulgation of Act No,V of 1962 and that the rule embodied in Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 reiterated in Suba v. Mst. Fatima Bibi 1992 SCMR 1721 and Ali Begum v. Zardar Khan (1994 SCMR 1140), was applicable to the facts and circumstances of the case in hand. On these premises, the learned counsel for the parties concurred that the sale made by Mst. Hussain Bibi vide Mutation No,1181 dated 29-5-1966,. Was wholly illegal and without any lawful authority. The learned counsel for the respondents, however, strenuously and vigorously maintained that Mst. Rabia Bibi, now deceased and represented by her legal heirs, was not the sister of Fazal Ahmad and so she was not entitled to inherit from suit land. He heavily relied upon the entries of Birth Register (Exh.P/5) contending that this document did not describe the name of the sister of Fazal Ahmad and that its entries were wholly inconsistent with the claim of Mst. Rabia Bibi. On these circumstances, it was suggested that the findings of the two Courts below on this issue be set aside and the suit filed by Mst. Rabia Bibi be dismissed. The learned counsel for the appellant, on the other hand, argued that the question as to whether Mst. Rabia Bibi was the sister of Fazal Ahmad, was a question of fact which had been correctly concluded by the two Courts below and the same did not need any interference by this Court. On the strength of this circumstance, he submitted that the appeal be accepted and the decision of the first Court be restored, although on a different ground.
4. I have heard the learned counsel for the parties at a considerable length, perused the available record with their assistance and attended to their rival contentions. Before I proceed further, I am tempted to quote the ratio of Mst. Jiwai v. Rehman 1994 CLC 1570. After an exhaustive survey of section 50 of the Evidence Act/Article 64 of the Qanun-e-Shahadat and rule laid down in Chandu Lal v. Bibi Khatemonessa (AIR 1943 Calcutta 76) Ramadhar v. Janki AIR 1956 Patna 49, Ghulam Muhammad and another v. Allah Yar and others PLD 1965 Lahore 482 and Anwar and others v. Sher Bahadur and others 1990 CLC 274, it was held:-- "(i) That section 50 of Evidence Act/Article 64 of Qanun-e-Shahadat, 1984, pertains to admission of circumstantial evidence known as 'conduct evidence'. This is the evidence of what the witness think, believe or infer in respect of facts in dispute, as distinguished from his personal knowledge of facts themselves. It is an exception to the principle that direct evidence is best evidence.
(ii) This section makes only opinion was relevant and prescribes how this opinion is to be proved. It is only 'opinion on the basis of conduct which has been made relevant. In short it is the conduct which becomes as the foundation of belief/opinion/judgment of a witness.
(iii) The opinion evidence of that witness is relevant who is possessed of special means of knowledge. The member of the families are ordinarily presumed to have special means of knowledge with respect to relationship of member of their family. An outsider also, if he can show that he too possesses special source of knowledge, can also give 'conduct evidence'. The object and purpose of this evidence is to establish the relationship of one person with another."
5. Guided by the above rules, I herein proceed to assess the evidence of the parties on the mooted question. The evidence on behalf of Mst. Rabia Bibi comprises of Ahmad Khan/P.W.1, Muhammad Din/P.W.2 and Mst. Rabia Bibi herself as P.W.3. P.W.1 and P.W.2, who are the members of her Bradari being Jat, unshakably deposed that she was the sister of Fazal Ahmad, These witnesses were subjected to a lengthy cross-examination but nothing was extracted to affect their evidential value. Mst. Rabia Bibi herself went into witness-box and stated on oath that she was the sister of Fazal Ahmad. She was not even subjected to a meaningful cross-examination by the other side. As against it, the respondents heavily relied upon Muhammad Din/D.W.1, Rehmat/D.W.2, Muhammad Malik/respondent himself as D.W.3. The distinctiveness of this evidence is that Muhammad Malik appeared as D.W.3 and did not state that Mst. Rabia Bibi was not the sister of Fazal Ahmad. Mst.
Hussain Bibi had filed written statement alongwith respondents but she was even not put in witness-box. She was the best witness and for reasons best known to respondents, she was not produced in evidence. This circumstance, in my humble view, clearly reacts upon respondents' version and the Court was clearly entitled to draw presumption against them under section 114(g) of the Evidence Act. It is a well-known presumption that if a party withholds best evidence, then the Court is presumed to Infer that if such evidence had been produced it would have gone against that party. This presumption is fully applicable in the instant case. As already discussed, the evidence adduced by the appellant exuded confidence and was fully within the ambit of section 50 of the Evidence Act/Article 64 of Qanun-e-Shahadat, 1984. The other side did not examine even Mst. Hussain Bibi who was the most competent witness to throw light on the relationship of Rabia Bibi with Fazal Ahmad. On the material available on record, the two Courts below were eminently correct in holding that Mst. Rabia Bibi/deceased was the real sister of Fazal Ahmad and was entitled to inherit from the legal estate of Fazal Ahmad in year 1966. This concurrent conclusion is correct, just and does not suffer from any circumstance calling for interference under section 100 of the Civil Procedure Code.
6. For the reasons stated above, this Regular Second Appeal is bound to succeed although on different ground. I accordingly accept it and hereby set aside the judgment and decree passed by the learned Additional District Judge dated 15-2-1971. In result, the suit filed by Mst. Rabia Bibi is decreed in consonance with the prayer contained therein. Mst. Rabia Bibi shall be entitled to inherit 2/3rd share as sister from suit land. The respondents shall bear the costs of the proceedings throughout.