' This revision petition assails the judgment and decree of the learned Additional District Judge, Mianwali dated 21-2-1991. By means of the impugned judgment, the decree, dated 23-6-1990 passed by the learned Civil Judge, Mianwali was set aside.
2. The only point in contention before me was in respect of Issues Nos.5 and 6 which were framed by the learned trial Court in the following terms:- "5. Whether Mst. Malkani and Mst. Ghulam Zainab were Shias? OPD
6. Whether Mutation No,317 dated 27-4-1988 and Mutation No,372 dated 29-11-1988 were illegal and are liable to be corrected? OPD"
3. After going through the evidence on record, the learned trial Court held that Mst. Malkani and Mst. Ghulam Zainab professed the Sunni faith. The above-noted two issues were, therefore, decided on the basis of this factual conclusion.
4. I have, with the assistance of both learned counsel, gone through the evidence on record and have also examined the reasoning of the learned lower Appellate Court, whereby, he differed from the conclusion reached by the learned trial Court. I find it significant that Exh.P.5 to Exh.P.12, which are Goshawaras of Ushr, show Mst. Ghulam Zainab and Mst. Sultan Bibi as making payments of Ushr. The said Goshwara, therefore, at the very least, arises of justifiable inference that they did not claim to be exempt from the provisions of the Zakat and Ushr Ordinance on the ground of their Fiqah. It is also relevant that the witnesses of the defendants/respondents themselves have given evidence which supports the view that Mst. Malkani and Mst. Ghulam Zainab were adherents to the Sunni Fiqah. In this respect, Ahmad Hussain D.W.1, who is the son of Mst. Sultan Bibi defendant No,1, stated that he was a Sunni although he did say that his mother, namely, Mst. Sultan Bibi and his aunt, namely, Mst. Ghulam Zainab and grandmother Mst. Malikani were Shias. He also testified that the Nijnaz-e-Jinaza of Mst. Ghulam Zainab was led by Hafiz Ghulam Yasin, who was Ahle-e-Sunnat.
Likewise, Manzoor Ahmad D.W.2 confirmed that the Namaz-e-Jinaza of Mst. Ghulam Zainab was led by Hafiz Ghulam Yasin.
5. The principal reason given by the learned lower Appellate Court while differing with the judgment of the learned trial Court, was that the Assistant Commissioner had made some inquiry in which he had determined that Mst. Malkani and Mst. Ghulam Zainab were Shias. It is true that the impugned Mutations Nos.317 dated 27-4-1988 and 372 dated 29-11-1988 proceeded on the assumption that the two ladies, namely, Mst. Malkani and Mst. Ghulam Zainab were Shias. However, there appears to be no factual inquiry leading up, to the sanctioning of the said mutations. Furthermore, even if there had been any inquiry, the nature of such inquiry would have been limited and cursory. The A.C., Mianwali himself held that if the petitioners herein wanted to assert a claim to the estates of Mst. Malkani and Mst. Ghulam Zainab, they could approach the Civil Court to establish their rights where the matter can be decided after close scrutiny of the facts.
6. Learned counsel for the petitioners had referred to the case titled Sabir Hussain and others v.
Afrasayyab and others (1989 CLC 1591) and the case titled Amir Ali v. Gul Shaker and 10 others (PLD 1985 Karachi 365) to assert that in Pakistan, the initial presumption is always to the effect that a deceased was an adherent of the Sunni Fiqah unless it is established by positive evidence that he followed some other Fiqah. The cited precedents are, indeed, relevant in the present case. It is to be noted that apart from the presumption aforesaid, the evidence on record, briefly discussed above, also supports the case of the petitioners/plaintiffs.
7. Learned counsel for the respondents merely stated that the scope of a revision petition was much more restricted than that of an appeal. According to him, the judgment of the learned lower Appellate Court could not be interfered with even if the Court came to the conclusion that a different inference could be drawn from the evidence on record. This contention of learned counsel for the respondents is without force. Where the two Courts below have differed, it is necessary for this Court, while exercising revisional jurisdiction, to appraise the evidence afresh. If any authority for this legal proposition is required, reference can be made to the case titled Khan Mir Daud Khan and others v. Mahrullah and others (PLD 2001 Supreme Court 67).
8. In addition to the above, it is also apparent that the learned lower Appellate Court did not follow the law laid down in the cases of Sabir Hussain and others and Amir Ali, referred to above. To this extent, the impugned judgment and decree can be interfered with while exercising revisional jurisdiction.
9. In view of the above discussion, I hold that it was proved on the record through sufficient evidence that Mst, Malkani and Mst Ghulam Zainab were Sunnis. It, therefore, follows that the impugned judgment and decree is not sustainable. As a result, the same is set aside.
Consequently, the judgment and decree of the learned trial Court dated 23-6-1990 stands restored.