Alleging that Mst. Kaniz Fatima, mother of the respondent/defendants was not wife of Ghulam Akbar Khan and the remaining respondents are not his children and legal heirs, petitioners/plaintiffs Nos.1 to 4 claimed to be his only legal heirs (sons and daughter and Mst.Ghulam Aisha who claimed to be his only widow) and pleaded exclusivity in their right of inheritance. The suit was contested. It was averred by the respondents/defendants that Mst.Kaniz Fatima was second wife of Ghulam Akbar Khan, that from the wedlock were born Muhammad Akhtar, Muhammad Afzal (sons) and Mst.Farzana, Mst.Sajida and Mst.Rukhsana daughters. They pleaded for their rightful share in the right of inheritance of Ghulam Akbar Khan. In terms of the written statement filed by the respondents/defendants following issues were framed:--
(1) Whether plaintiffs have no locus standi to bring this suit? OPD.
(2) Whether suit is mala fide and vexatious? OPD.
(3) Whether defendants are rightful land heirs of Ghulam Akbar Khan, deceased and as such suit is liable to dismissal? OPD.
(4) Whether defendants are entitled to compensatory costs under section 35-A, of C.P.C., if so, to what extent? OPD.
(5) Whether suit is incorrectly valued, if so, what is correct valuation and what is its effect upon the suit? OPD.
(6) Whether plaintiffs are the only legal heirs of Ghulam Akbar Khan, deceased, and as such, entitled to inherit the heritage of Ghulam Akbar Khan, deceased? OPP.
(7) Whether defendants Nos.1 to 6 have no right to inherit the suit property of Ghulam Akbar deceased? OPP.
(7-A) Whether defendants are entitled to the share of produce, if so, to what extent? OPD
(8) Relief.
2. In the earlier round of litigation the suit of the petitioners was dismissed on 14-4-1991. This judgment and decree was, however, set aside in appeal on 1-9-1992 and the case was remanded to the learned trial Court with the additional issue having been framed by the learned Additional District Judge which was as under:-- Issue No,7-B. Whether Ghulam Akbar deceased contracted second marriage with Mst.Kaniz Begum, if so, when? OPD.
3. Admittedly, both the parties made statement before the learned trial Court that it should be decided the afore-referred issue on the evidence already led by both the parties.
4. The learned trial Court primarily on the basis of its findings on issue No,7-B dismissed the suit vide judgment and decree dated 20-11-1992. The grounds which found favour with the learned trial Court to decide the afore-referred issue in favour of the respondents/defendants was that Mst.Marium Bibi, D.W.1, Mst.Ghulam Fatima, D.W.2 and Mst.Janat Bibi D.W.3 who are admittedly the real sisters of Ghulam Akbar Khan, deceased had supported the factum of marriage of Mst.Kaniz Fatima with Ghulam Akbar Khan, that P.W.4 to P.W.6 have not denied the afore-referred marriage, that the evidence of P.W.1, an official of Registration Office, Multan with regard to the date of birth of Afzal defendant and that of P.W.2 Mustaqim, Head Master, Primary School was of no avail to the petitioners/plaintiffs as the parentage of respondents/defendants stood endorsed even in terms of the entries made in the documents which they produced. This judgment and decree of the learned trial Court has been affirmed by the learned Additional District Judge in terms of the judgment and decree dated 11-2-1996. Assailing the concurrent judgments and decrees learned counsel for the petitioners has confined his submissions only on Issue No .7-B. He submitted as under:--
(i) That the onus to prove Issue Additional was on the respondents/defendants and the learned Additional District Judge has mainly relied on Exh.D.5, (Nikahnama) notwithstanding the fact that the veracity of the said document stood eroded as one of the witness of the said Nikahnama namely Allah Diwaya who appeared as P.W.3 and stated that he never attended the alleged Nikah of Ghulam Akbar with Mst.Kaniz Fatima.
(ii) That Mst.Kaniz Fatima never appeared in Court to acknowledge the factum of Nikah.
(iii) That as per the statement of P.W.1 Khizar Hayat, an official of Registration Office, Multan. Akhtar one of the respondents/defendants was born in 1955. If the Nikah was performed on 25-11-1958 as mentioned in Exh.D.5 how could Muhammad Akhtar be born in 1955.
(iv) Learned counsel lastly contended that both the learned Courts have not considered the statement of P.W.1 Khizar Hayat Qureshi in proper perspective.
5. Learned counsel for the respondents, on the other hand, defended the concurrent judgments and decrees by submitting that those are in accord with the weight of evidence, that the three real sisters of Ghulam Akbar Khan appeared as D.W.1 to D.W.3 to prove the factum of marriage of Ghulam Akbar Khan with Mst.Kaniz Fatima, that Allah Diwaya son of Abdullah who was a witness of Nikah had died as per statement of D.W.8, that Exh.D.5, the Nikahnama, has been duly proved by the concerned official who appeared as D.W .7, that the non-appearance of Mst.Kaniz Fatima is of no consequence as she had died and the factum of her death was never challenged by the petitioners/plaintiffs during the trial.
6. Heard.
7. The onus to prove Issue No,7.B was on the respondents/defendants. The evidence led in support thereof by the defendants was DATA Mst.Marium Bibi who is admittedly real sister of Ghulam Akbar.
She categorically stated that Mst.Kaniz Fatima was the second wife of Ghulam Akbar and that from the said wedlock were born respondents/defendants namely Muhammad Akhtar, Muhammad Afzal and three daughters i,e, Mst.Farzana, Mst.Sajida and Mst. Rukhsana. In cross-examination, she stated that although she did not participate in the Nikah of Ghulam Akbar with Mst.Kaniz Fatima but she came to know about it after 5/6 months of the Nikah, that the said Ghulam Akbar Khan had provided separate houses to both the wives. She also knew the exact date of birth of respondents/defendants. She denied the suggestion that she was making misstatement on account of some family dispute. Her statement was corroborated by Mst.Ghulam Fatima D.W.2 who too-is real sister of Ghulam Akbar Khan and D.W.3 Mst.Janat Bibi' who is also his sister. Despite the lengthy cross-examihation to which these three witnesses were subjected, their testimony could not be shaken and they remained consistent with regard to the time of the said Nikah, the children born and the respective ages of the respondents/defendants. The statement of this witness is further corroborated by lmtiaz Ahmad Khan (D.W.4) who is real cousin of the parties as he is son of Mushtaq Ahmad Khan. He stated that Mst.Kaniz Fatima was second wife of Ghulam Akbar Khan and respondents/defendants are offspring from the said Nikah. Muhammad Akhtar Khan, one of the respondents/defendants appeared as D.W.5. He made statement consistent with the written statement and endorsed the statements of the afore-referred witnesses who had already appeared on their behalf. D.W.6 is Dust Muhammad who proved Exh.D.3 which is a certificate issued by the Election Office, Mianwali to the effect that Muhammad Akhtar, respondent/defendant is son of Ghulam Akbar Khan, Exh.D.4 is with regard to Muhammad Afzal and the father's name mentioned is Ghulam Akbar Khan. D.W.7 is Muhammad Safdar, Record Keeper who proved Exh.D.1 which is School Leaving Certificate of Muhammad Afzal Khan wherein parentage given is Ghulam Akbar Khan. Mst.Zubaida Mai, mother of Mst.Kaniz Fatima appeared as D.W.8 who stated that the witness of Nikahnama Exh.D.5 namely Jafar, Gul Ahmad and Allah Diwaya had died and that Mst.Kaniz Fatima also died about 3 years ago. She was also subjected to lengthy cross- examination but nothing could be brought on record to show that Mst. Kaniz Fatima was not legally wedded wife of Ghulam Akbar. In cross-examination an attempt was made to show that Akhtar and Afzal were born out from the wedlock of Mst.Kaniz Fatima with one Mehboob Elahi, but D.W.8 Mst.Zubaida Mai candidly stated in cross-examination that Mst.Kaniz Fatima was married to Mehboob son of Elahi Bakhsh but that marriage ended in divorce after 3/4 months and after six years of the said divorce she got married to Ghulam Akbar Khan. She further specifically stated in cross-examination that the afore-referred Nikah of Ghulam Akbar Khan with Mst.Kaniz Fatima was performed about 32 years ago. An abortive attempt was made in cross-examination to show that she was not mother of Mst.Kaniz Fatima but this suggestion was denied and no evidence was led to disprove that she was mother of Mst.Kaniz Fatima. In terms of Article 64 (old section 5 of the Evidence Act) of the Qanun-eShahadat Order, 1984 statements of D.W.1, Mst.Marium Bibi, D.W.2 Mst.Ghulam Fatima, D.W.3 Mst.Janat Bibi, real sisters of Ghulam Akbar Khan, D.W.4 Imtiaz Ahmad, a cousin of the parties and D.W.8, mother of Mst.Kaniz Fatima are relevant as they had special means to know about the relationship of Ghulam Akbar Khan with Mst.Kaniz Fatima. In Ghulam Muhammad etc. v. Allah Yar etc. (PLD 1965 Lah.482) at page 485 it is held as under:- "According to this section, when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. It is the opinion, expressed by conduct, of any person who has special means of knowledge about the relationship, which is relevant. The opinion of a competent witness must be "expressed by conduct" and in case it is not so relevant based on conduct it would be irrelevant. The two illustrations to this section fully bring out the import of these significant words in the section. According to illustration (a), the fact that A and B were usually received and treated by their friends as husband and wife, is relevant. Similarly in illustration (b), the fact that A was always treated as the legitimate son of B by the members of the family, is relevant. In these cases the opinion of the friends and the members of the family who have the special means of knowledge is relevant because it is based on the conduct and treatment of persons concerned. The opinion as expressed by conduct is evidence or in other words evidence of the conduct can be given in evidence and from that conduct given in evidence the Court is to judge the result. Generally speaking the opinion cannot be a substitute for evidence of facts in issue and is irrelevant. But this section is one of the few exceptions to the general rule."
All the afore-referred witnesses have affirmed the factum of marriage and have stated in their statements that Mst.Kaniz Fatima was always treated as second wife of Ghulam Akbar and the respondents/defendants are as their lawful offspring. In these circumstances, the conduct reflected in their statements proved beyond doubt that Mst.Kaniz Fatima was lawful second wife of Ghulam Akbar Khan and the respondents/defendants were the legal heirs. So far as argument of the learned counsel for the petitioners that since Mst.Kaniz Fatima had not appeared in Court during trial and that a presumption be drawn against her is concerned the same is without substance as it is in evidence that (statement of D.W.8 Mst.Zubaida Bibi) Mst.Kaniz Fatima had died before the petitioners/plaintiffs' evidence could be concluded.
8. In the afore-referred circumstances the findings on Issue No,7-B rendered by both the Courts below do not reflect any misreading or non-reading of evidence to warrant interference in the revisional jurisdiction of this Court. However, before I part with this judgment I note that the petitioners/plaintiffs have dragged the respondents/defendants in frivolous litigation resulting not only in anguish and expense to them but also to bring bad name as the very paternity of the respondents/defendants was thrown to challenge. The suit was tiled as far back as on 27-6-1990, it was dismissed in the first round of litigation on 14-4-1991. It was remanded on 1-2-1992. The learned trial Court dismissed the suit which judgment and decree was affirmed by the learned Additional District Judge. This petition was filed in May, 1996, it was dismissed for non-prosecution on 12-2- 1997. C.M. No,73-C of 1997 for restoration of the main petition was filed on 13-2-1997. On 14-3-1997 this Court directed status quo to be maintained. In all these years the property of which the respondents/defendants were rightful share holders by way of inheritance remained in possession of the petitioners/plaintiffs and they continued to make use of its income. In these circumstances, while dismissing this petition I am persuaded to burden the petitioners with a sum of Rs,1,00,000 to be paid to the respondents/defendants as special costs.