These two petitioner i,e, C.R. No, 1395/97 and C.R. No, 1396/97 having common features, concerning the same controversy and arising out of the common judgment of the appellate Court, shall stand disposed of through this judgment.
2. The crucial issue emerging in this litigation is as to whether Mehdi Hassan deceased was Sunni or Shia. The factual background has been elaborately stated in the judgments of the Courts below, in particular by the learned Additional District Judge, which need not be reiterated overagain except to state briefly the essential aspects of the matter. Mehdi Hassan son of Sher Muhammad died in un-partitioned India in the year 1938 and was survived by Mst. Yatim Bibi widow, Mst. Tahira Bibi daughter, Abdul Ghani brother and Mst. Siddique Bibi sister. On partition they migrated to Pakistan.
Mutation No, 15 was sanctioned on 25.11.1952 in favour of legal heirs of Abdul Ghani and Mst.
Siddique Bibi (brother and sister) of deceased Mehdi Hassan excluding Mst. Yatim Bibi that she had contracted marriage with one Abdul Aziz in India and that Mst. Tahira Bibi had died during disturbances. An appeal was filed thereagainst by Mst. Yatim Bibi and Mst. Tahira Bibi against this mutation, which was dismissed by the Collector, Gujranwala on 26.10.1953. They thereafter instituted a suit, which was dismissed by the Civil Judge Gujranwala on 3.1.1957, however, the said judgment was reversed on appeal vide judgment dated 22.11.1958 declaring Mst. Yatim Bibi and Mst. Tahira Bibi as successors of Mehdi Hassan deceased i,e, the widow and daughter respectively.
R.S.A No, 35/59 was filed thereagainst, which was accepted by this Court holding the view that the suit was not maintainable. It was thus that Writ Petition No, 243-R/68 was filed by Mst. Yatim Bibi in this Court, which was accepted on 30.6.1976 declaring mutation dated 29.12.1952 as without lawful authority. The petition for leave to appeal filed thereagainst was dismissed by the Hon'ble Supreme Court of Pakistan on 3.5.1978. In this background mutation of inheritance of Mehdi Hassan deceased (Mutation No, 647) was sanctioned on 15.6.1985 considering him as Shia, allocating 1/8th share to the widow Mst. Yatim Bibi, and 7/8th share to Mst. Tahira Bibi, the daughter. This led the heirs of Abdul Ghani and Mst. Siddique Bibi to institute a declaratory suit pleading that Mehdi Hassan deceased was Sunni by faith. It was obviously contested. Several issues were framed by the trial Court. The parties produced evidence in support of their respective pleas and the suit was decreed by the trial Court vide its judgment dated 18.5.1994. The same was assailed by Mst. Yatim Bibi and Mst. Tahira Bibi as also by the vendees by filing separate appeals. The same were heard and decided by the learned Additional District Judge, Gujranwala on 21.5.1997 accepting the appeals and dismissing the suit. These two revision petitions have arisen in this context.
3. As mentioned above, the real controversy was whether Mehdi Hassan deceased was Suni as pleaded by the petitioners or Shia as claimed by his widow and daughter. Such controversy was reflected through issue No, 6-A, which assumes primacy and importance. The learned counsel for the petitioners has made reference to portions of the judgment of the learned appellate Court to contend that the evidence has been misread and misconstrued while recording the findings. It is contended by him that there is presumption that in the subcontinent all Muslims are presumed to be Sunnis unless established to the contrary by producing good evidence, which according to him, was lacking in this case. Reference in this context has been made to Pathana v. Mst. Wasai and another (PLD 1965 S.C. 134). According to him burden of proving that Mehdi Hassan deceased was Shia, was not discharged by the respondents/defendants through a cogent and convincing evidence. Extensive reference has been made to the statement of Muhammad Sakhi PW-1 to contend that due weight has not been given by the appellate Court to his testimony, who was collateral of the parties and had stated that there was no Shia in their family. The learned counsel for the respondents/defendants on the other hand supports the judgment of the learned appellate Court and contends that due and proper appreciation of evidence made by the appellate Court and findings recorded on that basis cannot be interfered within revisional jurisdiction by this Court.
It is contended that the best available evidence was produced by the ladies to prove that Mehdi Hassan deceased was Shia. According to him opinion so formed by the learned Additional District Judge is fully justified and supported by the evidence on the record. Reference has been made in this context to Mt. Iqbal Begum v. Mt. Syed Begum and others (AIR 1933 Lahore 80), Amir Ali v. Gul Shaker and 10 others (PLD 1985 Karachi 365), Nazir Ahmad through legal heirs v. Boota and 3 others (1988 CLC 1925), Ghulam and 2 others v. Ghulam Sarwar Naqvi (PLD 1989 Lahore 372) and Muhammad Sadiq v. Federation of Pakistan through Chairman, Pakistan Railways Board (1991 M LD 1).
4. The precedents of the superior Courts undoubtedly lay down the presumption that a Muslim in the subcontinent was to be treated as Sunni unless proved to the contrary. The onus was thus on the ladies i,e, the widow and daughter of the deceased. In the present case they had asserted so that Mehdi Hassan deceased was Shia. Mst. Yatim Bibi herself appeared in the witness box whereas Nasir Hussain Naqvi, a person of advance age of 80/85 years was also produced who supported her and stated that the deceased used to attend Majalis in Moharrum days. Almost to the same effect was the deposition of Syed Shabbir Hussain Shah, Muhammad Rafique, Muhammad Hanif and Mst. Tahir Bibi. Their deposition was consistent, which was based on their knowledge, observation and conduct of the deceased. Merely that some of the witnesses did not belong to the same village as that of Mehdi Hassan deceased would not discredit their testimony as the depositions otherwise were confidence inspiring. It has engaged my good deal of attention as to what else evidence could be produced by them. In the events that ensued the partition and the village where Mehdi Hassan deceased used to live was left behind, the best possible and available evidence was produced by the ladies. That has rightly been believed and relied upon by the learned appellate Court. A misreading of the statement made by Muhammad Sakhi PW-1 is attributed to the learned appellate Court. I have perused his statement carefully and find the same discrepant and unconvincing in material aspects. He claims to have known Mehdi Hassan deceased and states that in the village Bhojpur there was no Shia family. During his cross- examination however, he is unable to tell the year of marriage of Mehdi Hassan deceased. His statement about the year of death of Mehdi Hassan deceased also did not coincide with the established fact (1938). While responding to a question that he had not participated in the marriage of Mst. Tahira Bibi, he had to state that it was due to the rift and strained relations.
He had a bias and motive behind for deposing against them. His testimony, therefore, lost credibility. It may be observed that in civil matters it is the preponderance of the evidence that is to be made basis for forming an opinion and recording a finding on a particular issue. A slight discrepancy in such a process cannot be made basis to erode the efficacy of the findings and the judgment, which otherwise find support from totality of the material on the record. A comparative consideration of the two judgments i.e the trial Court and of the appellate Court, leads me to the conclusion that the view taken by the learned Additional District Judge is more consistent with the evidence on the record. I am, therefore, unable to countenance the contention of the learned counsel for the petitioners that the ladies had failed to produce convincing evidence to discharge the burden that Mehdi Hassan deceased was Shia. I find no valid basis or justification to interfere with the judgment of the learned Additional District Judge, which proceeds on correct appreciation of the evidence and the law on the subject. As a result of the above, both these petitions are dismissed with no order as to costs.