Wednesday, 30 May 2012

Every muslim is sunni unless proved contrary

PLJ 2009 Lahore 958

[Rawalpindi Bench Rawalpindi]

Present: Maulvi Anwar-ul-Haq, J.

Mst. SARWAR NOOR--Petitioner

versus

ALI HAIDER and another--Respondents

C.R. No. 517 of 2004, heard on 15.12.2004.

Presumption as to Sect--

----Suit of the petitioner claiming to be the only surviving heir of her deceased mother because she was a "Shia"--Held: Every muslim is sunni unless it is proved to be contrary--It was for the petitioner to rebut the said presumption--Witnesses produced by her have simply stated that the funeral prayer of the deceased lady was offered by a "Shia Mauvli"--Needless to state that this hardly rebbuts the said presumption, particularly, when the evidence has been rebbutted by the respondent with an equal number of witnesses--Revision dismissed.   [P. 960] A

1989 CLC 1591 & 1985 Kar. 365 rel.

Ch. Khudad Khan Chauhan, Advocate for Petitioner.

Malik Shehzad Ahmad Khan, Advocate for Respondent No. 1.

Date of hearing: 15.12.2008.

Judgment

On 4.9.2000, the petitioner filed a suit against the respondents. In the plaint, it was stated that the suit land mentioned in the plaint was owned by Mst. Imam Khatoon, mother of the plaintiff. She died on 1.1.1988. She was the only surviving heir as her mother was a "Shia" However, mutation of inheritance was entered and attested in favour of contesting parties in equal shares. Her appeal was allowed. But the appeal of the respondents was allowed by an Addl. Commissioner on 8.1.1996. Revision petition filed by her was dismissed by the Board of Revenue. She accordingly sought a declaration. Respondent No. 1 in his written statement pleaded that Mst. Imam Khatoon was a "Sunni" and the during the course of litigation in the revenue hierarchy the petitioner never pleaded that she was a "Shia". Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit on 21.1.2004. First appeal filed by the petitioner was dismissed by learned District Judge, Chakwal on 20.7.2004.

2.  Learned counsel for the petitioner contends that notwithstanding the fact that the said plea was not taken by the petitioner before revenue authorities she could not be estopped to take the plea in the Civil Court. According to him, the evidence on record has been misread while holding the deceased lady to be a "Sunni". Malik Shehzad Ahmad Khan, Advocate, Learned counsel for the respondent, on the other hand, vehemently urges that in our country there is a presumption that every Muslim citizen is "Sunni" unless it is proved contrary. He relies on the cases "Sabir Hussain and others Vs. Afrasayyab and others (1989 CLC 1591) and Amir Ali vs. Gul Shaker and 10 to other's (PLD 1985 Karachi 365). Further contends that the said plea was never taken in the proceedings before the revenue authorities and otherwise the said presumption has not been rebutted by the petitioner.

3.  I have gone through the copies of the records appended with this C.R with the assistance of the learned counsel for the parties. I find that Mst. Imam Khatoon, admittedly the mother of the petitioner and a collateral of Respondent No. 1, died on 1.1.1988. Inheritance Mutations No. 948 and 949 were taken up by the revenue officer and decided by means of an elaborate order on 11.4.1995 (Ex. D.4). It stands recorded that both the contesting parties are present with their learned counsel who were heard. The plea taken by the petitioner was that although Respondent No. 1 is a collateral but he is beyond four degrees and as such would be excluded and the petitioner shall get remaining half of the estate under doctrine of them. The plea was rejected by the revenue officer with reference to the table of residuary as given in the book of Mohammadan Law by F.D. Mulla. The petitioner then filed an appeal. It was allowed by Collector, Sub-division, Chakwal on 23.10.1995. He remanded the case to be decided after rehearing the parties. Against this order Respondent No. 1 filed an appeal which was heard by Addl. Commissioner (Revenue), Rawalpindi Division who allowed the same vide order dated 8.1.1996 and held that the respondent being a residuary would inherit the residue alongwith the petitioner. She filed a revision petition pressing the same plea which was dismissed on 8.5.2000. Present suit was filed on 4.9.2000 with the said plea. There being no denial that the petitioner participated in the said proceedings and then filed an appeal against the order of revenue officer and then a revision against the order of the Addl. Commissioner, there is force in the contention of the learned counsel for the respondent that the plea taken as to the sect of the deceased lady was an after thought. Be that as it may, I have examined the evidence, I may not here that I am in complete agreement with the learned counsel for the respondent that in this subcontinent there is a presumption that every Muslim is "Sunni" unless it is proved to be contrary. It was for the petitioner to rebut the said presumption. The witnesses produced by her have simply stated that the funeral prayer of the deceased lady was offered by a "Shia Maulvi" Needless to state that this hardly rebuts the aid presumption, particularly, when the evidence has been rebutted by the respondent with an equal number of witnesses.

4.  Having thus gone through the records, I do not find any force in this C.R. which is accordingly dismissed but with no orders all to costs.

(M.S.A.)    Revision dismissed.


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