Wednesday, 30 May 2012

How to prove a person is shia

PLJ 2006 SC 1476
[Appellate Jurisdiction]

Present: Rana Bhagwandas & Sardar Muhammad Raza Khan, JJ.

Mst. GHULAM AYESHA alias ILYAS BEGUM and another--Petitioners

versus

SARDAR SHER KHAN (deceased) represented by LRs
and others--Respondents

Civil Petition No. 797 of 2004, decided on 25.11.2005.

(On appeal from the judgment dated 1.10.2003 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision # 41/D of 1998).

Constitution of Pakistan, 1973--

----Art. 185(3)--Leave to appeal--Determination of faith--Flying of Alam strong indication--The performance of Jinaza prayer in accordance with a particular faith was no proof at all of the faiths that the deceased professed--Plaintiff as well as the defendants, closely related to deceased were all Shias--The deceased used to fly Alam (flag) of Hazrat Abbas on his house--Held: Flying of Alam of Hazrat Abbas on ones house, inter alia, was a strong indication of ones Shia faith--Appeal accepted.       [Pp. 1477 & 1478] A, B & C

Mr. Shehzad Ahmed, ASC with Mr. Ejaz Muhammad Khan, AOR for Petitioners.

Mr. Azhar Naveed Shah, ASC with Mr. S. Zafar Abbas Naqvi, AOR for Respondents # 1-4 to 6.

Date of hearing :  25.11.2005.

Judgment

Sardar Muhammad Raza, J.--Mst. Ghulam Ayesha Begum alias Ilyas Begum and Mst. Shahzadan Begum daughters of Sardar Fazal Khan seek leave to appeal against the judgment dated 1.10.2003 of a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench whereby their revision petition against the judgment dated 8.1.1998 of the learned Additional District Judge Attock, was dismissed.

2.  The dispute relates to the entire property of one Sardar Fazal Khan of village Shahrae Saadullah, Tehsil Fateh Jang, District Attock. After his death the property, vide inheritance mutation # 97 of 24.6.1992, devolved upon his two daughters Mst. Ghulam Ayesha and Mst. Shahzadan Begum, the present petitioners. One Sardar Sher Khan and four others, the collaterals of the deceased brought a suit against the aforesaid ladies claiming 1/3 share of inheritance, on the ground that Sardar Fazal Khan belonged to Sunni faith and that his mutation of inheritance attested under Shia law of inheritance was void, unlawful and ineffective upon their rights.

3.  The learned trial Court dismissed the suit but the same was decreed by the learned Additional District Judge, upheld by the learned High Court in revision. The learned counsel for the petitioners is of the view that the learned High Court has failed to exercise its revisional jurisdiction and had incorrectly endorsed the appreciation of evidence wrongly done by the learned Additional District Judge. He added that there was overwhelming evidence even from plaintiff side to prove that Sardar Fazal Khan professed Shai faith. This, the learned counsel for the respondents vehemently opposed and supported the findings of last two Courts.

4.  In the given circumstances, we have perused the record. One Hafiz Muhammad Yousaf (PW-1) is proved to have led the Jinaza prayer of Sardar Fazal Khan in accordance with Sunni faith. This by itself is no proof of the faith of deceased because he is not alive to make any choice. Being at the mercy of the living people it are they who have the choice and not the deceased whose faith is in question. The performance of Jinaza prayer in accordance with a particular faith is no proof at all of the faith that the deceased professed. We would, therefore, take the evidence of Hafiz Muhammad Yousaf out of consideration.

5.  Even Hafiz Muhammad Yousaf admits that the plaintiff party had asked him to lead the prayers. Strong possibility cannot be ruled out that it was done to create evidence for benefit in future. It has particularly come in evidence that the close relatives, especially the daughters and wives were kept away from the scene. Hafiz Muhammad Yousaf has further admitted that especially in the month of Muharram, the deceased used to liberally give charity for the mosque but that he never offered prayers led by Hafiz Muhammad Yousaf.

6.  Maqsood Hussain Shah (PW-2) is himself a Shia and he had performed Jinaza prayer of the deceased according to Shia faith. It has come on record that the plaintiffs as well as the defendants, closely related to Sardar Fazal Khan, area all Shias.

7.  Sardar Sikandar Hayat Khan (PW-3), one of the plaintiffs has categorically admitted that deceased used to fly the Alam (flag) of Hazrat Abbas on his house.

8.  The aforementioned evidence of the plaintiff where the flying of Alam is proved, is further fortified by the evidence of defendants and thus we have no reason to declare Sardar Fazal Khan as Sunni. The flying of Alam of Hazrat Abbas on ones house, inter alia is a strong indication of ones shia faith. A similar view has already been taken by the Supreme Court of AJ&K in case of Lal Hussain Shah (PLD 2000 SC (AJ&K) 25). Record is not properly appreciated either by the learned Additional District Judge or by the learned High Court.

9.  Consequently, the petition after conversion into appeal is accepted, the impugned judgment is set aside and that dated 28.5.1995 of the learned Civil Judge Ist Class Attock, dismissing the suit of the respondent, is hereby restored.

(Fouzia Fazal)        Leave accepted.


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