Mst. GHULAM AYESHA alias ILYAS BEGUM and another vs SARDAR SHER KHAN
Mst. Ghulam Ayesha Begum and another sought leave to appeal against the Lahore High Court judgment dismissing their revision petition, which had upheld the Additional District Judge's decree granting a one-third share of their deceased father's property to collaterals. The core legal question was whether the deceased, Sardar Fazal Khan, professed the Shia or Sunni faith for the purpose of determining the applicable law of inheritance. The Supreme Court of Pakistan held that the performance of funeral prayers according to a particular sect is no proof of the deceased's faith, whereas overt acts such as flying the Alam of Hazrat Abbas strongly indicate adherence to the Shia faith. The Court concluded that the lower appellate and revisional courts misappreciated the evidence, accepted the appeal, set aside the impugned judgments, and restored the trial court's dismissal of the respondents' suit. The key principle laid down is that the manner of a deceased's funeral prayers does not determine their religious faith, whereas consistent personal religious observances and practices, such as flying an Alam, serve as strong evidence of faith in inheritance matters.
- Whether the performance of funeral prayers in accordance with a particular faith constitutes proof of the faith professed by the deceased?
- Does the flying of an Alam of Hazrat Abbas on one's house serve as an indication of Shia faith?
- Can a High Court's appreciation of evidence in revisional jurisdiction be interfered with by the Supreme Court when evidence is misread or improperly appreciated?
Sardar Muhammad Raza, J.--Mst. Ghulam Ayesha Begum alias Ilyas Begum and Mst. Shahzadan Begum daughters of Sardar Fazal Khan seekleave 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 fur 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 Muharrani, the deceased used to liberally give charity for the mosque but that he never offered prayers led by Hafiz Muhammad Yousaf.
6. Maqsoed 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.
Cited by 2 cases
- Mst. Nasim Begum, etc vs Muhammad Nawaz, etc 2021 CLC 1269, 2020 LHC 2981
- Mst. CHANANI BEGUM (DECEASED) through LRs vs Mst. QAMAR SULTAN 2020 P SC 934, 2020 SCMR 254