HUSSAIN Versus Mst. KHATOON
ORDER
1. DR. RANA MUHAMMAD SHAMIM, C.J.--- Before hearing the case the attention of the learned counsel for the petitioner was drawn towards the derogatory remarks passed against the learned Chief Court Gilgit-Baltistan in his concise statement of paper book of the petition in hand. After going through the remarks he sort permission of the court for deletion of said remarks, which was allowed and the remarks were deleted accordingly. At the same time he stated that he was not responsible for the said remarks as the petition was drawn in and filed by Mr. Ali Nazar Khan, Advocate-on-Record.
2. As regard to the case in hand, the learned counsel for the petitioner/defendant contended that the father of the respondent No. 01 namely Rozi Ali had died 90-95 years back prior to filing of the Original Suit No. 14/2001 and Civil Suit No. 53/2003. He further contended that at the time of the death of her father, the Muslim Personal Laws were not applicable in India and Gilgit-Baltistan and females under prevailing customs and usages had no right to inherit property from the legacy of their parents/brothers. He also submits that Muslim Family Laws in Pakistan were enacted in the year 1962, hence, the same has no retrospective effect. He further contends that the Civil Suit No. 14/2001 filed by the respondent No. 1 i.e. Mst. Khatoon daughter of Ali in the Court of Civil Judge 1st Class Khapulu, the same was decreed in her favour as prayed by her. Whereas the cross Suit No. 53/2002 filed by the petitioner was dismissed. The petitioner being aggrieved by and dissatisfied with the orders of the learned Civil Judge filed the 1st Civil Appeals Nos. 14/2004 and 15/2004 respectively before the learned District Judge Ghanche. Upon hearing the parties, the learned District Judge Ghanche allowed both the appeals by a consolidated order dated 06.07.2006.
3. He also contended that respondent No.1 namely Mst. Khatoon daughter of Ali being aggrieved by and dissatisfied with the consolidated judgment dated 06.07.2006 passed by the learned District Judge Ghanche filed 2nd Appeals Nos. 18/2006 and 19/2006 respectively before the learned Northern Areas Chief Court camp at Skardu. It was argued that the claim of the appellant was based on the Sharia and the right of inheritance given to a muslim female in Holy Quran cannot be taken away by any law of land, authority, custom or usages and or may have an effect of temporary dispensation of rights but no permanent extinguishment of such right is recognized in Islam, notwithstanding the application of such rights under customary law, the muslim female would be entitled to inherit the property in accordance with the law of Sharia and the custom have not contrary to the injunctions of Islam.
4. Consequently, the appeal of respondent No. 1 was accepted and impugned Judgment/Order dated 06.07.2006 passed by the learned Additional District Judge Ghanche was set aside by decreeing the Suit No. 14/2001 of the respondent No. 1 to the extent of 1/5 share of Ali and dismissed the Suit No. 53/ 2003 filed by the petitioner. However, the share of the two sons of the deceased namely Mukhmil shall remain with the respondent namely Hussain.
5. The learned counsel for the petitioner further contends that Hussain son of Mukhmil, being aggrieved by and dissatisfied with the order of the learned Chief Court, Gilgit-Baltistan filed the instant petition bearing No. C.P.L.A. No. 06/2014, before this Apex Court with the prayer that since, Muslim Personal Law was not applicable at that time i.e. 100 years ago in Gilgit-Baltistan and females were not getting their Share from their inherited property under prevailing customs and usage. The respondent No. 1 has no right from the legacy of her father and brothers. The learned counsel for the petitioner prayed that the order passed by the learned District Judge be upheld as the same was passed according to the prevailing customs and usages which were applicable at the time in Gilgit-Baltistan. The orders passed by the learned Civil Judge 1st Class Khapulu as well as by the learned single Judge, Chief Court, Gilgit-Baltistan be set aside.
6. During the arguments the attention of the learned advocate Supreme Appellate Court for the petitioner was also drawn towards para-3 of the impugned Judgment dated 08.04.2014 passed by the learned Chief Court Gilgit-Baltistan in which he frankly and rightly admitted that the claim of the respondent was based on the Sharia laws and so as right of inheritance given to a Muslim female in Holy Quran cannot be taken away by any law, authority, custom and usage. It may have an effect of temporary dispensation of rights but no permanent extinguishment of such right is recognized in Islam and notwithstanding the application of such rights under the customary law, the muslim females would be entitled to inherit the property in accordance with the law of Sharia and the custom have not contrary to the injunctions of Islam.
7. We heard the learned counsel for the petitioner and perused the record/case file and hold that the Judgment passed by the learned Chief Court Gilgit-Baltistan is well reasoned and no illegality and infirmity has been pointed out which does call for interference.
8. In view of the above, the leave to appeal was refused and these are the reasons for the short order dated 10.09.2015.
9. Leave is refused.
10. HBT/198/GB Leave refused.