MANZOOR HUSSAIN vs ZAHOOR AHMED and 4 others

1. ' MUHAMMAD AFZAL ZULLAH, CJ.-This appeal through leave of the Court has arisen out of a case of inheritance, wherein the question of legitimacy of the appellant as an issue from a valid Muslim wedlock, has been decided against him. The order for grant of leave to appeal reads as follows:--- "This petition by a plaintiff, who lost throughout, seeking leave from the High Court's revisional judgment, dated 23-12-1990, arises out of a suit for declaration, that the petitioner is legitimate son of Muhammad alias Muhammad Khan deceased, and entitled to 7/16 share in his estate.

2. ' The petitioner claims that he was born on 12-10-1928 out of the wedlock of Muhammad Khan with Mst. Kalo. Muhammad Khan expired in the year 1972. To substantiate his case, the petitioner adduced oral as well as documentary evidence comprising copies of the Revenue Record, birth and death registers and his educational certificates. On consideration of evidence of the parties, the Courts below recorded a finding that marriage between Muhammad Khan and Mst. Kalo, who was said to be a member of a prostitute family, was not proved.

3. ' In the Revenue Record, the petitioner is shown as son of Muhammad Khan. According to the copy of death register, Mst. Kalo was the wife of Muhammad. This entry was made on 12th January, 1935.

4. In the Middle School Examination Certificate dated 6-1-1949, and Adna Molam Sand issued on 28- 12-1951 to the petitioner his father's name is mentioned as Muhammad Khan. In the birth register the petitioner is shown as son of Muhammad Khan and born on 12-10-1928. This entry was, however, recorded on 24-11-1965. There is no dispute that Mst. Kalo was the mother of the petitioner. The question as to whether or not she was the lawfully wedded wife of Muhammad Khan is primarily a question of fact which all the Courts below answered against the petitioner. It is, however, contended that the evidence has been grossly misread and the Courts below failed to adjudge correctly the legal effect of the documentary evidence and draw proper conclusion from the facts proved thereby.

5. ' This petition is barred by time by two days. Upon the facts stated in the application for enlargement of time, the delay is condoned subject to all just exceptions."

6. ' Learned counsel for the appellant has reiterated all the points which were noted in the above- quoted order and/or were advanced in the High Court. It has also to be noticed that none has appeared to oppose this appeal.

7. ' It appears that although the material in favour of the appellant was sufficiently strong and it included several documents wherefrom it can be easily assumed that he is the son of Muhammad Khan deceased; yet, some doubts arose against him mostly because he is the son of a prostitute woman or that his witnesses deposed nearly half a century after the major events in this case and thus they fell into errors of memory or consistency. Even on question of interpretation of appellant's documentary evidence for purpose of determining whether it was .Effective or not, the reasoning turned against him in several situations on account of the past of two women -- one his maternal- grandmother who, according to him, (though of shady past) was married to the uncle of the deceased. And two, his own mother the former's daughter (of similar past) was married to his father. While doing so the learned Courts below, it seems with respect, fell into error not to accept two major philosophical Islamic rules in situations like that in this case.

8. Firstly, Allah in His wisdom may accept Tauba at any time; and further that there is no bar for a woman who has been a prostitute, to go through the process of Tauba and lead normal married life with a view to advance Allah's purpose. Here she also produced a child from the lineage of the person whom she chose to become her husband. See also Abdul Majid Khan v. Mst. Anwar Begum alias Anwar Bibi PLD 1989 SC 362.

9. Second aspect ignored in this case is of Muslim (jurisprudential) well-known rule of leaning in favour of legitimization, rather than stigmization. See Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624. The case was noted by the High Court but the reasoning in the impugned judgment instead of following the same, has gone against it. All doubts have been resolved in favour of stigmization and illegitimacy rather than legitimacy. So much so that the appellant, a teacher by profession was not given any credit at all for his own statement. His own educational career was punctuated sufficiently densely by direct evidence of his father, the deceased, not only lending his name or his paternity but also of his material support in his childhood. These and other similar items of evidence should have been treated as very strong corroboration of his life story. It is also purpose amongst others, of Act 2-A of the Constitution of Objectives Resolution. Viewed in the light of Islamic rules of appreciation of evidence in the cases of disputes about legitimacy, the material produced by the appellant the major elements whereof have been noted earlier was enough to prove his legitimacy.

10. ' It appears the approach of the High Court in not acting under the Islamic dispensation was due to a general impression created against marriages of prostitutes, as was highlighted in some Privy Council cases. It stands now repelled in the case of Abdul Majid, referred to earlier.

11. It seems the High Court also ignored the rule enacted in the definition of the word 'proved' in our law of evidence and insisted for direct 'evidence' of marriage and legitimacy instead of looking for 'material' which was in abundance to create very strong probabilities in favour of the appellant rather Than against him. See in this behalf Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95, Muhammad Ashraf v. The State PLD 1983 SC 216, State v. Habibur Rahman PLD 1983 SC 286, Habibullah v. The State PLD 1983 SC 401 and Said Wali v. Yaqoot Khan PLD 1983 SC 440.

12. ' In the light of the foregoing discussion this appeal is allowed, the impugned judgment is set aside and it is declared that the appellant is the son of Muhammad Khan deceased from his wedlock with Mst. Kalo with the result that the appellant's claim for declaration and possession of his share under Islamic law is decreed. All authorities to act accordingly. There shall be no order as to costs.