Naseer VS Mst Sanwai Mai

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

JUDGMENT

C.R.No.194-D/2009

Naseer VS. Sanwai Mai etc.

Date of hearing : 13.01.2020 Petitioners by : Messrs Muhammad Ashraf Qureshi and Ruqayya Ramzan, Advocates Respondents by : Mr. Tanvir Sajid, Advocate

Ch. Muhammad Iqbal, J:- Through this single judgment, I intend to decide titled civil revision (C.R. No.194-D/2009) alongwith Civil Revision No.195-D/2009, as both these revision petitions have been filed against the same consolidated judgments and decrees.

2.Through these civil revisions, the petitioner has challenged the consolidated judgment and decree dated 30.06.2008, passed by the learned Senior Civil Judge, Dera Ghazi Khan whereby the suit for declaration of respondent/Mst. Sanwai Mai was decreed and the suit for declaration filed by the petitioner was dismissed and the consolidated judgment and decree dated 21.02.2009, passed by the learned Additional District Judge, Dera Ghazi Khan who dismissed the appeals filed by the petitioner.

3.Brief facts of the case are that Mst. Sanwai Mai, predecessor-in-interest of the respondents filed a suit for declaration against the petitioners contending therein that she is

owner in possession of land measuring 26 Kanal 12 Marla falling in Khata No.390 situated in Moza Piagah Chak No.3 Tehsil & District Dera Ghazi Khan and her name was not included in the inheritance mutation No.1518 dated 27.02.1985 of her father, as such, the same was against the law whereas her name was included in inheritance mutation No.1431 dated 13.01.1985 of land situated in Moza Dalana Patti Bhoochri. She contended that her right of inheritance through mutation No.1518 has illegally been usurped. The petitioners filed contested written statement. The petitioner also filed a suit for declaration challenging the inheritance mutation No.1431 dated 13.01.1985 of land situated in Moza Dalana Patti Bhoochri. The respondent filed contested written statement in the said suit. The learned trial Court consolidated both the suits, framed issues, recorded evidence of the parties and vide consolidated judgment and decree dated 30.06.2008, decreed the suit of the respondent as prayed for and dismissed the suit filed by the petitioner. The petitioner filed two separate appeals which were dismissed by the learned appellate Court vide consolidated judgment and decree dated 21.02.2009. Hence, these civil revisions.

4.I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

5.Mst. Sanwai Mai challenged the inheritance mutation No.1518 dated 27.02.1985 of her father Ghulam Muhammad deceased to the extent of land measuring 26 Kanal 12 Marla situated in Moza Dalana Patti Bhoochri by contending that she being daughter of Ghulam Muhammad, has been deprived of her inherited share in the estate of her deceased father. To prove her stance, she produced Sajjad Hussain, Halqa Patwari (P.W.1) who stated that Ghulam Muhammad deceased was owner of land

C.R.No.194-D/2009 3

measuring 68 Kanal 14 Marla. In cross examination, he deposed that:

ت ےکرجشہبصنراکیرڈےکاطمقبالغمدمحمودلگنہور3"۔۔۔درسےہہکومعضپکااگیئں کچربمن ںیم3 ومعض کپااگیئں کچ ربمن28.2.11 ںیم ومرہخ5151 اک وادل ریصن دمحم ےہ اور ااقتنل ربمن امسمۃیکتوک الغمدمحم ودل گنہوردحیلعہیلین ایسیہملق ےس ر رحتیایکایگےہاور اِس رپ یسکرویوین آرسیف ےک "دطختسہنںیہ۔ Mst. Sanwai Mai (P.W.2) deposed that defendant (petitioner) is her brother. Her father Ghulam Muhammad was owner of suit land situated in the estates of Moza Bhoochri and Paigan; that she was deprived of her share of inheritance in the land of her father in Moza Paigan whereas she was given due share in land situated in Moza Patti Bhoochri. She further produced pedigree table (Ex.P2) and mutation No.1431 dated 13.01.1985 (Ex.P8) of inheritance of her father relating to land situated in Mouza Boochri. Faqeer Bakhsh (P.W.3) and Wali Muhammad (P.W.4) supported the version of the respondent/plaintiff.

6.Bare perusal of the oral as well as documentary evidence, especially copy of the pedigree table (Exh.P.2), shows that Mst. Sanwai Mai is daughter of Ghulam Muhammad and sister of present petitioner Naseer. In the inheritance mutation No.1431 dated 13.01.1985, which was made in favour of Mst. Tiggi, Naseer and Sanwai Mai, respondent/plaintiff has been shown as daughter of Ghulam Muhammad. The petitioner failed to produce any document in rebuttal and it is settled principle of law that a document can be rebutted by the document having better legal sanctity only. In this regard, reliance is placed on the cases of Abdul Ghani & Others. Vs. Mst. Yasmeen Khan & Others (2011 SCMR 837) and Saleem Akhtar Vs. Nisar Ahmad (PLD 2000 Lahore 385).

7.The petitioner himself got incorporated mutation No.1431 dated 13.01.1985 undertaking that he (son) alongwith Mst. Tiggi (widow) and Mst. Sanwai Mai (daughter) are the legal heirs of

Ghulam Muhammad deceased but while incorporating mutation No.1518 of deceased Ghulam Muhammad, he deliberately concealed the name of Mst. Sanwai Mai as legal heir/daughter of Ghulam Muhammad and subsequently, he filed a suit for declaration flatly denying the paternity of Mst. Sanwai Mai to be daughter of Ghulam Muhammad deceased in violation of undertaking given by him before the revenue officer while got incorporating the mutation No.1431, which clearly operate as estopple as well as approbate and reprobate against him and he is debarred to deviate from his own statement. Reliance is placed on the case of A.R. Khan Vs. P.N. Boga through Legal Heir (PLD 1987 SC 107), relevant portion whereof is reproduced as under:- “It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot to use the words of Honeyman, J., in Smith v. Baker (S C 350) at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage. See also per Lord Kenyon, C.J., in Smith V. Hodson (2 Sm. L C 140).”

The Hon’ble Apex Court in another case reported as M/s. Home Comforts Vs. Mirza Rashid Baig & Others (1992 SCMR 1290) has held that:- “Thereafter fresh ejectment application should have been filed against M/s. Home Comforts as tenant. Contention is untenable for the reason that at the very outset of the ejectment proceedings when written statement was filed such objection was not raised that ejectment application should be dismissed as non-maintainable simply for the reason that Ibrahim son of Hussain Ali was not tenant but positive assertion was made in the written statement that M/s. Home Comforts were the tenant and not only that but stand was taken that default of 8 months in the payment of rent was not committed as alleged against Ibrahim son of Hussain Ali in the application for eviction and proper explanation was given in details as to how rent was paid by M/s. Home Comforts for the period of default. In the evidence also attempt was made to prove that there was no default and rent was paid to the landlady. In such circumstances it was rightly held by the learned Rent Controller that the tenancy is admitted by Home Comforts and

default is proved against them. No person can be allowed to approbate and reprobate in the same breath.”

Reliance is also placed on the case reported as Federation of Pakistan Vs. Amir Hamza (2001 SCMR 1959), relevant portion whereof is reproduced as under:- “13. ....The very factum of his invoking jurisdiction of the Tribunal and preferring proceedings before this Court, negates legal and Constitutional objections raised by him. It may be observed that “the appellant” cannot be permitted to approbate and reprobate in the same breath i.e. to challenge the constitutionality and jurisdiction of forum which he has himself invoked for seeking relief under the law.”

In Noor Muhammad, Lambardar Vs. Member (Revenue), Board of Revenue, Punjab, Lahore and Others (2003 SCMR 708), the Hon'ble Supreme Court of Pakistan has observed as under:- “6. ....In our opinion, this objection is not available to him for the reason that learned counsel on behalf of legal heirs of Subedar Asghar Ali had also filed a separate petition being No. 1651-L of 2002, assailing the same order, therefore, he cannot be allowed to blow hot and cold in one breath.”

In another case titled as Overseas Pakistanis Foundation & Others Vs. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah & Another (2007 SCMR 569), the August Court of the country has observed as under:- “4. ....It is also a settled law that nobody is allowed to approbate and reprobate as law laid down by this Court in Ghulam Rasool”s case PLD 1971 SC 376.”

8.The respondent proved her stance by producing Halqa Patwari as well as other witnesses in her support whereas the petitioner neither produced Halqa Patwari concerned who scribed the alleged inheritance mutation nor Tehsildar/Revenue Officer who sanctioned the mutation in evidence to prove the validity of alleged inheritance mutation No.1518 and non-producing the said material witnesses amounts to withholding of the best evidence and it would be legally presumed that had the said witnesses produced in the evidence, they would have deposed against the

C.R.No.194-D/2009 6

petitioner, as such, presumption under Article 129 (g) of Qanun- e-Shahadat Order, 1984 clearly operates against him. Reliance is placed on the cases of Sughran Bibi Vs. Mst. Aziz Begum & 4 Others (1996 SCMR 137).

9.Admittedly the parties to lis are Muslims by faith and follower of Quran and Sunnah. As per the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles. For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:-

227.Provisions relating to the Holy Quran and Sunnah.-(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. 1[Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]

(2)Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.

(3)Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens.

Admittedly the predecessor-in-interest of the parties of the lis as well as the parties are Muslims and principles of Quran and Sunnah are manifestly applicable and shares of each and every inheritor has conclusive and universally been prescribed therein. Allah Almighty has ordained the Muslims to decide their dispute as per Quran (Shariah) as described in following verses: ت ﴾۴۴آیربمن:اکفںیہ۔﴿وسرۃالمادئۃ اوروجہلصیفہنرکےاس(اتکب)ےکاطمقبےسجپازلفرامپااہللےنوت ُویہولگ ر ت ت ﴾۴۴آیربمن:لادئۃ اوروجہلصیفہنرکےاس(اتکب)ےکاطمقبےسجاپارااہللےنوت ُویہولگاظملںیہ۔﴿وسرۃا م ت ت ﴾ ۴۴آیربمن:اوروجہلصیفہنرکںیاسےکاطمقبےسجاہللیلا ٰنےناُپاراےہوت ُویہولگقسہ ںیہ۔﴿ وسرۃالمادئۃ ت )انجبومالپاحتفدمحماجدنلرھی:(یرہمج

The rights or shares of each and every Muslim inheritor in the estate of his/her deceased propositus is absolutely, conclusively

C.R.No.194-D/2009 7

and finally described /determined in the Holy Quran which shares are definite in nature. It is expedient to take guidance from the Holy Quran, particularly from Surah tul Nisa Ayat Nos.7 to 11, English & Urdu translation whereof (by Marmaduke Pickthall) is reproduced as under:-

7.Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much. A legal share.

8.And when kinsfolk and orphans and the needy are present at the division (of the heritage), bestow on them therefrom and speak kindly unto them.

9.And let those fear (in their behaviour toward orphans) who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.

10.Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies. And they will be exposed to burning flame.

11.Allah commands you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be only women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then for her is the half. And to each of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; but if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is knower, Wise.

وج امل امں پاپ اور رہتش دار وھچڑ رمںی وھتڑا وہ پا تہب اس ںیم رمدوں اک یھب ہصح ےہ۔ اور وعروتں اک یھب۔ ت ت ےصح(اہللےک)رقمرےیکوہےئںیہ۔اورجریماثیکمیسقتےکوق(ریغوارث)رہتشداراورمیتیاوراتحمجام اجںیئ وتانوک یھباسںیم ےس ھچدے دپارکو۔اوریریںیمال ی ےس شیامپارکواورا ےس ولںوںوکڈرپاہا ےیوج ت (ایسی احل ںیم وہں ہک) اےنپ دعب ےھنن ےھنن ےچب وھچڑ اجںیئ اور اوکن ایکن تبسن وخف وہ (ہک ان ےک رمےن ےک دعباناچیبروںاکایکاحل وہاگ) سپہا ےیہک ولگاہلل ےسڈرںیاور وقعمل پاتںیہک۔وج ولگ ومیتیںاکامل پااجیروطر رپ اھکےتںیہ وہاےنپٹیپںیم امگ رھبےتںیہ۔اوردوزخںیمڈاےل اجںیئےگ۔اہلل اہمتری اوالد ےک ت رایےہ۔اورارگاوالدتیمرصف پارےںیممتوکارشادفرامپاےہہکای ڑلےکاکہصحدوڑلویکںےکےصحےکی ر ت ڑلایکںیہوہں (ینعیدو پا) دو ےسزپادہ وت لکیرےک ںیمان اکدو اہتیئ۔اورارگ رصفای ڑلیک وہوتاساک ہصح

C.R.No.194-D/2009 8

ت ہایاکیرےکںیماٹھچہصحرشبہکیطتیمےکاوالدوہ۔اور فصن۔اورتیمےکامںپاپاکینعیدوونںںیمےس ر ارگاوالدہنوہاوررصفامںپاپیہاےکسوارثوہںوتایاہتیئامںاکہصحاورارگتیمےکاھبیئیھبوہںوتامں ت ت اکاٹھچہصح(اور میسقتیرہکتیمیک)وتیص(یکلیمعت)ےکدعبوجاسےنیکوہپافر ےک(اداوہےنےکدعب ت م ت وجایسےکذےموہلمعںیمامےئیگ)متوکولعممںیہنہک ھ ارےپاپدادوںاوروٹیبںوپوتںںیمےسقسدئہےک ت احلظےسوکنمتےسزپادہ رف یےہ ےصحاہللےکرقمرےیکوہےئںیہ۔ےبکشاہللس ھچاجےننواال(اور) ت (یرہمج:انجبومالپاحتفدمحماجدنلرھی) تمکحواالےہ۔

Further in Surah tul Nisa, it has been ordered as under:- ہ ای ےک دقحار رقمر اور وج امل امں پاپ اور رہتش دار وھچڑ رمںی وت (قح داروں ںیم میسقت رکدو ہک) مہ ےن ر رکدی ںیہ اور نج ولںوں ےس مت دہع رکےکچ وہ ان وک یھب ان اک ہصح دو ےبکش داا ہر زی ےک ما ےن ےہ۔ ت ﴿آیربمن﴾33

)اےربمغیپ) ولگمت ےس(مالہل ےک پارےںیم)مکح(داا)درپاتفرکےتںیہ ہہکدوہک داامالہل پارےںیم مکحداتیےہہکارگوکیئااسیرمدرماجےئسجےکاوالدہنوہ(اورہنامںپاپ)اوراسےکنہبوہوتاسوکاھبیئےک ت یرےکںیمےسآداھہصحےلماگ۔اورارگنہبرماجےئاوراسےکاوالدہنوہوتاسےکامتماملاکوارثاھبیئوہاگ ت اورارگ(رمےن واےلاھبیئیک) دو ںینہب وہںوت دوونں وکاھبیئ ےکیرےک ںیم ےس دواہتیئ۔اورارگاھبیئاور نہب رایےہ۔ ( ااکحم) داا مت ےساسےئل ینعی رمداور وعرںیت ےلمےلج وارثوہں وترمد اک ہصح دووعروتں ےکی ر ت ت ت ت ہ زیےسوافقےہ ﴿آیربمن﴾581 ایبنفرامپاےہہک ھٹکتےہنرھپو۔اورداا ر Further in Sahi Bukhari Sharif Vol.III, relevant at Page No.606 Chapter No.922 the shares of the legal heirs have also been described as under:- ت پاپاورامںیکرطفےساوالدیکریماثاورزیانبپایےناہک،ہکارگوکیئرمد اپوعرتیٹیبوھچڑےوتاسوک فصنےلماگاورارگدوںینہبپازپادہوہںوتانوکدواہتیئےلماگ،اورارگانےکماھتوکیئاٹیبیھبوہوتےلہپاوررشاک وکدےرکپایقےسرمدوکدوہصحاوروعرتوکایہصحدپااجٗےاگ۔ (حیحصاخبریرشفی) Moreover according to Section 2 of the Muslim Personal Shariat Application Act, 1937, the Shariat Laws were made applicable where the parties were Muslims. Section 2 of the Act ibid is reproduced as under:

2.Application of Personal Law to Muslim.- Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to special property of females, including personal property inherited or

obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs other than charities and charitable institutions and charitable and religious endowments the rule of decisions in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)

10.It was the case of the petitioner in his pleading that Mst.Sanwai Mai is not the daughter of Ghulam Muhammad which factum has badly been negated by the document of Mutation No.1431 regarding the inheritance of said Ghulam Muhammad wherein it is conspicuously mentioned her name as inheritor of her deceased father, which factum demolished the stance propounded by the petitioner in his pleadings. Moreover as the petitioner has questioned the paternity of the respondent and has also sought a negative declaration through filing a suit for declaration contending therein that the respondent No.1 (Sanwai Mai) is not daughter of Ghulam Muhammad, which tantamount to a negative declaration and same has nothing to do with his own legal character, as such, the suit under Section 42 of Specific Relief Act, is not maintainable. Alike controversy has been resolved by the Hon’ble Supreme Court of Pakistan in its latest judgment titled as Mst. Laila Qayyum vs Fawad Qayum & Others (PLD 2019 SC 449) held as under:- “7. First of all we need to consider whether Fawad had the requisite legal character to seek the abovementioned declarations and seek the cancellation of the said documents. A declaratory suit is filed under section 42 of the Specific Relief Act, 1877, reproduced hereunder:

42.Discretion of Court as to declaration of status or right. Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff, being able

to seek further relief that mere declaration of title omits to do so.

Explanation. A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.

8.A court can make a declaration in a suit in favour of a person who is entitled to any legal character or to any right, as to any property, which another is denying. Laila has not denied either Fawad”s legal character or his right to any property. Instead Fawad alleges that Laila is not Abdul Qayum”s daughter and therefore not his heir and not entitled to inherit the properties left behind by him (the prayer however only refers to “legacy”). Fawad seeks a negative declaration and one which has nothing to do with Fawad”s own legal character. To consider whether such declarations can be sought under section 42 of the Specific Relief Act it would be appropriate to review the case law.

9.In the case of Deokali Koer v Kedar Nath Lawrence Jenkins, CJ, writing over a hundred years ago said that not every kind of declaration can be sought under section 42 of the Specific Relief Act and that the Courts needed to be vigilant in entertaining all manner of suits: The section does not sanction every form of declaration, but only a declaration that the plaintiff is “entitled to any legal character or to any right as to any property;” it is the disregard of this that accounts for the multiform and, at times, eccentric declarations which find a place in Indian plaints.

If the Courts were astute - as I think they should be – to see that the plaints presented conformed to the terms of section 42, the difficulties that are to be found in this class of cases, would no longer arise. Nor would plaintiffs be unduly hampered if the provisions of section 42 were enforced, for it would be easy to frame a declaration in such terms as would comply with the provisions of the section where the claim was one within its policy. In Khanchand v Jacobabad Municipality a division bench of the Sindh Chief Court, consisting of Davis, CJ and Thadani, J, reiterated what Lawrence Jenkins, CJ had said in Deokali Koer about the scope of section 42 of the Specific Relief Act. The suit had sought a declaration that a certain person had ceased to be the Chief Officer of a Municipality was dismissed, which decision was upheld by the Chief Court.

In the case of Abdur Rahman Bhuiya v Commission of Narayanganj Municipality the High Court of East Pakistan (Dacca), consisting of Rahman and Murshad, JJ, also endorsed the views of Lawrence Jenkins, CJ. A suit, which had sought a declaration that from a particular date the defendants could not continue as Commissioners of the Municipality and all their acts, including demanding taxes

from the plaintiffs were illegal, was held not to be maintainable under section 42 of the Specific Relief Act. In the case of Abdur Rahman Mobashir v Amir Ali Shah Aftab Hussain, J identified the type of declarations which could be sought with regard to one”s legal character and those which could not:

31.Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or to any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it cannot apply to a case where only the entitlement to legal character or the property of the defendants is denied by the plaintiffs. A number of cases from the courts of the subcontinent were considered which led the learned Judges of the Lahore Court to observe and determine, that:

36.It is clear from these authorities that section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved, the suit is not maintainable. The suit must be one which must bring benefit to him in regard to these two rights. No suit involving any other right, hypothetical or abstract would be competent under that section. The Court will not therefore entertain suits in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have no concern with the vindication of the plaintiff”s title to status and property.

Section 42 of the Specific Relief Act deals with legal right as well as the threat or invasion to it by a person having corresponding duty not to invade it but to respect it. It would, therefore, apply only to a case where a plaintiff sues for declaration of his own legal right whether to property or legal character provided it is invaded or threatened with invasion by the defendant. It does not deal with the negation of the defendant”s rights. Consequently, a declaration that the defendant has no right to do something which does not infringe upon any legal right to property or legal character of a plaintiff cannot be given under section 42. The cause of action under this section should, therefore, be a threat of injury to the plaintiff”s own right or removal of cloud cast on his own title. It does not allow the plaintiff to come to the Court to show his hostility only to what the defendant considers his own right and which action does not cast any cloud upon the plaintiff”s own title.

With regard to seeking a negative declaration the Court observed that this could only be done if there was, “some threatened injury or infringement of the plaintiff”s right”:

43.I agree with the argument of the learned counsel for the respondents that even negative declaration can be given Salim Ullah Beg v. Mst. Makin Begum (1), Sughran v. Rehmat Ali (2), Amina Begum v. Ghulam Nabi (3) and U Arzeina v. Ma Kyin Shwe and another (4), but such declaration must also be one affecting some threatened injury or infringement of the plaintiff”s right. This type of negative declaration can be granted on the principle that what can be done directly can also be justified if done indirectly.

In the case of Rehmatullah Khan v Government of Pakistan Sardar Muhammad Raza Khan, J writing for a three- member Bench of this Court, held that, a suit filed on the basis of an application submitted to the Government seeking a declaration that the plaintiff was entitled to the installation of a petrol pump was not maintainable:

7.The permission by Pakistan State Oil to Gul Nawaz Khan to sell their petrol in his filling station, if at all granted, would have constituted a license which even if granted could have been withdrawn at any time. Seen from any angle, no vested right was created by filing an application or even by submission of a feasibility report. In the event of non-creation of any vested right, no relief can be sought under section 42 of the Specific Relief Act. In the circumstances, the petitioners were rightly non-suited by the two Courts below.

12.The suit was also barred by Article 128 of the Qanun-e- Shahadat Order. Only a putative father, within the time prescribed in Article 128, may challenge the paternity of a child.

128.Birth during marriage conclusive proof of legitimacy.

(1)The fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of the marriage, or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless-

(a)the husband had refused, or refuses, to own the child; or

(b)the child was born after the expiration of six lunar months from the date on which the woman had accepted that the period of iddat had come to an end.

(2)Nothing contained in clause (1) shall apply to a non- Muslim if it is inconsistent with his faith. Abdul Qayum (the father) had not challenged Laila”s paternity. Article 128 does not permit a putative brother (Fawad) to challenge his sister”s paternity.”

(emphasis supplied)

In the case of Ghazala Tehsin Zohra Vs. Mehr Ghulam Dastagir Khan & Another (PLD 2015 SC 327), the Hon’ble Supreme Court of Pakistan observed that birth during marriage is conclusive proof of legitimacy. Relevant portion of above said judgment is reproduced as under:- “12. It is a matter of concern that on such a vital issue we have not received much assistance at the bar as to how Article 128 ibid is to be interpreted. Redundancy is not lightly to be imputed to the legislature. For the purpose of harmonious construction of the said statutory provision, we may have resort to section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) which stipulates that “notwithstanding any custom or usage, in all questions regarding .... legitimacy or bastardy ... the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims”. Since both parties before us are Muslims and section 2 aforesaid specifically refers to legitimacy or bastardy, resort must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what may appear to be conflicting provisions of Article 128 of the QSO. For this purpose, it is necessary to ascertain the rules of Muslim Personal Law when a person denies that he is the natural/biological father of children born within the period stipulated in Article 128 ibid. The Muslim Personal Law (Shariat) is clear and well settled on the subject. Firstly, it provides that legitimacy/paternity must be denied by the father immediately after birth of the child as per Imam Abu Hanifa and within the post natal period (maximum of 40 days) after birth of the child as per Imam Muhammad and Imam Yousaf. There can be no lawful denial of paternity after this stipulated period. The Hedaya, Fatawa-e-Alamgiri and other texts are all agreed on this principle of Shariat. In the present case the daughter Hania Fatima was born on 21-3-2000 while the son Hassan Mujtaba was born on 9-2-2001. The very first denial of paternity appearing from the record is in the talaq nama (Exh.D3) which was made on 26-6-2001. Clearly, therefore, while applying the principles of Muslim Personal Law (Shariat) as mandated by the Act V of 1962, the respondent- plaintiff cannot be allowed to deny the legitimacy/paternity of the two children. This is also consistent with Article 2(9) of the QSO which, when read in the context of the present case, does not allow the Court to allow any evidence to be adduced to disprove legitimacy. The wisdom of this rule of Muslim Personal Law cannot be gainsaid, considering in particular the patriarchal and at times miogynistic societal proclivities where women frequently do not receive the benefit of laws and on the contrary face humiliation and degrading treatment. It is for the honour and dignity of women and innocent children as also the

value placed on the institution of the family, that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization.”

(emphasis supplied)

Moreover it is an undeniable societal reality that ordinarily the male members of family always makes utmost effort to snatch the share of their female from the estate of their propositus through hook and crook by inventing multiple devices including the family honours etc. but this trend has been strictly deprecated by the August Supreme Court in case reported as Ghulam Ali & 2 Others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).

11.Learned counsel for the petitioner has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

12.In view of above, these civil revisions being devoid of any merit are hereby dismissed with cost of suit throughout as well as special cost of Rs.2,00,000/- (Rupees two lac only).

(Ch. Muhammad Iqbal) Judge Approved for reporting.

Judge Abdul Hafeez