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Civil Revision No.1176 of 1982, decided on 1st February, 1987.

---S.2--Criminal Procedure Code (V of 1898), S. 488--Divorce and illegitimacy of child Determination of--Effect of findings and conclusions of criminal Court--Findings and conclusions recorded by Magistrate under S. 488, Cr.P.C., held, could not be treated as substantive piece of evidence and as such could not be used to corroborate entries in register of petition-writer pertaining to alleged divorce of petitioner- Divorce and illegitimacy of child could not be determined merely on basis of such findings and conclusion of a criminal Court.--[Judgment].

D.I.-G. Police v. Anis-ur-Rehman Khan P L D 1985 S C 134; Muhammad Azam v. Muhammad Iqbal and other:; P L D 1984 S C 95 and Noor Elahi v. State P L D 1966 S C 708 ref.

--S. 2--Qanun-e-Shahadat Order (10 of 1984), Art. 128--Legitimacy- Status of--Requirements--Under Muhammadan Law, child follows the bed (Firash), that is the paternity of a child born in lawful wedlock is presumed to be in the husband of the mo4er without any acknowledgment or affirmation of parentage on his part and such child follows the status of the father--According to Sunni Schools the presumption of legitimacy is so strong that in cases where a child is born after six months from date of marriage and within two years after dissolution of the marital contract, either by the death of the husband or by divorce, a simple denial of paternity on the part of husband would not take away the status of legitimacy from child--Presumption based on the bed is subject to the right of disavowal on the part of the husband for want of access--Such right has to be exercised in accordance with custom of the locality either on the day of the child's birth or at time of purchasing articles necessary in view of its birth or during the period of rejoicing--If husband is absent, he must disown the child immediately he was informed of his birth.--[ Muhammadan Law].

Hamida Begum v. Murad Begum P L D 1975 S C 624; Shah Nawaz v. Nawaz Khan P L D 1976 S C 767 at 775 and Hamida Begum v. Murad Begum P L D 1975 S C 624 ref.

---S. 115--West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2--Findings of Courts below-- Revisional jurisdiction of High Court, exercise of--Both Courts below having failed to scrutinize evidence on record in view of established principles of Muhammadan Law regarding legitimacy of a child, resultant finding, held, was wholly unwarranted in law--Such illegality concurrently committed by two Courts below in exercise of jurisdiction, held further, would be susceptible to correction by High Court in exercise of revisional jurisdiction under clause (c) of S. 115 C.P.C.

Dil Muhammad and others v. Iqbal Muhammad and 2 others 1971 SC MR321rel.

--S.2--Qanu-e-Shahadat Order (10 of 1984), Art. 128--Legitimacy of child--Proof--Extract of divorce deed from petition-writers register showing pronouncement of divorce to petitioner wife by her husband produced by respondents in evidence evidently proved to be forged one--Such divorce deed was also not proved to have been delivered to petitioner-wife by her husband--In birth certificate and in school leaving certificate of child name of husband of petitioner-wife was still stood recorded as father of child--Evidence on record clearly showing that after alleged divorce, petitioner-wife did not remarry--No evidence of immorality of petitioner-wife available on record--Son of petitioner-wife, born within 11 months of alleged written divorce, held, was legitimate son of husband of petitioner-wife in circumstances of case.

Pir Anwar Rehman for Appellant.

Hafiz Muhammad Yousaf for Respondent No.4.

Nemo for the Remaining Respondents.

Dates of hearing: 13th and 14th January, 1987.

The facts necessary for the disposal of this revision petition under section 115, C.P. C. are that respondents-plaintiffs Nos.1 to 4 filed a suit against the petitioners-defendants and one Farzand Ali respondent No.5 for a declaration to the effect that the respondents plaintiffs and Farzand Ali respondent No.5 were owners in possession of the suit property and the petitioners had no concern with the same and Mutation No.310, dated 29-6-1977 and the order dated 18-10-1977 of the Collector were illegal, void, against law and as such not binding on the rights of the plaintiffs. A permanent injunction restraining the petitioners from interfering in the suit property was also claimed as a consequential relief. They alleged in the plaint that the land in dispute was owned by one Nabi Bakhsh after whose death the present respondents were the only legal heirs and as such the inclusion of the names of Mst. Ghulam Fatima as widow and Nisar Ahmad as son of Nabi Bakhsh deceased alongwith them as his heirs was illegal and unauthorised as they were neither the widow nor the son respectively of the said Nabi Bakhsh. It was also alleged in the plaint that Nabi Bakhsh pronounced oral divorce in 1950 and Mst. Ghulam Fatima was handed over the divorce deed dated 19-5-1951 also. It was asserted that Nisar Ahmad having been born in 1952 was not the son of Nabi Bakhsh deceased. It was further averred in the plaint that Ghulam Fatima petitioner was divorced because of her immorality and as such Nisar Ahmad petitioner was the issue of some other person and that an application under section 488, Cr.P.C. filed by Mst. Ghulam Fatima was resisted by Nabi Bakhsh in his life time and the then Magistrate accepting the version of Nabi Bakhsh had rejected the said application.

2. The petitioners-defendants resisted the suit controverting the assertions made by the respondents-plaintiffs in the plaint. The learned trial Court on the basis of the pleadings of the parties framed the following issues:-

(1) Whether the defendant No.1 Mst. Ghulam Fatima and defendant No.2 Nisar Ahmad are respectively widow and son of Nabi Bakhsh deceased O.P.D.

(2) Whether the impugned Mutation No.310, dated 29-6-1977 and the order dated 18-10-1977 passed by the Collector, Shorkot, are illegal, void and ineffective on the right of the plaintiffs O.P. D.

(3) Whether valuation of the suit is incorrect for the purposes of court-fee and jurisdiction O.P.D.

(4) Whether the plaintiffs are estopped to bring this suit by their conduct O.P.D.

(5) Whether the plaintiffs are owners in possession of the suit property O. P. D.

(6) Relief.

3. The respondents produced four witnesses namely, Mansab Dad P.W.1, Sadiq Ali P.W.2, Nasar Mohyuddin, petition-writer, P.W.3, Mst. Nazir Fatima (one of the plaintiffs) P.W.4. The documentary evidence produces by them consisted of the extract from the register of the petition-writer Exh.P.l., copy of Khasra Girdawari Exh.P.2, Jamabandi Exh.P.3, copy of order of Magistrate passed on the application under section 488 Cr.P.C. Exh.P.4, copy of the Collector's order Exh.P.5, copy of Khasra Girdawari Exh.P.6, copy of Mutation No.310 Exh.P.7 and birth certificate of Nisar Ahmad Exh.P.8. The petitioners produced four witnesses, namely, Sabir Ali, D.W.1, Rehmat Ali, D.W.2, Mat. Ghulam Fatima, D.W.3 and Farzand Ali defendant, D.W.4. The documentary evidence consisted of copy of Mutation Exh.D.1, copy of Khasra Girdawari Exh,D.2, school leaving certificate of Nisar Ahmad Exh.D.3, birth-certificate of Nisar Ahmad giving date of birth as 20-4-1952 Exh. D.4 and copy of order of Collector Exh. D.5. The learned trial Court returning the findings on issue No.1 that Mst. Ghulam Fatima was not the widow and Nisar Ahmad was not the son of Nabi Bakhsh decided issues Nos.1 and 2 in favour of the respondents. Issues Nos.3. and 4 were also decided against the petitioners as no evidence was led by them in support of these issues. Issue No.5 was also decided in the affirmative as the possession of the respondents was not denied in the evidence. Consequently, the suit of the respondent was decreed vide judgment dated 8-3-1979. The appeal of the petitioners also failed vide judgment, dated 15-6-1982 of the learned Additional District Judge, Jhang. Both the learned Courts below relied on the extract of the register of the petition-writer Exh.P.l and the assertions and the pleas taken in the proceedings under section 488, Cr.P.C. by Nabi Bakhsh as found recited in the order dated 8-7-1959 Exh.P.4. These pleas and assertions contained in order Exh.P.4, read as under:-

"He has divorced his wife Mst. Ghulam Fatima and Nisar Ahmad was not his son and that when he came to know that Nisar Ahmad has been shown his son in the birth entry he applied to the Superintendent of the concerned department for setting aside the said entry as the entry was wrong".

4. The judgments and decrees of both the learned Courts below were then challenged by the petitioners-defendants by filing the present revision petition under section 115, C.P.C. Learned counsel for the petitioners in support of the revision petition argued that both the learned Courts below exercised jurisdiction vesting in them illegally as their approach to the case was wholly misconceived because they failed to examine the case in the light of the applicable principles of law; that the learned Courts below have not only failed to read some important pieces of evidence but have also misread the evidence on record; that the extract from the register of the petition-writer Exh.P.l was a forgery and the said document stood negatived by the internal evidence of forgery appearing from the statement of P.W.3 itself; and that the recitals of facts contained in the order of the Magistrate Exh.P.4 passed on an application under section 488, Cr.P.C. were illegally treated as substantive evidence.

5. I have heard the learned counsel for the parties in detail and have also gone through the record with their assistance. In DA- G. Police v. Anis-ur-Rehman Khan P L D 1985 S C 134 and Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95 the statement of law on the subject contained in M. Monir's Commentary on the Evidence Act (VOI.I, p.591) was quoted with approval. The same reads as under:-

"A judgment of acquittal in a criminal case only decides that the accused had not been proved guilty of the offence with which he had been charged and to this extent only and no more it is to be taken as correct and conclusive in a subsequent civil suit between the parties, the opinion and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings-------------,

The judgment in the criminal case could be relevant only for ascertaining whether it was a judgment of conviction or acquittal and whether it was an honourable acquittal. The other opinions or findings, apart from these two, recorded or expressed in the judgment could not be utilized for unsettling the other proceedings."

It is, therefore, apparent that the recital of facts or the findings or conclusions recorded by the learned Magistrate in the order dated 8-7-1959, Exh.P.4, could not be treated as substantive piece of evidence and as such the claim made in the suit on the basis of these recitals and conclusions could not be decreed. The order passed by the Criminal Court cannot be used to corroborate the entries pertaining to the alleged divorce contained in Exh.P.l. It was observed in Noor Elahi v. State P L D 1966 S C 708 at p. 713:--

"The law is that every criminal proceeding (and in fact every civil proceeding) is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should affect the decision. If the Court takes into consideration evidence recorded in another case or a finding recorded therein, the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another criminal proceeding. In fact there is an express provision in the Evidence Act, that is, section 43, which debars the Court from taking it into consideration. It makes no difference that the finding is recorded by a High Court or the Supreme Court. It remains irrelevant. The Court which is to determine a matter must determine the matter itself unaffected by opinion expressed in other cases."

There is also weight in the submission of the learned counsel that the evidence on record was not examined in the light of the principles of law applicable to the case. The principle which is to be kept in view while examining the question of legitimacy in a case where the parties are Muslims, as pointed out in Hamida Begum v. Murad Begum P L D 1975 S C 624 and reiterated in Shah Nawaz v. Nawaz Khan P L D 1976 S C 767 at p. 775 is as follows:--

"Under the Muslim Law, paternity of a child is attributed to the person who is actually responsible for its conception after his marriage with the child's mother. The stress, therefore, is on the 'time of conception' of the child and it is essential condition that it should be conceived by the purported father after his marriage with the child's mother .....

The presumption of paternity from marriage follows the bed, that is to say, the paternity of a child born in lawful wedlock is presumed to be the husband of its mother, if certain conditions are satisfied. Therefore, ordinarily proof of marriage between the parents of a child is very cogent evidence to establish his, paternity. It may be that conditions attached to legitimacy are more strict under Muslim Law than under other systems but the Muslim jurist-consults as also the Courts have generally been very reluctant to stigmatize a child as illegitimate and, therefore, as far as possible every presumption is made in favour of its legitimacy. Courts therefore, have been reluctant to declare a child bastard and have generally refused to admit illegitimacy when legitimacy can be inferred from the surrounding circumstances. "

Again under the Mohammadan Law the child follows the bed (Firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgment or affirmation of parentage on his part and such child follows the status of the father. According to the Sunni schools the presumption of legitimacy is so strong that in cases where a child is born after six months from the date of marriage and within two years after dissolution of the marital contract, either by the death of the husband or by divorce, a simple denial of paternity on the part of the husband would not take away the status of legitimacy from the child. Of course, presumption based on the bed is subject to the right of disavowal on the part of the husband for want of access 'this right has to be exercised in accordance with the custom of the locality either on the day of the child's birth or at the time of purchasing articles necessary in view of its birth or during the period of rejoicing. If the husband is absent, he must disown the child immediately he is informed of its birth (See Hamida Begum v. Murad Begum P L D 1975 S C 624).

A perusal of the impugned judgments of both the learned Courts below shows that the evidence on record was not scrutinized keeping in view the afore-quoted well-established principles of Mohammadan Law.

Thus, approach of both the learned Courts below was wholly unwarranted in law and as such the illegality in the exercise of jurisdiction committed

by them is susceptible to correction by this Court under clause (c) of section 115 of the Code of Civil Procedure. In support of this view reliance may be placed on Dil Muhammad and others v. Iqbal Muhammad and 2 others 1971 S C M R 321.

6. In view of the finding that the evidence on record was not examined in the light of the applicable principles of law, the examination of the evidence becomes necessary. The case as disclosed in the plaint is that Nabi Bakhsh deceased had divorced Mst. Ghulam Fatima petitioner in 1950 and thereafter she was also delivered divorce deed dated 19-5-1951 and that Nisar Ahmad petitioner who was born in 1952 was not the son of Nabi Bakhsh deceased as his mother was divorced by Nabi Bakhsh deceased due to her immorality and that Nisar Ahmad was the issue of some other person. The birth certificates (Exh.P.8 and Exh.D.4) wherein 20th April 1952 has been entered as the date of birth of Nisar Ahmad were relied upon by both the parties. The evidentiary value of Exh.P.l the extract of the divorce deed dated 19-5-1951 from the petition-writer's register requires to be determined. This document was produced by Nazar Mohyuddin petition-writer P.W.3, who in cross-examination inter alia, deposed that it was correct that against entry No.538 firstly the name of Sultan son of Mehr Noor caste Gagrana resident of Shorkot etc. was recorded and after 'scoring the same the disputed entry pertaining to alleged divorce deed of Nabi Bakhsh son of Miran Bakhsh resident of Chak No.312/GB was written.

He also admitted that in the copy produced in Court, no mention has been made of the aforesaid cuttings. He also admitted that in the divorce deed the name of attesting witnesses are usually given but in the disputed entry the names of the witnesses were not recorded. He also admitted the suggestion as correct that entries No.535 to 538 were entered on the same date i.e. 19-5-1951 and that it was also correct that entry No.538 was recorded with a pen having a thin nib as compared to pen used while recording entry No.535. In order to indicate clearly the nature of the disputed entry it will be appropriate to reproduce the remaining part of the cross-examination of this witness. It runs as under:

From the aforesaid statement it is apparent that the entry was recorded after scoring the original entry appearing at serial No.538 of the register. Had this entry been genuinely recorded on 19-5-1951 and had the entry in the name of Sultan son of Mehr Noor genuinely been struck off, a new entry thereafter could have been recorded against a new number. The other factors brought out in the cross-examination also make the entry doubtful. I am, therefore, not inclined to place any reliance on this entry. Moreover there is not even an iota of evidence to show that the so-called divorce deed was in fact -delivered to or received by Mst. Ghulam Fatima. It is also to be noted that Mst. Nazir Fatima P.W.4 in her statement admitted that her father in his life time neither filed a suit challenging the paternity of Nisar Ahmad nor had submitted any application in this respect. She further admitted that neither she nor her sister, the co-plaintiff, had submitted any application in this respect. The so-called application said to have been submitted to the Superintendent of Police, as per recital contained in the order Exh.P.4 of the learned Magistrate, was not produced in evidence. The fact remains that in the birth certificate as well as in the school leaving certificate the name of Nabi Bakhsh as father of Nisar Ahmad still stands recorded. Mansab Dad P.W.1 and Sadiq Ali P.W.2 gave statements of general nature saying that Mst. Ghulam Fatima was divorced by Nabi Bakhsh and that after two years of the divorce Nisar Ahmad was born. Mansab Dad P.W.1 stated that he was not aware as to whose issue Nisar Ahmad was. Mansab Dad and Sadiq Ali also admitted that Mst. Ghulam Fatima had not contracted marriage after the divorce. Their version that after about six months of the oral Talaq, Talaq in writing was also pronounced cannot be accepted as this part of the story stands belied as Exh.P.1 has been found to be a manipulated and fabricated document. Even otherwise Nisar Ahmad was admittedly born on 20-4-1952 i.e. within 11 months of the pronouncement of the written divorce. If the version that 5/6 months earlier the divorce was pronounced orally still the birth took place within one year and five months of the said oral divorce. At that time Mst. Ghulam Fatima was admittedly in the house of Nabi Bakhsh deceased. It was admitted by the witnesses produced by the petitioners that Mst. Ghulam Fatima did not marry after the alleged divorce. No evidence as to immorality of Mst. Ghulam Fatima was produced on record. It is, therefore, apparent that Nabi Bakhsh was the person who was actually responsible for the conception of Nisar Ahmad during the wedlock. Following the principle laid down in the precedents quoted above: have no hesitation in holding that Nisar Ahmad is son of Nabi Bakhsh. 'The evidence on the question of divorce in the circumstances of the case noted above cannot be relied upon. The respondents have been unable to produce cogent evidence to contradict the evidence produced by petitioners and to establish that they are not the widow and son respectively of Nabi Bakhsh deceased. The fact cannot be lost sight of that even Farzand Ali defendant-respondent has accepted the claim of the petitioners that they are widow and son of Nabi Bakhsh deceased.

7. For the reasons given above the findings returned by the learned Courts below on issue No.1 are reversed and the same is decided against the respondents-plaintiffs and in favour of the petitioners defendants Nos.1 and 2. As a result of the finding given above issue No.2 also stands decided against the respondents-plaintiffs. The other issues were not agitated before me.

8. In view of what has been stated above the impugned judgments and decrees are set aside and the suit of the respondents-plaintiffs Nos.1 to 4 is hereby dismissed with costs throughout. The petition stands accepted.

H.B.T. /G-12/L Petition accepted.

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