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Petitioner: FIDA HUSSAIN VS Respondent: Mst. NASEEM AKHTAR AND OTHERS
Court Name: Lahore High Court Judge(s): Aftab Hussain Title: FIDA HUSSAIN vs Mst. NASEEM AKHTAR AND OTHERS Case No.: Writ Petition No, 1970 of 1976 Date of Judgment:1976-08-22 Reported As: PLD 1977 Lahore 328 Result: Petition dismissed
JUDGMENT
JUDGMENT ' A suit for dissolution of her marriage was decreed in favour of respondent No, 1 against the petitioner on a finding that the petitioner treated the said respondent with habitual cruelty. In arriving at this conclusion the learned Family Court relied upon the evidence of the said respondent, her father Nur Ahmad and her brother Muhammed Zaffer. The Court also took into consideration several scars on the right and left wrists of the respondent which according to her were proof of beating given to her by the petitioner. 2. The learned counsel for the petitioner raised the following contentions :- (a) Section 17 of the Family Courts Act specifically provides against the applicability of the Evidence Act and as such the matter of dissolution of marriage being a matter relatable to the personal law of the parties, the principles of evidence as enunciated by Shariat should have been applied by the learned Family Court. If these principles are applied then the evidence of the father and the brother should have been excluded from consideration and thus there being the solitary evidence of the respondent, the suit could not have been decreed in the absence of at least two witnesses to support her. (b) The evidence of the witnesses of the petitioner was not discussed. (c) The father and brother are not 'Adil' witnesses for the simple reason that although the marriage took place in the year 1973, as is evident from Nikah Nama Annexure 'A', according to these witnesses it had taken place several years earlier. (d) There were several loopholes and short-comings which if appreciated would have resulted in a judgment to the contrary.
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3. The last two points relate to appreciation of evidence and cannot be considered in a writ petition. The second point is without force since Order XX of the Civil Procedure Code itself being inapplicable it cannot be urged that the judgment is vitiated merely for the failure of the learned trial Court to discuss each and every piece of evidence. ' The first point only remains to be considered. In support of the first point the learned counsel relied upon page 360 of Hamilton's Hedaya (Second Edition). It is laid down there that :- "Testimony in favour of a son or grandson, or in favour of a father or grandfather, is not admissible ; because the prophet has so ordained.-Besides, as there is a kind of communion of benefits between these degrees of kindred, it follows that their testimony, in matters relative to each other is in some degree a testimony in favour of themselves, and is therefore liable to suspicion." ' The learned counsel also relied upon the original text of the Hedaya in which the original authorities in support of this proposition are recorded. Reference has been made to some traditions and the writings of Abdul Razzaq on the basis of some statements made by Qazi Shuriah (URDU TEXT). The learned counsel also produced before me "AL-MUSANNAF" by AbdalRazaq Al- San'nani. Article 15476 deals with questions of reliability of the evidence of a father in favour of his sons and daughters or vice versa and it is stated that the evidence is not justified. The words used are-{{URDU TEXT}} ' This is on the statement of Abdul Razzaq who heard it from AlSauri who transmits this tradition from Mansoor whose source of information was Ibrahim. There is another Article 15469 at page 343 of the Book where a similar principle is laid down about the evidence of a brother in favour of his brother. As translated by the learned counsel this Article goes on to state that such evidence would not be admissible except when corroborated. ' It is not necessary to give a considered opinion on the point whether the provision making the Evidence Act inapplicable to proceedings before the Family Court ipso facto implies the applicability of the principles of evidence as laid down by the Muslim Jurists. For the purpose of this judgment however I will proceed on this assumption. 5: The argument of the learned counsel seeks to make the evidence of the two witnesses in the case "incompetent and inadmissible". Even if it is held that the brother's evidence does not suffer from this defect, the learned counsel relied upon the principle of a cause being capable or being decided on the evidence of two male witnesses or one male and two female witnesses and urged that the evidence of the brother alone does not suffice to prove the case of the plaintiff- respondent. 6. The first question to be considered is whether there is any prohibition against the evidence of a father and a brother. As stated above, the principle laid down in Hidaya is against placing any reliance upon the testimony of the father on the ground that there is a kind of communion of benefits between these degrees of kindred and it follows that their testimony in matters relative to each other is in some degree a testimony in favour of themselves, and is therefore liable to suspicion. But the author of aidaya has not stuck to this principle while dealing with the evidence of a brother in favour of a brother or sister. It is laid down there that such evidence is permissible and can be relied upon. The ground for arriving at this conclusion in spite of the propinquity of relationship between a brother and a sister is that "the property and the immunities of these classes of relations are separate, and each has no power over that of the other. If this be the sole ground for making the evidence of a brother admissible in favour of a brother, this analogy can apply even to parents or grand-parents or sons or grandsons. The son or grandson howlowsoever, under the Shariat Law, can own separate property end enjoy separate immunities during the lifetime of the father or grandtather howhighsoever. Lie may acquire this property from his personal means or by gift or devolution.
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' In the book known as 'Almosannif' of Abdur Razzaq have been reproduced several precepts which are for as well as against the proposition of admissibility of the evidence of the father in favour of his son. In Article 15471 it is stated that "the evidence of the father for the son, of the son for the father, of the brother for the brother, is admissible if the witness is All. For this reason the Almighty God has said (ARABIC TEXT) (whoever may be your approved witnesses). Such witness according to the precept can be the father, the son or the brother. ' Again in Article 15473 it is stated that "I heard from Shwas that he admitted the evidence of a lady in favour of her father and husband. On this a man raised an objection that the party is the father or the husband. Qazi Shuraih replied, "but who will appear in evidence in favour of a woman except her father and brother". Again in Article 15475 it is stated that Umer son of Abdul Aziz considered the evidence of son in favour of the father as permissible provided he is Adil. In Articles 15474 and 15476 it is stated that the evidence of the son inter alia is not permissible in favour of the father and vice versa. 8. It will be clear from these authorities that the same Qazi had held different views on different occasions in regard to the admissibility of the evidence of the parents in favour of the son and of the son in favour of the parents. If all these Asar (URDU TEXT) are deemed to be correct, it can be deduced that the principle of admissibility is not rigid. The Courts have considered it to be flexible enough so as to admit the evidence of such witnesses if they were Adil. 9. In the Urdu translation of Tirmizee Sharif Vol. 2, page 35, Tradition No, 162 deals with inadmissibility of evidence. The tradition does not mention the evidence of a parent or son in favour of a son or parent but the commentator has summed up the views of various Ulemas on this question. He states that there is consensus in favour of admissibility of the evidence of a relative in favour of a relative, but the opinion differs on the question whether evidence of father in favour of son and of son in favour of father is permissible. Some of the learned have held against admissibility of such evidence while others consider it good evidence provided the witness be 'Add'. However there is no difference of opinion about the admissibility of evidence of a brother in favour of a brother. This summing up establishes that there is no such rigid rule as canvassed at the bar for eliminating from consideration the evidence of the father in favour of the daughter. 10. Similarly there are distinctive opinions about the evidence of a brother in favour of a brother. In Article 5466, 15467 and 15468 of Almusannaf it is stated that such evidence is permissible. In the last authority the perm'ssibility is subject to the condition of the witnesses being Adil. Article 15469 to which reference has already been made, makes evidence of a brother admissible subject to the condition that there is some other witness also to corroborate. There does not therefore appear to be a difference of opinion on the question of admissibility of the evidence of a brother in favour of a brother or of a brother in favour of a sister. Same is the view as stated above, taken by the author of the Hidaya which reflects Hanafi point of view. 11. Assuming that the evidence of a father in favour of the daughter should be treated as unreliable or even inadmissible, the next question is whether there is any mandatory tradition making it obligatory upon the plaintiff to produce two male witnesses or one male and two female witnesses. There is no such commandment in the Holy Qur'an. The Holy Qur'an fixes the number of witnesses to be produced in Court in proof of some offences only for the purpose of sentence described there. (URDU TEXT) There is no dispute about the view that in case of evidence being short of the evidence required for Hadd (.4) it can be relied upon for convicting the accused person and for sentencing him to lesser punishment (Ta`zeer as distinguished from Hadd). The only indication about a requirement of two male witnesses or one male and two female witnesses is in The Chapter `The Cow(2 t 282)
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"0 you who believe when you deal with each other in contracting a debt for a fixed time, then write it down ; and let a scribe write it down between you with fairness ; and the scribe should not refuse to write as Allah has taught him, so he should write ; and let him who owes the debt dictate, and he should be careful of (his duty to) Allah, his Lord, and not diminish anything from it ; but if he who owes the debt is unsound in understanding, or weak, or (if) he is not able to dictate with fairness ; and call in two witnesses from among your men two witnesses; but if there are not two men, then one man and two women from among those whom you choose to be witnesses, so that if one of the two errs, the second of the two may remind the other; and the witnesses should not refuse when they are summoned ; and be not averse to writing it (whether it is) small or large, with the time of its falling due ; this is more equitable in the sight of Allah and assures greater accuracy in testimony, and the nearest (way) that you may not entertain doubts (afterwards) except when it is ready merchandise which you give and take among yourselves from hand to hand, then there is no blame on you in not writing it down ; and have witnesses when you barter with one another and let no harm be done to the scribe or to the witness; and if you do (it), then surely it will be a transgression in you, and be careful of (your duty to) Allah, and Allah teaches you, and Allah knows all things." 12. This commandment elates to what we call attestation of a document. But it does not mean that if our of the two male witnesses or one male and two famale witnesses, one dies or his presence in Court cannot for any reason be procured, the document in case of its denial by the party opposite to the party relying upon it, cannot be proved by evidence of witnesses lesser in number. In fact this commandment has nothing to do with the mode of proof of the document or transaction in Court. ' The scribing of a document has not been rendered obligatory by the Holy Qur'an in all cases nor does it make the validity of all transactions subject to the condition of its being witnessed by any particular number of witnesses. It provides on the other hand that no writing is necessary in case of purchase or sale of a merchandise. 14. Similar provision about an attestation is in the Chapter 'Food', Vs. 106 and 107 which is as follows :- "106. 0 you who believe t call to witness between you when death draws nigh to one of you, at the time of making the will, two just persons from among you, or two others from among others than you, if you are travelling in the land and the calamity of death befalls you; the two (witnesses) you should detain after the prayer ; then if you doubt (them), they shall both swear by Allah (saying): "We will not take for it a price, though there be a relative, and we will not hide the testimony of Allah for then certainly we should be among the sinners. `107. Then if it becomes known that they both have been guilty of a sin, two others shall stand up in their place from among those who have a claim against them, the two nearest in kin ; so they two should swear by Allah ; Certainly our testimony is truer than the testimony of those two, and we have not exceeded the limit, for then most surely we should be of the unjust'." ' This provision also does not say anything about the decision of a case in Court on the testimony of any fixed number of witnesses. 15. Traditions of the Holy Prophet also do not lay down any fixed or rigid rule. The Holy Prophet,- (a) decided the case on the evidence of the testimony of a woman plaintiff ; (b) on the testimony of one female witness ; (c) on evidence produced by both the parties ; (d) on the evidence of witness and the oath of the plaintiff ; (e) on the oath of the defendant ; and ( f) on the evidence of two or more witnesses and the oath of the defendant. 16. The best example of the decision of a cause on the evidence of the female plaintiff is furnished by the tradition of the Holy Prophet relating to the wife of Sabit. The translation of those traditions
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as given in Mst. Khurshid Bibi v. Baba Mohammad Amin (1) is as follows :- ' From Akrama, from Ibn-Abias that the wife of Sabit bin-Qais came to the Messenger of Allah and said "0 Messenger of Allah, I do not reproach Sabit in respect of character or religion but I do not want to he guilty of infidelity in Islam". So the Messenger of Allah said to her, "Would you give him back his garden", she said "Yes". The Messenger of Allah said "Accept the garden and give her one Talaq". (Bokhari, Vol. II, p. 794-printed 1357 at Nur Mobammadi Asha Almatabi, Delhi)-and in another version (also in Bokhari)--"Will you give back his garden to him?" She said, "yes". So she returned it to him and he (the Messenger of Allah) ordered him and he separated her. (After reciting the narrators) ' Habiba, daughter of Soh!, was the wife of Sabit-bin-Qais-bin-Shamas and he was a short- statured and ugly man. She said, "0 Messenger of Allah. By God, if I did not fear God, I would have spat at his face -when he comes to me". The Messenger of Allah said, "Will you return his garden to him", She said, "Yes". So she returned his garden to him and the Prophet of Allah separated them. (Ibn-i-Maja, Vol. 1, p. 263). ' In the case of M.O. Bilqees Fatima v. Najam-ul-Ikram (2) it was urged that the Hadis relating to Sabit-bin-Qais only proves that Sabit granted a divorce out of reverence for the Holy Prophet. This argument was repelled and it was held that:- "The Holy Prophet never imposed his will on anybody where he was not entitled to force it as the Law-giver and the head cf the State. He was very scrupulous of the rights of others. If in a matter (1) PLD 1967 SC 97 (2) PLD 1959 Lah. 566 where he was not entitled to pass an order it was his desire that a person should act in a particular manner, he would advise that person but at the same time would take care to point out to him that he was not bound to act in accordance with the advice and there are cases where the advice given was not accepted. The Holy Prophet would only order a person to do a thing if he as the head of the State was entitled to do so." ' This authority was quoted with approval in Mst. Khurshid Bib! v. Babu Muhammad Amin. 17. The sufficiency of the evidence of one female witness Is proved by the tradition of Utba son of Haris. Utba son of Haris married the daughter of Abdul Wahab son of Uzair. A woman came to the spouses and told them that both of them had fed on her milk. An inquiry was thereafter made from Abdul Wahab but he pleaded want of knowledge. Utba went to the Holy Prophet and inquired from him (peace be upon him). The Holy Prophet said, how is this possible meaning thereby how this marriage could be held. Utba therfore left his wife. 18. This tradition has been stated in Sahee Bokhari at three places from different sources and also in Abu Daud and Tirmzi Sharif. According to Tirmzi Sharif this tradition is hasan and sahee. At pages 225 and 226 of Volume 1 of Tirmzi Sharif, it is stated that some of the learned have treated the evidence of one female witness in matters of riza'at sufficient. Same is the view of Ibne Abbas who is further of the opinion that the woman should be put on oath. Imam Ahmad and Imam Ishaq concurred with this view. Others are of the view that even a matter of riza'at should be proved by the evidence of more than one female witnesses. This view is ascribed to Imam Shafee who considered it to be only a rule of caution based on piety to separate the wife from the husband on the evidence of one female witness. 19. This latter view cannot be considered to be wholesome since the rule of caution and piety cannot be invoked in a case where the evidence of the solitary female witness even in matters of riza'at is palpably false. The tradition of the Holy Prophet establishes a rule of evidence about the sufficiency of the evidence of one female witness. In Fatawa Alamgiri, Vol. III, Part I (Book on Evidence, Chapter IV, p. 547) it is stated that the opinion that the evidence of one woman who is Adila in matters of inheritence can be accepted, is preferable to the view of Imam Abu Hanifa that
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there should be at least two male witnesses or one male and two female witnesses to prove the dispute (of inheritance). 20. In the Mishkaat Sharif, Volume II, at page 245 is reproduced a tradition from Hazarat hash that two persons claimed a cattle. Both of them produced witnesses. The Holy Prophet delivered a judgment in favour of the person who was in possession of the cattle. Another tradition on the same page has been reported from Hazarat Abu Musa Ashari that two contestant parties laid a claim to the same camel and each of them produced two witnesses. The Holy Prophet treated both of them to be the owners in equal share. These traditions prove that the evidence in support as well as the evidence in rebuttal was produced before the Holy Prophet and then a decision was given. As regards the latter tradition, a different version is given in Abu Daud, Nisai, Ibne Maja and ol000ttlioa to Ills etatantaat WASIO theme Dona of this two contsatants produced any witness. The Holy Prophet in these circumstances handed over the camel to bath. Even if there be some doubt in the authenticity of the later tradition, the tradition from Hazarat Jabir is sufficient to prove that the Holy Prophet allowed both the parties to produce their full evidence and then decided the matter. 21. There are a number of traditions that the Holy Prophet decided a case on the evidence of one witness supported by the oath of the plaintiff. Imam Muhammad Baqir is reported to have stated that the Holy Prophet decided a dispute on the evidence of one witness and on one oath (Muslim and Mowatta of Imam Malik). Several other traditions to the same effect are reported from other sources vide Abu Daud. One of the reports is from Salina son of Shabeeb, but as stated in Abu Daud, Salma was of the view that this much of evidence was sufficient in the determination of legal rights and not in matters involving the sentence of Hadd. Umer son of Abdul Aziz instructed Abdul Hamid son of Abdul Rahman, Governor of Koofa to decide a matter on one oath and one witness. The Malikees, the Shafa'ees, the Hamblees and other learned except Imam Abu. Hanifa, Sauri and Auzai act on this principle. Their view is that the oath of the plaintiff is a substitute for the evidence of a witness. The exponents of the contrary view i. e. Imam Abu Hanifa and others are of the view that it is essential to prove a case by the evidence of two witnesses, but according to Mowatta of Imam Malik, the various traditions of the Holy Prophet prove otherwise. Imam Muslim is also of the same view. 22. The contingency of deciding a matter on the defendant's oath arises according to traditions only when the plaintiff is unable to produce any witness. It is reported by Ash'as son of Qais that he was a joint owner of a piece of land with some Jew who refused to give the share of produce to him. He took the Jew to the Holy Prophet. The Holy Prophet asked Ash'as whether he had any witness. On his refusal the Holy Prophet decided the matter on the oath of the Jew. (Mishkat Sharif). From the same source is reported another tradition. There was a dispute between a Kandi and one Hazarmi about some land. The Hazarmi complained to the Holy Prophet that the father of the Kandi had dispossessed him of the land. The Holy Prophet inquired from him if he had any witness. He answered in the negative. In spite of his protest an oath was administered to Kandi. Ibne Abbas is said to have stated that the Holy Prophet decided a suit on one oath (Muslim). There is another report from Ibne Abbas that if there be no Bayyana (plaintiff's witness), it is better to admini ter oath to the defendant (Muslim, Iman Azam, Iman Abu Hanifa). At page 389 of this book is published the view of Hazarat Umer that it is not necessary to administer oath to the defendant if the matter is proved by plaintiff's witnesses. At page 390 is reproduced the view of Imam Abu Hanifa that the matter will be decided in favour of the plaintiff if the defendant refuses to take oath. But according to Imam Shafee, Imam Malik and Imam Ahmed, on the defendant's refusal to take oath the right to take oath will revert to the plaintiff. The latter view has the support of tradition reported from Abi Bakar son of Abi Sheeba, Khalid bin-Haris and Saecd II at the Holy Prophet decided on a lottery as
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to who among the two contestants about the ownership of a cattle will take oath (Abu Daud). The same tradition is reported from Abu Horara (Mishkat Sherif). 23. It has already been stated that the view of Imam Abu Hanifa, Sauri and Auzai is that a cause can be decided justly only on the evidence of at least two male witnesses or one male or two female withesses. The origin of this view appears to be the analogy drawn from the quotation from Surah Baqarah (The Cow) reproduced above. 24. It will be cleat from these traditions and analogies drawn from them that the Holy Prophet did not stick to a particular rule but administered justice keeping in view the circumstances of the case. Sometimes the decision was on the evidence of witnesses of both the parties, sometimes merely on the oath of the defendant, sometimes on the evidence of even one female witness and sometimes on the evidence of a female plaintiff alone. The only intent discoverable from these different principles of law of evidence adopted by the Holy Prophet proves that the administration of justice cannot be hedged in except in the case of Hadd with any particular number of witnesses, nor can the evidence of a plaintiff if it is otherwise unrebutted or unrebuttable be considered to be insufficient to prove his complaint. The circumstances in which in any particular case the evidence of at least one witness in addition to the evidence on oath of the plaintiff was considered sufficient are not discoverable. It is not, however, possible to create a general rule of evidence out of methodology used by the Holy Prophet in the decision of some cases particularly when different rules were adopted for determination of different causes. 25. In the present case the only question is whether assuming the evidence of the father to be inadmissible, which it is not, the evidence of a brother and the plaintiff is sufficient to prove the case of dissolution of marriage…
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