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Petitioner: AUQAF DEPARTMENT VS Respondent: JAVED SHUJA and others
Court Name: Lahore High Court Judge(s): Ihsan-ul-Haq Chaudhry Title: AUQAF DEPARTMENT vs JAVED SHUJA and others Case No.: First Appeal from Order No, 152 of 1991 Date of Judgment:1995-03-16 Reported As: 1995 CLC 1173 Result: Order accordingly
JUDGMENT
JUDGMENT ' This judgment will dispose of FAO No, 152 of 1991 and FAO No, 155 of 1991, which are directed against the order dated 11-6-1991 of Mr. Naveedul-Zafar Malik, Additional District Judge, Lahore, whereby he accepted the application of the respondent No,1 under section 11 of the Punjab Waqf Properties Ordinance, 1979 (hereinafter to be referred as Ordinance 1979). 2. The relevant facts are that Mst. Rashida Zohra wife of Dr. M.S. Namus was owner of property Nos. 9 and 10, Multan Road, Lahore. It is maintained that she created Wagf in respect of property No,9 through a registered Waqfnama dated 16-3-1982, Exh.D1 on the file while Waqf in respect of property No,10 was established through deed Exh. D2, which was duly registered on 5-2-1984. The latter Waqf was styled as 'Rashid Zohra Waqf and is the subject-matter of the present appeals. The Waqif, Mst. Rashida Zohra died on 5-3-1988. It was provided in the Waqf deed that after her death the property was to be administered by the Auqaf Department. It seems that the Waqf deed was supplied to the Auqaf Department after the death of the Waqif. The Auqaf Department thereafter processed the case and ultimately decided to take over the property. Notification under section 7 was issued on 31-1-1989 and respondent No,1 filed the petition under section 11 of the Ordinance 1979 on 28-2-1989. The appellants in FAO No, 155 of 1991 made an application for impleading them as respondents. The same was allowed and they were accordingly impleaded as respondents Nos. 2 to 10. The trial Court framed the following issues:-- (1) Whether the petitioner is the real son of Mst. Rashida Zohra and is entitled to inherit her property? OPA (2) Whether the Waqafnama registered on 5-2-1984 on behalf of Mst. Rashida Zohra in respect of property in question is forged document and consequently notification dated 31-1-1989 issued by
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respondent No,1 taking over administration and control of the property in question is illegal, void and ineffective against the rights of the petitioner in respect of such property? OPA (3) Whether this Court has no jurisdiction to grant relief claimed in the petition? OPR (4) Whether the petition is bad for non-joinder of necessary parties? OPR (5) Whether the petition has been filed with mala fide intention? If so with what effect? OPR (6) Whether respondent No,9 is minor and the petition against him is not maintainable in its present form? OPR (7) Relief. ' Respondent No,1 examined Muhammad Idrees as P.W.1, Malik Muhammad Ashiq as P.W.2, Mushtaq Ahmad as P.W.3, Iftikhar-ud-Din as P.W.4 and himself appeared as P.W.5, He also produced 29 documents. On the other hand, the other respondents examined Fasih-ud-Din as D.W.1, Abbas Ali as D.W.2 and Khalid Hussain as D.W.3 and produced 8 documents. The trial Court after hearing the arguments allowed the petition and it was declared that it was not a Waqf property. The Auqaf Department filed FAO No, 152 of 1991 while some of the other respondents have filed FAO No, 155 of 1991. Both the appeals were admitted to hearing and notice was issued to the respondents. 3. The learned counsel for the Auqaf Department argued that issue No,2 is the only material issue and the trial Court was wrong to decide the same against the appellant. It is added that onus of this issue was on respondent No,1, the applicant but he neither produced the document itself nor examined the scribe nor produced the marginal witnesses nor produced the record of the Sub- Registrar. It is added that he made an application for summoning the marginal witnesses, namely Munawar Hussain, Advocate Lahore and Abdul Rauf but the application was subsequently withdrawn, therefore, this issue should have been straightaway answered against the applicant for lack of proof and his petition dismissed. It is added that the plea in the application under section 11 of Ordinance 1979 was that the Waqf-deed is forged and fake and the allegations were not specific but general in nature. The main attack was that it is a forged document and at the time of the alleged execution the Waqif was seriously ill. It is added that if there was grain of truth in his plea then the applicant at least should have moved for reference of the signatures of the Waqif to the Handwriting Expert. It is maintained that this Court is fully competent to compare the signatures of the Waqif on the Waqfnama itself with admitted signatures on identity card and other documents including Waqfnama Exh.D1 in respect of the other property. In this behalf reliance is placed on the judgments reported as Pervaiz Afzal v. Hassan Ali (1992 CLC 1043), Arif Baig v. Mubarik Ali (PLD 1992 Lahore 366), Allah Dad v. S.M. Khan (1989 CLC 2287), Abdul Rahman v. Abdul Shakoor (1984 MLD 1140) and Muhammad Yousaf Iqbal Ahmed v. Fourth Sindh Labour Court (PLD 1977 Karachi 711). The learned counsel submitted that issue No,1 is beyond the scope of the proceedings under section 11 of Ordinance 1979, therefore, respondents Nos. 2 to 10 were neither proper nor necessary parties to the application. 4. The learned counsel for the other appellants argued that the only formality for completion of Waqf is declaration and appointment of Mutawalli, which can be any one including the Waqif. The learned counsel in this behalf has referred to sections 186 and 202 of the Muhammadan Law by D.F. Mulla. The learned counsel submitted that issue No,1 was illegally and wrongly framed because the trial Court was only concerned with the status of the property and not the status of private parties claiming any right or interest in the property. 5. On the other hand, the learned counsel for respondent No,1 argued that the certified copies of the Waqfnama Exh.D2 could not have been produced legally until and unless the loss of the original document was proved. It is added that registration does not prove execution. In this behalf, the learned counsel has referred to the judgment reported as Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub (PLD 1973 SC 160), Sikandar Hayat v. Fazal Karim (PLD 1971 SC 730), Muhammad Ramzan v. Province of Punjab (1989 MLD 3676), Mehrai v. Noor Bhari (PLD 1978 Lahore 771), and Muhammad
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Sher v. Muhammad Azim (PLD 1977 Lahore 729). It is added that the property was not Waqf as is also clear from the conduct of Mst. Rashida Zohra, who throughout her lifetime dealt with the property as owner. She paid the taxes, received rent as is clear from the documents Exh.P1 to P6. In this behalf the learned counsel has referred to Chief Administrator of Auqaf, Sindh v. Ibrahim Shah (PLD 1975 Karachi 964) and Gannamaneedi Madhavayya v. Gannamaneedi Achamma (PLD 1949 PC 80). It is added that the fact that the property was not registered under section 6 of Ordinance 1979 as Waqf during the lifetime of the Waqif also lends support to the fact that no Waqf was created. 6. The next submission is that since the Waqif reserved usufruct of the property during her lifetime, therefore, it was not a Waqf property as defined in section 2(e) of Ordinance 1979, therefore, its take-over by the Department is absolutely illegal and without jurisdiction. 7. The next submission is that the date of the alleged Waqf has been wrongly given as 2-5-1984 in Exh. P9 and Notification Exh.P9/1. This is fatal because on one hand it renders the Notification nullity and on the other hand it proves that, in fact, there was no Waqfnama and Exh.D2 is' a forged and fabricated document. It is added that the Auqaf Department has led no evidence, whatsoever. This way the evidence produced by the applicant remained unrebutted, therefore, there is nothing wrong with the findings recorded by the trial Court. It is submitted that the notification was published in the Official Gazette on 22-8-1992, therefore, it cannot be made effective from 31-1- 1989. The learned counsel in this behalf referred to Mst. Sobia Hanif v. Collector, Lahore District, and 5 others (1993 CLC 2073) Mst. Ghulam Fatima v. Chief Administrator of Auqaf, Punjab and another (1993 CLC 692) and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82). 8. The learned counsel for the Auqaf Department while summing up the arguments submitted that since respondent No,1 has failed to produce any evidence, whatsoever, on issue No,2, therefore, there was no need of rebuttal. Moreover, the other respondents have produced the documents and the oral evidence. It is added that the Department has no clue as to the whereabouts of the original Waqfnama and there was no chance of getting the same as the property and belongings of the deceased Mst. Rashida Zohra after her death were taken over by respondent No,1. It is added that certified copies were produced which were admissible and presumption of truth is attached to the same. In this behalf, the learned counsel has referred to Article 79 of the Qanoon-e-Shahadat, 1984 and sections 57 and 60 of the Registration Act and relied on the decisions reported as Zahoor All v. Haji Abdul Sattar (1987 CLC 2337), Mst. Aisal Mai v. Allah Ditta (1991 CLC Note 246 at p. 191) and Sughran Begum v. Qadir Begum (PLD 1986 Quetta 232). It is added that there was no need to produce the marginal witnesses as the original was not available to the Auqaf Department. Moreover, Mr. Munawar Hussain, Advocate was counsel for respondent No,1 and Mst. Rashida Zohra. It is added that respondent No,1 did not produce any witnesses from the family and the evidence produced is of general nature and does not inspire any confidence. It is added that Exh.D2 being a registered document, presumption of truth is attached to the same. In this behalf, reference is made to the judgments reported as Mansoor E. Khan v. Sophia Mansoor Khan (1987 MLD 737), Muhammad Anwar v. Muhammad Iqbal (1984 CLC 103) and Moinuddin Paracha v. Sirajuddin Paracha (1994 CLC 247). It is added that it was obligatory for the applicant to prove this document as forged in order to succeed before the trial Court. This was not done. It is maintained that the quality of evidence is material not quantity. In this behalf, reliance is placed on the judgments reported as Farooq Hassan v. Mumtaz Ahmed Khan (1988 CLC 578), Kausar Haseen v. Anis Begum (1988 MLD 552) and Muhammad Hussain v. Zahoor Ahmad (1989 CLC 1498). It is added that there was no need for the Department to prove the Waqfnama Exh. D2 by production of witnesses in view of proviso to Article 79 of Qanoon-e-Shahadat, 1984. There is clear presumption of genuineness attached to Exh.D2 in view of Article 91 of the Qanoon-e-Shahadat. It, at the end of the arguments,
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came to light that notification of take-over although issued by the Auqaf Department on 31-1-1989 yet the same was published by the Government Printing Press in the Gazette on 22-8-1992. The learned counsel for the appellant maintained that the late publication of the notification of take- over is of no legal consequence. It was a mere formality and the subsequent publication has cured the defect if any. The learned counsel in this behalf has referred to judgment of Full Bench of this Court reported as Saiyyid Abul A'la Maudoodi etc. v. The Government of West 'Pakistan through Secretary to Government of West Pakistan, Home Department, Lahore (PLD 1964 Karachi 478). It is added that new plea cannot be taken at this stage. In this behalf, the learned counsel has referred to Muhammad Ishaq v. Chief Administrator of Auqaf. Punjab (PLD 1977 SC 639). 9. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedents relied by the learned counsel for the parties. The material issue in these appeals is issue No,2. The onus of the same was on the respondent No,1, who has neither produced the document nor examined the scribe and marginal witnesses nor sent for the record of the Sub-Registrar as to the registration of this document nor got the signatures of Waqif compared/examined by the Handwriting Expert to prove that the document is fake and forged. The statements of his witnesses are of general natures besides the fact that they are not related to late Waqif, therefore, it can safely be recorded that there is no evidence to prove that the Waqf deed Exh. D2 is a forged and fake document. The plea of the respondent No,1, as is clear from the petition, that Waqfnama is a forged, fictitious and fabricated document and at the time of the execution/registration the Waqif was under comma and senseless. The respondent No,1 in order to succeed had to prove this plea but there is not iota of evidence on this point rather there was no effort, whatsoever, made to prove this main plea. The P.W.1 is a Record Clerk of Education Department. He has stated nothing as to Waqfnama. Malik Muhammad Ashiq claimed that he is an ex-neighbourer of the family of Waqif and without reference to Waqfnama stated that Mst. Rashida Zohra never created the Waqf. This statement is general in nature, therefore, of hardly any worth as far as issue No,2 is concerned. While P.W.3 Mushtaq Ahmad right in the examination-in-chief stated that he was not aware whether Mst. Rashida Zohra created any Waqf or not. P.W.4 Iftikhar-ud-Din, who claimed to be known to the family of respondent No,1, stated nothing as to the Waqf or the Waqfnama. He, however, in the cross-examination deposed that now he has learnt that the dispute is as to the creation of Waqf. The respondent No,5 himself appeared as P.W.S. He alleged that the brothers of Mst. Rashida Zohra tried to have a deal with him about the properties left by late Mst. Rashida Zohra but he refused to accept their proposal and given them any share in the properties. They threatened to involve him multiple litigation. Thereafter he received copy of the notification from the Auqaf Department whereupon he contacted the office and came to know that Iqbal Ansari has handed over copies of the Waqfnama and letter to the Auqaf Department. Thereafter he stated that the same are forged and fabricated. The Waqf was never created and Mst. Rashida Zohra remained in possession as owner. She had been letting out portions of the property to the tenants and dealing with them. It was she, who paid the property tax, income-tax etc. This is whole of his statement. There is not a single word as to how and by whom the deed was forged and fabricated. There is not a word in his examination-in-chief as to serious illness of Mst. Rashida Zohra. 10. This is not all. The respondent No,1 made an application for summoning the marginal witnesses of this Waqfnama Exh. D2 but thereafter proceeded to withdraw the application and the same was dismissed as withdrawn. He admitted in cross-examination that he knew Mian Munawar Hussain, Advocate for the last 15/20 years and the said Advocate represented them in various cases. It is clear from the decree-sheet Exh.P14 that the said Mian Munawar Hussain, Advocate had appeared for him in the suit for injunction, therefore, this is a strong presumption that had the witnesses appeared he would have not supported the plea of respondent No,1. On the other hand, the
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signatures of Mian Munawar Hussain, Advocate on the Waqfnama show that whatever was done by Waqif was done voluntarily and she was assisted by an experienced lawyer in preparation of the Waqfnama. 11. The perusal of the trial Court file shows that the respondent No,1 wanted to prove the plea of illness and for that purpose he has placed photo copies of about 16 prescriptions. This is not all. He has produced copy of death register. The column 10 shows that he notified the factum of death of Mst. Rashida Zohra. It is interesting to note that in column 8 pertaining to cause of death he has indicated that it was a natural death {{URDU TEXT}}(_sfib). This document seems to have been produced by him to prove issue No,1 but since he has produced the same, therefore, it can be referred to by this Court. ' It falsifies his plea that Mst. Rashida Zohra was seriously ill. He has also produced a copy of letter dated 9-4-1986 to Manager, Habib Bank whereby the Manager was directed not to pay the amount to any of the heirs as the same has to be utilized for construction of the mosque on the property dedicated for this purpose. It seems that this letter pertained to both of the properties. 12. Now coming to the objection to the admission of certified copy of Waqf deed in evidence as Exh. D2. There is presumption of truth attached to the document being a registered document. The learned counsel while raising the objection did not keep in mind provisions of Article 91 of the Qanoon-eShahadat, which provides that the document is to be presumed genuine. The appellant was to rebut this presumption while discharging onus of issue No,2. It is true that general rule is that the documents required by law to be attested shall not be used as evidence until two attesting witnesses, who are if alive, amenable to the jurisdiction of the Court and capable of giving evidence are o produced but according to the proviso it shall not be necessary to call attesting witnesses to prove execution of a document, which is not a will and is registered in accordance with the Registration Act, 1908, unless its execution is specifically denied by the person, who allegedly executed it. This way the proviso has reduced the rigor of the main provision considerably. In the present case the Waqfnama, which is a registered document, is fully covered by the proviso. The same was rightly used in evidence. This is not all. The respondent No,1 admitted the existence of Waqf deed and the trial Court rightly placed the onus of issue No,2. On him in view of the provisions of Articles 79 and 91 of the Qanoon-e-Shahadat. ' The learned counsel while making this argument lost sight of the fact that by not producing the document the respondent No,1 has not laid even the foundation to discharge the onus of issue No,2. Therefore, if for argument saking the Waqf deed is excluded from consideration then the result would be straightaway dismissal of the petition of respondent No,1 on account of his failure to prove the issue. 13. The main thrust of the argument of the learned counsel for the respondent No,1 is that it was clear from the conduct of Mst. Rashida Zohra that she was in possession and dealt with the property as a complete owner and not as Mutawalli. In this behalf documents Exhs.P1 to P3 were got produced from P.W.1. On the other hand, the learned counsel for the appellant argued that the conduct is not at all relevant and in this behalf, he has referred to the case of Ghulam Shabbir v. Mst. Nur Begum and others (PLD 1977 SC 75). There is merit in the argument because once Waqf is created then the property vests in the Almighty Allah and the ex-owner by his own act or deed cannot convert the same into his personal property. In the case of Ghulam Shabbir (supra) this Court affirmed the decree passed by the Additional District Judge on appeal of the defendant by reversing the decree of the trial Court whereby suit was dismissed. The Hon'ble Supreme Court allowed the appeal of the plaintiff and ruled as under:-- "In Muhammad Saeed and others v. Mst. Sakina Begum and others AIR 1946 PC 177 it was held that the Waqf once made cannot be invalidated by a subsequent inaction of the Waqif nor by a mere assertion in any subsequent document that he had not acted upon the Waqfnama since its
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registration. Similarly in Yunus Mian Ch. v. Feroze Ch. PLD 1952 Dacca 206, it was observed that malfeasance or misfeasance on that part of the Mutwalli cannot invalidate a Waqf which at its creation was a valid Waqif. If the Waqif made the Waqf in good faith and with real intention of divesting herself of the ownership of the Waqf properties it was a valid Waqf. In Ch. Muhammad Afzal and others v. Ch. Din Muhammad and others AIR 1947 Lah. 117, the facts were that the Waqif had after the creation of the Waqf granted leases, effected mortgages and made applications for repairs and alterations of the property to the municipal authorities and in all those transactions he described himself as the owner. In that connection the Court held that these subsequent acts may and very frequently do amount to a breach of trust, but from a breach it was impossible to argue that there never was a trust created. On appeal from this case in Beli Ram and Brothers v. Muhammad Afzal, their Lordships of the Privy Council affirmed these findings and observed that it is the established law that once there is an effective dedication in Waqf, it cannot be revoked and that breaches of trust on the part of the trustee however numerous and extending over, however long a period, cannot put an end to the trust." ' Therefore, the conduct is not relevant and even otherwise there is no clear evidence. The Waqfnama is dated 11-1-1984 and the same was registered on 5-2-1984. The usufruct of the property during her life was reserved by the Waqif and thus she continued in possession. The respondent No,1 has mainly relied on the documents Exhs.P1 to P3. It seems that the trial Court did not apply its mind to the documents at all in spite of objection before accepting the same. The same were not admissible in evidence. In this behalf, reference can be made to judgment of Hon'ble Supreme Court in the case of Khan Muhammad Yusuf Khan Khattak (supra). Exh. P1 is copy of a certificate issued by the Excise and Taxation Officer (Zone-IV), Lahore, the copy of the same issued by the Education Department was not admissible in evidence. Exh.P2 is copy of agreement of rent. Neither the scribe nor the executant nor any of the witnesses was produced to prove. While Exh.P3 is an application to the Excise and Taxation Officer which, also, could not exhibit without sending for the original from the Excise and Taxation Officer and proof of it. This way the documents were illegally brought on record and has to be excluded from consideration. Anyhow this controversy need not be discussed any further in view of the above-noted judgment of the Hon'ble Supreme Court in the case of Ghulam Shabbir (supra). 14. The learned counsel for the respondent No,1 argued with reference to Exhs. P9 and 9/1 that the date of Waqfnama in these documents is mentioned as 2-5-1984 whereas Exh. D2 is dated 5-2- 1984, therefore, the notification is illegal. It is clear from the notification that number of the property is correctly given in the notification as well as notice. There was no misgiving in the mind of the parties as to identity of the property. There was no necessity to give the date of Waqfnama in the notification and it was sufficient to describe the property in the schedule. This has been done, therefore, notification is legal. This is not all. This objection was neither raised in the petition nor issue claimed. The learned counsel for the appellant-Department rightly pointed out that it is a clerical mistake otherwise the file of the department shows that the proceedings were in respect of Waqfnama dated 5-2-1984. 15. This brings us to the other objection to the notification that it was not published in the Gazette as required under section 7 of the Ordinance 1979 read with section 2 (41) of the General Clauses Act till 22-8-1992, therefore, take-over in 1989 is illegal and the petition before the trial Court was premature. Before proceeding any further with this objection it is relevant to give the necessary background in which it has arisen. The learned counsel argued that incorrect date of Exh. D2 has been given in the notification, as noted in the preceding paras., it was at this juncture Court directed the learned counsel for the appellant-Department to produce the office file. The order was complied. The learned counsel for the appellant was explaining that the incorrect date of Waqf deed is a result of clerical error. The learned counsel for the respondent No,1 noted that the Gazette
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notification is dated 22-8-1992 and then he raised this contention. It was argued that notification became effective when it is published. ' On the other hand, the learned counsel for the appellant maintained that the publication of notification is only a formality and there is no time prescribed for its publication, therefore, late publication is of no legal consequence. The learned counsel in this behalf referred to judgment of Full Bench of Karachi High Court in case of Saiyyid Abul Maudoodi (supra).It is added that the new plea cannot be taken at this stage. In this behalf, the learned counsel has referred to case of Muhammad Ishaq (supra). The…
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