Law: Civil Procedure Code (V of 1908)

Section: 100,101,100(1)(c)

(a) Constitution of Pakistan (1962), Art. 58--Leave to appeal to Supreme 'Court-Granted to consider whether High Court was right in interfering in second appeal with what was ostensibly a finding of fact in circumstances of case-Civil Procedure Code (V of 1908), S. 100. (b) Civil Procedure Code (V of 1908), 'S. 100(1) (c)­Misreading of evidence by lower appellate Court-Evidence equally capable of two interpretations--Lower appellate Court not deemed to have "misdirected" itself by adopting one of them. (c) Civil Procedure Code (V of 1908), S. 100(1) (c)­Only "substantial error or defect in procedure" within purview of clause (c)-Slight error in reading evidence not within purview of clause, when, if correct position had been present to lower appellate Court's mind, Court's main line of reasoning would not have been materially affected thereby. (d) Civil Procedure Code (V of 1908), S. 100 (1) (c)--Matters of inference from evidence duly considered by lower appellate Court do not furnish ground for- second appeal-[Finding that deceased died a Sunni, one of fact]-[Mst. Durga Choudhrani v. 1Jawahir Singh Choudhri 17 I A 122 and Abdul Majid v. Khalil Ahmad P L D 1955 F C 38 rel.] (e) Muhammadan Law---Identity of sect-Sunni, Shia-Initial presumption in Indo-Pak Sub-continent that a Muslim is a Sunni, unless contrary is established by good evidence-[Mulla's Muhammadan Law, Section 28]. JUDGMENT S. A. RAHMAN, J.-This appeal, by special leave, arises out of a suit brought by Pathana appellant, for possession of 3/8th share of the property left by one, Salara, who died on the 18th of June 1951. The suit was resisted by Mst. Wasai, widow or the deceased, and Mst. Mehrajan, his daughter. The plaintiff's case was based on the allegation that Salara professed the Sunni (Hanafi) faith. The defence to the suit was founded on the counter-plea that he died a Shia. The trial Judge found the issue in favour of the respondents and dismissed the suit with costs. On appeal, the District Judge reversed the finding and held that Salara was governed by the Hanafi Law. He therefore decreed the suit with costs. In second appeal, the respondents succeeded before the High Court of West…

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