ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-3969/2011

Date Order with signature of Judge

1. For Katcha Peshi

2. For hearing on Misc No. 13877/12

3. For hearing of Misc No. 7530/2012

4. For hearing of Misc No. 18559/2011

Heard on 16^th August, 2012.

Mr. Muhammad Ramzan, Advocate for the Petitioner.

Mr. Meeran Muhammad Shah, AAG for the State a/w

Ali Sher Jakhrani AIG Legal

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SYED MUHAMMAD FAROOQ SHAH, J.:- Munir Ahmed Sheikh S/o Muzzafar Ali, a Police Inspector in Bomb Disposal Unit/Department of SSP Security, Special Branch Police, Karachi, had expired on 22.08.2010, leaving behind his eleven surviving legal heirs, his first wife Mst. Parveen had died in the year 1995 during his life time and thereafter in the year 1996 he contracted another marriage with the Petitioner. Seven issues were born from the deceased wife and three were born from the second wife i.e. Petitioner herein.

2. From perusal of the record, it appears that the Petitioner being a second wife posing herself to be the nominee of her deceased husband succeeded to withdraw outstanding dues in the sum of Rs. 8,81,763/- as disclosed by the Respondent No. 05 in their reply to the Petition. First Heirship Certificate of deceased was obtained by the Petitioner on 26.10.2010, wherein Mst. Rukhsana (Petitioner) has been shown mother of only three minor children, which also depicts that the Heirship Certificate issued in favour of the Petitioner to draw the pay /B.F / Gratuity / GP Fund pension or any other government dues of the deceased. Thereafter, Naeem Ahmed, elder son of the deceased from first wife has also obtained a subsequent Heirship Certificate issued on 27.09.2011, in supersession of earlier incomplete Heirship Certificate, as referred to above. It is worth mentioning that in subsequent undisputed Heirship Certificate eleven legal heirs of the deceased have been shown and subsequent certificate also reveals that Naeem Ahmed is authorized being elder son of the deceased to draw the pay /B.F / Gratuity / GP Fund pension or any other government dues of the deceased.

3. Averments of the captioned petition transpires that almost all dues of the deceased had been released in favour of the Petitioner, who being dissatisfied intends to draw the remaining Group Insurance amount as well, by stating that according to Muslim Personal Law the amount payable as Group Insurance is not form the part of the estate of the deceased and claim of insurance against provident fund was also not part of the estate of the deceased, such amounts are also payable to her being nominee, who alone is entitled to draw group Insurance amount and not remaining heirs of the deceased. Lastly, she has prayed for the following relief:-

“a) To issue direction to the Respondents No. 1 to 5 pay/release the entire Group Insurance Amount to the deceased namely Munir Ahmed Sheikh son of Muzzaffar Ali to the Petitioner as being widow and nominee of the deceased.

b) To direct the Respondent No. 1 & 2 take legal action against the Respondent No. 3 to 5, who are illegally, unlawfully avoiding to release the entire Group Insurance Amount and also harassing, blackmailing and issuing threats to the Petitioner for distribute the said Group Insurance Amount in between all legal heirs of the deceased.

c) To declare the acts, actions and threats of the Respondent No. 3 to 5 are illegal, unlawful with regard to distribute the entire Group insurance amount in between all the legal heirs of the deceased.

d) Any other relief(s) which deem to fit and appropriate in the circumstances of the case in favour of the Petitioner.

4. We have considered the arguments advanced from both sides and carefully perused the prevailing law including Islamic Concept and rulings of Superior Courts available on the subject.

5. Mr. Muhammad Ramzan, learned Counsel for the Petitioner argued that in light of the case, FEDERAL GOVERNMENT OF PAKISTAN V/S PUBLIC AT LARGE reported as PLD 1991 SC 731, the petitioner being a sole nominee of her deceased husband Munir Ahmed Sheikh is entitled to draw the outstanding dues including gratuity / GP Fund / B.F / Group Insurance and salary etc. However, the learned counsel admitted about issuance of two different Heirship Certificates of the deceased i.e. one obtained by the Petitioner by concealing the names of seven issues born from the ex-deceased wife namely Mst. Parveen, in which name of the Petitioner and three children have been shown as legal heirs of the deceased, on the basis of which department has paid the dues to the Petitioner and the second Heirship Certificate issued to Mr. Naeem Ahmed S/o late Munir Ahmed Sheikh, which includes the names of all surviving legal heirs, that’s why the department did not release the amount of Group Insurance in favour of the Petitioner hence she approached this Court with the prayer as referred to above.

6. In light of the Muhammadan Law pertaining to inheritance as laid down by our Superior Courts, the learned Counsel for the Petitioner asserted that the death claim not being property of the deceased in his life time cannot be considered as “Tarka”, as such was not heritable.

7. Learned Additional Advocate General, on the other hand submitted that nomination, if any, does not operate as gift or will in favour of the nominee/Petitioner.

8. Mr. Ali Sher Jakhrani, Inspector General of Police present before this Court stated that the group insurance amount has not been released in favour of the Petitioner, after when department came to know about the seven remaining children appears in subsequent complete Heirship Certificate issued on 27.09.2011, in favour of elder son Naeem Ahmed S/o late Munir Ahmed, wherein the names of following legal heirs have been shown.

Sr. No.	Name of legal heirs	Age/ D.O.B	Relationship with deceased
01.	Naeem Ahmed	14.04.1978	Son
02.	Shaista Munir	08.12.1973	Daughter
03.	Bushra Munir	23.07.1975	Daughter
04.	Nadia Munir	05.07.1982	Daughter
05.	Naureen	01.01.1984	Daughter
06.	Khurrum Shahzad	29.07.1986	Son
07.	Waseem Ahmed	1979	Son
08.	Rukhsana	1975	2^nd Wife
09.	Shahrukh	9 years	2^nd wife Son
10.	Shahyar Ahmed	11 years	2^nd wife Son
11.	Urooj	06 years	Daughter of 2^nd wife

9. In the case of MST. AMTUL HABIB & OTHERS V/S MST. MUSSRRAT PARVEEN & OTHERS reported as PLD 1974 SC 185, the Apex Court while deciding the authority of nominee observed that the nomination merely confers a right to collect the money or to “receive the money” but it does not operate either as a gift or a will, therefore, cannot deprive the other heirs of nominator who may be entitled thereto under the law of succession. In the cited ruling their Lordships further held that the nominee thus collects as trustee for the benefit of all persons entitled to inherit from the deceased employee. This dicta has also been followed by our Sindh High Court in the case of MST. SHAISTA YOUNUS KHAN & 3 OTHERS V/S MRS. ASIA KHATOON & 3 OTHERS (PLD 1995 Karachi 560) and FATIMA BI V/S MEHNAR GUL (1999 YLR 759). In the case of Fatima Bi, it was held that death claim, voluntarily claim and group insurance are not “Tarka” to be inherited by the legal heirs but these are grant/compensation to be distributed among the legal heirs according to Islamic law of inheritance.

10. Perusal of the record transpires that contrary to the rule ‘b’ (herein below), the petitioner is also drawing pensionary benefit of her deceased husband. Through under Rule 4.10. (2)(A), a family pension shall be allowed as under:-

“a) To the widow of the deceased, if the deceased is a male Government servant, or to the husband, if the deceased is a female Government Servant.”

b) If the Government Servant had more than one wife, and the number of his surviving widows and children does not exceed 4, the pension shall be divided equally among the surviving widows and eligible children together if more than 4, the pension shall be divided in the following manner viz., each surviving widow shall get 1/4^th of the pension and the balance (if any) shall be divided equally among the surviving eligible children. Distribution in the above manner shall also take place whenever the Government Servant leaves behind surviving children of a wife that has predeceased him in addition to the widow and her children, if any.

c) In the case of a female Government servant leaving behind children from a former marriage in addition to her husband and children by her surviving husband, the amount of pension shall be divided equally among the husband and all eligible children. In case the total number of beneficiaries exceeds four, the husband shall be allowed 1/4^th of the pension and the remaining amount distributed equally among the eligible children.

d) Failing a widow or husband, as the case may be, the pension shall be divided equally among the surviving sons not above 24 years and unmarried daughters.

11. This Court vide order dated 16.07.2012 required the Petitioner through her Counsel to make clarification of the following queries, which she has miserably failed to attend or to comply in letter and spirit:-

“Firstly, if such disbursement as stated by Mr. Jakhrani has been made and legal heirs have been deprived of amounts that were due and payable to them, then why should amount for which the Petitioner is the nominee be disbursed to her without first adjusting for those amounts which have been allegedly unlawfully taken by the Petitioner.

Secondly, if the allegations made by the department are correct then, obviously the Petitioner has not come to court with clean hands and is therefore not entitled equitable relief from this Court, which will result in dismissal of this Petition.

Thirdly, if the petitioner challenges the allegation of forgery etc. presently levelled against the petitioner it would seem that disputed question of fact has arisen which in any case cannot be taken by this Court in writ jurisdiction. Let the Petitioner file an appropriate rejoinder to para-wise comments and further assist the Court”.

12. Mr. Muhammad Ramzan, learned Counsel for the Petitioner much emphasised on “Tarka”, therefore, it would be advantageous to note that Al-Quran is initial divine statute on the subject, therefore, interpretation of Islamic Concept of inheritance is necessitated to be discussed precisely. We may derive the principle of “Tarka” as ordained by our Holy Book Al-Quran. First of all, we would like to narrate the principle of inheritance as laid down by Shariat Appellate Bench in the judgment authored and dictated in Urdu by Mr. Justice Muhammad Taqi Usmani, (as then he was) in the case of Federal Government of Pakistan v/s Public at large reported (supra) relied upon by learned Counsel for the petitioner, relevant paragraph of which reads that:-

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“(5) “family” means,-

(a) in the case of a male employee, the wife or wives, and in the case of a female employee, the husband of the employee; and

b) the legitimate children, parents, minor brothers, unmarried, divorced or widowed sisters of the employee residing with and wholly dependent upon him.

The Shariat Appellate Bench of Hon’ble Apex Court at second paragraph of said judgment held that:-

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The mentioned ruling further speaks that:-

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The concluding part of the mentioned citation reads that:-

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Translation of Ayat No. 07 of Sorah-e-Nisa in Zia-ul-Quran’ part-1 page No. 321 by late Mr. Justice Pir Muhammad Karam Shah Al-Azheri reads that:-

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13. Aforementioned interpretation of Islamic law of inheritance reveals that if someone dies, the succession to his property either movable or immoveable gets automatically and immediately vested in the heirs and such vesting is not dependent upon any intervention or any act on the part of some authorities or any other estate agency. Such right in inheritance does not extinguish on the death of owner of the property/estate of inheritance, immediately and automatically the legal heirs become co-sharers in the property and would become subject of succession on acquiring ownership/proprietorship rights. It needs not to re-emphasise that the estate of deceased Muslim is inherited by the legal heirs according to their respective shares. Admittedly, in the present case, the deceased left behind one surviving widow and 10 children. However, the controversy arose when the petitioner on the basis of first Heirship Certificate dated 26.10.2010, by showing four legal heirs including herself to be the only widow succeeded to draw the dues of the deceased except group insurance, detail of which depicts at page-9 of reply of the Respondent NO. 05 as below:-

1. Mediate Relief Rs. 50,000/-

2. Financial Assistance Rs. 5,00,000/-

3. GP Fund Rs. 1,51,000/-

4. Benevolent Fund

w.e.f. 22.08.2010 to 31.12.2010

@ Rs. 2,000/- Rs. 8,000/-

5. Benevolent Fund

w.e.f. 01.01.2011 to 31.10.2011 @ Rs. 3,000/- Rs. 30,000/-

6. Gratuity Rs. 87,430/-

7. 180 days leave salary Rs. 55,333/-

Grand Total paid amount Rs. 8,81,763

14. Sufficient material available on the record reveals that the petitioner by suppressing and concealing the actual and material facts approached this Court with unclean hands and more particularly that deceased was having seven surviving children from his first wife Mst. Parveen, who died in the year 1995 and in the year 1996, deceased has contracted marriage with present petitioner who had drawn the aforementioned dues by showing names of only four legal heirs including herself and now by filing this petition, she intends to draw the entire group insurance amount. In plethora of rulings our Courts held that things required by law to be done in a prescribed manner should be done in that manner alone and any other course adopted in the performance of the said act will be deemed to be unlawful, to which no sanctity is attached. Reference in this regard may be made the cases of TARIQ KHAN V/S SHO & 3 OTHERS (2005 YLR 1041), MESSRS MUHAMMAD ALI & BROTHERS AND ANOTHER V/S DIRECTOR GENERAL LDA & 3 OTHERS (2005 MLD 768), QAMAR JAVED V/S GUL JAHAN (2005 MLD 1329), RAJA MUHAMMAD SARFRAZ KHAN & OTHERS VS NOOR MUHAMMAD (2007 SCMR 307), IJAZ AHMED V/S SURIYA AKHTAR & OTHERS (PLD 2011 Lahore 42), PESCO THROUGH CHIEF EXECUTIVE, WAPDA HOUSE, PESHAWAR & 4 OTHERS V/S M/S TARIQ COLD STORAGE THROUGH MANAGING DIRECTOR & 3 OTHERS (2011 CLC 164), SHAKEEL AHMED BALOCH V/S RETURNING OFFICER & ANOTHER (2011 CLC 1641) and the case of MISS UFERA MEMON V/S LIAQAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCE (LUMAS) JAMSHORO, THROUGH REGISTRAR & 2 OTHERS (2011 PLD Karachi 400).

15. In light of the Quranic Concept of inheritance, case law cited above and observation of this Court with regard to suppression of actual facts more particularly concealment of the names of seven (7) surviving legal heirs as evident from first Heirship Certificate obtained by the petitioner on the basis of false information, we reached at the irresistible conclusion that she is not entitled for the relief as claimed in the prayer clause. Resultantly, the petition is dismissed, leaving the parties to bear their own cost. However, in the larger administration of justice and equity, respondents are directed to deposit the group insurance amount with Nazir of this court and so also petitioner is directed to deposit the amount of Rs.8,81,763/- which she had already collected from the department, with the Nazir, who may distribute the whole amount amongst the legal heirs according to their shares as per law.

J U D G E

Faisal Mumtaz PA CHIEF JUSTICE