P L D 1995 Peshawar 124 ✅ Explained 🍂 ♦️ 128 QSO 1984♦️

P L D 1995 Peshawar 124 ✅ Explained 🍂 ♦️ 128 QSO 1984♦️ Before Muhammad Bashir Khan Jehangiri, J MAQBOOL HUSSAIN ‑‑‑Petitioner versus ABDUR REHMAN and others‑‑‑Respondents Civil Revision No.10 of 1987, decided on 6th March, 1993. (a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑ ‑‑‑‑Art. 128‑‑‑Legitimacy‑‑‑Proof‑‑‑Essentials of legitimacy stated.--­ [Muhammadan Law]. Legitimacy is a status which results from certain facts whereas legitimation is a proceeding which creates a status which did not exist before. This proceeding would become necessary where either the existence of a valid marriage could not be expressly proved or where the child was born within six months of the marriage. In such cases acknowledgement of legitimacy in favour of the child should either be express or by necessary implication from the course of treatment by the man of the mother and the child or from the evidence of repute and notoriety, amongst the members of the family, community and respectable members of the locality. Such an acknowledgement raises a presumption of a valid marriage and legitimate birth. Mst. Ghulam Fatima v. Mst. Inayat Bibi and 4 others 1987 MLD 172; Noor Elahi v. State PLD 1966 SC 708; Hamida Begum v. Murad Begum PLD 1975 SC 624; M. Munir's Commentary on the Evidence Act Vol. l, p.591; D.I.‑G., Police v. Anis‑ur‑Rehman Khan PLD 1985 SC 134; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Khajah Hidayatoolah v. Rai Jan Khanum (1844) 3 Moors TA 295; Muhammad Bauker Hussain Khan Bahadoor v. Sharfoon Nissa Begum (1860) 8 Moors IA 136; Ashrufood Dowlah Ahmad Hussain Khan v. Hyder Hussain Khan (1866) Moors IA 94; Muhammad Allahdad Khan v. Muhammad Ismail Khan ILR 10 All. 289; Abdul Razak v. Agha Muhammad Jaffar Bindanim ILR 21 Cal. 666; Mst. Bibee Fazilatunnessa v. Mst. Bibee Kamarunnessa (1905) 9 CWN 352; Sadiq Hussain Khan v. Hashim Ali Khan (1916) 43 IA 212; Zakirali v. Sograbi" (AIR 1918 Nag. 32); Zamin Ali v. Azizunnisa ILR 55 All. 139 and Bibi Amu v. Mst. Asiat PLD 1958 Kar. 420 rel. (b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑ ‑‑‑‑Art. 128‑‑‑Legitimacy‑‑‑Presumption‑‑‑Child born after six months of marriage or within 2 years after its dissolution‑‑‑Presumption‑‑‑Plaintiff's mother's marriage with deceased stood admitted and it was also admitted that she was later on divorced‑‑‑Plaintiff would be presumed to be the legitimate son of deceased unless it was proved that he was born within six months of his mother's marriage with deceased or more than 2 years after divorce‑‑­Defendants denying legitimacy of plaintiff had failed to prove that plaintiff was born after divorce of his mother beyond period of two years‑‑‑Injunctions of Islamic Jurisprudence lean in favour of legitimization rather than stigmization‑‑‑Perusal of evidence on record clearly indicated that plaintiff was born within two years of divorce of his mother and was, thus, legitimate son of deceased' and entitled to inherit his property in accordance with his legitimate share as per rule of inheritance in Islam: ‑[Muhammadan Law]. Manzoor Hussain v. Zahoor Ahmad and 4 others 1992 SCMR 1191; Majmooa‑e‑Quwaneen‑e‑Islam by Dr. Tanzil‑ur‑Rahman; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Muhammad Ashraf and others v. The State PLD 1983 SC 216 and Manzoor Hussain v. Zahoor Ahmad and 4 others 1992 SCMR 1191 rel. (c) Criminal Procedure Code (V of 1898)‑‑‑-- ‑‑‑‑S. 488‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 128 & 2(1)(c)‑‑‑Legitimacy‑‑­Finding recorded by Criminal Court in application for maintenance of children that child/children were not legitimate was of no evidentiary value in civil proceeding where question of legitimacy was being adjudicated. (d) Qanun‑e‑Shahadat (10 of 1984)‑‑-- ‑‑‑‑Art. 128‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Findings of Courts below that plaintiff was not the legitimate son of deceased was the result of misreading/non‑reading of evidence on record‑‑‑Evidence on record suggested presumption of legitimacy in favour of plaintiff‑‑‑Findings of two Courts below to the effect that plaintiff was not the legitimate son of deceased were set aside and plaintiff was declared to be the legitimate son of deceased and as such entitled to inherit property in accordance to his legitimate share in the same.‑­[Muhammadan Law]. Saleh Mehmood Awan for Petitioner. Mushtaq Ali Tahir Kheli for Respondents. Date of hearing: 3rd February, 1993. JUDGMENT This Civil Revision under section 115 of the Code of Civil Procedure (V of 1908) by Maqbool Hussain plaintiff is directed against the judgment and the decree passed by the learned Additional District Judge I, Haripur, dated 3‑5‑1986, whereby he dismissed the appeal filed by the plaintiff‑appellant and maintained the judgment and the decree of the learned First Civil Judge, First Class, Haripur, dated 7‑3‑1985 dismissing the suit filed by the plaintiff­ appellant. 2. The only point surviving for determination in this civil revision is whether Maqbool Hussain plaintiff‑petitioner is the legitimate son of Maqsoodur Rahman deceased. 3. On the death of Maqsoodur Rehman his Inheritance Mutation No.755 was attested on 27‑1‑1981 disheriting the petitioner therefrom. The petitioner instituted a suit on 12‑3‑1981 in the Court of First Civil Judge, First Class, Haripur, out of which this Civil Revision has arisen, seeking a declaration that he was the son of late Maqsoodur Rehman and as such entitled to his share in the inheritance of his father Maqsoodur Rehman. 4. Defendants 1 to 10, the other heirs of Maqsoodur Rehman, filed a joint written statement wherein it was categorically denied that the plaintiff was the son of Maulvi Maqsoodur Rehman deceased. In this context reliance was also placed on the recitals contained in the order dated 11‑6‑1957 copy Exh.D.W.1/1 of a Magistrate of the First Class passed on an application under section 488, Cr.P.C. A few legal objections had also been taken in the written statement. The parties went to trial on as many as 10 issues including the relief, out of which the following issues are relevant for the purposes of this petition:‑‑ (3) Whether the plaintiff is not son of Maqsoodur Rahman if so, its effect? (6) Whether inheritance mutation of Maqsoodur Rehman has rightly been attested in favour of defendants? (7) Whether plaintiff being legal heir of Maqsoodur Rehman is owner in possession of the suit land and Inheritance Mutation No.755 attested on 22‑1‑1981 is void, illegal, contrary to the fact, hence liable to be cancelled and is ineffective upon the rights of the plaintiff? (8) Whether plaintiff is entitled to the declaration and permanent injunction as prayed for? The learned trial Judge took up issues Nos.3 and 8 together. While refusing to place reliance on the order of the Magistrate in criminal proceedings under section 488, Cr.P.C. however, he. held the view that the dispute regarding the legitimacy of the petitioner had arisen in 1956 firstly, when his father had refused to own him as his son and secondly, when the Magistrate had dismissed the application of his mother under section 488, Cr.P.C. and that, therefore, the mother of the plaintiff ought to have instituted a suit for declaration qua the legitimacy of the petitioner within a reasonable period of the dismissal of her petition. According to the learned trial Judge, the mother of the petitioner kept quiet after the findings rendered by the Magistrate against her, which was tantamount to admission of the allegations of her husband and the correctness of the findings of the Magistrate. It was also observed by the learned trial Judge that there was no evidence to rebut the allegations brought by Maqsoodur Rehman deceased against the petitioner's mother regarding his legitimacy. According to the trial Judge the silence of the plaintiff's mother and her contracting the second marriage and the finding of the learned Magistrate amounted to a declaration that the plaintiff was not a legitimate offspring of Maqsoodur Rehman. Another point which weighed with the learned trial Judge in non‑suiting the petitioner was that according to his birth certificate the petitioner was born on 15‑10‑1956 and has thus attained majority in the year 1978 when he was living with his maternal uncle and could have brought a suit at that time in respect‑ of his legal status but he had only brought it after his father died and that too in respect of the property which is said to have been left by his father.' As a cumulative effect of this finding, as stated earlier, the petitioner was non‑suited by the learned trial Judge. 5. Feeling aggrieved of the judgment and decree aforesaid, the petitioner filed an appeal before the Additional District Judge‑I, Haripur. The findings of the learned Appellate Court on the crucial question are very brief which are as under:‑‑---- "So far as the finding of the Magistrate is concerned, it goes against the appellant. It would be an aiding factor, if not conclusive in favour of respondents. When the maintenance was refused by the Magistrate, then it was for the appellant's mother to prove the legitimacy of her child but she remained silent till her death. There is nothing on record to show the date of marriage of appellant and divorce by Maqsoodur Rehman. There is also nothing to show as to when the appellant was horn. According to the birth certificate filed by appellant, he was born on 15‑10‑1956. According to the judgment (Exh.D.W.1/1), at that rime, the appellant was 1‑1/2 years of age. So it means that he was born in the last month of 1955 or in the beginning of 1956. So the age shown in the birth certificate is contradictory with the judgment (Exh.D.W.1/1). Moreover, the age as shown in Exh.D.W.1/1, and in the birth certificate filed by the appellant is further contradicted with the statements of Mst. Zaitoon who has stated in her evidence that the appellant was about two years at the time of divorce." In view of the above findings the appeal of the petitioner also met with the same fate. Feeling still dissatisfied the plaintiff petitioner has come up in revision to this Court. 6. Mr. Saleh Mehmood Awan, learned (counsel for the petitioner, has raised the following contentions in support of this petition:‑‑-- (i) That it is not denied that there had been a regular marriage between Maqsoodur Rahman deceased and Mst. Aziz‑un‑Nisa, mother of the plaintiff and therefore, mere disowning of the petitioner as his son by late Maqsoodur Rahman in proceedings under section 488, Cr.P.C. with a view to warding off the payment of maintenance allowance was not only inconsequential but would not be sufficient to illegitimise him. (ii) That the two Courts below have committed gross error in placing reliance upon the order of the Magistrate made in the proceedings under section 488, Cr.P.C. (iii) That the two Courts below have also fallen into a grave error to assume that as the mother of the petitioner had not pursued the proceedings in the Civil Court to establish the legitimacy of the petitioner, therefore, the petitioner could not be held to be a legitimate son of Maqsoodur Rahman, and (iv) that the subordinate Courts have been the victim of misreading and non‑reading of evidence in arriving at the wrong conclusions." 7. Mr. Mushtaq Ali Tahir Kheli, Advocate, on the other hand, has supported the impugned findings of the two Courts below and submitted that the petitioner had asserted that he was the son of Maqsoodur Rehman and that he was entitled to inherit his estate. Nonetheless, according to the learned counsel for the respondents, the petitioner has utterly failed to prove that date of the marriage of his mother with Maqsoodur Rehman and the date of divorce while on the contrary he has only placed on the record attested copy Exh.P.W.l/3 of the National Identity Card and his birth certificate photo copy Exh. P.W.l/4. The learned counsel for the respondents pointed out that the petitioner's mother had filed her application under section 488, Cr.P.C. on 20‑2‑1957 while his birth certificate fixes his date of birth as 15‑10‑1956, therefore, according to his mother he should have been of 4 months and 5 days old, whereas she had asserted the age of the petitioner during those proceedings as one and a half year which according to the learned counsel, falsified the date of birth of the petitioner or the statement of his mother. Mr. Musthtaq Ali Tahir Kheli, frankly conceded that the learned Magistrate while proceeding under section 488, Cr.P.C. was not competent to declare the legitimacy or otherwise of the petitioner in his order Exh.D.W.l/1. Nonetheless, according to learned counsel, it was relevant under Articles 85, 86, 87 and 88 of Qanun‑e‑Shahadat, 1984. The learned counsel for the respondents pointed out that according to the statement of Maulvi Maqsoodur Rehman deceased, referred to in order of the Magistrate Exh.C.W.l/1, Mst. Aziz‑un‑Nisa has remained his wedded wife for two months and that he had divorced her three years prior thereto. Mr. Mushtaq Ali Tahir Kheli, therefore, contends that Mst. Aziz‑un‑Nisa was divorced somewhere in early 1954 and the petitioner having born after more than 2 years on 15‑9‑1956 as appearing in his birth certificate, copy Exh.P.W.l/4, he could not be said to have born out of the wedlock of the petitioner's mother with Maqsoodur Rehman deceased. 8. The petitioner in support of his claim to be the legitimate son of Maqsoodur Rehman deceased, apart from himself examined Muhammad Nazir (P.W.2) and Mst. Zaitoon (P.W.3) who is real sister of defendants Nos.l, 2, 4, 5, 7, 8, 9 and 10 and the daughter of defendant No.3 Muhammad Iqbal (P.W.4) Abdur Rehman (P.W.5) and Ahmad Khan (P.W.6). The defendants, besides examining Matiur Rehman (D.W.1) produced Haji Muhammad Farid (D.W.2) and Habibur Rehman (D.W.3). At the end of the evidence of the defendants Muhammad Arshad Khan, Lambardar of village Kawan in District Attock, wherefrom Mst. Azizun Nisa hails and Muhammad Yahya have also been examined by the petitioner who supported the claim of the petitioner. The petitioner apart from the ocular evidence, brought on the file as stated earlier photo copy Exh.P.W.l/3 of his National Identity Card which records Maqsoodur Rehman to be the father of the petitioner and his birth certificate, attested copy Exh.P.W.1/4 wherein column 5 thereof Maqsoodur Rehman has been recorded as the father of the petitioner. The anchor‑sheet of the case of the defendants‑respondents is the attested copy Exh.D.W.l/1 of the order of the Magistrate of First Class, Haripur dated 11‑4‑1957 in criminal proceeding under section 488, Cr.P.C. 9. The first question which has to be considered is as to whether the order of the Magistrate copy Exh.D.W.l/1 has any evidentiary value on the point of determination of the parentage, legitimacy or otherwise of the petitioner. In a very recent case of Mst. Ghulam Fatima v. Mst. Inayat Bibi and 4 others (1987 MLD 172), Khalilur Rehman Khan, J. a learned Judge of the Lahore High Court has reviewed abundant case‑law on the point of the evidentiary value of the recitals of facts or the findings or conclusions recorded by the criminal Courts in the criminal cases qua the subsequent civil disputes between the same parties. The learned Single Judge has aptly borrowed the following observations from the precedent case of Noor Elahi v. State PLD 1966 SC 708:‑‑--- "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 findings 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." 10. The learned Judge has referred to a monumental judgment cited as "Hamida Begum v. Murad Begum" PLD 1975 SC 624 which has laid down the law on the question of legitimacy in a case where the parties are Muslims. The stand of the learned counsel for the respondents that under Articles 85, 86, 87 and 88 the order copy Exh.D.W.1/1 of the Magistrate in the criminal proceeding under section 488, Cr.P.C. if not a conclusive proof would be relevant under Articles 85 and 88 is not tenable. No doubt the copy Exh.D.W.l/1 is a public document and may be produced in proof of the contents‑thereof. But this is a general law to which there are a number of valid exceptions. In the instant case a strong exception is the one that is contained in M. Munir's Commentary on the Evidence Act (Volume 1, page 591) which has been quoted in approval by the Supreme Court in the two cases: (1) "D.I.G. Police v. Anis‑ur Rehman Khan' (PLD 1985 SC 134 and (2) Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 which is 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." Nonetheless in the Hamida Begum's case cited above before examining the evidence adduced by the parties regarding the legitimacy or otherwise of the petitioner the proposition came up for consideration as to whether the matter is covered by the provisions of section 112 of the Evidence Act (since repealed) or by the Rule of Muslim law. 12. After a good deal of discussion and reviewing the provisions of the various statutes that intervened between the enactment of the Indian Evidence Act, 1872 and repeal of section 2 of the Evidence Act (I of 1872) it was boldly held that in case of legitimacy of a Muslim the Muslim Personal Law stood revived and the provision of the Evidence Act on the legitimacy or otherwise of a Muslim would not be relevant. In this illuminating judgment Anwarul Haq, J. as his Lordship then was, has reviewed the statements of law appearing in all the well known textbooks of Muslim law and summarised it as follows:‑‑--- "Under the Muhammadan Law, as in all civilised systems of 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. The shortest period of gestation according to all the schools is six months. If, therefore, a child is born within six lunar months of the marriage, no affiliation would take place unless ' man acknowledges it to be his issue. In other words, it is the right of the man to legitimate a child born within this time by acknowledging expressly or impliedly that the conception took place in wedlock. According to the Hanafi's contrary to the Shari, is, the husband is entitled to claim the child born in a wedlock as his even if he had no access to the wife. If the husband wishes to repudiate a child so born he can only do so by the procedure of la'an that is to say if he swears before the Qadi, that the child is illegitimate and fruit of adultery in which case the Court will pass a decree not only dissolving the marriage but declaring the child to be illegitimate." 13. It is a settled law that legitimacy is a status which results from certain facts whereas legitimation is a proceeding which creates a status which did not exist before. This proceeding becomes necessary where either the existence of a valid marriage cannot be expressly proved or where the child is born within six months of the marriage as stated above. In such cases acknowledgement of legitimacy in favour of the child may either be express or by necessary implication from the course of treatment by the man of the mother and the child or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such an acknowledgement raises a presumption of a valid marriage and legitimate birth. (See "Khajah Hidayatoolah v. Rai Jan Khanum" (1844) 3 Moors IA 295), (2) Muhammad Bauker Hussain Khan Bahadoor v. Sharfoon Nissa Begum (1860) 8 Moors IA 136), (3) Ashrufood Dowlah Ahmad Hussain Khan v. Hyder Hussain Khan" (1866) Moors IA 94), (4) Muhammad Allahdad Khan v. Muhammad Ismail Khan (ILR 10 All. 289, (5) Abdul Razak v. Agha Muhammad Jaffar Bindanim" (ILR 21 Cal. 666), (6) Mst. Bibee Fazilatunnessa v. Mst. Bibee Kamarunnessa" (1905) 9 C.W.N, 352), (7) Sadiq Hussain Khan v. Hashim Ali Khan (1916) 43 IA 212), (8) . Zakirali v. Sograbi" (AIR 1918 Nag. 32) (9) Zamin Ali v. Azizunnisa" (ILR 55 All. 139) and (10) Bibi Amu v. Mst. Asiat" (PLD. 1958 Karachi 420). 14. I am now proceeding to examine the facts and evidence of, the present case in the light of the rules of Muslims Law summarised by his Lordship Anwarul Haq, J. in Hamida Begum's case cited above. It is a common ground between the parties that Mst. Aziz‑un‑Nisa was once the legally‑wedded wife of Maulvi Maqsoodur Rehman and that later on she was divorced. In accordance with the principles that "the child follows the bed", the petitioner would be presumed to be a legitimate child of Maulvi Maqsoodur Rehman deceased, unless it is proved that he was born within six months of their marriage or more than 2 years thereafter. The whole controversy centres round the date of birth of plaintiff and the assertion of the defendants that their predecessor Maulvi Maqsoodur Rehman had repudiated the plaintiff and never acknowledged him as his legitimate son. Conceding for a while, that the statement of Maqsoodur Rehman deceased during the proceedings under section 488, Cr.P.C. culminating in the order Exh.D.W.1/1 that the petitioner's mother has remained as wedded‑wife for two months and that he had divorced her some three years prior to his statement is true while taking the marriage of the petitioner's mother with Maulvi Masqsoodur Rehman in June, 1954 he would be deemed to have been born in June, 1956 as the learned counsel for the respondents has pointed out. The learned counsel for the respondents conveniently ignores that it is not exact three years period that Maulvi Maqsoodur Rehman is said to have stated before the Magistrate when he had divorced the petitioner's mother. This approximation will include the difference of some 3/4 months but under the Muslim Jurisprudence the well known rule is leaning in favour of legitimization rather than stigmization. Reference may be made to Hamida Begum's case as well as the latest authority of the Supreme Court reported as Manzoor Hussain v. Zahoor Ahmad and 4 others 1992 SCMR 1191. In view of this law of 'leaning in favour of legitimization, I have no doubt in my mind that the period of "some three years" prior to the statement of Maulvi Maqsoodur Rehman when he had divorced the petitioner's mother, when the date of birth in the certificate Exh.P.W.l/4 is taken into consideration legitimizes the petitioner having been born within two years of the said divorce. 15. Mr. Saleh Mahmood Awan, the learned counsel for the petitioner has also referred to sections 146 and 149 of the Majmooa‑e‑Quwaneen‑e‑Islam Edited by Dr. Tanzilur Rehman and urged that only the evidence of one woman would be sufficient to prove the parentage of a child. I would like to reproduce the opinion expressed at page 870 of Dr. Tanzilur Rehman, in this context which reads as under:‑‑--- 16. In the instant case Mst. Zaitoon, real sister of the answering defendants, had appeared in the witness‑box as P.W.3 and had categorically stated that the petitioner was the offshoot of her father's marriage with Mst. Azizun Nisa, in that, once in his lifetime her father had asked her and her husband to bring back the petitioner. Apart from this, Muhammad Nazir the maternal uncle of the petitioner has appeared and has deposed that Mst. Azizun Nisa, his sister, has remained wedded wife of Maqsoodur Rehman deceased where she had lived for about 18 months and thereafter within a month when she had come to his house in village Kawan, the petitioner was born. Muhammad Iqbal to whom Mst. Zaitoon (P.W.3) is married has also come forward and has stated that the petitioner was the son of Maulvi Maqsoodur Rehman. Similarly his brother‑in‑law Abdur Rehman (P.W.5) as also Ahmad Khan (P.W.6) supported the claim of the petitioner to be the son of Maulvi Maqsoodur Rehman. Muhammad Arshad Khan, Lambardar of village Kawan and Muhammad Yahya another resident of that village have substantiated the plea of the petitioner that he was the legitimate son of Maulvi Maqsoodur Rehman. As against this the bed‑rock of the respondent's case is the recital in the proceeding under section 488, Cr.P.C., copy Exh.D.W.l/1, which as stated earlier, has got no evidentiary value on the point of legitimacy or otherwise of the petitioner. The two Courts below have ignored the rule enacted in the definition of the word `proved' in Qanun‑e‑Shahadat and had insisted for direct evidence of marriage on legitimacy instead of looking for `material' which was in abundance to create very strong probability in favour of the petitioner rather than against him. Reference in this behalf can be placed on (1) Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95, (2) Mohammad Ashraf and others v. The State PLD 1983 SC 216 and (3) Manzoor Hussain v. Zahoor Ahmad and 4 others (1992 SCMR 1191). 17. 'My conclusion on the question of legitimacy of the petitioner may now be summed up. He was born during the existence of a valid marriage between his mother Mst. Aziz‑un‑Nisa and Maulvi Maqsoodur Rehman deceased and, therefore, he must be presumed to be a legitimate child unless it is shown otherwise. The defendants‑respondents have failed to prove that the petitioner was born within 6 months of the marriage. The repudiation of paternity of the petitioner by Maulvi Maqsoodur Rehman, finding a mention in the criminal C proceedings under section 488, Cr.P.C. has got no evidentiary value. Apparently he wanted to ward off his liability to; pay the maintenance allowance to the mother and the child and for that matter he might have disowned the petitioner. A legitimate child could not be bastardised in this manner by means of denial in the criminal Court with a view to get of the maintenance allowance. 18. On the other hand, the petitioner has succeeded in proving by satisfactory documentary as well as oral evidence that he was the legitimate son of Maulvi Maqsoodur Rehman and it is the evidence of Mst. Zaitoon Bibi, the real sister of the defendants, that petitioner was the legitimate son of his father from her second mother and that during his lifetime Maulvi Maqsoodur Rehman sent her and her husband to bring back the petitioner. I have accordingly on a detailed analysis of the evidence produced by the parties, no hesitation in holding that the findings of the two Courts below are erroneous having been brought about by misreading and non‑reading of evidence and which have to be set aside. 19. In the light of foregoing discussion, this petition is allowed, the impugned judgments and decrees of the two Courts below are set aside and it is declared that the petitioner is the son of Maulvi Maqsoodur Rehman deceased from his wed‑lock with Mst. Aziz‑un‑Nisa deceased with the result that the petitioner's claim for declaration and possession of his share in the disputed property under the Islamic Law is decreed with costs throughout. Revision accepted.