IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
 
PRESENT: 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED 
 
 
CIVIL PETITION NO.989/2015  
(On appeal from the judgment dated 6.4.2015 passed by the Peshawar High 
Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R.No.88-P/2008). 
 
 
Mst. Brikhna d/o Habib Khan 
…Petitioner  
 
Versus  
 
 
Faiz Ullah Khan s/o Habib Khan & others 
 
..Respondents  
 
 
 
For the petitioner:  
 
Mr. Rehman Ullah, ASC 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
 
 
 
  
 
 
 
 
 
 
For the respondent-1: 
 
Mr. Arshad Hussain Yousafzai, ASC 
 
 
 
 
 
alongwith respondent No.1 
 
 
 
 
Date of hearing: 
 
 
01.7.2020 
 
 
 
 
  
 
JUDGMENT  
 
 
 
 
Mazhar Alam Khan Miankhel,  J-.    
 
 
CMA No.10545/2019:   
 
 
During the course of writing the judgment, we have noted 
that instant CMA has not been decided so far, wherein, factum of demise 
of the petitioner was reported by the learned AOR with the request 
therein that her legal heirs be impleaded and arrayed as petitioners. To 
set the record straight we allow this CMA and direct the office to include 
the names of legal heirs in the array of the petitioner. CMA disposed of 
CP 989/15 
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accordingly. We have also noted that the actual name of the petitioner is 
“Mst. Brikhna” but in the civil petition and other relevant documents in 
this court filed by the Advocate-on-Record (AOR) wrongly reflect her 
name as “Mst. Brehna”. Such an insouciant conduct of AOR is 
deprecated. Such a slackness sometimes lead to a complex situation. So, 
one should be very careful specially in the matters concerning the 
records. 
 
Civil Petition No.989/2015:  
 
 
 
Mst. Brikhna, the deceased petitioner, had filed a suit for 
declaration against her brothers and other defendants (vendees of her 
brothers) wherein she had claimed her Sharai share in the legacy left by 
her father.  The suit of the petitioner was decreed by Civil Judge-II/Illaqa 
Qazi Buner (Trial Court), vide his judgment and decree dated 27.4.2007. 
Appeal filed by some of the defendants was allowed and judgment and 
decree passed by the trial court ibid was set aside by Additional District 
Judge-I/Izafi Zilla Qazi, Buner (Appellate Court), vide his judgment and 
decree 6.12.2007. The petitioner being dissatisfied of such findings filed 
a civil revision before the Peshawar High Court, Mingora Bench (Dar-ul-
Qaza), Swat but that was dismissed by the learned single Judge in 
chambers vide his judgment dated 6.4.2015.  The petitioner still being 
dissatisfied has questioned the judgment of Peshawar High Court 
through instant petition for leave to appeal. 
 
2. 
 
Learned counsel for the parties were heard and record of the 
case was perused.  
 
 
 
Perusal of the record reveals that in the controversy referred 
above, defendant No.1/respondent No.1 (brother of the petitioner) had 
filed his separate written statement wherein he took a stance that 
CP 989/15 
3
petitioner Mst. Brikhna was not the daughter of his predecessor Habib 
Khan so was rightly excluded from his inheritance whereas defendant 
No.2/respondent No.8 herein (being brother of petitioner) submitted his 
cognovit and accepted the stance of the petitioner that she being the real 
daughter of Habib Khan and their real sister was entitled in the legacy of 
their common predecessor Habib Khan to the extent of her Sharai share 
which in the circumstances comes to 1/7 share.  It is also on the record 
that the 3rd son of Habib Khan namely Amrood Khan, respondent No.9 
herein, had already given her (petitioner) the due share lying with him (in 
his name and possession), she was entitled for. The learned single Judge 
of the Peshawar High Court had based his findings mainly on the ground 
of limitation and acquiescence by relying on the case of Grana v. Sahib 
Kamala Bibi (PLD 2014 SC 167) but to our view, case of Mst. Grana ibid 
is not applicable in the facts and circumstances of this case and there is 
no question of acquiescence. In the case of Mst. Grana ibid suit property 
had been sold hand to hand and petitioner lady therein remained silent 
for sixty (60) long years. Mst. Brikhna, the plaintiff/ petitioner, claiming 
her share in the legacy left by her father, was on the basis of operation of 
law and not on the basis of any mutation. It is well settled by now that 
mutation is not a document of title. The sole purpose of a mutation is to 
keep the record of rights updated and to maintain the fiscal records 
straight. When she being one of the legal heir of deceased Habib Khan 
then she becomes entitled to inherit the legacy of her father from the day 
her father died and as such becomes co-sharer/co-owner in the property 
and this entitlement of petitioner is based on operation of Mohammadan 
Law and the Law of Inheritance.  We in the peculiar circumstances of the 
case can lay hands on the case of Mst.Gohar Khanum v. Jamila Jan 
(2014 SCMR 801).  The learned Judge of the Peshawar High Court 
CP 989/15 
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though has based his findings on the basis of case of Mst. Grana ibid but 
the parties to the suit have not developed their case in line with the 
findings of the case of Mst. Grana ibid. So, we, in the circumstances, 
leave the question of limitation and acquiescence in the matter of Muslim 
inheritance open for any other appropriate case. Record of the case 
would further make it clear that amongst the three sons, it is the 
respondent No.1 Faiz Ullah alone who is avoiding to give the petitioner 
her due share.  We have also noted that respondent No.1 has also failed 
to establish the stance taken by him in his written statement that their 
father died by leaving only the three sons i.e. defendants No. 1 to 3 and 
Mst. Brikhna was not the real daughter of their father. In support of his 
stance, he appeared alone as his own witness. He during the course of 
his cross examination, admitted that PW-5 Miraj Khan and PW-6 Fateh 
Khan were the elders of the locality. While going through their 
statements i.e. PW-5 and PW-6, it appears that both of them being 
elderly persons, have supported the stance of petitioner.  We would also 
like to mention here that people in this region normally avoid to give the 
daughters/sisters i.e. women folk, their due shares in the inheritance of 
their predecessors which is totally against Sharia and the law of 
inheritance prevailing in the country.  Preponderance of the evidence 
would also make it clear that the petitioner being one of the legal heir of 
Habib Khan is entitled to get her due Sharai share which in the 
circumstances comes to 1/7 share. Learned counsel for respondent No.1 
was heard at length but he was unable to satisfy us regarding the stance 
of respondent No.1. Needless to mention that revenue records be 
corrected accordingly.   
 
3. 
 
In this view of the matter, we convert this petition into 
appeal and allow the same with costs, set aside the impugned judgment 
CP 989/15 
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dated 6.4.2015 passed by the Peshawar High Court, Mingora Bench 
(Dar-ul-Qaza), Swat and that of the appellate court and restore the 
judgment & decree dated 27.4.2007 passed by Civil Judge-II/Illaqa Qazi 
Buner,.  
 
Judge 
 
 
 
Judge  
Islamabad, the   
1st July, 2020 
Sarfraz /-‘ 
‘Not approved for reporting’ 
 
