P L D 2017 Balochistan 22
Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ
BIBI HUMERA ---Petitioner
Versus
GHULAM DASTAGIR and 3 others ---Respondents
Constitutional Petition No.1046 of 2014, decided on 29th June, 2016.
(a) Succession Act (XXXIX of 1925) ---
----S. 375 ---Succession certificate ---Surety bond ---Petitioner was widow of government official
who lost his life while he was on duty ---Award, pay and allowances given by government on the
death of petitioner's husband were distributed among legal heirs in view of succession certificate
issued by Court ---Respondent was brother of deceased husband of petitioner and succession
certificate was issued in his favour who submitted surety bond before the Court ---Grievance of
petitioner was that her b rother in law had kept minor children with him and had also not
distributed shares of petitioner and her minor children ---Validity ---Respondent was granted
succession certificate being attorney of petitioner and other legal heirs and he was required to be
dealt with under S.375 of Succession Act, 1925 ---High Court directed the Court which issued
succession certificate to proceed with the matter and to get the amount of shares of minors
recovered from respondent and the matter was remanded for the purpose ---Constitutional
petition was disposed of accordingly.
(b) Family Courts Act (XXXV of 1964) ---
----S. 5, Sched. ---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Maintainability ---
Alternate remedy ---Custody of minors ---Petitioner was mother o f minors and sought custody of
her minor children who were living with her brother -in-law---Validity ---For custody of minors
and alternate remedy was available before Courts established under Family Courts Act, 1964,
and petitioner had every right to avail the same ---Constitutional petition was disposed of
accordingly.
Abdul Basit for Petitioner.
Muhammad Ibrahim Lehri, Naseer Ahmed Bangulzai, Additional Advocate General and
Muhammad Ayub, Superintendent Deputy Commissioner, Mastung for Respondent No.1.
Date of hearing: 24th March, 2016.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --The petitioner Bibi Humera wife of Muhammad
Ismail approached this court for the reliefs:
"A. to declare that the respondent No.1 illegally and unlawfully removed the above
named minor s sons and daughters of the petitioner and kept them in an illegal and
unlawful confinement.
B. To declare that the private respondent No.1 has no authority or entitlement to
keep the custody of minors sons and daughters of petitioner.
C. To declare that t he petitioner being real mother and natural guardian of the minors
has fundamental rights to keep the custody of her minor sons and daughters.
D. To direct the respondent No.1 to produce all the minors before this Hon'ble Court
and thereafter be handed ove r to petitioner being real mother and natural guardian.
E. In case of failure, the official respondents be directed to recover the minor from
illegal and unlawful custody of respondent No.1 and be produced before this Hon'ble
Court and hand over to petitio ner.
F. Directing the respondent No. I to return all the compensation amount and other
dues of the Shaheed husband of the petitioner already received, to petitioner so that she
would be able to bring up/look -after the minors properly and for the better fut ure of the
minors.
G. Further the Deputy Commissioner Mastung, be directed to pay the monthly salary
of Shaheed Muhammad Ismail to petitioner.
H. The official respondents be directed to protect the life of petitioner and both
minors.
I. To pass such order as your lordship may seem fit and proper in the circumstances
of the case."
2. It was case of the petitioner that her husband Muhammad Ismail was killed while on duty
in the year 2011, thus he was declared Shaheed, and the Government of Balochistan announced
an amount of Rs.2,000,000 (Rupees two million only) as compensation, besides monthly salary
of the deceased. The deceased Muhammad Ismail was described to be survived by widow
(petitioner) and five children. It was her case that she being an illiterate lady, while respondent
No.1 (her brother in law) in concealed manner managed to obtain succession certificate from the
court and on basis thereof received the amount of compensation and other dues of the Shaheed,
for which only she and her children were entitled. In addition the monthly salary of the Shaheed
was also received by resp ondent No.1, not allowed a single penny to her and her children. Thus
in such state of affairs she was compelled to approach the Deputy Commissioner, Mastung and
brought into his notice the act on part of the respondent No.1. Resultantly on 13th December
2014 a cheque of Rs.40,000/ - (Rupees forty thousand only) was issued in her name on account of
salary. While the Deputy Commissioner, Mastung vide letter dated 13th January 2014 directed
the Manager, National Bank, Mastung Branch for payment of the salary t o the petitioner. It was
contended that her act to approach the Deputy Commissioner, Mastung annoyed the respondent
No.1, who after beating turned her out of the house, but forcibly retained the children. As a result
she was compelled to take shelter at Qu etta in her parents' house. Her efforts to approach the
authorities concerned for taking action against the respondent No.1 failed due to his (respondent
No. 1) influence. While she was under severe threat, thus sought redressal of her grievances from
this Court.
3. The instant petition, followed by a number of applications with variety of reliefs
including meeting with the minors, and payment of the monthly salary of the deceased to her,
was filed, thus several directions were made and several orders were passed to streamline the
subject issue. On 6th January 2015 a schedule for meeting of the mother and minors was
prepared, while custody of two of the minors Alishbah and Nayab were handed over to the
petitioner during course of hearing. While the remaining three were left to reside with their
relatives as per past arrangement. This was also due to the fact that the minors, elder ones,
showed less interest to join their mother, even not ready to accompany her on week ends, as
directed.
4. To probe into the m atter and to unveil the truth the respondents were asked to submit
their replies. The respondent No.4 Deputy Commissioner, Mastung in his parawise comments
was of the view that the amount of Rs.2,000,000/ - (Rupees two million) was received by Bibi
Humera ( Petitioner), being one of the declared legal heir of the deceased. Further, she received
the monthly salary from the Bank as arranged by the relevant office. The reply further suggests
that the school, where the minors were studying had been approached for the details of monthly
expenses, with an intent to transfer the amount directly to the school, to avoid its misuse.
5. It was observed that the minors Abdul Karim, Iram Ismail, and Naleem Ismail made their
appearances before the court on 10th June 2015, t hey complained about non -payment of their
school fees. On query the learned counsel for the petitioner stated that the salary was received by
the petitioner, but nothing paid to the minors, who were residing apart from her. Thus the Deputy
Commissioner, Ma stung was directed to pay half of the salary to the minors to meet with the
school expenses. It was further directed that the amount be directly paid to the educational
institutions where the minors were studying to ensure its proper use.
6. In view of the fact that the compensation was awarded to the widow and children of the
deceased, with sole purpose to provide them financial support, and to help them to lead an
independent life, thus on complaint of misappropriation of the amount it was necessary to lo ok
into the matter to safeguard the interest of widow and the minors. Thus an effort was made to
probe the utilization of the amount Rs.Two millions, which was received by Bibi Humera as
compensation from the concerned office, a fact. On 15th June 2015 the petitioner was asked
about receiving of money and its utilization. According to her she visited the Bank once, while
respondent No.1 Ghulam Dastagir and his brother Ejaz accompanied her. While they obtained
her signatures on number of papers. It was her s tatement that the amount of Rs.2,000,000/ - was
given to Ghulam Dastagir and Ejaz for the purpose to purchase a house for her and minors
accommodation. There was complete denial on part of respondent No. 1 of receiving the amount.
7. To ascertain the truth footage of CCTV Camera of the relevant dates were called from the
Bank, but to no avail, as the footage of CCTV Camera was not available already deleted after a
period of thirty days having no capacity of storage thereafter. The officials called from the o ffice
of Deputy Commissioner, Mastung disclosed that the cheque was prepared in the name of the
petitioner (Bibi Humera) who received the cheque, while at relevant time respondent No. 1
accompanied her.
8. Apart from issuance of the cheque and its encashme nt a succession certificate for the
purpose was obtained from the court of District and Sessions Judge, Kalat at Mastung in the
names of the petitioner and the minors, a condition precedent. The name of Ghulam Dastagir
(respondent No.1) appeared as special attorney in the process. The application filed for the
purpose was allowed vide order dated 18th October 2011 by the District Judge, Kalat at
Mastung, and the succession certificate was issued in the names of the petitioner, the minors and
mother of the d eceased Noor Bibi on 26th October, 2011.
9. The name of Ghulam Dastagir appeared as attorney in the succession certificate for
applicants including the petitioner and the minors. In order to affirm the facts the record of the
trial court was called. The pe rusal whereof reveals that the application was filed by respondent
No.3 Ghulam Dastagir, and he pursued with the case till its decision. Before issuance of
succession certificate as required by Section 372 Succession Act 1925 security was called, while
this Ghulam Dastagir not only filed the bond to bound down himself for payment of debt to the
applicants, while one Muhammad Azam son of Abdul Karim stood surety for him for the
purpose. As a consequence the succession certificate was granted in the names of the petitioner
Bibi Humera, the minors five in numbers, and Noor Bibi, mother of the deceased. The trial court
further determined the shares of the petitioner, mother and also of the minors. The fact further
apparent from the order dated l8 November, 2011 that the attorney for the applicants was
directed to purchase Saving Certificates in the names of the minors and produce before the court.
Compliance of this direction nowhere apparent from the record.
10. The petitioner approached this court with an asser tion of fraud and misappropriation of
the amount of compensation on part of the respondent No.1; further her deprivation of her own
children by the same person. It was not denied rather a fact that the cheque for the amount of
compensation was issued in th e name of the petitioner by the office of the Deputy
Commissioner, Mastung. There was no mention of the names of the persons on whose names
succession certificate was issued and they were held entitled to the extent of their shares as
determined by the cou rt. It was also a fact that the petitioner received the monthly salary from
the account maintained by her, but not paid any amount to the minors residing apart from her.
The plea that she being an illiterate lady, thus was deceived by respondent No.1, who
misappropriated the amount with misstatement obtained succession certificate not found support
from the conduct on her part. She admitted to receive the cheque and handing over the money to
respondent No.1 and his brother Ejaz for the purpose to purchase a house. It establishment that
though she received the money, but not able to manage it, not only her share, but also the shares
of the minors.
11. The learned counsel for the respondent No.1 objected maintainability of the instant
petition, as the matter i n issue a factual controversy, thus could not be dealt in exercise of
constitutional jurisdiction. The learned Additional Advocate General in attendance was unable to
assist the court on facts or on point of law involved therein.
12. Apart from the factual controversy the prime issue is the right of minors in the property
devolved on them, as guaranteed by the Constitution, is to be secured. The mother of the minors
(petitioner) showed her incapability to safeguard the interest of the minors in the money gi ven
for their livelihood, but she was unable to look after the person of the minors, who due to the act
on her part residing apart from each other in three different places, which is highly unfortunate.
Thus required some appropriate order to undo the mis -happening.
13. The succession certificate issued by a court of competent jurisdiction was the basic
document to further proceed for disbursement of the debt received. It was in name of the mother,
widow and the children of the deceased; further determined the shares of each of the persons
coupled with direction of the trial court to purchase National Saving Certificate and place them
before the court. It was to safeguard the interest of the minors. The trial court was cautious
enough, thus not only determin ed the shares, but also to place the shares of minors in safe
custody. Despite the same the attitude adopted by the office concerned i.e. Deputy
Commissioner, Mastung was negligent. No steps were taken to safeguard the right of minors, nor
in compliance of the referred order, rather the whole amount was handed over to the petitioner in
shape of cheque, which was in the name of one of the applicants, though mother of the minors,
but in violation of the court's order. This negligence caused loss of the money came in share of
the minors. Thus both the petitioner, and the Deputy Commissioner, Mastung were responsible
for all this mishap.
14. The issue in hand pertains to the amount of compensation and the monthly salary, and its
disbursement to the persons in fa ct entitled for the same. For the purpose the petitioner applied
for issuance of succession certificate not only for herself, but on behalf of the minors also. The
succession certificate also issued in their names, consequently petitioner was able to recei ve the
amount. Thus in view of the facts the law applicable i.e. The Successions Act, 1925 (Act 1925)
shall be pressed into action. The succession certificate was issued by the court of District Judge,
Kalat at Mastung in exercise of the powers available u nder Section 372 of the Act, 1925. The
record of the trial court reveals that the petitioner and Noor Bibi mother of the deceased
empowered Ghulam Dastagir (respondent No. 1) by issuing a power of attorney in his name who
acted in his capacity as of attorn ey before the trial court. His name also mentioned as such in the
succession certificate. The Bond was also submitted by him (respondent No. 1), and the person
namely Muhammad Azam son of Abdul Karim stood surety for him (respondent No.1). The
surety and t he Bond were still intact which made both the named persons liable for the act they
ensured. This security was obtained as mandated by Section 375 Succession Act 1925. This
Section is comprehensive enough to deal with the situation in hand.
15. In view of the described facts respondent No.1 Dastagir was the main character, who
applied for issuance of succession certificate. though in names of the widow, mother and minors,
but he attended the proceedings till its finalization. The trial court while dealing w ith the matter
overlooked the fact that the petitioners Nos. 3 to 7 were minors, thus could not be represented by
an attorney, to whom the power was given by Humera Bibi and Noor Bibi. The application must
be through next friend, a legal requirement. Despi te this mistake on conclusion while issuing the
succession certificate, the trial court determined the shares of the applicants including the minors
and to further safeguard the interest of the minors a direction was made that Saving Certificates
in the na me of the minors be obtained. Thus compliance of the order was to be made either by
the petitioner and Noor Bibi or by this attorney (respondent No. 1). The record reveals that
Ghulam Dastagir (respondent No.1) admitted his participation in court's proceed ings, but also
not denied to accompany the petitioner, when the cheque was handed over to her, and deposited
in the Bank. Though he denied receiving of any amount from the petitioner, but this denial is of
less legal effect with no consequence. It was due to the fact that the law mandated to hold liable
the persons to whom the succession certificate was granted for all the mis -happening and for the
purpose he required to submit bond with surety/security. It was done in the case in hand as the
respondent No. 1 filed the bond with surety/ security in his own name. Thus he was liable to
render the accounts as required. The debt received was with one of the applicants, while the
remaining were deprived. Thus respondent No. 1 was liable for the act and has to he dealt under
the Act 1925.
16. In view of the above discussion this petition is converted into appeal and allowed in the
terms that:
i. The respondent No.1 Ghulam Dastagir was granted the succession certificate
being the attorney of the applicants (petition er, minors and Noor Bibi), thus required to
be dealt with under Section 375 of the Succession Act 1925. Thus for the purpose the
matter is remanded to the trial court with the direction to proceed with the matter, and get
the amount, shares of minors recov ered form the respondent No.l. All possible steps be
taken for recovery of the amount from Ghulam Dastagir (respondent No.1) and
Muhammad Azam the surety. On recovery, the amount to the extent of shares of the
minors be deposited in the National Saving Cen ter under regular scheme. The certificates
shall remain in the custody of the trial court till the minors attained the age of majority, or
till date some person duly appointed as guardian of the property of the minors by a court
of competent jurisdiction.
The share of Noor Bibi, mother of the deceased, be also handed over to her.
ii. As far the share of the petitioner is concerned, the trial court apart from making
efforts for recovery of shares of the minors also determine that whether the petitioner has
received her share and if not its legal consequence.
iii. The salary of the deceased be also properly managed and the benefit must be
reached to the minors beside the widow. The Deputy Commissioner, Mastung is directed
to ensure payment of salary as direc ted directly to the institutions where the minors are
getting education.
iv. As far the reliefs pertaining to custody of minors are concerned, an alternate
remedy lies before the courts established under the Family Courts Act 1965, and the
petitioner has e very right to avail the same.
17. Before parting with the judgment it is noted with concern that due to gross negligence of
the concerned civil administration and the Bank officials it is hard to ascertain in the
constitutional jurisdiction that who had in fact received the amount in question and mis -utilized it
and deprived the real persons of their right. There is no effective balancing mechanism to protect
the rights of the persons entitled to receive the benefits, specifically the minor children of the
Shaheed. The Provincial Government must make some effective policy to deal with the like
situation, to safeguard the interest of the minors, who are the real sufferers.
The relief allowed in the above terms.
MH/59/Bal. Order accordingl yThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.