P L D 2021 Balochistan 97
Before Abdul Hameed Baloch, J
TAJ MUHAMMAD ---Petitioner
Versus
NOOR -UD-DIN and another ---Respondents
Civil Revision No. 173 of 2016, decided on 26th November, 2020.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Art. 59 ---Opinions of expert ---Reliance ---Scope ---Exhibition of report ---Scope ---
Question before High Court was whether the Trial Court without calling the expert as
witness of handwriting and fingerprint could exhibit his report on its own---Held; rep ort of
expert under Art. 59 of the Qanun- e-Shahadat, 1984 was relevant ---Expert opinion could not
be relied upon without producing the expert in Court for recording his statement, so that the opposite party availed the opportunity of cross -examination.
Wadhawa's case AIR 1928 Lahore 427; Allah Dino's case 1974 SCMR 411 and
Muhammad Hussain's case 1970 SCMR 504 ref.
Sultan Muhammad's case PLD 2008 Quetta 1 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 59---Opinion of expert ---Scope ---Opinion of expert is relevant in evidence, but
without examination of such expert his report is not admissible.
Allah Dino v. Muhammad Umar 1974 SCMR 411 rel.
(c) Evidence---
----Documentary evidence ---Proof ---Exhibition of document ---Scope ---Mere placing a
document on record cannot be considered as evidence unless proved through prescribed procedure ---Document can be proved through the statement of witness and its exhibition---
Even after exhibition it cannot be said that the document has been proved---When a party
intends to rely on a document it should prove the same through witness.
Azizullah through legal heirs v. Muhammad Haneef through legal heirs PLD 2018
Lah. 132 rel.
Jameel Ahmed Khan Babai for Petitioner.
Adnan Ejaz and Ahmed Ali, Additional Advoc ate General for Respondent No. 1.
Date of hearing; 6th November, 2020.
JUDGMENT
ABDUL HAMEED BALOCH J .---The petitioner/plaintiff assailed judgments and
decrees dated 2nd October, 2015 and 28th March, 2016 (impugned judgments and decrees)
passed by learn ed Civil Judge -II, Quetta and learned Additional District Judge -I, Quetta,
(trial and appellate court), whereby the suit of the petitioner/plaintiff was dismissed and the appeal filed by the petitioner/plaintiff was also met with the same fate.
2. Concise facts of the case are that the petitioner/ plaintiff filed a suit for declaration,
cancellation of mutation No. 264, possession, mandatory and permanent injunction against the respondents - defendants in the court of Civil Judge -II, Quetta with the followin g prayer:
a. To declare that the plaintiff is real owner of property in question, bearing Khasra No. 266/211, Khasra No. 268/212, total measuring 856 square feet, situated at Mohal Mouza Ward No. 10, Tappa Urban, Tehsil and District Quetta through Mutation No.
197;
b. To declare that the property in question bearing Khasra No. 266/211, Khasra No.
268/212, total measuring 856 square feet situated at Mohal Mouza Ward No. 10,
Tappa Urban, Tehsil and District Quetta through mutation No. 197 has been purchased by the plaintiff from his own source of income and the same has been constructed by the plaintiff himself;
c. To further declare that the mutation entry No. 264 is product of fraud as well as misrepresentation and the same has been registered in concealing manner, neither the plaintiff appeared before the defendant No. 2 or his subordinate staffs nor the plaintiff affixed his thumb impression or affixed his signature on the mutation No. 264;
d. By way of mandatory injunction the defendant No. 2 be directed to cancel the
mutation entry No. 264 and to restore the mutation No. 197 on its previous position;
e. Direction be made to defendant No. 1 to hand over the vacant possession of property in question, which was given to him in good faith;
f. By way of permanent injunction the defendant be restrained from selling, alienating,
transferring the property in question, and creating third party interest in the suit property;
g. Any other relief which this Hon'ble court may deem fit and appropriate in the circumstances of the case, may also be awarded in favour of plaintiff and against the
defendants, in the interest of justice."
3. The respondents/ defendants filed written statements and controverted the contention
of petitioner/plaintiff and prayed for dis missal of the suit.
4. Out of the pleadings of the parties the learned trial court framed following issues:
i. Whether suit of plaintiff is not maintainable in view of legal objections:
A. That the suit is also barred by time, hence not maintainable.
B. That the suit has not been properly valued and even no court fee has been affixed
on it, hence the plaint is liable to be rejected.
C. That the dispute has been settled between he parties by the arbitrators, as such the
suit is barred under the Arbitration Act.
ii. Whether plaintiff is real owner and purchaser of property in question bearing Khasra No. 266/211, Khasra No. 268/212 total measuring 856 square feet situated at Mohal Mouza Ward No. 10, Tappa Urban Tehsil and District Quetta through mutation No.
197?
iii. Whether mutation No. 264 is product of fraud and misrepresentation and it is liable to be cancelled?
iv. Whether the plaintiff is entitled to the relief claimed for?
v. Relief?
5. The petitioner/plaintiff and respondent/ defendant produced their respective evidence.
The trial court vide judgment and decree dated 02nd October, 2015 dismissed the suit, against which the petitioner/ plaintiff filed appeal which was also dismissed vide judgment and decree dated 28th March. 2016, hence t he petitioner/ plaintiff is before this court.
6. Learned counsel for the petitioner/plaintiff stated that the judgments and decrees of
the courts below are based on presumptions. The judgment of the trial court is based on the
report of Handwriting Expert . As per expert opinion Ex: P/A the signature of Taj Muhammad
was found bogus. While the thumb impression is identical with the thumb impression of Taj Muhammad. The learned trial court without calling the witness exhibited the expert report which is again st the law. The judgments and decrees of the courts below are against the
record.
7. Conversely the learned counsel for the respondents contended that the plaintiff had
not raised any objection when the handwriting report was made part of the record. The order sheet of the trial court dated 4th August, 2015 transpires that with consent of the parties the trial court marked the handwriting report as Ex: P/A. while the report of Finger Expert is marked as Ex: D/A. The petitioner subsequently cannot dispute the report. The judgments and decrees of the courts below are based on proper appreciation of evidence. The suit and appeal has rightly been dismissed.
8. Heard and perused the record. Before dilating upon merit of the case it would be
relevant to discuss wh ether the trial court without calling the Expert as witness of
handwriting and finger print can exhibit the report on its own? Secondly whether without calling the expert for deposition the report is admissible?
9. The record transpires that after completi on of evidence of the parties on application of
respondent/ defendant the original mutation No. 264 was sent to FSL for verification of
signature and thumb impression of petitioner/plaintiff over the referred to mutation. The DIG
Special Branch sent the report to the court. The trial court exhibited the reports as Ex: P/A and Ex: D/B. It would be appropriate to reproduce the reports:
"Ex: P/A:
That questioned English signature of Mr. Taj Muhammad on the disputed Mutation sheet mentioned at S/No. 1 above has been examined and compared with his specimen/routine supplied mentioned at S/No. 2 above and observed that:
The questioned English signature on the disputed mutation sheet does not tally in individual characteristics with his specimen/routine supplied and has been forged"
Ex: D/B:
"I have compared the finger impression on the document mentioned below received from Mr. Rahim Dad Khilji, Civil Judge -II, Quetta vide letter No. 195, dated 27- 3-
2015.
Detail of documents:
1. A mutation No. 264 dated 07- 08-2006 (Ex: P/4- A) bearing an impression marked
as D.
2. A sample paper bearing ten digit impression of Taj Muhammad.
OPINION: The impression marked as D on the Mutation sheet No. 264 dated 07- 08-
2006 (Ex: P/4- A) is identical with the left thumb impression (T/I) of Taj Muhammad
on his sample paper. Nine characteristics points of identity have been charted and illustrated in detail by means of descriptive symbols in the enclosed set of
photographic enlargements marked as D/D … T/L/1.
NOTE: For evidence, the summons can be sent on
FAZ No. 042 -37499259- 63.
1. Name Safdar Ali
2. Rank S.I./Expert
3. Dated 16- 04-2015"
10. The trial court considered the report of thumb impression of the petitioner/plaintiff
Ex: D/B, while rejected the report in regard of signature of petitioner/plaintiff Ex: P/A. Though under Article 59 of the Qanun- e-Shahadat Order, 1984 is only relevant and carried
some probative value. The referred to Article reads as under:
"59. Opinions of experts. When the Court has to form an opinion upon a point of foreign law or of science, or art, or a stop identity, of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of hand- writing or finger impressions
are relevant facts.
Such persons are called experts."
11. Under the referred to Article the opinio n of the Experts is relevant. There is distinct
relevancy and admissibility. Admittedly the trial court as well as the appellate court relied
upon the report of expert without affording opportunity to the petitioner/plaintiff to rebut the report of expert. The courts below have given so much weight to the reports. This court in
Sultan Muhammad's case PLD 2008 Quetta 1 held:
"….. It may be noted that the respondents have filed suit for specific performance on the basis of Ex. P/1, produced in evidence through P. W.1 Abdul Wali execution whereof was denied by petitioner. According to him the said agreement was a forged and fake document. During trial said document was sent to the handwriting expert along with specimen signatures of petitioner who gave his report concluding that signatures of petitioner over the said agreement were similar to that of specimen signatures. Both the courts below relied upon the said expert's report despite objections raised by petitioner. Perusal of said report indicates that no r easons
whatsoever have been given by hand writing expert in support of his opinion who has only stated that signatures bearing on Iqrarnama' Ex. P/1- A are similar to the
specimen and routine signatures of Sultan Muhammad. It may be observed that in order t o compare different handwritings or signatures, handwriting expert is required
to examine different characteristics of both the handwritings or signatures such as pen hold, pen pressure, slant, speed, sizing, alignment, spacing, line quality, tremors, curves, connections, rhythm, momentum, pulse, position in all letters etc. and if he
found similarity in such characteristics then he has to give a positive findings whereas in the instant case the expert has not stated anything about similarity in characteris tics
between the questioned signatures and admitted signatures. Without reasons no weight could be attached to any such report because similarity could be found between traced signatures and admitted signatures. ----"
12. Under Article 59 of the Qanun- e-Shahadat Order, 1984 the opinion of expert is
relevant in evidence, but without examination of such expert his report cannot be admissible. The Honorable Supreme Court of Pakistan in its judgment Allah Dino v. Muhammad Umar 1974 SCMR 411 held:
"Mr. A. S. Pir zada, learned counsel for the appellant has submitted that this evidence
is of no use because the Expert has not been examined in Court. This objection of the learned counsel appears to be well founded. I would, therefore, not take into consideration the r eport of the Handwriting Expert."
13. Undoubtedly under the referred to Article the report of Expert is relevant. The expert
opinion cannot be relied upon without producing the expert in court for recording his statement, so that the opposite party avail the opportunity of cross -examination. The report of
expert is admissible unless he is called in witness box and subjected to cross -examination.
Both the courts below have relied on inadmissible report. Reliance is placed on Wadhawa's case AIR 1928 Lahore 42 7, Allah Dino's case 1974 SCMR 411 and Muhammad Hussain's
case 1970 SCMR 504.
14. Mere placing a document on record cannot be considered as evidence unless proved
through prescribed procedure. The document can be proved through the statement of witness
and exhibit it. Even mere exhibition cannot be treated that document has been proved. When
a party intends to rely on the document it should prove the same through witness. The
document/record relied upon by the party produced through witnesses the court exh ibit such
document. Reliance is placed on the case of Azizullah through legal heirs v. Muhammad Haneef through legal heirs PLD 2018 Lahore 132, wherein it was held:
"6. Before embarking upon merits of the case, it is necessary and appropriate to assimilat e the true meaning and purport of word "Exhibit" as well as its object and
effect. After consulting various dictionaries, I have come to the conclusion that it means a document or tangible object produced before the Court for its inspection or shown to a w itness while giving evidence or referring the same in his deposition so
that it could be taken into possession and retained by the Court on the lis file for reference as well as identification in the judgment and when a party intends to prove a document through witnesses, he only refers that document for its proof, then the Court exhibits the same. The witness has no role in marking the document as exhibit rather it is the sole duty of the Court to assign exhibit number to it so that in the latter part of t he proceedings it may be referred and identified from said number, so ex
hypothesis exhibit means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of proceedings in which it is filed. Any question with regard to admissibility of a particular document for the purposes of the proceedings must be decided at the time when the document is tendered and before it is actually marked as an exhibit, whereas its proof is altogether a different subject , which is going to be discussed in latter part of the judgment. After
going through the evidence, it is revealed that Ghulam Qasim (PW -2), one of the
marginal witnesses of Exh. P -1 while making his statement- in-chief stated as under:
In same terms the ot her attesting witness Muhammad Ramzan (PW -3) deposed as
follows:
The Deed Writer, Muhammad Abbas (PW- 4) also followed PW -2 and PW -3, when
while referring the contract in his statement he uttered that:
This all shows that the reference of the document was explicitly made by all the
relevant witnesses and the omission that it was not labeled with exhibit number could not score out the document from its consideration at the time of final adjudication. Moreover, the perusal of Exh. P -1 reveals that it was not only tagged with the file but
marked being Exh.P -1 on 14.03.2000 when statements of PW -2 to PW -4 were
recorded. So, it is clear that due to some omission on the part of the Court, the exhibit number could not be referred to despite the fact that the docum ent was so assigned
and to rectify the omission, on 13.4.2000 the learned counsel for the promisee was allowed to make a reference of Exh.P -1 in his statement without any objection.
Ultimate conclusion of the said discussion is that above referred finding of learned Additional District Judge does not appear to be justified to that extent."
15. Considering the above facts and circumstances the instant petition is accepted. The
judgments and decrees dated 2nd October, 2015 and 28th March, 2016 passed by learned Civil Judge -II, Quetta and learned Additional District Judge -I, Quetta respectively are set
aside. The case is remanded to the trial court with direction to call the finger expert and
handwriting expert, examine them, exhibit reports, provide opportunit y to the parties for
cross -examination if opted and then decide the case strictly on its own merit and in
accordance with law. No orders as to costs.
SA/21/Bal. Order accordingly.This 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.