2025 Y L R 2673
[Balochistan (Turbat Bench)]
Before Rozi Khan Barrech and Muhammad Najam -ud-Din Mengal, JJ
AHMED ALI ---Petitioner
Versus
ALI BAKHSH and 21 others ---Respondents
Constitution Petition No. (t)20 of 2024, decided on 13th March, 2025.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 78 & 79 ---Comparison and verification of signatures on a document ---
Handwriting expert's opinion, seeking of ---Evidentiary value and relevance ---Denial of
execution of agreements coupled with refusal of attesting witnesses to testify ---
Consequence ---Handwriting expert opinion, relevance of ---Mere verification of
signatures through handwriting expert would be insufficient to prove genuineness of
agreement ---Principle ---Plaintiff should establish case through solid and cogent evidence
instead of seeking handwriting expert's opinion which is a weak type of evidence ---Facts
of the case were that the petitioner filed a suit seeking declaration, permanent injunction, and cancellation of land entries regarding certain property, whereby, he claimed
ownership of the disputed land but alleged that the respondents (defendant Nos. 1 & 2) fraudulently transferred the property--- The parties had entered into two agreements (Exh.
P/8-A and Exh. P/8- B), but the respondents failed to fulfill their conditions ---During
cross -examination defendant No. 1 refused to admit his signatures on these agreements ---
The petitioner then moved an application under Art.78 of the Qanun -e-Shahadat, 1984
read with S. 151 C.P.C. requesting comparison and verification of the signatures of defendant No. 1 and the attesting witnesses through a handwriting expert ---The Trial
Court dismissed this application and the revisional court also rejected the petitioner's plea, consequently, the petitioner/plaintiff filed the present constitutional petition requiring determination as to "whether the Trial Court and the revisional court erred in law by refusing the petitioner's application for handwriting expert examination under Art.78 of the Qanun- e-Shahadat, thereby depriving him of an opportunity to establish the
authenticity of disputed agreements and to place crucial evidence on record" ---Held: The
petitioner/plaintiff ought to have established his case on the basis of solid and cogent evidence and he could not be allowed to take the benefit of expert opinion which otherwise was altogether a weak piece of evidence ---Since the defendant No.1 had
specifically denied the execution of agreements in question even both the witnesses of the agreements had also refused to appear and record their statements in the court in favor of the petitioner/plaintiff, thus under such circumstances no fruitful purpose would have been served to obtain the expert opinion---It was noted that both the attesting witnesses were alive but they were reluctant to appear in the court to attest the agreements ---The
denial and refusal of both the attesting witnesses to appear and record their statement on oath meant that no such agreements were executed in presence of both the attesting witnesses; this verification of their signatures from the expert in no way was enough to establish the genuineness of signatures ---Orders of both the courts below were based on
factual and legal position of the case and no illegality was found therein ---Proving the
genuineness of agreements were upon the shoulders of the petitioner/plaintiff and for such purpose at least he should have produced both the attesting witnesses in court and if once they both admitted the contents of agreements that such agreements were executed in their presence, thereafter the petitioner/plaintiff could become entitled to seek the relief of placing on record the expert opinion---Present petition being devoid of merits were dismissed, in circumstances.
Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859 and Sanaullah and
another v. Muhammad Manzoor and another PLD 1996 SC 256 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 78 & 79 ---Opinion of the handwriting expert for comparison and verification of
signatures, seeking of ---Relevance, significance and scope ---Legally the expert opinion is
a very weak type of evidence and is used to corroborate the stance of a party and to
corroborate the other material available on record, while the expert report solely is not a strong evidence enough to prevail over strong circumstances and strong evidence giving
inference altogether to the contrary ---Article 78 of Qanun -e-Shahadat, 1984 place
emphasis on the proof of identity of author of questioned documents and said Article
does not say that mere proof of handwriting/signatures/thumb impressions of executant will prove truth of the said document ---Legally where a person who has alleged to have
executed document denies his signatures, his signatures can be proved by calling the person in whose presence such document is executed ---Signatures of executant can be
proved by calling two attesting witnesses in whose presence persons concerned had signed those documents ---Where both attesting witnesses are alive and are available but
are not produced, court cannot hold on the basis of evidence on record that execution of document in question is proved.
Abdul Majid for Petitioner.
Abdul Latif for Respondents Nos. 1 and 2.
Mehrullah Gickhi and Khaleef Ahmed for Respondents Nos. 5 to 22.
Zahoor Ahmed Baloch and Nusrat Baloch, A.A.G. for the State.
Date of hearing: 28th January, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J .---In this Constitutional Petition
filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), the petitioner is seeking the following reliefs:
"It is, therefore, respectfully prayed that this Honourable Court may be pleased to accept this Constitutional Petition and set aside the impugned order dated 13.01.2024 passed by Qazi Turbat and Order dated 30.03.2024 passed by member Majlis -e-
Shoora Turbat and the application under Article 78 Qanun- e-Shahadat Order, 1984
may kindly be allowed and the sample of signatures of defendant No.1, witnesses may be examine and compare with documents particularly with agreement (Exh.8 -A and
Exh.8- B), in the interest of justice.
Any other relief may be granted which deem fit in the circumstances of the case."
2. Facts of the case are that the petitioner filed a suit before Qazi Dasht Turbat for
Declaration, Permanent Injunction, Takmil Contract/ compromise dated 20.5.2019, 16.05.2019, Cancellation and Correction of entries of land under Kh/KH No.5/5/ Khasra No.70 Pol 1- 29/Rod.122 and KH/KH No.15/15, Khasra No.65, Pol.16/Rod.69 situated at
Mouza Hetan Shaqri Tehsil Turbat, valuation Rs.24000/ - ("hereinafter referred as, "the
property in dispute"), with the averments that he is the owner of the property in dispute, but the respondents (defendants Nos.1 and 2) fraudulently transferred the same in their names, while with regard to said property, the parties were entered into two agreements Exh.P/8- A
and Exh.P/8- B, but they failed to fulfill the conditions of same. Anyhow, after filing written
statements by the defendants (respondents) and framing issues, the defendant No.1 appeared in the trial Court and during his cross -examination he refused to identify his signatures on
the agreements, thus the petitioner filed an application under Article 78 of Qanun- e-Shahadat
Order, 1984 read with Section 151 C.P.C. with the request to compare and examine the signatures of respondent (defendant No.1) and the attesting witnesses on the agreements Exh.P/8- A and Exh.P/8- B, but the said application was rejected by the learned trial Court,
vide Order dated 13th January 2024.
3. Thereafter, the petitioner approached the learned Majlis -e-Shoora Turbat by filing a
Civil Revision Petition, but after hearing the arguments, the same was also dismissed, vide Order dated 30th March 2024. Whereafter, the petitioner has filed the instant Constitutional Petition.
4. The learned Counsel for petitioner contended that the findings of both the Courts
below are perverse and contrary to record as well as against the mandate of law as provided;
that since the respondent No.1 (defendant) has refused and denied his signatures over two agreements (Exh.P/8 -A and Exh.P/8- B) as well as the attesting witnesses are also reluctant to
record their statement on oath before the trial Court, thus the only remedy lefts with the
petitioner (plaintiff) is to get verified the signatures of respondent No.1 and the attesting
witnesses from the hand writing expert as envisaged under Article 78 of the Qanun- e-
Shahadat Order, 1984 by obtaining the expert opinion; that once the signatures on documents
were denied, the trial Court was bound to refer the matter to the Handwriting Expert, but not only the trial Court, but the learned Majlis -e-Shoora has also ignored this legal aspect of the
case and deprived the petitioner (plaintiff) to place on record his important piece of evidence.
5. On the other side, the learned counsel for respondents strongly opposed the arguments
of the learned counsel for petitioner (plaintiff) and contended that the petitioner is bound to establish his case through direct evidence and he cannot be allowed to take the advantage of the opinion of hand writing expert, which otherwise a weak type of evidence; that since the petitioner (plaintiff) has failed to establish the case through positive and concrete evidence, thus no fruitful purposes would be served to call for the hand writing expert opinion, thus
both the Courts below have rightly come to a proper decision by not allowing the application
of the petitioner.
6. Heard the learned counsel for parties and with their valuable assistance perused the
available record. Perusal of record transpires that during pendency of main suit, the petitioner (plaintiff) filed an application within the provisions of Article 78 of Qanun -e-
Shahadat Order 1984 read with Section 151 C.P.C. for comparison/ verification of signatures of respondent and other witnesses on the agreements (Exh.P/8- A and Exh.P/8 -B), as
according to the petitioner that though the respondent No.1 out of Court agreed on certain terms and conditions with the petitioner and in this regard agreements (Exh.P/8- A and
Exh.P/8- B) were also executed, but subsequently he failed to fulfill such obligations and
even the attesting witnesses of the said agreement are reluctant to record their statements on oath before the trial Court, while they outside of the Court are fully supporting the petitioner and admitting the contents of the agreement as well as identifying their signatures being the witnesses of the agreement.
7. It is astonishing that the petitioner is compelling the witnesses to appear and record
their statements in the Court in his favour and to complement the contents of the agreement by identifying their signatures on the agreement. Naturally, when some witness is reluctant to record his statement on oath, he cannot be forced in any manner to record his statement in the Court and after denial of the attesting witnesses, the petitioner took another track by seeking the verification of the signatures of the attesting witnesses through the hand writing expert. Even otherwise, the respondent No.1 (defendant) has also denied execution of agreement with the petitioner. Admittedly, the respondent No.1 (defendant) and the attesting witnesses of alleged agreements have denied accepting the execution of such agreement in the trial Court, thus it has to be seen that if the handwriting expert opinion is obtained, then what would be the outcome of the case based on its merits?
8. Legally, the expert opinion is a very week type of evidence and is used to corroborate
the stance of a party and to corroborate the other material available on record, while the expert report solely is not a strong evidence enough to prevail over strong circumstances and strong evidence giving inference altogether to the contrary. The petitioner (plaintiff) ought to have established his case on the basis of solid and cogent evidence and he could not be allowed to take the benefit of expert opinion, which otherwise is altogether a weak piece of evidence. Since, the defendant No.1 has specifically denied the execution of such agreements and even both the witnesses of the said agreement have also refused to appear and record their statements in the Court in favour of petitioner, thus under such circumstances no fruitful purposes would be served to obtain the expert opinion. Reliance in this regard is placed on the case of Syed Muhammad Umer Shah v. Bashir Ahmed, reported in 2004 SCMR 1859. The relevant portion whereof is reproduced herein below:
"4. Learned counsel for the petitioner argued that the Handwriting Expert was also
examined in the case but no benefit of his statement was extended to the petitioner. After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view, that the only opinion of a Handwriting Expert,
otherwise a weak piece of evidence, should not be allowed to prevail against strong
circumstances and strong evidence giving inference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favourable opinion by the Expert, being otherwise a weak piece of evidence."
9. Article 78 of Qanun- e-Shahadat Order, 1984, places emphasis on the proof of identity
of author of questioned documents and said Article does not say that mere proof of handwriting/ signatures/thumb impressions of executant will prove truth of the said document. Legally, where a person who has alleged to have executed document denies his
signatures, his signatures can be proved by calling that person in whose presence such
document is executed. Signatures of executant can be proved by calling two attesting
witnesses in whose presence person concerned had signed those documents. Where both attesting witnesses are alive and are available, but are not produced, Court cannot hold on the basis of evidence on record that execution of document in question is proved. Same is the
position in the case in hand, when both the attesting witnesses are live, but they are reluctant
to appear in the Court and to attest the agreement. The denial and refusal of both the attesting
witnesses to appear and record their statement on oath would amount that no such
agreements were executed in presence of both the attesting witnesses, thus verification of
their signatures from the expert in no way enough to establish the genuineness of the
agreements (Exh.P/8 -A and Exh.P/8- B). Reliance in this regard is placed on the case of
Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256. For
facilitation, the relevant portion is reproduced herein below:
"The ordinary rule for proving the execution or signature of a person on a document, is to call that person in evidence. In case the person who is alleged to have executed the
document denies his signatures, his signatures can be proved by calling the person in
whose presence the document was executed. In view of the preceding discussion and
the circumstances of the case, the signatures of appellant No.1 on Exh -P.1 and P.3
could be proved only by calling the two attesting witnesses in whose presence,
according to respondents, appellant No. I signed these documents. Both the attesting witnesses of these C documents were alive and were available but they were not produced by the respondents in evidence. In these circumstances, the Courts below could not hold on the basis of the evidence on record that the execution of documents Exh. P. 1 and P. 3 by appellant No. I was proved."
10. We have also minutely gone through the impugned Orders of both the Courts below
and did not find any illegality and irregularity in the same rather the same are based upon factual and legal position of the case. Proving the genuineness of agreements Exh.P/8- A and
Exh.P/8- B are upon the shoulders of the petitioner (plaintiff) and for such purposes at least
he should have produced both the attesting witnesses in the Court and if once they both admitted the contents of agreements that such agreements were executed in their presence, hence thereafter the petitioner (plaintiff) would be entitled to seek the relief of placing on record the expert opinion.
For the above reasons, the petition being devoid of merits is hereby dismissed.
UN/107/Bal. Petition dismissed.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,
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