PLJ 2014 Lahore 193
[Bahawalpur Bench Bahawalpur]
[Bahawalpur Bench Bahawalpur]
TALIB HUSSAIN--Petitioner
versus
W.P. No. 3573 of 2013, heard on 9.10.2013.
----Art. 84--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Signature and thumb impressions be got compared with specimen signatures and thumb impressions--Application for comparison of thum-impressions in a suit for specific performance of an agreement to sell, dismissed--Validity--Signature and thumb impressions on alleged agreement are result of any sort of inducement, coercion, misrepresentation fraud forgery, rather it is case of denial--Court has power to get comparison of finger impressions in order to reach a just and fair conclusion--With passage of time, forensic science has progressed a lot and Courts in appropriate cases prefer to get assistance from experts of fields which not only help the Court to reach a fair conclusion but also to avoid complications and agony to litigants arising out of a wrong decision. [P. 195] A
----Report of finger print--Undeniably, finger impressions of one person do not tally with those of any other person on earth and report of finger print experts is always helpful to Court to reach a fair conclusion. [P. 195] B
----Art. 84--Dispute regarding genuineness of thumb-impressions--Refusal to get the comparison of thumb impression and the signatures amounts to negation of justice--Signature and thumb impression of respondent be got compared with the specimen signature and thumb-impression from the handwriting and finger experts even at the cost of some delay--Reaching a fair conclusion is more and more necessary for soothing the litigants rather than to deliver a wrong decision hurriedly. [P. 195] C & D
Date of hearing: 9.10.2013
Judgment
Through this writ petition, the petitioner has challenged vires of judgment dated 04.06.2013 passed by learned Additional District Judge, Bahawalnagar who dismissed revision petition filed by the petitioner and upheld order dated 17.10.2012 passed by learned Civil Judge, Bahawalnagar whereby application of petitioner for comparison of signature and thumb-impression of Respondent No. 3 in a suit for specific performance of an agreement to sell dated 19.06.2004 filed by the petitioner was dismissed.
2. Learned counsel for the petitioner inter alia contends that Respondent No. 3 has sold out the suit property to the petitioner after having received total consideration amount vide agreement to sell dated 19.06.2004 which is duly signed and thumb-impressed by Respondent No. 3 who has denied his signature and thumb-impressions in order to avoid to fulfill his obligations, therefore, it is appropriate that his signature and thumb-impressions be got compared with his specimen signature and thumb-impressions by concerned experts; that comparison of thumb-impressions of Respondent No. 3 is necessary to reach a fair conclusion; that there is no embargo on comparison of signature and thumb-impression under the law; that valuable rights of the petitioner are involved in the matter, therefore, this writ petition be allowed, the impugned judgment and order be set aside and the application of the petitioner for comparison of signature and thumb-impression of Respondent No. 3 be allowed.
3. On the other hand, learned counsel for Respondent No. 3 has vehemently opposed this writ petition and supported the impugned judgment and order. He has emphasized more on the point that the evidence of the parties has already been recorded and the case is fixed for final arguments, therefore, allowing application for comparison of signature and thumb-impressions of Respondent No. 3 at this stage will not only prolong the litigation but also cause prejudice to rights of Respondent No. 3. He prays that this writ petition be dismissed. He has averred that the suit of the petitioner is not maintainable in view of the law laid down in case cited as 2010 SCMR 334. He has placed reliance on the law laid down in case tilted "Muhammad Rizwan Qureshi vs. Shehnaz Akhtar (2010 YLR 3101)".
4. Arguments heard. Record perused.
5. Admittedly, evidence of the parties has already been recorded and the trial is near to completion. This is the only reason given by learned Courts below while declining request of the petitioner for comparison of signature and thumb-impression of Respondent No. 3. Perusal of record reveals that the petitioner produced disputed agreement to sell as Exh.P1, the evidentiary value of which is yet to be determined by the trial Court as per requirement of Article 79 of the Qanun-e-Shahadat Order, 1984 whenever it finally decides the lis pending before it. The respondent has denied the execution of disputed agreement to sell. It is not the case of the respondent that the signature and thumb-impression on the alleged agreement are result of any sort of inducement, coercion, misrepresentation, fraud or forgery, rather it is a case of straightaway denial. The Court under Article 84 of the Qanun-e-Shahadat Order, 1984 has ample powers to get comparison of finger impressions in order to reach a just and fair conclusion. It is observed that with the passage of time, forensic science has progressed a lot and the Courts in the appropriate cases prefer to get assistance from the experts of relevant fields which not only helps the Court to reach a fair conclusion but also to avoid complications and agony to the litigants arising out of a wrong decision.
6. Undeniably, finger impressions of one person do not tally with those of any other person on the earth and the report of finger print expert is always helpful to the Court to reach a fair conclusion. In case of any dispute regarding genuineness of thumb-impressions. Article 84 of the Qanun-e-Shahadat Order, 1984 is an enabling provision of law and in the present case, refusal to get the comparison of thumb-impression and the signatures amounts to negation of justice. Had there been assertion of the respondent that the thumb-impression of the respondent over the disputed document were result of inducement, coercion, misrepresentation, fraud or forgery, the matter would have been different but as the signature and thumb-impression have categorically been denied, the report of handwriting expert and finger print expert will help the Court to reach a right decision which is not going to cause any prejudice to the rights of the respondent-defendant as apprehended by his counsel. It is further observed that the report of finger print and handwriting experts are always open to objection by either side.
7. The whole case of the petitioner depends upon proving the agreement to sell dated 19.06.2004 by which the suit property has allegedly been sold out by Respondent No. 3 to the petitioner. When the petitioner alleges that thumb-impression and signature were put by Respondent No. 3 Muhammad Yaqoob on the alleged agreement to sell dated 19.06.2004, there will be no harm to any party rather it will be appropriate and imperative to reach a just and proper conclusion that signature and thumb-impression of Respondent No. 3 be got compared with the specimen signature and thumb-impression of Respondent No. 3 from the handwriting and finger experts even at the cost of some delay. In my considered view, reaching a fair conclusion is more and more necessary for soothing the litigants rather than to deliver a wrong decision hurriedly.
8. The concept of filling up lacunas, as alleged by learned counsel for the respondent is against Pakistani jurisprudence, the principles of Islam as well as the precedent law on Islamic principles which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence, as held in the case titled "Zar Wali Shah vs. Yousaf Ali Shah and 9 others (1992 SCMR 1778)" .
9. As regards maintainability of the suit in view of the law laid down in case cited as 2010 SCMR 334, the respondent may agitate this objection before the trial Court where the suit is pending adjudication.
10. For the aforementioned reasons, I accept this writ petition and set aside judgment dated 04.06.2013 passed by learned Additional District Judge, Bahawalnagar and order dated 17.10.2012 passed by learned Civil Judge, Bahawalnagar. Resultantly, the application of the petitioner for comparison of signature and thumb-impression of alleged vendor/Respondent No. 3 stands allowed as prayed for. Since the suit is pending for the last more than six years, the trial Court is directed to decide the same expeditiously but within two months from date of receipt of certified copy of this order.
(R.A.) Petition accepted
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