2017 PLP 366 (CLC)

MUHAMMAD GHAZANFAR KHAN, J.

The petitioners have assailed judgments and decrees of two Courts below passed against them vide judgments and decrees dated 31.03.2011 of the trial Court and 28.03.2012 of the Appellate Court. This case pertains to registered deed No.64 attested on 06.10.2007. The present respondent contested the suit by filing written statement and has raised several legal and factual objections.

2. After hearing arguments of both the sides, it transpired that during whole proceedings the original impugned deed was never produced before the trial Court. However, the present petitioners moved an application dated 22.12.2010 for production of the said deed and requested the trial Court to send the said deed for comparison of thumb impression of the plaintiff on the said deed. The entire record available on the file and judgments of both the Courts below are silent about decision of the application rather both the Courts below have relied upon the report of Finger Expert, which was available in a criminal case that too was produced by the defendant from his own custody and was accepted with certain objections. Though the trial Court has itself examined the thumb impression of the respondent/defendant on the impugned deed with the thumb impression taken by the Court itself during proceedings of the case. But since the original deed was available though produced later, but in such scenario, the learned trial Court should have either sent the original deed along with admitted thumb impression of the petitioner to the Finger Expert or could have itself examined the difference or otherwise between both the thumb impressions. Though Article 84 of Qanun-e-Shahadat Order, 1984 empowers the Court to compare the admitted and disputed thumb impression but with certain implications. Sub-Article (3) of Article 84 envisages that this Article applied also with any necessary modifications to finger impressions. So while writing the judgment and relying on its own comparison, the learned trial Court has failed to observe the conditions given in the Article ibid. Secondly, when the original deed was available before the trial Court, it was imperative upon the Court to have compared the admitted thumb impression with the admitted thumb impression available on the original deed. This request of the petitioner was turned down only on a flimsy ground that it was produced at a belated stage. Section 151, C.P.C. empowers the Court to make any such orders as may be necessary for the ends of justice or to prevent the abuse of process of Court. There is yet another point which has also escaped attention of both the Courts below that statement of one Mumtaz Ahmad Inspector Anti-Corruption, Mansehra appeared as PW-4 was not completed. Entire record is silent that why his statement was not completed and recorded by the trial Court. Neither he was abandoned nor was redundant at any stage.

3. The learned counsel for the petitioners also raised serious objections about reading and relying upon the report of Finger Expert in present case, which was recorded in a criminal case. Though Article 47 of Qanun-e-Shahadat Order, 1984 empowers the Court to read the evidence of a witness which was recorded in judicial proceedings in subsequent proceedings but with certain conditions i.e. (i) if the witness is dead (ii) cannot be found (iii) is incapable of giving evidence (iv) is kept out of way by the adverse party (v) if his presence cannot be obtained without an amount of delay or expense. There is no explanation whatsoever that why the Finger Expert was not called and his statement and previous proceedings that too in criminal case were relied upon by the learned trial Court. So in such scenario, it will be appropriate to allow this appeal and to set aside the judgments and decrees of both the Courts below and to remand the case back to the trial Court for decision afresh after giving an opportunity of production of original impugned deed and if so needed, comparison of thumb impression with admitted thumb impression, recording of statement of PW-4 and also decide issue of admissibility of the certified copy of the statement of Finger Expert or if need be may send the original deed for comparison of the thumb impression on the impugned deed with admitted thumb impression of the petitioner. The parties present in Court are directed to appear before the trial Court on 28.10.2016. ZC/344/P Case remannded.