2014 PLP 1760 (CLC)

ATIR MAHMOOD, J.

This civil revision is directed against the orders dated 11-9-2012 and 7-11-2012 passed by the learned Additional District Judge, Lahore, who dismissed the application of the petitioners filed under Order XLI, rules 25, 27 and 33 read with section 151, C.P.C. and application for comparison of thumb-impressions respectively.

2. Brief facts of the case are that respondent No.1, Naziran Begum filed a suit for declaration with permanent injunction against the present petitioners. The suit was contested by the respondents. The learned trial court after conclusion of the trial decreed the suit in favour of respondent No.1 vide judgment and decree dated 2-5-2012. The petitioners filed an appeal against the judgment and decree dated 2-5-2012 before the Additional District Judge, Lahore and during the pendency of the appeal the petitioners filed applications under Order XLI, rules 25, 27 and 33 read with section 151, C.P.C. and application for comparison of thumb-impression of the respondent-decree-holder on Exh.D-3 and Exh.D-4 which were dismissed by the learned lower appellate court vide orders dated 11-9-2012 and 7-11-2012 respectively. Hence this civil revision.

3. Learned counsel for the petitioners has contended that the impugned orders have been passed arbitrarily, fancifully and without applying judicial mind, thus the same are liable to be set aside; that the lower appellate court has failed to exercise jurisdiction so vested in it. Further contended that if the civil revision is not accepted the petitioners will suffer irreparable loss. He has relied upon the judgments reported as S.M. Zahir v. Pirzada Syed Fazal Ali Ajmeri (1974 SCMR 490), Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) and Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others (1985 SCMR 214).

4. On the other hand, learned counsel for the respondents have submitted that no application for secondary evidence was ever filed by the petitioners and the original document Exh.D-3 and Exh.D-4 were not produced in evidence, therefore comparison of thumb-impression cannot be carried out in accordance with law and further that the application for the production of additional evidence was filed at a belated stage which cannot be allowed to fill up the lacunas. They have relied upon the judgments reported as Sultan Ahmad (deceased) through L.Rs. v. Muhammad Yousuf (2011 SCMR. 621), Abdul Ghafoor and others v. Mst. Marriam Bibi (deceased through Legal Heirs and others (2011 SCMR 1648) and Shtamand and others v. Zahir Shah and others (2005 SCMR 348).

5. I have heard the arguments of the learned counsel for the parties and have also gone through the record.

6. Before dilating upon the merits of the case it is relevant to reproduce the order dated 7-11-2012 passed by the appellate court. The relevant portion of the order is reproduced as under:

"It is an admitted fact that original documents are not filed. The comparison with a register that too generated in a private person's record, cannot be treated as ultimate proof of a transaction. As far as merits of appeal are concerned those are yet to be evaluated. Hence, being a far fetched effort to cure a lacuna the subject petition has got no ground to appreciate hence is dismissed." It is revealed from the evidence so far adduced by the parties that Exh.D-3 and Exh.D-4 are the copies of a register scribe which were produced in the court by DW.4, Mian Muhammad Naveed Aslam who is son of Mian Muhammad Aslam, who was a stamp vendor and scribe vendor. The statement of this witness reflects that the original Register No.44 dated 27-7-1981 to 16-1-1982 was produced before the court and the photocopies of the relevant pages were exhibited as Exh.D-3 and Exh.D-4, therefore, the contention of learned counsel for the respondents that since the original were not produced before the court therefore thumb-impression cannot be got verified is not tenable. The perusal of the application filed under Order XVIII, rule 2 and Order XVI, rule 2 read with section 151, C.P.C. and under Articles 59 and 84 of the Qanun-e-Shahadat, 1984 reveals that the petitioners have requested the court to summon the Vasiqa Register for the comparison of thumb-impression of the respondents with those Exh.D-3 and Exh.D-4 which is very relevant for the just decision of the main case. It is not the case of the respondents that thumb-impression on Exh.D-3 and Exh.D-4 are the result of coercion, inducement or undue influence but their case is that of total denial. The respondent No.1 Naziran Begum in so many words have categorically denied the existence of her signatures on the disputed documents i.e. Exh.D-3 and Exh.D-4. It is a universal admitted fact that thumb-impression of one person does not tally with the thumb-impression of any other person in the world and on account of reasonable development in the department of Forensic Science the comparison of disputed thumb-impression with that of admitted one has now become very easy which can help the courts to reach at a just and correct decision and even it can be beneficial for the respondent No.1, if her thumb-impressions are not available on the said documents. Of course, the report of Finger Prints Expert could be challenged on legal ground by way of cross-examination, etc.

7. In view of what has been discussed above, this civil revision is allowed and the order dated 7-11-2012 passed by the learned Additional District Judge, Lahore is set aside which is not sustainable in the eye of law and the application under Order XVIII, rule 2, Order XVI, rule 2 read with section 151, C.P.C. and under Articles 59 and 84 of the Qanun-e-Shahadat, Order 1984 is accepted as prayed for. The learned lower appellate court is directed to get verified thumb-impression of the respondent on the disputed document i.e. Exh.D-3 and Exh.D-4 to the Finger Prints Expert an then to decide the case in accordance with law. As remains the order dated 11-9-2012 passed by the lower appellate court, neither it has been pressed nor any arguments have been advanced by the learned counsel for the petitioners, therefore, to the extent of order dated 11-9-2012 this petition is dismissed. AG/A-31/L Order accordingly.