1988 PLP 1477 (CLC)

Rent Application No. 135 of 1984 is pending before 1st Senior Civil Judge and Rent Controller Hyderabad between the parties to this writ petition. An application was made by the petitioner on 9‑8‑1984 before the Controller for sending the tenancy agreement produced by the respondent in that rent application to the Handwriting Expert for comparing the disputed thumb‑impression with the admitted thumb‑impressions of the petitioner under section 45 of the Evidence Act which is synonymous to section 59 of Qanoon‑e‑Shahadat. The application was refused and it was directed that the same may be moved after examining of the attesting witnesses. Again on 29‑3‑1986 the petitioner moved an application before the Controller and accordingly by an order dated 12‑5‑1986 the Controller sent the tenancy agreement for comparison of the thumb‑impression to the Handwriting Expert. The opinion of the Handwriting Expert (Deputy Superintendent of Police Finger Print Breau Sind Karachi) has been received which reads as under:‑ "We have examined and compared the impression on the marginally noted documents received from 1st Senior Civil Judge, and R.C., Hyderabad. Agreement of Tenancy between Abdul Rehman, Mst. Mumtaz and Safia on stamp paper worth Rs.4 (Exh.ll) now marked A Sample paper bearing specimen-left and right thumb impression of opponent Abdul Rehman (Exhs.70 and 71) now marked 'X' and X/1. Vide his No.1. Senior/1962/86, dated 19-7-1986 through AIGP/CRD No. CRD/QD/99/86, dated 31-7-1986 fresh sample paper received on 10-9-1986 and original Treasury Challan on 11-11-1986 and are of the opinion that the impression marked 'A' on agreement of tenancy exh.ll is blurred/faint and does not bear sufficient data to permit of a comparison in its minor detail hence no opinion can be given on it." A perusal of this report would show that the thumb‑impression was blurred/faint and did not bear sufficient data to permit of a comparison in its minor detail hence no opinion could be given on it. The petitioner filed objections to the opinion of the Handwriting Expert and insisted that his report was managed and incorrect and requested that the agreement containing the disputed thumb‑impression to be sent to some other Expert of Lahore or Rawalpindi. The learned Controller refused to accede to this request. Hence this Constitution Petition has been filed. I have heard Mr. Mirza Ghayasuddin Baig for the petitioner and Mr. Abdul Hameed Siddique for the respondent. Mr. Mirza Ghayasuddin relying upon the case of Fazal Muhammad v. Aiyshan reported in 1984 C L C 3401 submitted that the best evidence to prove execution of lease deed was that of Hand Writing Expert and that the Court should have sent the document to another Handwriting Expert rather than to have refused his request. This ruling is distinguishable from the present case. It relates to an appeal. and not to a Constitution Petition. Moreover, the appeal was allowed not only on the ground that the execution of lease deed was not proved but also on the ground that the lease was in violation of the conditions of the grant of land. As against this Mr. Abdul Hameed Siddiqui relying upon the case of Babu Abdul Rehman v. Sultan reported in P L D 1981 SC 522 submitted that this Court while interfering with the orders or judgments of final tribunals or Courts has only to see whether the tribunal or Court acted without jurisdiction or in violation of the relevant statute and not embark upon a re‑appraisal of the . evidence and proceeding as if it were hearing an appeal from the subordinate Court. In this case true copy of the deposition of . the petitioner has been produced by the respondent's counsel which shows that the petitioner Abdul Rehman had admitted that the respondents are the owners of the disputed house. He submitted that the denial of thumb‑impression on the tenancy agreement is mala fide and all these proceedings including the writ petition have been filed only with an ulterior motive to delay the trial of the rent application before the Controller. I have given my thoughtful consideration to the contentions o the learned counsel for both the parties. The learned Controller had referred the disputed thumb‑impression to the Handwriting Expert who is an officer in a Government Agency constituted for this purpose, who has opined that it is blurred and not capable of comparison. Hence the Controller was justified ‑in refusing the reference to another Handwriting Expert. It would be just an exercise at fishing. Moreover, A the order of the learned Controller is not shown to be without jurisdiction or illegal. I am, therefore, satisfied that the petitioner has not been able to make out a case for interference by this Court with the discretion exercised by the Controller. The Constitution petition is therefore dismissed. H . B . T . / A‑316/ K Petition dismissed.