1994 C L (PLP)

MA. Aziz for Petitioner. Mrs. Shaista Kaisar for Respondent. Date of hearing: 7th November, 1992. In this Constitutional Petition the legality of judgments and decrees dated 5‑3‑1991 passed by learned Judge Family Court, Samundri and 22‑1‑1992 passed by the learned Additional 4_1 District Judge, Faisalabad, have been called in question.

2. The facts of the case shortly stated are that respondent No.l filed a suit for the recovery of an amount of Rs.49,000.00 against the petitioner on the basis of an agreement Exh. PI allegedly executed by the petitioner in her favour in which the dower amount was fixed at Rs.50,000.00. This document was allegedly executed on 18‑10‑1986 whereas the marriage between the parties was solemnized on 10‑3‑1986. The case of the respondent No.l was that though the dower amount was settled at Rs.50,000.00 but in the Nikahnama it was wrongly stated as Rs.50.00. According to respondent No.l subsequently when this mistake came to her knowledge she agitated against it and the petitioner executed, agreement Exh. P.1 which according to her bore his thumb‑impression.

3. The petitioner denied the execution of the said agreement. The learned trial Court decreed the suit through judgment and decree dated 5‑3‑1991 in favour of respondent No:l. In appeal filed by the petitioner before the learned lower appellate Court an application was made for grant of permission to produce expert witness after getting the admitted thumb‑impressions of the petitioner with the disputed thumb‑impressions on Exh. P.1. This application was dismissed through order dated 14‑11‑1991 by the learned lower appellate Court and subsequently through judgment dated 22‑1‑1992 the appeal was dismissed.

4. It has been observed in the judgment dated 22‑1‑1992 passed by the learned lower appellate Court that the petitioner had never asked for the comparison of his thumb‑impressions on the agreement with his thumb -impressions uptill todate altogether ignoring that an application was made by the petitioner before the same Court for comparison of his thumb‑impressions on Exh.P.i which was rejected through order dated 14‑11‑1991. I have gone through the said order and find that the application of the petitioner was dismissed without applying judicial mind to the facts and circumstances of this case. Unlike signatures of, a person, it is not possible to forge the thumb -impressions. Since the main question before the Court was as to whether agreement Exh.P.l was executed by the petitioner after about 7 months of Nikah and that the same bore his thumb‑impressions. The best evidence was that of Expert Witness in the matter therefore, the application of the petitioner for getting his admitted thumb impressions compared with his alleged thumb -impressions on Exh. P.1 should have been accepted as the said evidence was required by the Court for writing judgment effectively and finally on the crucial issue. The learned lower appellate Court failed to exercise jurisdiction vested in it under the law on the ground not justified under the law.

5. The writ petition is accepted. Order dated 14‑11‑1991 through which the application of the petitioner for production of additional evidence as also judgment dated 22‑1‑1992 through which the appeal filed by the petitioner has been dismissed, by the learned Addl. District Judge are hereby declared to have been passed without lawful authority and of no legal effect. In the result, the appeal filed by the petitioner shall be deemed to be pending. The petitioner shall be allowed to produce expert witness as additional evidence. The specimen thumb‑impressions of the petitioner shall be obtained by the learned lower appellate Court and the expert witness which the petitioner wants to produce shall be allowed to be examined and compare the same with the disputed thumb‑impressions of the petitioner with Exh.P.l who shall submit his report and the petitioner shall be allowed to examine him as witness to prove the said report. The respondent No.l shall be given opportunity to produce evidence in rebuttal to the said evidence if produced by the petitioner and thereafter to decide the appeal after considering the said additional evidence as also the evidence already produced by the parties. The parties are left to bear their own costs. H.B.T./N‑112/L, Petition accepted.