2006 PLP 193 (SCMR)
Mst. SAADAT SULTAN and others — Petitioners Versus MUHAMMAD ZAHUR KHAN and others — Respondents
| Citation | 2006 PLP 193 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Javed Iqbal and Hamid Ali Mirza, JJ |
| Parties | Mst. SAADAT SULTAN and others — Petitioners Versus MUHAMMAD ZAHUR KHAN and others — Respondents |
| Primary Law | (a) Qanun-e-Shahadat (10 of 1984), (b) Specific Relief Act (I of 1877) |
Q1: What are the key laws and sections cited in 2006 PLP 193 (SCMR)?
This judgment primarily cites: (a) Qanun-e-Shahadat (10 of 1984), (b) Specific Relief Act (I of 1877) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2006 PLP 193 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Javed Iqbal and Hamid Ali Mirza, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2006 PLP 193 (SCMR) (Mst. SAADAT SULTAN and others — Petitioners Versus MUHAMMAD ZAHUR KHAN and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Syed Muhammad Ayub Bokhari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.
- Nemo for Respondents.
- Date of hearing: 14th November, 2005.
- 4. Syed Muhammad Ayub Bokhari, learned Advocate Supreme Court entered appearance on behalf of petitioners and strenuously contended that the claim of petitioner was supported by the Handwriting Expert, who made it abundant clear that the signatures were never made on the impugned mutation by Muhammad Ayub (deceased) and no legal justification whatsoever was available for the learned Additional District Judge to differ with the opinion of Handwriting Expert. It is also contended that sale consideration was never received by Muhammad Ayub which aspect of the matter has not been appreciated properly by learned Revisional Court which resulted in serious miscarriage of justice.
- 5. We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence. inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert's opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51. It hardly needs any elaboration that "Expert opinion must always be received with great caution, especially the opinion of Handwriting Experts. An expert witness, however, impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests. Although such evidence has to be received with `great caution', yet such evidence, and reasons on which it is based, are entitled to careful examination before rejection and non-acceptance by Court of Expert's evidence does not mean that the expert has committed perjury. Of all kinds of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence". Kazim Hussain v. Shambhoo Nath 1931 O. 298; Deputy Commissioner, Lucknow v. Chandra Kishore Tewari 1947 O. 180; Mushtaq Ahmad Gurmani v. Z.A. Sulehri PLD 1958 Lah. 747; Sadiqa Begum v. Ata Ullah 1933 L. 885; Lt.-Col. Muhammad Yousuf v. Ali Nawaz Gardezi PLD 1963 Lah. 141 and Indar Datt v. E. 1931 L. 408. There is nothing in the Evidence Act to require the evidence given by an expert in any particular case to be corroborated before it could be acted upon as sufficient proof of what the expert states. Of course the question as to how much reliance a Court B would be entitled to place on the statement of any particular witness in any particular case must necessarily depend on the facts and circumstances of that particular case; Ladharam Narsinghdas v. E. 1945 S.4.
- 6. In the light of the criterion as mentioned hereinabove we have examined the report of Handwriting Expert by whom it has been opined in a categoric manner that the signature available on impugned mutation was not made by Muhammad Ayub (deceased) but the said opinion has C been rebutted by the respondent by producing cogent, concrete and forthright oral evidence. In this regard the statement of Fazal Dad (D.W.5) can be referred by whom it has been stated in an unambiguous manner that mutation in question was signed, by Muhammad Ayub (deceased) before Khani Zaman Khan, the Revenue Officer. The version of Fazal Dad (D.W.5) has been corroborated by the Revenue Officer who appeared as (D.W.3) by stating that on 5-10-1974 Muhammad Ayub appeared before him and admitted to have received a sale consideration of Rs.31,000. The Revenue Officer further stated that the statement got recorded by Muhammad Ayub was read over to him which was signed in the presence of witnesses. The statements of Fazal Dad (D.W.5) and Khani Zaman Khan, Revenue Officer (D.W.3) have rightly been taken into consideration and believed by the Courts below as they stood firm to the test of cross-examination and nothing beneficial and advantageous could be extracted rendering any assistance to the case of respondents. In such view of the matter the concurrent findings of fact recorded by the learned trial and Appellate Courts determination whereof has been upheld by the learned High Court cannot be reversed without any lawful justification which is lacking in this case. It is well-settled by now that the concurrent findings of fact recorded by the Courts below though not being sacrosanct yet cannot be reversed unless and until it is established that there is a misreading or non-reading of evidence. The learned D Advocate Supreme Court could not point out any misreading or non-reading of evidence or illegality and irregularity committed by the Courts below in arriving at the conclusion as mentioned hereinabove which is strictly in accordance with the evidence which has rightly been appreciated by the Courts below. The sale consideration was admittedly received by Muhammad Ayub (deceased) as stated by Khani Zaman Khan (D.W.3) and thus, the contention of learned Advocate Supreme Court that no sale could be finalized unless and until its consideration is passed on to the vendor seems to be fallacious.
Headnotes / Summary
(On appeal against the judgment, dated 15-2-2003 passed by Peshawar High Court, Abbottabad Bench, in Civil Revision No.85 of 1996).
Arts. 59, 60 & 61
Scope
Opinion of handwriting expert is very weak type of evidence and is not of a conclusive nature
Expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available
No doubt that opinion of handwriting expert is relevant but, it does not amount to conclusive proof and can be rebutted by overwhelming independent evidence
Always risky to base findings of genuineness of writing on expert's opinion
Nothing in Qanun-e-Shahadat exists which requires the evidence given by an expert in any particular case to be corroborated before it can be acted upon as sufficient proof of what the expert states
Question as to how much reliance a Court should place on the statement of any particular witness in any particular case must necessarily depend on the facts and circumstances of that case. Yaqoob Shah v. The State PLD 1976 SC 53; Abdul Majeed v. State PLD 1976 Kar. 762; Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51; Kazim Hussain v. Shambhoo Nath 1931 O. 298; Deputy Commissioner, Lucknow v. Chandra Kishore Tewari 1947 O. 180; Mushtaq Ahmad Gurmani v. Z.A. Sulehri PLD 1958 Lah. 747; Sadiqa Begum v. Ata Ullah 1933 L. 885; Lt.-Col. Muhammad Yousuf v. All Nawaz Gardezi PLD 1963 Lah. 141; Indar Datt v. E. 1931 L. 408 and Ladharam Narsinghdas v. E. 1945 S.4 rel.
S. 42
Qanun-e-Shahadat (10 of 1984), Art.61
Constitution of Pakistan (1973), Art.185(3)
Declaration of title and cancellation of mutation
Concurrent findings of fact by the Courts below
Plaintiffs sought cancellation of sale mutation attested in favour of defendant, on the ground of fraud and without consideration
Plaintiffs alleged that signatures of deceased owner of the land on disputed mutation were forged
Plaintiffs produced handwriting expert who opined that the signatures available on the mutation were not made by the deceased owner
Such opinion was rebutted by defendant by producing cogent, concrete and forthright oral evidence
Trial Court, instead of relying upon the opinion of handwriting expert, relied upon the testimony of witnesses produced by defendant and dismissed the suit
Judgment and decree passed by Trial Court was maintained by Appellate Court as well as by High Court
Concurrent findings of fact recorded by Trial Court and Appellate Court which had been upheld by High Court, could not be reversed without any lawful justification which was lacking in the case
Concurrent findings of fact recorded by Courts below though not being sacrosanct yet could not be reversed unless and until it was established that there was misreading or non-reading of evidence
Plaintiffs could not point out any misreading or non-reading of evidence or illegality or irregularity committed by the Courts below in arriving at the conclusion, which was in accordance with the evidence, which had rightly been appreciated by the Courts below--Sale consideration was proved to be received by the deceased owner of the suit land thus the contention of plaintiffs that no sale could be finalized unless and until its consideration was passed on to the vendor was fallacious
Supreme Court declined to interfere in the concurrent judgments and decrees passed by the Courts below
Leave to appeal was refused.
Judgment & Decree
JAVED IQBAL, J.
This petition for leave to appeal is directed against the judgment, dated 15-2-2003 passed by learned Peshawar High Court (Abbottabad Bench) whereby the revision petition preferred on behalf of petitioner has been dismissed and the judgment of learned Additional District Judge, Haripur dated 2-7-1989 has been kept intact.
2. Precisely stated the facts of the case are that the legal heirs of Muhammad Ayub Khan have filed a suit for declaration that they were owners in possession of the suit-land and Mutation No.734 being fraudulent and without consideration was ab initio void and thus, liable to be cancelled. The dispute concerns the land measuring 136 Kanals, 9 Marlas to the extent of 1/2 share bearing Field Survey No.478 situated in Mauza Aldojabi. It is also an admitted feature of the case that predecessor-in-interest of the petitioner was owner of the said land which was subsequently transferred by Mutation No.734, attested on 27-11-974 and 31/36 share was transferred in favour of Muhammad Zohur which was subsequently challenged by the legal heirs of Muhammad Ayub. The learned trial Court after completion of necessary formalities and recording the evidence pro and contra dismissed the suit by means of judgment, dated 31-5-1984 which was kept intact by the learned Additional District Judge, Haripur. The case was remanded to the learned Additional District Judge in Civil Revision bearing No.114 of 1989 with the following directions: "(i) The Handwriting Expert be examined under Order XLI, rule 27, C.P.C. in support of his report along with drawings and enlargements at the expense of the petitioners. (ii) The respondent shall be afforded an opportunity to adduce evidence in rebuttal of the afore-mentioned evidence of Handwriting Expert and its evidentiary value to be determined. (iii) The questioned signature of the deceased transferor be independently compared in Court with his admitted signature on the mortgage deed Exh.D.W.4/1 genuineness or otherwise. (iv) The ocular and documentary evidence already adduced at the trial stage may be scrutinized either independently or in conjunction with the above-mentioned three categories of evidence and then finding be recorded on the pivotal question as to the genuineness otherwise of the sale transaction and whether it was with consideration."
3. The learned Additional District Judge dismissed the appeal on 17-12-1995 after having examined the Handwriting Expert and other evidence which has come on record. The petitioner being aggrieved filed a revision petition which has been dismissed vide judgment impugned, hence this petition.
4. Syed Muhammad Ayub Bokhari, learned Advocate Supreme Court entered appearance on behalf of petitioners and strenuously contended that the claim of petitioner was supported by the Handwriting Expert, who made it abundant clear that the signatures were never made on the impugned mutation by Muhammad Ayub (deceased) and no legal justification whatsoever was available for the learned Additional District Judge to differ with the opinion of Handwriting Expert. It is also contended that sale consideration was never received by Muhammad Ayub which aspect of the matter has not been appreciated properly by learned Revisional Court which resulted in serious miscarriage of justice.
5. We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence. inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC
53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar.
762. It is always risky to base the findings of genuineness of writing on Expert's opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC
51. It hardly needs any elaboration that "Expert opinion must always be received with great caution, especially the opinion of Handwriting Experts. An expert witness, however, impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests. Although such evidence has to be received with `great caution', yet such evidence, and reasons on which it is based, are entitled to careful examination before rejection and non-acceptance by Court of Expert's evidence does not mean that the expert has committed perjury. Of all kinds of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence". Kazim Hussain v. Shambhoo Nath 1931 O. 298; Deputy Commissioner, Lucknow v. Chandra Kishore Tewari 1947 O. 180; Mushtaq Ahmad Gurmani v. Z.A. Sulehri PLD 1958 Lah. 747; Sadiqa Begum v. Ata Ullah 1933 L. 885; Lt.-Col. Muhammad Yousuf v. Ali Nawaz Gardezi PLD 1963 Lah. 141 and Indar Datt v. E. 1931 L.
408. There is nothing in the Evidence Act to require the evidence given by an expert in any particular case to be corroborated before it could be acted upon as sufficient proof of what the expert states. Of course the question as to how much reliance a Court B would be entitled to place on the statement of any particular witness in any particular case must necessarily depend on the facts and circumstances of that particular case; Ladharam Narsinghdas v. E. 1945 S.4.
6. In the light of the criterion as mentioned hereinabove we have examined the report of Handwriting Expert by whom it has been opined in a categoric manner that the signature available on impugned mutation was not made by Muhammad Ayub (deceased) but the said opinion has C been rebutted by the respondent by producing cogent, concrete and forthright oral evidence. In this regard the statement of Fazal Dad (D.W.5) can be referred by whom it has been stated in an unambiguous manner that mutation in question was signed, by Muhammad Ayub (deceased) before Khani Zaman Khan, the Revenue Officer. The version of Fazal Dad (D.W.5) has been corroborated by the Revenue Officer who appeared as (D.W.3) by stating that on 5-10-1974 Muhammad Ayub appeared before him and admitted to have received a sale consideration of Rs.31,
000. The Revenue Officer further stated that the statement got recorded by Muhammad Ayub was read over to him which was signed in the presence of witnesses. The statements of Fazal Dad (D.W.5) and Khani Zaman Khan, Revenue Officer (D.W.3) have rightly been taken into consideration and believed by the Courts below as they stood firm to the test of cross-examination and nothing beneficial and advantageous could be extracted rendering any assistance to the case of respondents. In such view of the matter the concurrent findings of fact recorded by the learned trial and Appellate Courts determination whereof has been upheld by the learned High Court cannot be reversed without any lawful justification which is lacking in this case. It is well-settled by now that the concurrent findings of fact recorded by the Courts below though not being sacrosanct yet cannot be reversed unless and until it is established that there is a misreading or non-reading of evidence. The learned D Advocate Supreme Court could not point out any misreading or non-reading of evidence or illegality and irregularity committed by the Courts below in arriving at the conclusion as mentioned hereinabove which is strictly in accordance with the evidence which has rightly been appreciated by the Courts below. The sale consideration was admittedly received by Muhammad Ayub (deceased) as stated by Khani Zaman Khan (D.W.3) and thus, the contention of learned Advocate Supreme Court that no sale could be finalized unless and until its consideration is passed on to the vendor seems to be fallacious. In the light of what has been discussed hereinabove the petition being devoid of merit is dismissed and leave refused. M.H./S-140/SC?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.