2012 PLP 414 (YLR)

ABDUL WAHEED KHAN, J.

In a suit for specific performance of an agreement, after filing of the written statement, settlement of issues, evidence of the petitioner/plaintiff was concluded. While appearing as DW.1, defendant No.1 Tehseen Ullah Khan made a statement that the agreement to sell did not bear his signatures/thumb-impression and on the same day i.e., on 17-5-2010, the petitioner/ plaintiff filed an application before the Civil Court for the comparison of signatures/thumb-impressions of the said defendant/respondent with his admitted signatures/thumb-impression. The same was contested and during the pendency of the said application, the defendants completed their evidence. The application was dismissed vide order dated 27-1-2011 for the reason that it was an old case falling in the category of cases of National Judicial Policy. The petitioner/plaintiff assailed the aforementioned order of Civil Court and the Revisional Court vide its order dated 16-5-2011 dismissed the same, hence this petition.

2. The only contention of the counsel for the petitioner is that defendant No.1 has denied the affixation of his thumb-impression/signatures on the agreement to sell (Exh.P.1) and for the just decision of the case, the Civil Court should have referred the matter to the Handwriting Expert for comparison of his signatures/ thumb-impression with that of his admitted signatures, thus, the Civil Court should have allowed the application dated 17-5-2010.

3. Conversely, the contentions of counsel for respondents Nos.1, 3 and 5 are that the impugned orders of the Civil Court and the Revisional Court are well reasoned and same do not call for interference. According to him, proper course for the petitioner/plaintiff should have been to file an application at initial stage and that since it is an old matter, thus, it needs to be decided at the earliest, therefore, the prayer made by the petitioner/plaintiff is unjustified. Counsel for respondent No.2 also adopted the arguments advanced by counsel for respondents Nos.1, 3 and 5.

4. Heard.

5. Articles 59 and 78 of the Qanun-e-Shahadat Order, 1984 deal with the opinion of the Handwriting Expert. Human experience shows that there are cases in which the Court did not always find itself to be in a conceptive position to form judicial opinion without the help of persons; who have acquired special skill, knowledge or experience in that particular field. In these cases, the rule is relaxed and the expert evidence has been declared to be a relevant fact. Article 59 Qanun-e-Shahadat as such is an exception to the rule as regards the exclusion of opinion evidence is concerned. This Article provides that the Court in order to form an opinion on a point of foreign law, or of science, or art or as to identity of handwriting, or finger impression, or the opinion upon that point of person skilled in such a field is relevant fact. The opinion of such experts is admissible in evidence as relevant fact, negative or positive by virtue of this Article. The rule admitting expert evidence may be said to be founded on the doctrine of necessity which the Courts of law have often found getting assistance.

6. The reason given by the courts below that the main suit falls within the category of National Judicial Policy is no valid ground for rejection of the application for comparison of the document. The court may call in aid the opinion of Handwriting Expert to ascertain the proof of handwriting or signature of a person on a disputed document. In the instant matter, when the plaintiff/petitioner asserts that the agreement to sell was, in fact, executed, signed and thumb-marked by defendant No.1 and the said defendant denies his signatures, thumb-impression, the proper course for the court should have been to refer the matter to Handwriting Expert. In this view of the matter, the request made by the plaintiff/petitioner in his application dated 17-5-2010 was justified which should have been acceded to by the trial court.

7. With this observation, this revision petition is accepted as a result thereof, the application dated 17-5-2010 for referring the matter to the Handwriting Expert shall stand accepted. H.B.T./M-335/L Petition accepted.