2003 PLP 1195 (CLD)

Sirbaland v. Allah Loki 1996 SCMR

575. Zulfiqar Ali v. Ch. Munir Ahmad 1999 CLC

731. He further urges that writ petition is maintainable against the impugned interim order. In support of his contention he relied upon the following judgments:-- Ghulam Muhammad v. Munir Ahmad Shah 1994 CLC

14. Messrs Ilamuddin & Sons v. Asghar Ali and others 1970 SCMR 233.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

4. It is admitted fact that petitioner filed an application alongwith the report of handwriting expert (Muhammad Ashraf Malik) dated 3-7-2002. The petitioner had withdrawn this application as is evident from impugned order dated 6-11-2002 to the extent of pacing on record opinion of handwriting, expert Muhammad Ashraf Malik dated 3-7-2002 alongwith annexures. The petitioner contested the application to the extent for sending the disputed pronote and receipt for comparison of signatures of respondent No.2/defendant to another handwriting expert, which was dismissed by the learned Additional District Judge vide impugned order dated 6-11-2002. The operative part of the impugned order is as follows:-- "The exercise appears to be futile exercise. The reason is that there is a report of a Government expert, who has appeared in the witness-box as C.W. and was cross-examined by the learned counsel for the petitioner/plaintiff at length. Secondly, until the said report is not set aside there is no occasion to refer the matter for comparison of the signatures of the defendant to another handwriting expert. The petition is found to be without any force and substance. Thus without being prejudiced the merits of the case, the petition is dismissed." It is settled principle of law that the opinion of an expert is never binding on a Court. It is admitted in evidence only to help the Court in arriving at a correct decision. But it does not follow that opinion of an expert is always correct. In arriving to this conclusion I am fortified by the following judgments:-- Muhammad Naeem's case PLD 1950 Lahore

507. Muhammad Din's case 199 MLD 1070. Muhammad Abdul Rehman's case 1989 MLD 2002. It is also settled principle of law that opinion of the handwriting expert does not amount to conclusive proof but it is only an opinion and as such it is relevant fact and can be taken into consideration in conjunction with other circumstances to reject or accept the opinion of the expert. In arriving to this conclusion I am fortified by the law laid down by the superior Courts in Abdul Majeed's case PLD 1976 Karachi 762 and Naseem Ahmad's case 1992 MLD

620. Similar view was also earlier taken by the Division Bench of this Court in Ghulam Nabi's case. PLD 1957 Lahore 109.

5. The application of the respondent No.2 was accepted by the learned Additional District Judge after examining the expert as Court-witness. The handwriting expert who was examined on interrogatories was a Court-witness and he had not appeared at behest of any of the parties, thus question of any rebuttal would not arise. It was only when evidence was led by a party or at his instance the other party could claim right to rebut. The witness was examined by a Court of its own motion therefore, the petitioner could not claim right to produce any other evidence. It is settled principle of law, as mentioned above, that report is not binding on the Court nor is final as the same is subject to affirmation by the Court which will be denuded of jurisdiction to take contra view or call for second opinion if need arises. It is pertinent to mention here that the petitioner also concealed material facts from this Court as the petitioner did not attach the statement of Court witness alongwith the writ petition. It is settled principle of law that Constitutional jurisdiction is discretionary in character. As the petitioner, as mentioned above, concealed the material facts from this Court, therefore, I am not inclined to exercise my discretion in favour of the petitioner on the well-known principle he who seeks equity must come with clean hands as per principle laid down by the Honourable Supreme Court in the following judgments:-- Abdul Rashid v Pakistan and others 1969 SCMR

141. Rana Muhammad Arshad v. Additional Commissioner Revenue 1998 SCMR 1462. Nawab Syed Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC

236. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law keeping in view the peculiar circumstances of this case. In view of what has been discussed above, this writ petition has no merit and the same is dismissed. However, learned additional District Judge shall decide the suit of the petitioner in accordance with law without being influenced by the observations of this Court. S.M.A.H./M-1641/L Petition dismissed.