Ahmed Mahmood Alias Mahmood vs A.D.J etc.

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

Writ Petition No.4232 of 2018

Ahmed Mahmood alias Mahmood Vs. Addl. District Judge, etc.

JUDGMENT

Date of Hearing: 01.06.2022.

Petitioner by: Syed Jamil Anwer Shah, Advocate. Respondent No.3 Mr. Tariq Mahmood Khan, Advocate. by: Malik Imtiaz Mahmood Awan, Advocate.

Anwaar Hussain, J. Through the present petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has laid challenge to the judgment and decree of the learned Appellate Court below dated 09.04.2018 (hereinafter “the impugned judgment”), where by the appeal preferred by respondent No.3 against the judgment and decree dated 27.09.2017 passed by the learned Trial Court, in the suit instituted by respondent No.3, was accepted and she was held entitled to additional dower of land measuring 04-kanals as well as a constructed house.

2.Briefly stated facts of the case are that respondent No.3 instituted the suit on 16.11.2016 with the contention that Nikah between the parties was solemnized on 15.04.2006, however, Rukhsati was not effected and same took place when the father of the petitioner requested for the same in January, 2016 and it was discovered by father of respondent No.3 that certain terms and conditions, which were settled at the time of solemnization of the Nikah between the petitioner and respondent No.3, inter alia, the dower in the form of land measuring 04-

kanals as well as a constructed house has not been properly recorded in the Nikahnama and hence, demanded the same, which was accordingly recorded in a separate deed (Kabeennama/ )کابین نامہdated 12.01.2016 and the Rukhsati took place thereafter. It has been further contended in the plaint that when the petitioner was leaving for Saudi Arabia, respondent No.3 demanded her dower etc., but the petitioner ousted her from the house and it transpired just before the institution of the suit that the petitioner has contracted second marriage. Return of dowry articles was also demanded in the suit. The matter was contested by the petitioner by filing written statement and after framing issues, inter alia, in respect of the entitlement of respondent No.3 to grant of the dower mentioned in the Kabeennama, the parties adduced their evidence, which was recorded and on the basis of which the learned Trial Court partially decreed the suit of respondent No.3 for maintenance as well as dowry articles and her claim to the extent of Rs.2,000,000/- on account of second marriage as well as dower was dismissed. Feeling aggrieved, respondent No.3 preferred an appeal, which was accepted vide impugned judgment and decree and she was allowed recovery of dower recorded in the Kabeennama, however, her claim to the extent of Rs.2,000,000/- on account of second marriage was dismissed.

3.Learned counsel for the petitioner submits that the petitioner completely refuted the affixation of any thumb impression on the Kabeennama and it was obligatory on part of respondent No.3 to prove the same, which she miserably failed to do inasmuch as witnesses of the Nikah were not produced who alone could have confirmed that at the time of solemnization of the Nikah certain terms and conditions were agreed which were not recorded in the Nikahnama as claimed by respondent No.3.

4.Conversely, learned counsel for respondent No.3 submitted that not only respondent No.3 and her father appeared as witnesses but also two attesting witnesses of impugned Kabeennama appeared and fully

corroborated the version of respondent No.3, which reflects that the burden of proof has been fully discharged.

5.Arguments heard. Record perused.

6.The case in hand involves the measuring up and weighing in the Nikahnama, executed in furtherance of statutory requirements under Muslim Family Law Ordinance, 1961 and the Rules made thereunder, carrying presumption of truth which does not include the dower in dispute viz-a-viz the Kabeennama that is purportedly executed between the parties but not registered under any law and unlike the Nikahnama, does not carry presumption of truth unless such Kabeenama is referred in the Nikahnama itself. Perusal of the impugned judgment indicates that the learned Appellate Court below while analyzing the evidentiary resume of the case has reached the conclusion that the Kabeennama has been duly proved primarily on the basis of making comparison of thumb impression and signatures of the petitioner on the Kabeennama with the thumb impression on power of attorney, which the petitioner executed before the Pakistani Embassy, Jaddah, Saudi Arabia and submitted in evidence. Learned Appellate Court below has examined the matter in the following manner:

“Though the defendant has avoided from putting his thumb impressions upon the written statement as well as upon his Affidavit Ex.D1 which has been brought on file, as examination in chief, but admittedly he has been pursuing his suit through special power of attorney and in this reference he got executed attorney while appearing before the consulate general in the Embassy of Pakistan Jeddah/Saudia Arabia where he was residing for earning his livelihood. The clear thumb impression of Ahmed Mehmood is available on the first page of the said general power of attorney with clear prints. At the same time the clear thumb impression of said Ahmed Mehmood is also available upon the both leaves of Ex.P2 on both sides which are clearly eligible. The prints of thumb impression of Ahmed Mehmood have specific pattern which is mentioned has double loop whorl. The same pattern are available upon Ex.P2 which is clearly identical

when compared with his admitted thumb impression upon the special power of attorney. So in these circumstances I am constrained to hold that the additional dower deed Ex.D2 was validly executed by the defendant in favour of the appellant/plaintiff with his free consent.”

(Emphasis supplied)

7.While there is no doubt that the Court can compare the disputed signature or thumb impression with the admitted signature or thumb impression, such comparison by the Court without the assistance of any expert, has always been considered to be hazardous and risky and as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature or thumb impression with that of the admitted signature or thumb impression to find out whether the two are identical. The prudent course is to obtain the opinion and assistance of an expert and leave the matter to the wisdom of experts. The comparison of the two thumb impressions cannot or rather should not be carried in a casual manner or by a mere glance. It is astonishing to note that in the instant case, the learned Appellate Court below has carried out the comparison, with naked eye, without resort to the expert opinion by observing that the finger prints of the petitioner have specific pattern having double loop whorl and the same pattern are available upon Ex.P2, without ascertaining other characteristics, similarities and dissimilarities. Unless enough details correlate the disputed thumb impression with the admitted thumb impression, the fingerprints cannot be determined to be from the same person merely by comparison of pattern through naked eye and by doing so, the learned Appellate Court below has fallen in grave error as comparison of thumb impression through naked eye is highly susceptible to subjective comparison, which does not aid the cause of administration of justice. Such comparison of thumb impression by the learned Appellate Court, without resort to expert opinion, is highly prone to what can be termed as human fallibility, which could

have been ruled out through intervention and use of scientific methods by an expert as forensic science has progressed a lot and the Courts in the appropriate cases prefer to get assistance from the experts of relevant fields which not only helps the Court to reach a fair conclusion but also to avoid complications and agony to the litigants arising out of a wrong decision as held by this Court in case titled “Talib Hussain v. Additional District Judge etc.” (PLJ 2014 Lahore 193).

8.In view of the above discussion, instead of commenting any further upon the legal position or the analysis of the documentary evidence of the parties lest it may prejudice the case of either side, the present petition is allowed and the case is remanded to the appellate court for conducting comparison of thumb impression of the petitioner on the impugned Kabeennama with one i.e., admitted, through intervention of Expert Agency and upon submission of report by the expert, provision of opportunity of cross-examination, if so desired and need be to the parties, as the report of finger print and handwriting experts is always open to objection by either side and then decide the matter afresh. The needful shall be done preferably within 02-months.

9.Allowed in the above terms.

(Anwaar Hussain) Judge Approved for reporting

Judge

Maqsood*