Mst. Yasmeen Shamsher Vs Mst. Alia Zahir & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.1570-P/2025.

Mst. Yasmeen Shamsher & 02 others Vs. Mst. Alia Zahir & others.

Date of hearing 02.03.2026.

Mr. Ahmad Ali, Advocate, for the petitioners.

Mr. Muhammad Amin Ayub, Advocate, for the respondents. Muhammad Meraj, Record Keeper, Swabi in person.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - This single judgement in the instant petition is also aimed to decide W.P. No. 1896-P/2025 titled “Wahid Rehman alias Waheed Khan & others Vs. Mst. Alia Zahir & 02 others” as an identical controversy pertaining to forensic examination of thumb impression/signature of the alleged vendor and her husband of mutation No. 5 dated 04.07.1991 and mutation No. 93 dated 22.12.1993 was sought by the petitioners/defendants and through impugned orders the application submitted in the respective suits was turned downed.

2.Facts of the case of the instant petition are that Mst. Alia Zahir has sought declaration through her suit to the effect that she is owner in possession of the property as described in headnote “alif” of the plaint of revenue estate of Jhanda Tehsil and District Swabi being the legal heir of Muhammad Khursheed with which, defendants have got no concern, the entries of the revenue papers on the strength of mutation No. 5 dated 04.07.1991 reflecting the alleged transfer in favour of defendants is wrong, against the fact, illegal, unjust, without consideration and authority, which requires rectification alongwith the relief for recovery of possession and perpetual injunction. Suit No.195/1 was also filed by her alleging herself to be owner in possession of the property being the daughter of Muhammad Khursheed Khan as described in headnote “alif” of the plaint with which, defendants have got no interest. The entries of the revenue papers on the strength of

mutation No. 93 dated 22.12.1993 in favour of defendants are wrong, unjust, illegal, against the law, collusive and requires correction alongwith the recovery of possession and perpetual injunction. Suits were filed in the year 2015. Defendants of the respective suit resisted the grant of decree on different preliminary and factual objections. Defendants also produced the evidence, after completion of the evidence, petitioners filed an application for forensic examination of mutation. Likewise, in connected petition, the defendants/respondents have also moved an application for forensic examination of mutations Nos. 5 and 93, both the applications were dismissed by the learned trial court and appeal thereagainst also failed.

3.Arguments heard; record perused.

4.Forensic examination of a thumb impression on a document is a specialized scientific process aimed at identifying the author of the impression to verify the authenticity of a document. Within civil jurisprudence, expert opinion is admissible under Article 59 of the Qanun-e-Shahadat Order, 1984. However, such opinion is not conclusive proof; it is treated as corroborative evidence that must be weighed alongside primary evidence, including witness testimony and the circumstances surrounding the transaction. In the present controversy, this Court directed the production of the original record (pert sarkar) of both mutations through the official custodian of the record room, who produced the relevant documents. It is a settled proposition that expert opinion merely corroborates a party’s stance and cannot independently entitle relief absent primary evidence. Significantly, Mst. Alia Zahir (plaintiff), during her lifetime, instituted suits challenging the validity of revenue entries based on disputed mutations. The record keeper produced Mutation No. 5, reflecting transfer of property, reported to the Patwari Halqa, who entered and verified the mutation. A commission was thereafter appointed to record Alia Zahir’s statement. Mutation No. 5 purports to bear the signatures of Nasrullah Khan and Muhammad Zahir, though Nasrullah did not sign, while Muhammad Zahir and Alia Zahir

allegedly affixed thumb impressions. Likewise, Mutation No. 93 was produced, wherein Mst. Alia Zahir was identified by her husband Muhammad Zahir, though she herself questioned its validity.

5.In both petitions, forensic examination of Alia Zahir’s thumb impressions and Muhammad Zahir’s signatures was sought, particularly as the relevant Patwari, Ahle Commission Noor Muhammad, and Revenue Officer—all material witnesses—had passed away. Both courts below dismissed the application on the ground of delay. Yet, it is indisputable that expert opinion, though corroborative and considered the weakest form of evidence, cannot be dismissed solely on grounds of belated filing of applications. In Mst. Akhtar Begum v. Muslim Commercial Bank Ltd. (2009 SCMR 264), the Hon’ble Supreme Court held that it is the right of a party to seek every possible assistance from the courts, and dismissal merely on technical grounds amounts to denial of justice. The revisional court’s finding that primary evidence was available and expert opinion would serve no useful purpose is contrary to record and law, particularly given the plausible explanation of the death of material witnesses. Such reasoning negates the principle that expert opinion, though not decisive, is essential where direct testimony is unavailable.

6.For proper administration of justice and determination of authenticity, correctness, and legality of mutations, forensic comparison of admitted and disputed thumb impressions of Mst. Alia Zahir and signatures of Muhammad Zahir constitutes corroborative evidence through expert opinion. While courts are empowered under the provisions of Qanun-e-Shahadat Order 1984 to compare signatures and thumb impressions themselves, the absence of material witnesses necessitates reliance on expert opinion to reach a just conclusion. The foundational principle of jurisprudence is that law exists to foster justice, fairness, and protection of rights. Rules of evidence must be interpreted to advance justice rather than defeat it. Expert opinion, in this context, causes no prejudice to either party but aids the court in

resolving disputes where direct testimony is unavailable. Dismissal of the application by the trial and appellate courts, without plausible justification, amounts to miscarriage of justice. Reliance may be placed on Syed Sharif Ul Hassan through legal heirs v. Hafiz Muhammad Amin and others (2012 SCMR 1258), wherein the Supreme Court held that the opinion of a fingerprint expert regarding genuineness of thumb impressions was essential for a just decision and could not be excluded merely on technical grounds.

7.Accordingly, for the reasons discussed, the instant and connected petitions are allowed. The impugned orders are set aside. The learned trial court is directed to transmit admitted thumb impressions and signatures, along with disputed ones, to the Forensic Science Laboratory for comparison and expert opinion regarding Mutations Nos. 5 and 93. The expert’s report shall remain subject to cross-examination if objected to by either party. Upon receipt of the expert report, the trial court shall adjudicate the matter holistically, considering all evidence in light of the principle of preponderance of evidence, thereby ensuring justice in accordance with law.

Announced.

J UD G E

Haider Shah, SSS (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.