PLJ 2006 SC 1478
[Appellate Jurisdiction]

Present: Javed Iqbal & Hamid Ali Mirza, JJ.

Mst. SAADAT SULTAN & others--Petitioners

versus

MUHAMMAD ZAHUR KHAN & others--Respondents

Civil Petition No. 294 of 2004, decided on 14.11.2005.

(On appeal against the judgment dated 15.2.2003 passed by Peshawar High Court, Abbottabad Bench, in C.R. No. 85 of 1996).

(i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 59, 60 & 61--Expert opinion--Handwriting expert--Scope--Value of evidence--Opinion of handwriting expert is a very weak type of evidence and is not that of a conclusive nature--Expert's evidence is only confirmatory or explanatory of direct or circumstnatial evidence and confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available--Held: There is nothing in Evidence Act to require evidence given by an expert in particular case to be corroborated before it could be acted upon as sufficient proof of what expert states--Question as to how much reliance a Court would be entitled to place on the statement of particular witness in particular case must necessarily depend on facts and circumstances. [Pp. 1480 & 1481] A & B

(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 61--Specific Relief Act (I of 1877), S. 42--Constitution of Pakistan, 1973--Art. 185(3)--Report of handwriting expert--Concurrent findings of fact by trial Court--Suit for declaration of title and cancellation of mutation--Signature available on impugned mutation was not made by deceased but opinion has been rebutted by respondent by producing cogent concrete and forthright evidence--Concurrent findings of facts recorded by 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--Plaintiff could not point out misreading or non-reading of evidence or illegality and irregularity committed by Courts below in arriving at conclusion which is strictly in accordance with evidence which has rightly been appreciated by Courts below--Leave to appeal was refused. [Pp. 1481 & 1482] C & D

Syed Muhammad Ayub Bokhari, ASC and Ch. Akhtar Ali, AOR, for Petitioners.

Nemo for Respondents.

Date of hearing : 14.11.2005.

Judgment

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 « 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 27.11.1974 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 Hand Writing Expert be examined under Order XLI, Rule 27 CPC in support of his report alongwith drawing 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 Hand Writing 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 Ex. DW.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 ASC 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 case of 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 ASC 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 and 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 1974 O. 180, Mushtaq Ahmad Gurmani v. Z. A. Sulehri PLD 1958 Lah. 747, Sadiqa Begum v. Ata Ullah 1933 L 885, Lt. Col. Muhammad Yusuf v. Ali Nawaz Gardezi PLD 1963 Lah. 141, 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 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 herein above 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 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 Khan 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. 31000/-. 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 Khan Zaman Khan, Revenue Officer (D.W.) 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 ASC 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 herein above 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 ASC 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 herein above the petition being devoid of merit is dismissed and leave refused.

(Rafaqat Ali Sohal) Petition dismissed.