Signature and Thumb impression in the eyes of the court
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| Importance of signature and thumb impression |
The following judgement explain the importance of the verification of Signature and Thumb impression.
Latest judgement on the topic in 24/01/2023
In past many judgments are from both sides.
Short story in the case lower court refused to verification of the thumb impression and signature asked through application of the petitioner
Because the petitioner want to verification just to delay the matter.
But high court in following writ petition set aside the order of the trial court and order to lower court for verification of the signature and Thumb impression.
If you have any question call or Whatsapp (+92-324-4010279)
Stereo. H C J D A-38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.6404 of 2020
Aashiq Hussain
Versus
Fida Hussain & others
J U D G M E N T
Date of hearing: 24.01.2023.
Petitioner by:
Mr. Muhammad Ihsan Gondal, Advocate.
Respondents by: Mr. Muhammad Ashraf Saggu, Advocate.
MUHAMMAD SAJID MEHMOOD SETHI, J.: Through
instant petition, petitioner has called into question order dated
10.12.2019 & judgment dated 20.01.2020, passed by learned Civil
Judge and Additional District Judge, Darya Khan, respectively,
whereby petitioner’s application for comparison of thumb
impressions / signatures of witnesses namely Ghulam Muhammad
(DW-7) and Madah Hussain (DW-8) was concurrently dismissed.
2.
Learned counsel for petitioner submits that once a party
denies execution of a document, it is for the other party to get
comparison of the signatures or thumb impressions with that of
appearing on the document. Further submits that expert opinion on
the question whether the documents or statements are signed by
same person is relevant fact within the contemplation of Article 59
of the Qanun-e-Shahadat Order, 1984, thus, petitioner’s application
is liable to be accepted. Contends that learned Courts below have
not rightly appreciated the applicable law and failed to exercise
jurisdiction vested in them, hence, impugned decisions are
unsustainable in the eye of law. He has relied upon Ghulam Haider
v. Fateh Muhammad (2005 MLD 1501), Mst. Nusrat Bibi v.
Writ Petition No.6404 of 2020
Muhammad Ashraf Mehr and others (2007 YLR 41), Sarfraz v.
Khizer Hayat and another (2008 YLR 818) and Muhaar v.
Muhammad Yousaf and others (2010 MLD 1745).
3.
Contrarily, learned counsel for respondents defends the
impugned orders.
4.
Arguments heard and available record perused.
5.
Admittedly, petitioner and respondents are legal heirs of
deceased Muhammad Ramzan. In suit, respondents / plaintiffs
challenged the veracity and authenticity of different mutations
executed by predecessor-in-interest of the parties in favour of
petitioner / defendant. Under the law, a beneficiary of the
document(s) is required to establish valid execution of the
transaction(s) in his favour by producing attesting / marginal
witnesses. In a situation, where the thumb-impressions / signatures
of the executant or witness of a document are denied, a person
pleading positivity of the thumb impressions / signatures will be
under a heavy burden to prove the same by seeking comparison
with the admitted thumb impressions / signatures. Reference can be
made to Mst. Nusrat Bibi v. Muhammad Ashraf Mehr and others
(2007 YLR 41), Abdul Haq and others v. Iftikhar Ahmad and
others (2017 MLD 1792) and Shabbir Ahmed and others v.
Cholistan Development Authority and others (2020 CLC 243).
6.
In the instant case, petitioner / defendant is the beneficiary of
the disputed mutations and in evidence, he produced Ghulam
Muhammad as DW-7, who categorically denied to have attested the
disputed mutations and signed the same. Whereas, DW-8, Madah
Hussain also refuted attestation of the mutations and existence of
his thumb impressions thereon. In such eventuality, it was duty of
petitioner to apply to the Court for getting thumb impressions /
signatures of aforesaid witnesses compared from an expert, which
he duly performed but his request was declined. In case of failure to
opt such course by a party / beneficiary, there might be a
presumption against him that had the thumb impressions /
04 of 2020
signatures of aforesaid witnesses been got compared from the
expert, the report would have received against him. Guidance can
also be sought from the cases reported as Wali Muhammad Khan
and another v. Mst. Amina and others (2018 SCMR 2080) and
Nazir Abbas through L.Rs. v. Ghulam Muhammad through L.Rs.
(2017 CLC 996).
7.
It is well-established by now that the Courts must take liberal
view regarding acceptance of request for comparison of signatures /
thumb impressions, as there is no express provision in law to
decline such request. Moreover, report of the expert will tend to
supplement the evidence of either party enabling the Court to reach
just and correct decision and pronounce a balanced judgment.
Learned Courts below have failed to exercise jurisdiction vested in
them under the law on an unjustified ground. The observation of
learned Trial Court that this exercise would linger on the
proceedings is misconceived as there will be no harm to any party
rather it will be appropriate and imperative to reach a just and
proper conclusion even at the cost of some delay. It is a right of a
party to seek and demand every possible assistance from the Courts
of law and to hold him/her responsible only when he or she is found
to have acted contrary to law. The interest of justice can only be
safely dispensed after the signatures and thumb impressions of
aforesaid witnesses are got verified from the expert. Reference is
made to Mst. Akhtar Begum v. Muslim Commercial Bank Ltd. (2009
SCMR 264), Syed Sharif Ul Hassan through L.Rs. v. Hafiz
Muhammad Amin and others (2012 SCMR 1258), Zafar Ullah
Khan v. Mst. Hakim Bibi and another (2000 YLR 2789), Talib
Hussain v. Additional District Judge etc. (PLJ 2014 Lahore 193),
Syed Akbar Hussain through L.Rs. and another v. Mst. Naziran
Begum and another (2014 CLC 1760) and Lal Din v. Muhammad
Saleem (deceased) through L.Rs. and others (2019 CLD 894).
8.
In view of the above, instant petition is allowed and
impugned orders passed by learned Courts below are declared to be
Writ Petition No.6404 of 2020
illegal and without lawful authority and set aside. Petitioner’s
application for comparison of thumb impressions / signatures of
witnesses namely Ghulam Muhammad (DW-7) and Madah Hussain
(DW-8) is accepted. Learned Trial Court is directed to do the
needful expeditiously and decide the suit within two months after
the receipt of report of the expert, even if it is to be heard on day-today basis.
(Muhammad Sajid Mehmood Sethi)
2nd judgment on same topic
Stereo. H C J D A 38.
JUDGMENT SHEET
LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
W.P No.993/2022
Sabir Hussain
Versus
Additional District Judge etc.
J U D G M E N T
Date of Hearing
30.01.2024
Petitioner By:
Mr. Mehmood Ashraf Khan, Advocate
Respondents No.3-
10 By:
Syed Athar Hassan Shah Bukhari, Advocate
Respondent No.11
By:
Ms. Samina Mehmood Rana, Assistant
Advocate General.
Respondent No.12
Proceeded
ex-parte
vide
order dated
18.01.2024
Anwaar Hussain J: The petitioner instituted suit for specific
performance of contract on the basis of an agreement to sell dated
03.04.2008 (“the agreement”) against respondents No.3 to 12.
Respondents No.3 to 10 are members of same family whereas
respondent No.11 is Province of Punjab. Respondent No.12 is
admittedly close relative (brother in law) of the petitioner, who also
statedly entered into an agreement to sell with respondents No.3 to 10.
When the suit was instituted on 12.03.2015, admittedly respondent
No.5 was minor. The execution of the agreement was flatly denied by
respondents No.3 to 10. Issues were framed and evidence of both
sides have been admittedly recorded. The petitioner filed an
application for comparison of thumb impression of respondents No.3
to 10 on the agreement with their specimen/admitted thumb
impressions, which was dismissed through order dated 15.09.2021,
inter alia, on the ground that report of the finger expert is
corroborative piece of evidence and the application has been filed by
the petitioner at belated stage just to linger on the trial hence, the same
cannot be allowed. Order dated 15.09.2021 has been upheld by the
Revisional Court below, vide impugned order dated 08.11.2021.
2.
Learned counsel for the petitioner submits that both the Courts
below have erred by not appreciating the dicta laid down by the
Supreme Court of Pakistan in case reported as “Syed Sharif ul Hassan
W.P No.993/2022
through L.Rs. v. Hafiz Muhammad Amin and others” (2012 SCMR
1258) while dismissing the application of the petitioner for
comparison of thumb impression of respondents No.3 to 10 even
though respondent No.4 while appearing as DW-1 agreed to the said
comparison. He also places reliance on an unreported judgment of the
Supreme Court in Civil Appeal No.787 of 2017 titled as “Mst. Afzala
Virks v. Mian Fazal Haq (decd) thr: L.Rs. & another” in support of
his contentions.
3.
Conversely, learned counsel for respondents No.3 to 10 submits
that the suit instituted by the petitioner is not maintainable as the
disputed land belongs to the Government of Punjab and proprietary
rights had not been granted to respondents No.3 to 10 till date. Adds
that even if it is established that the respondents have affixed their
signatures and/or thumb impression on the agreement, the same is of
no help to the petitioner as one of the respondents was a minor and a
minor cannot enter into a valid agreement under the law in terms of
Section 11 of the Contract Act, 1872.
4.
Arguments heard. Record perused.
5.
Admittedly, the suit property was allotted by the Government to
predecessor-in-interest of respondents No.3 to 10 and after demise of
said predecessor-in-interest, respondents No.3 to 10 are in occupation
thereof. Therefore, without commenting upon the merits of the case
lest it may prejudice the case of either side, it is well evident from the
record that the suit was instituted by the petitioner on the basis of the
agreement purportedly executed by respondents No.3 to 10, which
includes respondent No.5, who was a minor at the time of execution
of the agreement. The execution of the agreement was outrightly
denied by respondents No.3 to 10. The case of the petitioner depends
upon proving the agreement through which the suit property has
allegedly been sold by respondents No.3 to 10 to the petitioner. It is
noteworthy that the object for production of evidence is assistance to
the Courts to reach a just conclusion. An application for comparison
of thumb impression is one such mode. The only hinderance in not
W.P No.993/2022
allowing the application could be if the plaintiff intended to fill in the
lacunae of his case after the conclusion of evidence. In the instant
case, the respondent side has failed to point out any such effort on part
of the petitioner. There appears to be no harm to either side if
comparison of thumb impression is made. In fact, the said exercise
will be appropriate and in the interest of justice to reach a fair
conclusion and render a just and proper decision, even at the cost of
some delay in conclusion of the trial. For a Court of law, rendering a
fair and just decision is more important than to act hurriedly by
drawing a wrong conclusion. Mere fact that application for
comparison of thumb impression has been moved at the stage when
the entire evidence has been recorded is not a cogent reason to dismiss
the application. In this regard, it is worth mentioning that no time has
been stipulated in terms of Article 84 of the of Qanun-e-Shahadat
Order, 1984 for filing the application of comparison of the signatures
and/or thumb impression through expert. Case reported as “Ghulam
Haider v. Fateh Muhammad (2005 MLD 1501) is referred in this
regard. Moreover, it is the right of a litigant to seek indulgence of the
Court so as to discharge the burden of proof placed upon him
including comparison of the disputed thumb impressions. I am
fortified by the law laid down in case reported as “Mst. Akhtar Begum
v. Muslim Commercial Bank Ltd. (2009 SCMR 264). In case of Mst.
Akhtar Begum supra while sending the signatures of the petitioner
therein for expert opinion in the said case, the Supreme Court held
that it is the right of a party to seek and demand every possible
assistance from the Courts of law and to hold him/herself responsible
only when he or she has acted contrary to law.
6.
Moreover, when the evidence was recorded, respondent No.4,
namely, Muhammad Irshad, appeared as DW-1 and candidly
conceded that they (respondents) have no objection if their
(respondents No.3 to 10) signatures are sent to the finger expert for
comparison. Both the Courts below have ignored this aspect of the
case as well. In order to ensure that correct conclusion is reached in
the matter, the Court can look around for an evidence of un-
W.P No.993/2022
impeccable caliber such as finger expert, more particularly, when
there is a complete denial on part of the respondents/defendants that
they have not affixed their thumb impression on the agreement. It is in
the interest of justice that the petitioner be allowed to prove his stance
by having recourse to the forensic science/handwriting expert. Dicta
laid down by the Supreme Court in case of Syed Sharif ul Hassan
supra, supports the stance of the petitioner. Reliance on an unreported
judgment in case of Mst. Afzala Virks supra is also well placed.
7.
In so far as the argument of learned counsel for respondents
No.3 to 10 that allowing the petitioner to effect comparison of thumb
impression of the respondents is likely to result into injustice in so far
as respondent No.5, who was minor at the time of alleged execution of
the agreement, is concerned, suffice to mention that even if it is
proved that alleged thumb impression of respondent No. 5 on the
agreement is genuine, the same will merely go on to prove (or
otherwise) the execution of the agreement without having any bearing
on the competency of the said respondent who was admittedly minor
at the time of execution of the agreement as the competency to
contract is a question of law and is to be decided by the Trial Court on
the basis of applicable law and not on the basis of the report of the
finger expert. Therefore, argument of learned counsel for respondents
No.3 to 10 has no force.
8.
The matter can be examined from another angle. Had the
petitioner failed to seek comparison of signature, through expert
evidence, in the face of express and outright denial as to the execution
of the agreement, the same may propel the Trial Court as also the
higher forums to harbour adverse inference against the petitioner/
plaintiff. Therefore, this Court is of the opinion that non-acceptance of
the application of comparison of thumb impression will lead to
miscarriage of justice and thwart the Trial Court in reaching a just
conclusion, which is not permissible under the law and will defeat
ends of justice.
W.P No.993/2022
9.
In view of the above discussion, this constitutional petition is
allowed and the impugned orders passed by the Courts below are set
aside. As a consequence, application of the petitioner for conducting
comparison of the thumb impression and/or signatures, of respondents
No.3 to 10, is accepted.
(ANWAAR HUSSAIN)
JUDGE
Approved for reporting
Judge
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