Javed Iqbal, J.--This appeal is directed against the judgment dated 23.9.2004 whereby the civil revision preferred on behalf of Dr. Sultana Ibrahim (respondent) has been accepted and judgment dated 19.5.2001 passed by the learned Additional District Judge Karachi (East) has been set aside.
2. The controversy revolves around the chunk of land Bearing No, E-9, measuring 1587 Sq. Yds situated in Block No, 10, KDA Scheme No, 24 Gulshan-e-Iqbal, Karachi, hereinafter referred to as the plot in question, which according to Dr. Sultana Ibrahim (respondent) was sold to Mst. Muhammad Bi Begum by means of agreement dated 30.6.1979 being the owner of the plot in question for a total consideration of Rs, 4,20,000/-. On the other hand Sqn. ldr. (R) Umeed Ali Khan filed a suit for specific performance, declaration and possession with the averment that Dr. Sultana Ibrahim had sold half of the plot in question comprising of 788 Sq.Yds but subsequently refused to execute the sale deed in his favour.
3. The learned trial Court after completion of necessary formalities, framing of issues and recording the evidence pro and contra dismissed the suit of appellant by means of judgments and decrees dated 12.1.1998 and 16.1.1998. Being aggrieved a civil revision was preferred by Dr. Sultana Ibrahim which has been accepted vide judgment impugned, hence this appeal.
4. We have heard at length Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC on behalf of appellant who mainly argued that the oral evidence and receipt executed by Dr. Sultana Ibrahim duly substantiated by handwriting expert report which went unchallenged have not been appreciated in its true perspective by the learned single Judge of High Court of Sindh, Karachi in chambers. It is also pointed out that the handwriting expert report was never challenged and hence the receipt executed between the parties should have been relied upon as it could not have been discarded without any lawful justification which is badly lacking in this case. Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC referred the cases of Mussarat Shaukat Ali v. Safla Khatoon (1994 SCMR 2189) and Khair-ul-Nisa v. Muhammad Ishaque (PLD 1972 SC 25) in support of his esteemed views as mentioned herein above.
5. Mr. Shahenshah Hussain, learned ASC entered appearance on behalf of respondents and vehemently controverted the view point as canvassed at bar by Sahibzada Ahmad Raza Khan Qasuri, learned, Sr. ASC on behalf of appellant and supported the judgment impugned for the reasons as enumerated therein with further submission that the handwriting expert report has been considered and rightly disbelieved by the learned-single Judge of the High Court in chambers for the simple reason that it could not be considered as a conclusive proof for the execution of receipt. Besides that the controversy was never referred to the handwriting expert with consent of both the parties. Learned ASC on behalf of respondents also invited our attention to the receipt (Ex.P1) dated 24.10.1978 and contended that it was never proved in accordance with the relevant provisions of Qanun-e-Shahadat Order, 1984. It is also pointed out that handwriting expert report can at the best be considered as supporting evidence which cannot absolve the appellant to prove the contents of the receipt (Ex.P-1). The learned ASC referred cases titled Hari Singh v.
Sardarni Lachhmi Devi (AIR 1921 Lahore 126), Saadat Sultan v. Muhammad Zahur Khan (2006 SCMR 193), Shabbir Hussain v. The State (1968 SCMR 1126) in support of his contentions as mentioned herein above.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case, scrutinized the same in depth with the eminent, assistance of learned counsel and perused the judgments of learned trial Court, appellate Court as well as the judgment impugned carefully. The case of appellant mainly hinges upon the consolidated receipt (Ex.P-1) dated 24.10.1978 whereby allegedly sale consideration was received. It is the case of appellant that respondent subsequently refused to execute the sale- deed whereas she had denied in a categoric manner that any agreement of sale whatsoever was made or any sale consideration was ever received and no receipt was executed which is a forged and fake document. It transpired from the judgment of learned appellate Court that much weight has been attached with the handwriting expert report and it prevailed upon the learned appellate Court that receipt (Ex.P-1) was signed by Dr. Sultana Ibrahim which culminated into the conclusion that receipt (Ex.P-1) was executed and besides that oral agreement of sale was also proved.
Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC on behalf of appellant has also referred the handwriting expert report time and again. It was, however, pointedly asked to Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC that how a receipt can be equated to that of sale agreement but no satisfactory answer could be given except referring cases of Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189) and Khair-ul-Nisa v. Muhammad Ishaque (PLD 1972 SC 25) (supra) which being distinguishable hardly render any assistance to the case of appellant. We have no hesitation in our mind while holding that "receipt" and "sale agreement" are two distinct documents having their own peculiar characteristics, significance, import and by no stretch of imagination It can be held that both are synonymous or interchangeable.
7. We have also dilated upon the import and significance of the handwriting expert report by whom it was opined that the "receipt" was signed by Dr. Sultana Ibrahim. It is well settled by Law 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 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 Advocate Supreme Court 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 Jae 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 prejudice 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 uhconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interest. 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 0. 298; Deputy Commissioner, Lucknow v. Chandra Kishore Tewari 1947 0. 180; Mushtaq Ahmad Gurmani v. Z.ASulehri PLD 1958 Lah. 747; Sadiqa Begum v. Ata Ullah 1933 L.885; Lt.-Col. Muhammad Yousuf v. Ali Nawaz Gardezi PLD 1963 Lah. 141 and 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." (Saadat Sultan v. Muhammad Zahur Khan 2006 SCMR,193). The question regarding the evidentiary value of expert opinion was also examined in case Hari Singh v. Sardarni Lachhmi Devi (AIR 1921 Lahore 126) and it was held as follows:-- "The evidence of a medical man, or other skilled witness, however eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, however confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible.
Human knowledge is limited and imperfect. (11 W.R. Cr. 25, Foll.) It must be borne in mind that an expert witness, however impartial he may wish to be, is likely to b.e 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 that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests."
8. The said proposition was also examined in case Shabbir Hussain v. The State (1968 SCMR 1126) and it was observed that "the evidence of the hand-writing expert is neither the only nor the best method of proving the hand-writing or signature of a person. It is at best only opinion evidence.
Where other direct evidence of the nature adduced in the case is available there can be no question of any illegality being committed by the acceptance of such direct evidence."
9. In the light of criterion as mentioned herein above and the judicial consensus on the point we are of the view that the receipt (Ex.P1) cannot be taken into consideration as its contents could not be proved and substantiated by leading any other cogent and concrete evidence. For the sake of argument if it is admitted that the receipt (Ex.P-1) was signed by Dr. Sultana Ibrahim how it can be proved that the amount of Rs, 21,000/- was received in lieu of the portion of the plot in question, hence no reliance can be placed on the receipt (Ex.P-1). Besides that the agreement to sale could not be substantiated by any cogent, oral or documentary evidence.
The upshot of the above discussion is that the appellant has miserably failed to substantiate his claim by leading any convincing or forthright evidence. The appeal being merit less is dismissed.