1. This appeal has been directed against the decision of learned Judge Family Court Samahni dated 8.12.2007, whereby an application for summoning fingers expert was dismissed.
2. The facts precisely stated are that the appellant, herein, filed a suit against the respondents alongwith other defendants for restitution of conjugal right; contending therein that Respondent No, 1 was married to him on 16.8.2006 in lieu of dower Rs,500/- and it was agreed upon that `Rukhsati' will be made after Eid-ul-Fitr but Respondents Nos, 2 & 3 in connivance with other defendants of the suit, married Respondent No,1 with Respondent No, 3 on 16.10.2006 without consent of Respondent No,
1. The appellant prayed that Respondent No, 1 be ordered to populate with him and perform her marital obligations.
3. The respondents and other defendants refuted the allegations leveled in the plaint and averred that Respondent No, 1 is wedded wife of Respondent No, 3, who is living with him happily, whereas the instant suit is vague and fake which has been instituted to defame Respondent No, 1.
4. A counter suit for jactitation of marriage was also filed by Respondent No, 1 on 27.2.2007, wherein it was prayed that the appellant may be forbidden forever to name Respondent No,1 as his wife. The appellant repeated the same story in his written statement, which is mentioned in his plaint.
5. The learned Judge family Court consolidated both the suits, framed eight issues on 6.6.2007 and ordered the appellant to produce his evidence. The appellant produced one witness and filed an application for summoning the fingers . expert on 19.12.2007. After inviting objections and hearing arguments, the learned Judge Family Court dismissed the aforesaid application on the ground that the statement of Respondent No, 1 is yet to be recorded, who can depose the true story in her statement, vide order dated 8.12.2007. Hence, this appeal.
6. Assailing the impugned order, Muhammad Fareed Awan, Advocate, the learned Counsel for the appellant, submitted that the evidence of finger expert is necessary and important for disposal of the case because both the 'Nikahnamas are disputed, but the Court below committed an illegality while dismissing the petition filed for summoning the fingers expert.
7. On the contrary, Raja Khalid Mahmood, the learned Counsel for the respondents, argued that it has been alleged by the appellant that Respondent No, 1 was married to Respondent No, 3 without her consent but when the statement of Respondent No,1 will be recorded before the trial Court, she will depose the true story; therefore, the application for summoning the finger expert is premature which was rightly dismissed by the Court below. The learned Counsel pointed out that the impugned order is not a decision rather an interim order; therefore, instant appeal does not lie against such type of orders.
8. In the light of arguments addressed at Bar, I have perused the record with care. Section 7 of The AJ&K Family Courts Act, 1993 (Hereinafter to be referred as the Act) provides procedure for institution of suit and according to Section 7(2), it is necessary for plaintiff to annex a schedule giving numbers of witnesses intended to be produced in support of the plaint, their names and addresses along-with brief summary of the fact to which they would depose but in the instant case the appellant has neither incorporated the list of witnesses nor brief summary of the facts. In this manner, the mandatory provisions of law have not been complied with; therefore, the appellant is not entitled to seek indulgence of the Court to summon finger expert, even otherwise the statement of Respondent No, 1 is yet to be recorded, wherein she will be able to depose whether she was married to Respondent No, 3 with her freewill or she was earlier married to the appellant.
9. There is another aspect of the case which creates more difficulty for the appellant i,e, the impugned order is an interim order and not a decision, which could be covered by Section 14 of the Act because a party aggrieved by a decision or a decree passed by a Family Court only, can file an appeal before this Court otherwise interlocutory matters which do not finally dispose off the cases are not appealable before this Court; therefore, the instant appeal is not competent before this Court. Similar question also came under consideration before the Supreme Court of AJK in a case titled Mst. Shahnaz Bibi & 2 others v. Munawar Din (2005 SCR 409), wherein the Apex Court opined that an appeal cannot be preferred against an order refusing the application for summoning fingers expert. In the case under report, the Family Court rejected the C application for examination of fingers expert which was allowed by this Court in the appeal but the Supreme court set-aside the order of this Court holding that the order refusing an application for examination of fingers expert is not appealable being an interim order because under Section 14 of the AJK Family Court Act, 1993 only a decision or a decree is appealable before this Court.
10. Pursuant to the above discussion the appeal before this Court is not competent which is hereby dismissed with costs.