MUHAMMAD AMEER BHATTI, J. --- This revision petition is directed against the order dated 23.04.2009 passed by the learned Trial Court whereby the application under Article 59 of Qanoon- e-Shandat Order, 1984 for conducting DNA test of the defendant/petitioner for determining the question of paternity was allowed.
2. The brief facts of the case are that the respondent filed a suit for declaration to the effect that he is owner of the properties No. 1 Building Hospital on Plot No. 27 e, Liberty Market Gulberg, Lahore, Plot No. 34-B-I, measuring 02-Kanals, 10-Marlas, Township, Lahore and Upper portion of 7-A.I Block, New Garden Town, Lahore with assertion that defendant (who claimed to be a son of petitioner but he was an adopted one) should not interfere in the physical possession of the respondent/defendant.
Further prayed, that he should be restrained from leasing out the property to any other person.
Learned counsel for the petitioner by filing the written statement controverted the facts of the case.
From the divergent pleadings of the parties issues were framed and before recording the evidence of the parties, the respondent filed an application under Article 59 of the Qanun-e-Shandat for obtaining the DNA test report of the petitioner. The learned Trial Court after obtaining the written reply from the petitioner accepted the application vide order dated 23.04.2009 without recording the evidence in affirmative in a hasty manner. Further contends on the one hand learned Trial Court held that the affirmative and confidence-inspiring oral as well as documentary evidence is required to prove the contents of the suit which could only be determined after recording the evidence of the parties and also held that the expert-opinion would not be binding upon the Court.
On the other hand, same has been allowed. For this reason, the order impugned is untenable in the eye of law.
3. On the other hand, learned counsel for the respondent contends that the DNA test is a latest medical technique for determining the fact of paternity, therefore, the Courts have to get the benefit from this facility instead of wasting time in recording the evidence of the parties. Reliance is placed by the learned counsel for the respondent Muhammad Arshad v. Sughran Bibi and 2 others (PLD 2008 Lahore 302), Shahbaz Masih v. The State (2005 YLR 3140), Alhamad Cotton v. Allah Ditta (1997 MLD 2584), Shahid Hamid and others v. The State (1997 MLD 2585), Guntaka Hussenaiah v.
Busetti Yerraiah (A.I.R. 1954 Andhra 39), Muahmmad Azhar v. The State (PLD 2005 Lahore 589), Nazim v. The State (2007 MLD 462), Sana Ullah v. The State (2006 YLR 99), Muhammad Aslam Khan and 2 others v. The State (2008 P.CrI.L.J. 1623), Abdullah Shah and others v. The State (2008 P.Cr.L.J.
1633), Muhammad Aslam and 2 others v. The State (2008 P.Cr.L.J. 1623) and Manzoor Ahmad and another v. Khan Muhammad and 35 others (2007 CLC 1028).
4. I am afraid if the contention of the learned counsel for the respondent is accepted, it will create lots of trouble not only for the Courts but also for the litigants because there is no proper and reliable facility for conducting of DNA test, therefore, at this initial stage it amounts to creation of new evidence not permissible under the law. The Hon'ble Supreme Court of Pakistan in a case titled as Aman Ullah v. The State (PLD 2009 S.C. 542) in para 5 held as under:- "5. But before we part with this order, we would like to add that it is for the first time that we have noticed a DNA test being called into service in such a case. We, therefore, feel compelled to place our warning on record that unless one was absolutely sure and confident of the capacity the competence and the veracity of the Laboratory and the integrity of the one conducting such a test, taking recourse to the same would be fraught with immense dangers and could in fact lead to disastrous consequences not only in criminal cases but even in cases, for example, of paternity and inheritance etc. In the present case, at least prima facie, we find. The laboratory report in question, a doubtful affair.. The I.G./Provincial Police Officer, Punjab, as also the Government of the Punjab, need to give a serious thought as to whether DNA tests should be encouraged and carried out in such-like situations. And the said officers shall also take steps to determine the competence and fitness of the said laboratory in the matter of carrying out such-like tests and submit their separate reports to the Registrar of this Court for the information of this Bench."
5. I have gone through judgments referred by the learned counsel for the respondent, which have no relevancy the facts and circumstances involved in this case.
6. It is observed that this expert opinion may have been called upon by the learned ,Trial Court after recording the evidence but the learned Trial Court before recording the evidence of the parties straightaway by accepting the application of the respondent/plaintiff, directed to hold the DNA test of the petitioner, hence, it is observed that this type of application should have been dismissed if it is moved at the initial stage of the case, until and unless the plaintiff does not prove his case by adducing the oral and documentary evidence, the expert opinion at the initial stage could not be afforded, therefore, it was premature for the learned Trial Court to accept the application of the respondent for conducting the DNA test. However, if the learned Trial Court at any stage of the proceedings, deems it appropriate after recording the evidence of the parties for seeking the expert opinion to further strengthen his observation may decide the matter according to the circumstances of the case. Hence, this petition is allowed. The order of the learned Trial Court dated 23.04.2009 is set aside with the result that the application of the respondent shall be deemed to be pending before the learned Trial Court, which shall decide the same after recording the evidence of the parties (if necessary).
7. With the above observation this petition stands accepted . Civil revision .