' MUHAMMAD AZAM KHAN, C J.---The captioned appeal with leave of the Court arises out of the judgment of the High Court dated 21st November, 2009, whereby second appeal filed by the appellant, herein, has been dismissed.
2. The appellant filed a declaratory suit in the Court of Sub-Judge, Mirpur, in respect of land measuring 22 kanals 1 marla out of total land measuring 32 kanals 2 marlas, bearing survey Nos.
2483, 2353, 2495/1, 2495/3, 2343, 2347, 2495/5, 2495/6, 2495/7, Khewat Nos.159/156, Khatas Nos.581/467, 582/468, 583/470, 584/469 and 485/471, situate in village Kharak, Tehsil Mirpur, to the effect that it is in the ownership and possession of the plaintiff. The defendants have no concern whatsoever with the land. He also challenged the entry of defendant as owner in the revenue record. He alleged that he was out of the country. In his absence one Gul Bahar, who is real btother of defendant No,
1. And a petition writer in the District Courts, Mirpur, with the connivance of the staff of Revenue Department got entry of his brother in the revenue record. He further alleged that the sale-deed dated 30th December, 1969 allegedly executed by him in favour of defendant No, 1 is fake, fictitious and inoperative on his rights as it was not executed by him. In the written statement, the defendant refuted the claim of the plaintiff and alleged that from the date of execution of sale- deed dated 30th December, 1969, he is in possession of the land as an owner. He further alleged that the suit without prayer for possession is not maintainable. After necessary proceedings, the trial Court decreed the suit on 12th March, 1999. The defendant filed an appeal in the Court of "District Judge, Mirpur. The District Judge accepted the appeal vide judgment and decree dated 31st July, 2000 and dismissed the suit. The appellant, herein, filed an appeal in the Azad Jammu and Kashmir High Court. A learned single Judge in the High Court accepted the appeal on 15th March, 2001 and remanded the case to the District Judge with the direction to provide an opportunity to the plaintiff for proving that the thumb impression on the sale-deed is not impressed by him rather it is fake. The order of the High Court is reproduced as under: "In the light of above discussion while allowing this appeal, the judgment and decree under challenge is set aside and the case is remanded to the learned District Judge, Mirpur, with the direction to allow the plaintiff/appellant a chance to prove that the thumb impressions available on the sale- deed are of somebody else and the registration of the sale-deed is the result of impersonation."
' The plaintiff, appellant herein, made no effort in this respect. However, defendant-respondent moved an application in the Court of District Judge that attested thumb impressions of the plaintiff along with original sale-deed may be sent to the Finger Print Expert for proving the fact that the thumb impression on the sale- deed is of the plaintiff or not but later on this application was withdrawn. The District Judge accepted the appeal vide judgment and decree dated 11th November, 2003 and set aside the judgment and decree of the trial Court. The appellant filed an appeal in the High Court. A learned single Judge in the High Court dismissed the appeal vide impugned judgment and decree on 21st November, 2009.
3. Arguments were heard on 27th May, 2011. Mr. Khalid Rasheed Chaudhry, counsel for the appellant, argued that the plaintiff-appellant, herein, alleged that the sale-deed allegedly executed by him was a fake and fictitious. The burden of proving a document is always on a person who wants the Court to believe that the document is genuine one. The defendant-respondent failed to prove this fact, therefore, the judgments of the lower Courts are not maintainable. He referred to the cases titled.
' Muhammad Sarwar and another v. Fazal Rehman 1982 CLC 1286 and Muhammad Zaman Khan v.
Sher Afzal Khan PLD 1984 SC(AJ&K) 138.
4. While controverting the arguments, Ch. Muhammad Mehfooz, counsel for the respondent, argued that the burden of proving the fact that the sale-deed was not executed by the plaintiff was on the plaintiff and failed to discharge the burden of proof. The learned District Judge as well as the High Court correctly observed that the plaintiff-appellant failed to prove that the sale-deed was not executed by him. He argued that the plaintiff-appellant had been provided opportunity by the High Court to prove that the thumb impression affixed on the sale-deed is not affixed by him. In spite of providing opportunity by the High Court he failed to apply to the Court for sending the sale- deed along with his original thumb impressions to the Finger Print Expert. There is no illegality in the judgments and decrees passed by both the Courts below. He further argued that the burden of proof can be shifted on the other party if a party proves the fact by cogent and reliable evidence.
Since the plaintiff failed to produce any evidence, there is no question of shifting of burden of proof.
He referred to the cases reported as Muhammad Mehrban v. Mst. Rizwana Bibi [2006 SCR 243] and Khan Muhammad Badar v. Mst. Roshni [2008 SCR 46].
5. While recording the judgment we perused the record and found that initially original sale-deed was not produced by the defendant on the ground that the same has been misplaced but later on during the hearing of appeal before the District Judge, on 10th February, 2000, he filed an application stating therein that original sale-deed has become available and requested for placing the same on the record. The District Judge, after seeking objections allowed the defendant to bring on the record the original sale-deed vide order dated 1st April, 2000 with the condition that the admissibility of the same shall be determined at the time of final disposal of the appeal. From the perusal of record, the plaint, sale-deed and the written statement, we have reached to the conclusion that bone of contention between the parties is the sale-deed. Whether it was executed A by the plaintiff-appellant, herein, or not. So the following order was passed on 2nd June, 2011: "6. In view of the above stated special and peculiar facts of this case, we are of the opinion that not only there are lapses on the part of the parties but the learned District Judge has also not properly dealt the issue in accordance with the principle of law and justice. Thus in our view, for doing complete justice and resolution of the controversy, the comparison of the thumb impression/finger prints on the original sale-deed is necessary. Therefore, before final disposal of this appeal, for avoiding unnecessary procrastination and multiplicity of the. Litigation we direct the appellant to deposit Rs,4,000/- as costs and the Additional Registrar shall send the original sale-deed and sample of the finger prints of the appellant obtained by the District Judge available in the file of the District Judge to the finger print expert for comparison and report. After obtaining the report from the finger print expert file shall be placed before the Court for further proceedings."
6. In compliance of Court order dated 2nd June, 2011, the original sale-deed and the finger prints of the plaintiff-appellant were sent to the Finger Print Expert by the Additional Registrar of the Court Branch Registry Mirpur. The report of Finger Print Expert has been received in the Court. After receiving the report, notices for fresh arguments were issued to the counsel for the parties. The counsel for the parties stated that the appeal be decided on the basis of opinion of the Finger Print Expert.
7. Under Article 59 of the Qanun-e-Shahadat Order, 1984 the opinions of experts are relevant and can be read in evidence. It will be useful to reproduce Article 59 which is as under:- "Article 59: Opinions of experts:--- ' When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions, upon that point, of persons specially skilled , in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such persons are called 'experts'.
' Illustrations: (i).............................................
(ii)............................................
(iii)' The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
' The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant."
A perusal of Article leaves no doubt that when the Court has to form an opinion upon the identity of finger print impression, the opinions of the persons "experts in such fields" are relevant. The expert witness is one who has devoted time and study to a special branch of learning and thus is specially skilled on the points on which he is asked to state his opinion. His evidence on such points is admissible to enable the Court to come to a satisfactory conclusion. The opinion of an expert cannot be relied upon without recording his statement so that the party against whom the expert has formed opinion may cross-examine him, but in a case where a party admits the expert's opinion and does not insist for calling the expert as a witness in the Court, then the opinion of the expert is relevant. In a case titled Dil Mohammad and another v. Sain Das and others [AIR 1927 Lahore 396], -it was observed as under:--- ' From the record, however, it appears that the document was sent to Philour at the instance of the defendant Dil Mohammad himself and that the report was received on the 14th July 1926. The case was put up for hearing on five occasions after this date, but no request was made by the defendant Dil Mohammad to summon the expert. Under these circumstances it must be held that the defendant accepted the certificate without formal proof and he cannot now be allowed to argue that this evidence should be excluded for want of proof.
' In another case titled Langer and others v. Ch. Muhammad Shafi 1994 M LD 2169 it was observed in para 7 as under:-- ' The rule deducible from the judgment is that where a party to the suit invites the opinion of the Handwriting/Finger Prints Expert and the report is placed on the record without examining the expert as a witness, the party inviting the opinion of the expert will be deemed to have accepted it and could not be permitted to object to its admissibility."
As the counsel for the parties have themselves stated that appeal be decided in the light of the expert's opinion, therefore, the same is decided accordingly.
8. We have considered the argument's of the learned counsel for the parties and perused the record. After perusal of the report of the Finger Print Expert, we have come to the conclusion that without discussing any other evidence, the appeal can be decided on the report of Finger Printer Expert which is reproduced as under:-- ' I have compared the finger impressions on the documents mentioned below received from the Additional Registrar, Supreme Court, Mirpur, A.K. Vide letter No,1870/SC/11, dated 9-8-2011.
DETAIL OF DOCUMENTS
1. Sale deed document No, 37 dated 30-12-69 (2 sheets) bearing impressions marked as Ql, Q2 and Q3.
2 A Sample paper (4-sheets) bearing ten digit impressions of Sohbat Ali duly attested by the Court.
' OPINION. The impressions marked as Q1, Q2 and Q3 on the Sale deed document No, 37 dated 30- 12-69 are identical with the right thumb impression (S/R) of Sohbat Ali on his sample paper. Nine characteristic points of identity have been charted and illustrated in detail by means of descriptive symbols in the enclosed set of photographic enlargements marked as Q2/2...S/ R/R."
The Finger Print Expert has in unequivocal terms opined that the impressions on the sale-deed document dated 30th December, 1969 are identical with the right thumb impression of Sohbat Ali on the sample paper.
9 . From the perusal of the report of Finger Print Expert it has become crystal clear that the thumb impressions affixed on the sale-deed are of Sohbat Ali, plaintiff-appellant. The sale-deed dated 30th December, 1969 was executed by the plaintiff-appellant, Sohbat Ali.
' The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.