' ARSHAD MAHMOOD TABASSUM, J.---A criminal case vide F.I.R. No.449, dated 11-12-2013, offence under section 489-F, P.P.C., was registered against the petitioner at Police Station Wah Cantt.
During trial through an application dated 28-3-2014, the petitioner prayed for sending his admitted signatures and cheque in dispute to the Forensic Science Agency, Lahore for comparison of his signatures, on the ground that he had not issued the cheque in dispute rather the complainant had stolen his cheque book and had forged his signatures on the cheque in dispute. The said application did not find favour with the learned trial court, which was dismissed vide order dated 5-4-2014. The petitioner, then preferred a criminal revision petition to assail the said order, which also failed as the same was dismissed by the learned Additional Sessions Judge, Taxila, vide order dated 17-4-2014. It is in this background that the petitioner has preferred the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. It appears that what prevailed upon the learned trial court to dismiss the application of the petitioner was as under:- "It reveals that previously the same prayer was put forth by the accused before the learned Justice of Peace/Additional Sessions Judge Taxila through his petition under sections 22-A, 22- B, Cr.P.C. But the same was not granted. The accused has not challenged the said order before any forum. Anyhow, without being indulged into the technicalities, it is crystal clear that the prosecution evidence has already been recorded in toto and the defence taken by the accused has unambiguously come on record through the cross-examination conducted by him upon the prosecution witnesses. Moreover, Article 84 of Qanun-e-Shahadat Order, 1984 empowers the court to make comparison so even if the prayer of the accused is granted and an expert opinion is invited the same shall obviously be not binding upon the court. It means to say that there is no need to get the impugned signatures/handwriting compared as prayed for and it would just hinder the conclusion of trial."
There is no denial of the fact that the petitioner, on 16-12-2013, had submitted an application under sections 22-A/22-B, Cr.P.C. For direction to the police concerned to get verified the signatures of the petitioner on the said disputed cheque from Forensic Science Agency, Lahore and that the said application was dismissed by the learned Justice of Peace vide order dated 20-12-2013 with the following observation:-- "From the perusal of record, it reflects that the F.I.R. Has already been registered under section 489-F P.P.C. Since pertaining to occurrence, F.I.R. Had already been registered, therefore, no direction can be issued for verification of any signatures from FSL. However, Investigation Officer of the case is directed to investigate the case properly in accordance with law. This petition is disposed of. Copy of this order be sent to the S.H.O. Concerned for information and compliance."
' It appears that the challan in this case was forwarded to the court by the S.H.O. On 18-12-2013, thus, it was for the learned trial court to see as to whether the cheque in dispute was liable to be sent to the Forensic Science Agency, Lahore along with admitted signatures of the petitioner, hence, the learned Justice of Peace was not proper forum for making such an application. It also appears that the petitioner, when applied for grant of bail before this Court by filing Criminal Miscellaneous No.298/B of 2014, had also submitted C.M. No.173/M of 2014 with the following prayer:- "Therefore, it is earnestly prayed that it will be in all fairness and in the interest of justice that the I.O. May be directed to get the writing and signatures of petitioner on the cheque in question be verified from the handwriting expert for just decision of bail application."
' Yet another C.M. Bearing No.220/M of 2014 was also filed, which was disposed of by this Court on 25-3-2014 with the following observation:-- "The scope of a petition moved under the provisions of section 497, Cr.P.C. Is either to grant the bail to the petitioner or refuse it and in the petition, moved, as such, no interim relief over and above to the main and ultimate relief is legally possible. The request prayed for in Criminal Miscellaneous No.173/M of 2014 is nothing but would amount either to interference in the investigation of a criminal case or to pre-empt the jurisdiction of the learned trial court. Since the trial is underway, therefore, the petitioner would be at liberty to move the trial court for having such relief as prayed for here, if permissible under the law. The relief, which could not have been granted finally in proceeding, cannot be asked for by means of some miscellaneous and interim proceedings."
' It is also borne out from the record that learned counsel for the petitioner had suggested the complainant, while he was under cross-examination, being P.W.1, during trial of the case, as under:- "It is incorrect to suggest that the entry as well as signatures upon the impugned cheque Ex.P.C.
Is fake and fabricated. Have got no objection if the entries or signatures of Ex.P.C. Are got examined from the FORENSIC Lab."
' Similarly, the Investigation Officer of the case, namely Majeed Ahmad S.I., while appearing as P.W.3 stated during cross-examination as under:-- "I recorded the statement of the accused on 12-12-2013. It is correct that in his statement recorded by me, it has been claimed by the accused that he did never issue any cheque to the complainant nor stood surety for any of his obligation. It is correct that he did also take the version that the F.I.R. Was lodged on the basis of fabrication."
3. The above circumstances clearly suggest that the petitioner from the day one, has been agitating that the cheque in dispute was not issued by him and that the same was a forged document. In this view of the matter, it was incumbent upon the Investigation Officer to have secured the admitted signatures of the petitioner and then to send the cheque in dispute along with admitted signatures to the Forensic Science Agency, Lahore for comparison of the signatures in order to arrive at truth, but for the reasons best known to him, needful was not done. The petitioner was also unsuccessful before the learned Justice of Peace in this regard obviously for the reason that the matter, at that time, was before the learned trial court. This Court has also observed in its order dated 25-3-2014, passed in C.M. No.220/M of 2014 that the petitioner was at liberty to move the learned trial court for having such relief in the said application, if permissible under the law, but the learned trial court dismissed his application. It appears that what found favour with the learned trial court to dismiss the said application was dismissal of earlier application of the petitioner by the learned Justice of Peace, which had no significance, as it was the job of the learned trial court to send the document for comparison by the Finger Print Expert.
Similarly, conclusion of prosecution evidence was also no ground to refuse sending the cheque in dispute to the Finger Print Expert for comparison of signatures.
4. Another reason, which prevailed upon the learned trial court to dismiss the application of the petitioner was that the prosecution evidence had already been recorded in toto. To my mind, this was also not a valid ground to refuse to send the disputed cheque for comparison to the Finger Print Expert, because F.I.R. In this case, was registered on 11-12-2013, and the application was moved on 28-3-2014, as such it could not be said that the trial was lingering on for a long time.
5. As regards the power of the learned trial court to itself compare the cheque in dispute with the admitted signatures of the complainant, as envisaged under Article 84 of Qanun-e-Shahadat Order, 1984, to my mind the said provision also does not debar the learned trial court from sending the cheque in dispute for comparison to the Finger Print Expert. A The expert evidence is admissible in evidence under Article 59 of Qanun-e-Shahadat Order, 1984, and if such an evidence is not available, only then, the leaned trial court may itself compare the cheque with the admitted signatures of the petitioner. It has been observed in the case titled "Sohbat Ali v. Muhammad Alam"
(PLD 2012 SC (AJ&K) 1), that the court in order to form an opinion may seek assistance from an expert's opinion, the relevant portion whereof reads as under:-- "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 is admissible to enable the court to come to a satisfactory conclusion."
' In another case titled "Muhammad Kabeer ud Din v. Muhammad Munir ud Din" (1993 CLC 747). It has been observed as under:- "11. One of the scientific modes of proving a disputed signature is to refer it to a handwriting expert with admitted signature for his opinion. It was open to the appellant to apply for examination of disputed and admitted signatures to handwriting expert. This step has not been taken by him although from 1972 when the appellant filed Suit No.1006/72 Muniruddin had denied the execution of the agreement.
12. No doubt the Court is competent to compare the disputed and admitted signatures to ascertain the genuineness of the disputed signature but such procedure is risky and has to be adopted with caution and sparingly. In the present case the volume of evidence is against the appellant's contention. The mode provided under law for proving disputed signatures has not fully been adopted by the appellant, therefore, in these circumstances, it will not be a safe course for the Court to compare the signatures and give a finding on it."
' Thus, in the above circumstances, when the expert's evidence can be procured with regard to the signatures on the cheque in dispute, there appears no reason why should the court take it on its own shoulder to, make an observation regarding comparison of the disputed signatures with the disputed signatures of the petitioner. Needless to mention that ultimate decision has to be given by the learned trial court keeping in view the pro and contra evidence of-the parties.
6. It is also worth-mentioning here that an accused is entitled to fair trial more particularly in view of the newly inserted Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. The denial on the part of the learned trial court to send the cheque in dispute to the Finger Print Expert, to my mind, is violative of the provisions of the said Article.
7. In the light of above discussion, I have arrived at an irresistible conclusion that the learned trial court as also learned first appellate court have failed to exercise their jurisdiction, vested in them under the law and they have illegally dismissed the application, submitted by the petitioner. The instant petition is, therefore, allowed and the impugned orders are hereby set aside. The application dated 28-3-2014, submitted by the petitioner, is, therefore, allowed and the learned trial court is directed to secure the admitted signatures of the petitioner and then forward the said signatures along with cheque in dispute to the Forensic Science Agency, Lahore for comparison of the signatures and then to proceed with the matter strictly in accordance with law.