'CH. MUHAMMAD MASOOD JAHANGIR, J.--- The facts necessitated for the disposal of the instant writ petition are that Hafiz Mohammad Idrees and Mst. Aasia Bibi respondents Nos.3 and 4/plaintiffs filed a suit for declaration against the petitioner and respondent No,5 before the learned trial court alleging that Abdul Latif petitioner was not son of Noor Din, rather he was actually son of Khair Din, brother of said Noor Din; that the petitioner/defendant No,1 is not entitled to inherit property of said Noor Din and in this respect inheritance mutation No, 1790 dated 07.06.1997 of said deceased while declaring to be forged, fabricated and misrepresentation, was liable to be cancelled. The petitioner/defendant No,1 contested the said suit by filing a written statement.
2. The respondent No,5 also filed a declaratory suit of identical nature which was also contested by the present petitioner. The suit filed by respondent No,5 was consolidated with the suit filed by respondents Nos.3 and 4/plaintiffs by the learned trial court. While contesting the suit filed by the plaintiffs/respondents Nos.3 and 4 the petitioner categorically asserted that he was in fact son of Noor Din and the disputed mutation of inheritance was sanctioned by revenue hierarchy in accordance with law and facts. During the course of proceedings of the said ,suit, the plaintiffs/respondents Nos.3 and 4 filed an application before the learned trial court for conducting of Deoxyribonucleic Acid (DNA) Test, who dismissed the same vide order dated 07.12.2010. Feeling dissatisfied, the plaintiffs/respondents Nos.3 and 4 filed a revision petition before the learned lower appellate court, who has allowed the same vide order dated 10.05.2011. Hence this writ petition.
3. Learned counsel for the petitioner has argued that the petitioner was born out of the wedlock of Noor Din and Zeenat Bibi; that the record regarding the parentage of the petitioner since his birth till now reflects that he is son of Noor Din. He has drawn the attention of this court to the said record which consists of Birth Certificate, NIC, academic certifiCate, domicile, Nikah Nama and copy of Register Haqdaran Zameen. He further argued that Noor Din was his real father and the said record affirms the said fact, therefore, conducting of Deoxyribonucleic Acid (DNA) Test is not warranted; that skill and equipments in the hospitals and laboratories of our country are not of standard mark and the said test cannot be treated conclusive proof to determine the paternity of any person and that learned lower revisional court wrongly exercised the jurisdiction not vested to it by allowing the revision petition filed by the petitioner. Reliance has been placed upon the cases reported as "Aman Ullah v. The State" (PLD 2009 Supreme Court 542) and "Khizar Hayat v. Additional District Judge, Kabirwala and 2 others" (PLD 2010 Lahore 422). He lastly prayed for the .Acceptance of the instant writ petition, setting aside of the impugned judgment passed by the learned lower revisional court and that the order passed by the learned trial court be restored.
4. Conversely, the learned counsel for the respondents has supported the impugned judgment while arguing that if the petitioner actually is son of Noor Din deceased then he has to undergo DNA test, the authenticity whereof is highly recognized all over the world and it is the best and possible mode to ascertain relationship of petitioner/ defendant No,1 along with plaintiffs/respondents Nos.2 and 3 which will diminish the ambiguity once for all. He lastly prayed for the dismissal of the instant writ petition.
5. Arguments heard. Record perused.
6. Adoption is a gift of heart. A child adopted by others is involved in the feelings of love of adoptive family. In the present case it is alleged by plaintiffs/respondents Nos.2 and 3 that petitioner/defendant No,1 had been adopted by their parents when they. Were issueless and under the control/command of love and affection, the sir name of their father Noor Din was attributed to petitioner/defendant No,1 and that is why, the record as mentioned supra bears the name of Noor Din as his father's name, whereas, actually petitioner/defendant No,1 is the son of Khair Din, the brother of Noor Din, from whom, he was adopted.
7. The only pivotal question in this case is That whether the petitioner/defendant No,1 is the son of Noor Din or his brother Khair Din. Now, we are passing through modern era of life. The medical science has developed a lot in the recent span of life while the Forensic Lab has attained the level of perfection and the skill of expert cannot be denied. A person can tell a lie, but the medical science and its findings based upon skilled tests through most modern devices definity will be an aiding factor for the court to resolve the controversy. Matching of relationship of one person to the other person through DNA test with the aid of most modern devices, to my mind, is the safest way to depict the true picture of relationship. Throughout the world, these tests have attained a symbol of standard and correctness. It will be highly unsafe to suggest that in Europe and other modern countries, the report of such type of tests is fully followed, but in our society, due to lack of knowledge or unfairness, the result of such type of test is not being given preference. If such an approach is to be kept under consideration, then other test arising out of medical science would also become valueless. We have to trust upon our skill and we have to wait for the result of such a test which is yet to be gathered. Before the said report comes into existence, one cannot say that such report may be unsafe due to lack of skill or defective devices.
8. In the near past, the institutions and departments have grown up and it became possible due to the revolution, which happened in the Judicial System. At present, the judiciary is at its strongest pedestal when each and every organ of the State is answerable to it regarding its deeds and work/progress. If a matter is referred to the Lab for comparison or a test then it cannot be assumed with certainity that any foul play can be applied by any such conductor and if it is found to be done, then the Courts can put such a person to task under the law. We have to rely upon the skill and high level performance of our own departments. A large number of like nature cases are pending before the Courts of law regarding the adopted child, where the inheritance transactions of adoptive parents are under question which may take years to years for its final adjudication. The most modern scientific test (DNA) will definitely be helpful in such like cases too.
9. The case law cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the instant case as in Amanullah's case (supra) it was a bail matter and the allegation of committing sexual intercourse with a young virgin girl was found to be prima facie supported by the medical evidence and the police having been found in league with the accused, he was declared innocent and it was held that in presence of ocular evidence, the report of the Expert cannot be preferred, which is only of corroborative nature. Similarly, Khizar Hayat's case (supra) has been passed in a family matter where the child was admittedly born during the subsistence of the marriage of the spouses and the mother admitted the paternity of the said minor child, but the father had challenged the legitimacy of the child and to save the latter to be stigmatized in the latter life the DNA Test was refused. Here the position is different and it is not a case of legitimacy of the petitioner, but it is claimed that he was born out of the wedlock of some other known spouses and he was adopted son of the parents of respondents Nos.3 and 4, who at that time were issueless. Here the objects are known and in case of any ambiguity or doubt in the veracity of the report, the parties will be at liberty to file objections and the same will be resolved keeping in view the direct evidence likely to be produced by the parties.
10. The learned lower revisional court has eminently dealt with the matter and rightly referred the petitioner to go through the said matching test. As respondent No,5 Mst. Zaineb Bibi has been pointed out to be dead at present, therefore, it will be appropriate that the petitioner and 'respondents Nos.3 and 4 whom he himself adthitted to be his real brother and sister will be referred to Forensic Lab to go through the DNA test. The conducting of said test is not likely to prejudice the case of petitioner/defendant No .1 and the learned revisional court has exercised the legal authority after taking into consideration due care. So the learned trial court is directed to refer the petitioner as well as respondents Nos.3 and 4 (Mst. Aasia Bibi and Hafiz Mohammad Idrees son of Noor Din) to some known Lab under the control of Government for the purpose of conducting DNA Test to ascertain their relationship as real brothers and sister out of common father and mother. The expenditures of the said test will be borne by respondents Nos.3 and 4.
11. The instant writ petition being devoid of any merits is hereby dismissed.