SHAHID BILAL HASSAN-J : The present petitioner instituted a suit for declaration with permanent injunction against the respondents alleging therein that the suit land belonged to her father Jabar Din and further to her mother . Besides Fatima Bibi, real mother of the petitioner , Jabar Din had contracted Nikkah with two other ladies, who were Siddiqan Bibi (divorcee) & Zubaidan Bibi. Out of the wedlock of Jabar Din and Siddiqan Bibi one Shabbiran Bibi was born and present petitioner was born out of the wedlock of Fatima Bibi and Jabar Din while out of wedlock of Zubaidan and Jabar Din Riyasat Ali, who is impleaded as respondent/defendant No.1 and Nusrat Bibi were born but the present petitioner was deprived of her share from the inheritance. The respondents entered appearance and filed their written statement. Issues were framed and after recor ding evidence, the learned Trial Court vide judgment & decree dated 19.12.2012 decreed the suit in favour of the present petitioner . The respondents preferred an appeal before the learned Appellate Court and during pendency of the appeal Riyasat Ali, respondent No.1 filed an application for DNA test of the preset petitioner alongwith three others except Riyasat Ali.
The application was contested by the present petitioner but the same was accepted vide impugned order dated 22.06.2013. Hence, this civil revision.
2. Learned counsel for the petitioner has argued that the impugned order is illegal, perverse and erroneous.
Submits that a full-fledged trial was conducted before the learned Trial Court but during said period no such application was ever moved by the respondents. Even otherwise, DNA test is third person opinion, which cannot undo direct evidence of the parties. Adds that nobody can be given premium to have relief indirectly which he failed to obtain directly , moreover , DNA test has no importance in such affairs as the Hon'ble Supreme Court of Pakistan has already given verdict in this regard in AMAN ULLAH Vs. THE STATE PLD 2009 Supreme Court 542. The learned Appellate Court has acted against the mandate of law, domain, jurisdiction and has gone beyond vested jurisdiction, which resulted in miscarriage of justice. States that oral as well as documentary evidence is on record, the expert opinion is third person opinion and cannot be used to undo the legal and lawful findings recorded by the learned Trial Court. Therefore, by allowing the civil revision in hand, impugned order may be set aside, consequent, whereof, the application for DNA test may be dismissed. Relies on Qazi ABDUL ALI and others Vs. Khawa ja AFTAB AHMAD 2015 SCMR 284, AZEEM KHAN and another Vs. MUJAHID KHAN and others 2016 SCMR 274 & Malik SHAHID MEHMOOD Vs. Malik AFZAL MEHMOOD and others 2011 SCMR 551 .
3. Contrarily, learned counsel for the respondents No.1 & 2 by favouring the impugned order has prayed for dismissal of the civil revision in hand. Relies on AMAN ULLAH Vs. THE STATE PLD 2009 Supreme Court 542,MUHAMMAD AZHAR Vs. THE STATE PLD 2005 Lahore 589, Mst. SHAMSHAD BIBI Vs. BUSHRA BIBI and 3 others PLD 2009 Islamabad 11, MUHAMMAD SHAHID SAHIL Vs. THE STATE and another PLD 2010 Federal Shariat Court 215, KHIZAR HAYAT Vs. ADDITIONAL DISTRICT JUDGE, KABIRWALA and 2 others PLD 2010 Lahore 422, NASEER AHMED Vs. Mst. AZRAH and another PLD 2010 Karachi 61 & SALMAN AKRAM RAJA and another Vs. GOVERNMENT OF PUNJAB through Chief Secretary and others 2013 SCMR 203.
4. Heard.
5. It is a settled principle of law that parties have to prove their cases at their own and by using tool of Court they cannot be assisted or helped to create any evidence in their support. Moreover , when one fails to prove his stance directly , one cannot be allowed to do the same indirectly as has been held in reported judgment Malik SHAHID MEHMOOD Vs. Malik AFZAL MEHMOOD and others 2011 SCMR 551 by the Hon'ble Apex Court of country .
Coming to the present case, it is obser ved that at trial stage both the parties were given ample opportunities including right to cross examine the witnesses of rival parties, to lead evidence in support of their respective stances, but during that exercise none of the respondents bothered to make any exertion by way of moving application for DNA test to bring on record any evidence and when the learned trial Court after thwarting and evaluating evidence brought on record by the parties recorded its findings, all of a sudden, that too, not at the time of filing of appeal, but during pendency of appeal, the respondent No.1 moved an application for DNA test of the petitioner alongwith three others but he kept himself away from that process, which speaks volume against him as he is also from the blood of Jabar Din. Moreover , while passing the impugned order no consent from the petitioner and respondents except the respondent No.1, with regard to sending them to the Laboratory for DNA test, was obtained by the learned appellate Court, which was necessary to be taken before passing the impugned order , therefore, irregularity has been committed by the learned Appellate Court while passing the impugned order . In addition to the above, when the direct evidence to prove a fact was available in the shape of oral as well as documentary evidence then there was no need to seek expert opinion, which otherwise was a third person opinion and cannot undo the direct evidence of the parties; reliance is placed on Qazi Abdul Ali and others v. Khawaja Aftab Ahmad 2015 SCMR 284 and Mst. Shamim Akhtar vs. Additional District Judge, Gujranwala PLD 2015 Lahore 500 .
7. It is now a days a tendency that in order to deprive a legal heir from the legacy of deceased propositus, his/her legitimacy is called into question and he/she is dumped to get himself/herself cleaned from that stigma, that too, through unskilled experts as any mistake or malpractice committed in the course of DNA Test tantamount to stigmatize the child from the rest of his/her life, therefore, such practice cannot be allowed to be carried on, especially when the parties enjoy the liberty of producing direct evidence, oral as well as documentary, which has been done in the present case. Reliance is placed on Khizar Hayat v. Additional District Judge, Kabirwala and 2 others PLD 2010 Lahore 422. Even in Aman Ullah v. The State PLD 2009 Supreme Court 542, it was invariably held that: '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 inheritan ce etc.'
8. Pursuant to the above, when the direct evidence is available on record, there is no need to seek expert opinion, which otherwise cannot undo the direct evidence being an opinion of a third person, not related to the parties because law does not give a free licence to individuals and particularly unscrupulous fathers, to make unlawful assertions and thus to cause harm to children as well as their mothers, as has been held by the Hon'ble Supreme Court of Pakistan in reported case Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 Supreme Court 327 .
9. The crux of the above discussion is that the learned Appellate Court while passing the impugned order has wrongly construed law on the subject and has reached to a wrong conclusion. Resultantly , the instant civil revision is allowed, impugned order is set aside, consequent whereof the application for DNA Test of the petitioner and three others, filed by the respondent No.1, stands dismissed. No order as to the costs.