AQEEL AHMED ABBASI, J. Through instant High Court Appeal, the appellant has impugned an order dated 11.10.2021 passed by the learned Single Judge, in Suit No.902 of 1997 (along with Suit No.341 of 2003), whereby, C.M.A. No.4140 of 2007 filed by the appellant under section 151, C.P.C. seeking directions of the Court to get the DNA test of the respondent No.1, namely, Dr. Azhar Masood Ahmed Faruqui to ascertain his paternity, has been dismissed.
2. Learned counsel for the appellant has argued that subject application was filed in order to ascertain a substantial issue relating ,to the paternity of respondent No.1, who according to learned counsel for appellant, is not the real son of Late Ghulam Nabi Farooqui, who infact, had adopted the respondent No.1 i.e. Dr. Azhar Masood Ahmed Farooqui. According to the learned counsel for appellant, the determination of the paternity of respondent No. 1 will have a direct effect and bearing on both the suits, as referred to hereinabove, therefore, such application was filed, whereas,, the appellant produced sufficient material and documents before the learned Single Judge to dispute the parentage of the respondent No.1, therefore, in order to ascertain such fact, it was necessary to carry out his DNA test. According to learned counsel for the appellant, subject application was filed in Suit No.902/1997, which was filed by Mrs. Sardar Begum Farooqui, widow of late Ghulam Nabi Farooqui against the respondents for seeking declaration, permanent and mandatory injunction and cancellation of documents, seeking declaration to the effect that plaintiff is the lawful and rightful sole owner of immoveable property bearing Plot No.JM-3/545 (59/6) measuring 725 sq. yards situated at Naseem Colony of Naseem Cooperative Housing Society, Feroz Shah Mehta Road, Karachi, whereas, the declaration of oral gift dated 20.08.1987 registered at No.2682 of Book No.1 in favour of defendant, namely, Azhar Masood Farooqui, is forged and fabricated and obtained through misrepresentation and fraud, therefore, the same may be declared as void and of no legal effect. According to learned counsel for the appellants, since Mrs. Sardar Begum died after having filed the aforesaid suit, her legal heir, namely, Mrs. Khurshid Ahmed Farooqui was transposed as, plaintiff, who filed C.M.A. No.4140/2007, wherein, it has been prayed that defendant No.1, namely, Dr. Azhar Masood Ahmed Faqooqui, may be directed to have his DNA test done in order to determine his paternity, as according to learned counsel, the defendant No.1, Dr. Azhar Masood Ahmed Farooqui, is not the biological son of Late Ghulam Nabi Farooqui as he was an adopted child, therefore, has no right to own or inherit subject immoveable property as mentioned hereinabove. Per learned counsel, since there is specific allegation with regard to paternity of defendant No.1, Dr. Azhar Masood Ahmed Farooqui, therefore, in order to ascertain the right and claim of parties on the subject property claimed by defendant No.1 as inserted property, it is necessary to ascertain the parentage of defendant No.1, therefore, the learned Single Judge was not justified and dismissed C.M.A. No.4140/2007 filed by the appellant for such purpose. It has been prayed that impugned order may be set-aside and respondent No. 1 may be directed to get his DNA test.
3. Conversely, learned counsel for the respondent has vehemently opposed the contention of the learned counsel for the appellants on the ground that Suit No.902/1997 besides being misconceived in fact and law, was purportedly filed by Mrs. Sardar Begum Farooqui widow of Late Ghulam Nabi Farooqui only for the .purpose of seeking a declaration, permanent injunction, and cancellation of gift registered in favour of respondent No.1, whereas, no declaration with regard to parentage of respondent No.1 was sought. However, the present appellant, having no right whatsoever over subject property, attempted to raise a frivolous plea of parentage through above application. According to learned counsel, Mrs. Sardar Begum Farooqui, at the time of filing the above Suit, was a lady of advance age and infirm health, who could not even properly see, and has never appeared before the Court, whereas, after institution of subject Suit, she was expired, and thereafter, she is being represented through present appellant namely, Mrs. Khursheed Ahmed Farooqui, who has chosen to raise a frivolous plea of parentage by filing subject application i.e. C.M.A. No.4140/2007, after a lapse of more than 10 years, when the evidence of the parties in the Suit has already been recorded. It has been contended by the learned counsel that the listed application besides being misconceived, contains false and frivolous allegations having no material or basis to support such allegations, on the contrary the stand falsified by documentary evidence already available on record. Moreover, listed application has been filed by an unauthorized person, who claims to be cousin of respondent No.1, whereas, both the parents of Dr. Azhar Masood Ahmed Farooqui, have already expired. Per learned counsel, listed application has been filed to frustrate the Court proceedings on the one hand, and to cause delay in disposal of both the Suits on the basis of evidence already produced by the parties in the above suits.
According to learned counsel, in order to grab the property of respondent No.1, the above application was filed, which has been rightly dismissed by the order of learned Single Judge.
Learned counsel for the respondent No. 1 further argued that in the absence of both the parents, Who have since expired, seeking directions of the Court for conducting DNA test of respondent No.1, who is a highly respectable person and reputable doctor of country, is otherwise unwarranted and based on mala fides. Moreover, according to learned counsel, firing of such application at this belated stage and molding the relief therein is beyond the scope of pleadings in the above Suit and amounts to changing the complexion of the suits, therefore, merits no consideration, hence rightly dismissed by the learned Single Judge. It has been prayed that instant High Court Appeal may be dismissed with cost.
4. Heard the learned counsel for the parties, perused the record of the case, including the pleadings of Suit No.902/1997, in which the subject application was filed, with their assistance.
Looking at the nature of Suit No.902/1997 filed by the appellant and the relief being sought therein, it appears that the appellant did not seek any declaration with regard to parentage of respondent No.1 nor there seems any evidence produced by the appellant in the above Suit, which could prima facie, establish the allegation regarding parentage of respondent No.1. On the contrary, it transpired that the plaintiff in the Suit, namely, Mrs. Sardar Begum Farooqui widow of Late Ghulam Nabi Farooqui, never appeared before the Court after having filed the above Suit, nor any application with a request to direct the respondent No.1, Dr. Azhar Masood Ahmed Farooqui, to get his DNA test was filed along with Suit. However, the said application has been filed after a period of more than 10 years from A the date of filing the suit, when evidence has already concluded. Prima facie, it appears that no valid grounds have been raised nor any tangible evidence or material to support the allegation regarding parentage of Dr. Azhar Masood Farooqui, has been produced by the appellant before the learned Single Judge in the suit, nor any request seeking amendment in the pleadings, particularly, in the prayer clause, appears to have been made for seeking a declaration relating to parentage of respondent No.1 in the subject Suit. It has also come on record that prior to filing of listed application, the parents of respondent No.1, namely, Mrs. Sardar Begum Farooqui (late) and Mr. Ghulam Nabi Farooqui (late) never disputed the paternity of respondent No.1, namely, Dr. Azhar Masood Ahmed Farooqui, who as per evidence produced by the parties before the learned Single Judge, is prima-facie the biological son of Late Ghulam Nabi Farooqui.
The learned Single Judge, after having taken stock of all the material and the evidence available on record, has been pleased to record his finding to this effect while referring to the provisions of Article 128 of the Qanun-e-Shahadat, 1984, as well as Article 35 of the Constitution of Islamic Republic of Pakistan, 1973, and also by placing reliance on the reported judgments of the superior Courts, in the following terms:- "In the given circumstances, to me this application seeking forcible DNA test of the defendant No.1, 73 plus years old, whose parents have since expired and that request having now been moved by his cousins, is least to say an utterly farfetched idea. It is an admitted position that father of the defendant No.1 never challenged paternity of his son and his mother, in the life time of her husband, never challenged the paternity of the said child. As seen from the Muhammadan law as codified under Article 128 of the. Qanun-e-Shahadat, 1984, as well as being cognizant of the rights given by Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973, which protects bond between mother and child, I do not wish to travel in these uncharted waters particularly when evidence is already available on this issue and a conclusive judgment can be passed thereon. With regards efficacy and necessity of conducting DNA tests, the Hon'ble Supreme Court in a number of cases including Mst. Laila Qayyu m v. Fawad Qayyu m and others (PLD 2019 SC 449) and Ghazala Tehseen Zohar v. Mehr Ghulam Dastagir Khan (PLD 2015 SC 327) has held that DNA is a personal right of a person and only in exceptional circumstances it can be interfered with. The Apex Court has relied on Article 128 of Qanun-e-Shahadat, 1984, which states that birth during marriage is a conclusive proof of a child's legitimacy. Neither with the plaint nor with the application any document has been attached to show that the defendant No.1 did not take birth during the continuance of marriage between the plaintiff and the defendant No. l's father. Rather the defendant No.1 with his written statement has attached a document titled "Extract from Duplicate of Register of Births in the Municipal Limits of Karachi" issued to his father registering birth of the defendant No.1 in the house of his father on 10.06.1948 (Annexure D/2) Page 155. It is worth noting that Article 128 of Qanun-e-Shahadat, 1984 only empowers a putative father to challenge legitimacy of a child. Such a declaration cannot be sought by a mother under Qanun-e-Shahadat, 1984. Worth referring is Article 2(9) of Qanun-e-Shahadat, 1984, which bars taking evidence of a fact that has been decided as conclusive proof by Qanun-e-Shahadat itself. The apex Court in the case PLD 2015 SC 327 (supra) has held that: "10. We are cognizant of the ramifications and serious consequences which will follow if the impugned judgment remains a part of our case law as precedent. We, first of all, take up for comment the provisions of Article 128 ibid. The Article is couched in language which is protective of societal cohesion and the values of the community. This appears to be the rationale for stipulating affirmatively that a child who is born within two, years after the dissolution of the marriage between his parents (the mother remaining un-married) shall constitute conclusive proof of his legitimacy. Otherwise, neither the classical Islamic jurists nor the framers of the Qanun-e- Shahadat Order could have been oblivious of the scientific fact that the normal period of gestation of the human foetus is around nine months. That they then extended the presumption of legitimacy to two years, in spite of this knowledge, directly points towards the legislative intent as well 'as the societal imperative of avoiding controversy in matters of paternity. It is in this context that at first glance, clause 1'(a) of Article 128 appears to pose a difficulty. It may be noted that classical Islamic Law, which is the inspiration behind the Qanun-e-Shahadat Order (though not incorporated fully) and was referred to by learned counsel for the appellant also adheres to the same rationale and is driven by the same societal imperative. In this regard, it is also worth taking time to reflect on the belief in our tradition that on the Day of Judgment, the children of Adam will be called out by their mother's name. It shows that the Divine Being has, ill His infinite wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not be delved into or divulged.
11. We may, at this point, add that the Qanun-e-Shahadat Order ('QSO') stipulates that when one fact is declared "to be conclusive proof of another [fact], the Court shall on proof of one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it" (emphasis supplied). This provision of the QSO [Article 2(9)] has to be reconciled with clause 1(a) ibid. It now remains to be seen as to how clause (a) of Article 128(1) of the QS0 is to be interpreted.
Can an attempt be made to interpret Article 128 and Article 2(9) of the QSO harmoniously so as to save the entire Article 128 to the extent relevant for the present case. The stipulation in Article 128 is that the birth of a child within the period stipulated in Article 128 is conclusive proof that he is a legitimate child. Once the relevant facts as to commencement and dissolution of marriage and the date of birth of a child within the period envisioned in Article 128 are proved, and the date of birth is within the period specified in Article 128(1), then the Court cannot allow evidence to be given for disproving the legitimacy of a child born within the period aforesaid. How then is the husband's refusal to own the child to be dealt with? The answer follows."
It is an undisputed legal position that the law set out in Article 128 of Qanun-e-Shahadat, 1984 endows an unquestioned and unchallenged legitimacy on the child born within the periods stipulated in the said Article, notwithstanding the existence or possibility of any fact finding escapade by scientific means. In my humble view the framers of the law or jurists in the Islamic tradition were not unaware simpletons lacking in knowledge. Conclusiveness of proof in respect of legitimacy of a child was properly thought out and quite deliberate. Much greater societal objective was served by adhering to the said rules of evidence than any purpose confined to the interests of litigating individuals. Many legal provisions existed in the statute book and rules of equity or public policy in the jurisprudence where the interests of individuals were subordinated to the larger public interest. In above referred judgment the Hon'ble Supreme Court has held that law did 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, here sadly it was used by the mother, if at all she knew what she was doing, as it does not appear to be a natural act of a mother. To me, this application if allowed will open a floodgate of disputes as to legitimacy of rival siblings and cousins and will create "Fisad-ul-Arz" hence dismissed. Parties are directed 'to proceed towards final arguments, for which this matter is already fixed."
5. The above finding of the learned Single Judge under the facts and circumstances of instant case, and the evidence available on record does not suffer from any factual error and legal infirmity, whereas, the ratio of the cited judgments of Hon'ble Supreme Court on the subject controversy is fully applicable to the facts of instant case. Accordingly, impugned order does not require any interference by this Court in the instant High Court Appeal, which is meritless and does not raise any legal issue to be decided by this Court, as it has already been settled by the Hon'ble Supreme Court in the above cited judgment(s). Instant High Court Appeal was, therefore, dismissed vide our short order dated 25.11.2021 and above are the reasons for such short order.