' This is a suit filed by Syed Hadi Masood against his step-mother, Begum Hamida Salem widow of late Lieut.-Col. S.A. Salem seeking a declaration that the decree passed by the Administrative Civil Judge, Rawalpindi in Suit No, 173/71 on 31-7-1971 is a nullity and of no effect. The plaintiff is the eldest son of late Lieut.-Col. S.A. Salem who died at Rawalpindi on 5-1-1972. The defendant is the step- mother of the plaintiff and by her marriage with the deceased S.A. Salam, there are four sons.
Apparently there was dispute between the plaintiff and the defendant regarding the estate left by the deceased. S.A. Salem and the plaintiff filed a petition, Miscellaneous Application No, 1 of 1975 in the High Court at Karachi on 8-1-1975 for Letters of Adminis tration in respect of the properties left by his father, S.A. Salem, and also filed a Suit No, 378/75 for accounts in the Court of Senior Civil Judge, Karachi on 14-2-1975 against the defendant and her 4 sons. In Miscellaneous Application 1/75 the defendant Begum Hamida Salem filed a caveat alleging that she had obtained a declaratory decree from the Court of Administrative Civil Judge, Rawalpindi in Suit No, 173/71 filed by her against her husband (Hameeda Salam v. Lieut.-Col. S.A. Salam) to the effect that she was the owner of the land and buildings bearing No, 217, Sale Road, Rawalpindi and the property bearing No, 38-S, Block-6, P.E.C.H.S., Karachi, which two properties had been shown in Miscellaneous Application No, 1/75 as belonging to deceased S.A. Salam. The case of the plaintiff is that his father, S.A. Salam was incapacitated by a stroke of paralysis on his right side4 months earlier and, therefore, he could not have put his signatures on any documents and that he died only a few months later. According to the plaintiff, he got the file of Suit No, 173/71 in the Rawalpindi Court inspected through an Advocate of Rawalpindi and it was found that the signatures of S.A. Salam on the Vakalatnama and the written statement in the Rawalpindi Suit are different from the deceased's own signatures. According to the plaintiff, inspection of the file of Suit No, 173/71 further revealed that the decree in that suit was obtained by the defendant, Begum Hameedah Salem in extremely suspicious circumstances. In these circumstances, the plaintiff has filed the present suit praying for a declaration that the decree passed by the Rawalpindi Judge is a nullity and of no effect. A written statement dated 7-5-1977 was filed by the defendant in which the adverse allegations were denied. A preliminary objection was taken in the written statement that the suit was not maintainable in this Court for want of jurisdiction. The allegations that the deceased S.A.
Salem did not sign the Vakalatnama and written statement in the Rawalpindi suit were denied. The following consent issues suggested by the learned counsel for the parties were adopted by order dated 18-3-1978 of this Court:-
(1) Whether this Hon'ble Court has jurisdiction to try this suit?
(2) Whether the plaintiff obtained the Judgment in Suit No, 173/71 filed in the Court of Administrative Civil Judge, Rawalpindi through fraud?
(3) What should the Judgment be?
' Issue No,1 was treated as a preliminary issue and by my order dated 6-10-1982, issue No,1 was decided in the affirmative,
2. On behalf of the plaintiff, two witnesses gave evidence. First witness is Khursheed Ahmad Qureshi, a handwriting expert. His evidence was recorded on commission pursuant to the order dated 24- 10-1978 of this Court. The other witness on behalf of the plaintiff is Ashfaque Hussain (Exh. 6). This witness has filed an affidavit dated 15-3-1981 which was treated as examination-in-chief on the witness and on that basis he was cross-examined by the counsel for the defendant. After his evidence, learned counsel for the plaintiff closed the side of the plaintiff. The defendant appeared in the witness-box and gave evidence (Exh. 7). No other witness was examined on behalf of the defendant although several dates were taken by the counsel for the defendant for the purpose of producing Raja Zafrul Haq, an Advocate of Rawalpindi as a witness. However, Raja Zafrul Haq was not produced in evidence and finally Mr. Muhammad Ali Shaikh, Advocate for the defendant made a statement on 13-10-1983 before the Court that he would n.c.t examine any other witness and then the case was adjourned for arguments. It was fixed on several dates for arguments but did not proceed. The case came up before me yesterday i.e, 3-9-1984 when Mr. Muhammad All Shaikh, Advocate for the defendant requested for a short adjournment. At his request, the case was adjourned for today. However, neither the defendant nor Mr. Muhammad Ali Shaikh, Advocate, has appeared. I have heard the arguments of Mr. Yousuf Rafi, Advocate for the plaintiff.
3. The plaintiff has challenged the authenticity of the signatures of Late S.A. Seism on the Vakalatnama alleged to have been given by him of one Mr. "N. M. Salik" Advocate and the signatures alleged to have been made by S.A. Salem at two places on the written statement filed in the Rawalpindi suit. If the signatures on the Vakalatnama and the written statement have been made by the deceased S.A. Salem, the plaintiff cannot get a decree in the present suit. The file of the Rawalpindi Suit No, 173/71 was summoned and the said file was received and is available. The record of the Rawalpindi suit shows that the suit was filed on 18-6-1971 and on 19-6-1971 Raja Zafrul Haq, Advocate of Begum Hameeda Salem (plaintiff in the Rawalpindi suit) appeared before the Administrative Civil Judge, Rawalpindi, who ordered issuance of summons to the defendant for 23- 9-1971. The suit was numbered as 173/71. The record does not show that any summons were issued to S.A. Salem, defendant in the Rawalpindi suit, pursuant to the order dated 19-6-1971 of the Administrative Civil Judge, Rawalpindi. However, on the record there is an application signed by Mr. N.M. Salik, Advocate on 27-7-1971 in which it is mentioned that the applicant is the defendant in the suit and he and the plaintiff Have entered into an amicable settlement (Razeenama) and that the applicant is ready to file his written statement and a request was made that the earliest possible date may be given for filing of the written statement and compromise. Although this application is dated 27-7-1971, it was filed on 31-7-1971 as is apparent from the Court-fee stamp. The application was presented to the Administrative Civil Judge, Rawalpindi on the same day i.e, 31-7-1971 who order the case to be fixed on the same day. After this order, the parties were called and the second order of the Administrative Civil Judge shows that the Advocates of the parties were present and the written statement was filed and it was ordered that the statement of the Advocate of the defendant (S.A. Salim) be recorded. And then a short statement of Mr. N.M. Salik, Advocate for the defendant (S.A. Salem) was recorded, who stated that the claim of the plaintiff (Begum Hameedah Salem) was accepted as correct and that a decree may be passed in favour of the plaintiff and the parties should bear their own costs. Then on the same day i.e, 31-7-1971, on the basis of the written statement and the statement made by the Advocate of S.A. Salem, the Administrative Civil Judge, Rawalpindi decreed the suit of the plaintiff with further direction that the parties will bear their own costs.
4. Before filing the present suit in this Court, the plaintiff had sent the photocopy of the last page of the written statement of S.A. Salem in Rawalpindi suit, in which his alleged signatures appear at two places, and the Vakalatnama in favour of Mr. N.M. Salik, Advocate, which also bears the alleged signatures of S.A. Salem, lo n g with certain letters alleged to have been written between March, 1970 and March, 1971 by S.A. Salem to other persons, for comparison of disputed signatures on the written statement and Vakalatnama with the signatures on the aforesaid letters and for the opinion of Khursheed Ahmad Qureshi, a handwriting expert, who gave his opinion dated 22-3-1978 (Exh. 5/1) and according to his opinion the questioned signatures on the written statement and Vakalatnama in the Rawalpindi suit were not of the same person who had signed the three letters sent to the handwriting expert for comparison. As observed earlier, this handwriting expert, Khursheed Ahmed Qureahi was examined on commission and his evidence is Exh.
5. In his evidence, he stated that he had more than 28 years' experience in the examination of questioned documents and he had worked as Director Forensic Science Laboratory and Examiner of Questioned Documents in West Pakistan. He deposed that he had received the questioned documents and three letters for his examination and opinion and after examination, with the help of scientific instruments, he submitted his report and he produced his opinion alongwith the documents which were sent to him. His entire cross-examination by the counsel who was then appearing for the defenant Begum Hameedah Salem is reproduced herein:- ' Could these two signatures marked Q.1 and Q.2 be signed by a man who suffered paralytic stroke on the right hand?
' The two signatures marked as Q.1 and Q.2 could not have been written by the same person after he had suffered from a paralytic stroke developed in his right hand.
' I reiterate the reasons given by me in the opinion. It is incorrect to suggest that the two disputed signatures Q.1 and Q.2 were signed by the same person who signed signatures R.1 to R.3 even if he had developed some defect in his right arm or the arm by which he signs due to illness."
' There is hardly any cross-examination of the handwriting expert as would be evident from his cross-examination which has been reproduced hereinabove. From the cross-examination, however, it is apparent that according to the defendant, the signatures on the three letters (Exhs.
5/6, 5/7 and 5/8) are the signatures of the deceased S.A. Salam. The signatures on Exh. 5/6, Exh. 5/7 and Exh. 5/8 are, therefore, taken as the admitted signatures of deceased S.A. Salam. Even a cursory comparison of the disputed signatures and the admitted signatures shows the vast differences between them. Apparently the admitted signatures and the disputed signatures were not made by the same person.
5. Further it is the case of both the parties that some time before the disputed signatures are alleged to have been made i.e, on 31-7-1971 deceased S.A. Salam had suffered a stroke of paralysis.
According to the plaintiff's evidence this stroke of paralysis had affected the right side of the deceased who was unable to use his right hand since the attack till he died in January, 1972. It is presumed that the deceased was a right handed person and used to sign with his right hand as otherwise it would have been averred or evidence would have been led by the defendant that the deceased was a left handed person. The evidence of P.W.2 Ashfaque Hussain (Exh. 6) to the effect that the right side of the deceased had been affected on account of stroke of paralysis has gone uncontroverted as neither any cross-examination of the witness took place on this point nor did the defendant, when she came in the witness-box, deposed that the right side of the deceased S.A.
Salem including his right hand had not been affected by the stroke of paralysis. The evidence of P.W.2 Ashfaque Hussain that during the crucial period the deceased S.A. Salem was not able to use his right hand to write or to sign any document has not been controverted.
' It may be observed here that in her 'written statement, dated 7-5-1977, the defendant stated that she had no objection if the deceased's admitted signatures were compared with his signatures on the Vakalatnama and the written statement in the Rawalpindi suit, However, the defendant did not make any attempt to produce any other document which had the signatures of the deceased on it so as to have it compared with the signatures on the Vakalatnama and the written statement filed in the Rawalpindi suit. The evidence of Khurshed Ahmad Qureshi, handwriting expert and his expert opinion is on record and this opinion and the evidence of the handwriting expert goes against the defendant. No request was made by the defendant to obtain the opinion of another handwriting expert.
' Then it has been noted that in the cross-examination of P.W.2 Ashfaque Hussain the following question was asked:- "It is put to you that the deceased Lieut.-Col. S.A. Salem during his illness period from 29-3-1971 to 5-10-1972 went to United Bank Limited, Intercontinental Branch, Rawalpindi on several occasions and operated the account himself?"
' The following answer was given by the witness:- "It was impossible for the deceased to have gone to the branch during that period. But I cannot say whether in fact he operated the account during that period."
' If the case of the defendant was that during lake period between March, 1971 and January, 1972, deceased S.A. Salem was signing the cheques and operating his account, his signatures on the cheques during the crucial period could have been produced and then a request made for comparison of the signatures on such cheques with the disputed signatures on the Vakalatnama and the written statement filed in the Rawalpindi suit. No such attempt was made on behalf of the defendant.
6. There were two witnesses who could have established that the Vakalatnama and written statement filed in the Rawalpindi suit were in fact signed by the deceased S.A. Salem and they were Raja Zafrul Haq, Advocate of Begum Hameedah Salem in the Rawalpindi suit and Mr. N.M.
Salik who was supposed to have been engaged by S.A. Salem and who has played the pivotal role in the Rawalpindi suit. In spite of several dates taken by the counsel who was appearing for the defendant in the present suit for producing Raja Zafrul Haq, Advocate as a witness, the said person was not produced. Every opportunity was granted to the defendant to produce Raja Zafrul Haq but the opportunities were not availed and then on 13-10-1983 a statement was made on behalf of the defendant that no witness was to be examined on her behalf.
' As regards Advocate N.M. Salik, who is alleged to have appeared on behalf of the deceased S.A.
Salem in the Rawalpindi suit, the evidence that has been brought on record by the plaintiff indicates that no such Advocate practised at Rawalpindi in June, 1971. If such an Advocate existed, the defendant could have asked this Court to summon him and give evidence or made an application for his examination on commission at Rawalpindi. Apparently as no such Advocate existed, a request for his examination on commission or for calling him as a witness was not made by the defendant.
7. On the basis of the evidence on record I have reached the conclusion that the signatures on the Vakalatnama and written statement filed in the Rawalpindi suit are not the signatures of deceased S.A. Salam. Deceased S.A. Salem had suffered stroke of paralysis and his right side including his right hand had been affected and the evidence established that he could not sign or write with his right hand at the relevant lime. Issue No,2 is decided in the affirmative. Decree in suit No, 173/71 filed in the Court of Administrative Civil Judge, Rawalpindi was, therefore, obtained by fraud.
8. Suit No, 91/76 is decreed by granting a declaration that the Judgment and decree passed by the Administrative Civil Judge, Rawalpindi in Suit No, 173/71 on 31-7-1971 has been obtained by fraud is a nullity and of no legal effect.
' There will be no order as to costs.