1. BASHARAT AHMAD SHAIKH, J.---The appellant filed a suit for restitution of conjugal rights in the Court of Family Judge Muzaffarabad, on 18th of March 1995. He claimed in the plaint that marriage between him and Mst. Shaheen Bibi was solemnized on 22nd of March, 1993 at Palhotar. Mst.
2. Shaheen Bibi anti other defendants stated in their written statement that the aforesaid marriage was never solemnized and the suit had been filed to malign Mst. Shaheen Bibi and other defendants. The Family Court dismissed the suit on the ground that marriage alleged by the appellant had not been proved. An appeal taken to the Shariat Court failed. Sabir Hussain has been granted leave to tile the present appeal.
3. The learned counsel for the appellant, Ch. Muhammad Ibrahim Zia, stated before the Court that it was difficult for him to seek reversal of the decree in light of the facts of the case particularly in view of the fact that there was no evidence that Mst. Shaheen Bibi gave her consent for her marriage. However, the learned counsel prays that some observations made by the Shariat Court as well as the Family Court may be vacated. His plea is that these observations have been recorded without legal warrant.
4. Two documents were produced by the appellant in the trial Court. One is "Kabeen nama" and the other is an "Iqrarnama". About both these documents it was claimed that the signatures of Maulvi Abdul Qadir, the father of Mst. Shaheen Bibi, were inscribed on them. The plea raised by the defendants was that the alleged signatures were not in fact the signatures of Maulvi Abdul Qadir.
5. About these signatures the Shariat Court has recorded the following finding in para. 8 of the judgment under appeal:---- "8. Even dated signatures of Abdul Qadar on the Nikahnama and Agreement when sent to the hand writing expert for comparison, were declared as not bearing the identical characteristics with the admitted signatures of Abdul Qadar on other documents i.e. National Identity Card ere. The report of Examiner supports the contention of respondents that alleged documents were never executed arid signed by Abdul Qadar deceased father of respondent No. l . "
6. Similarly the Judge Family Court at two places in the judgment stated that according to the Examiner of Questioned Documents the signatures of Maulvi Abdul Qadir were proved fictitious.
7. Ch. Muhammad Ibrahim Zia submitted that the report of Examiner of Questioned Documents has been illegally taken into consideration by the Family Court as well as the Shariat Court because it was not a part of the evidence. He submitted that it is the requirement of section 9 of the Azad Jammu and Kashmir Family Court Act 1993 that entire documentary evidence which a defendant wishes to produce in the case shall be filed with the written statement. It was stated that when the written statement was filed the report of the Examiner of Questioned Documents was not attached with it. In fact this report does not pertain to the present case and pertains to a criminal case which has been registered at the instance of respondent Mst. Shaheen Bibi. Subsequently two applications were moved one after the other by the defendants for producing some more documents but the prayer was rejected on both the occasions. The report of Examiner of Questioned _ Documents, it was contended. Thus never became a part of the record in the case and could not be-considered. It was explained by the learned counsel that the findings mentioned above might adversely affect the defence of the appellant in the criminal case mentioned above.
8. Mr. Abdul Hamid Khan Shahid, the learned counsel for the respondents, could not show that the report of the Examiner of Questioned Documents was a part of evidence.
9. Therefore, it has become apparent that the report of Examiner of Questioned Documents could not be brought under consideration in the present case. Therefore, we accept the appeal and order that paragraph 8 of the judgment of the Shariat Court as well as reference of the Family Court to the report of Examiner of Questioned Documents and the finding based on it shall stand vacated.