The matter involved in this writ petition pertains to the execution of remission deed by Mst. Behjat Iqbal/respondent No.2 and affixation of thumb-- impression on the register of petition-writer at the time of its execution on 30-10-1984, whereby she allegedly remitted the dower amount of Rs.
13,00,000 to the petition.
2. The relevant facts giving rise to the petition are that petitioner and. Respondent No.2 having contracted marriage in 1984 continued as such for a decade, when in the year 1995, they developed misunderstanding and in consequences thereof separation having taken place between them. Respondent No.2 filed a suit for recovery of an amount of Rs.13,00,000 fixed as dower at the time of marriage in 1984, before the Family Court at Multan.
3. The petitioner denying the claim of respondent No.2 in the written statement took the plea of remission of the amount of dower by respondent No.2 after about three months of the marriage through a remission deed, dated 30-10-1984 got executed by her by a petition-writer in the District Courts at Multan. According to the petitioner the remission deed having executed as token of love and good gesture, it remained in custody of respondent No.2, was not available with him and, therefore, he sought permission to prove the same by producing the register of the petition-writer, who executed the deed in question. The respondent No.2 denied the execution of the said deed and affixation of her thumb-impression on the register of petition-writer. With this background the petitioner moved an application for comparison of the thumb-impression of the respondent No.2 with the thumb-impression allegedly affixed by her on the said deed in the register of petition- writer in proof of the execution of the document. The respondent No.2 resisted the said application and the learned trial Court vide order dated 7-3-1998 dismissed the same with the observation that there being no proof of the existence of remission deed as primary evidence, the execution of the same through the register of petition-writer as secondary evidence cannot be proved and consequently the request for making comparison of the thumb-impression through Finger Print Expert was declined. The learned Judge further observed that the respondent No.2 being an educated lady was not supposed to put thumb-impression on the deed in question and that the evidence of the parties having completed, the grant of application at this stage being of no use would delay the disposal of the suit. The learned Court also expressed that the opinion of the Finger Print Expert will not be admissible without his appearing in the witness-box.
4. Learned counsel for the petitioner contends that in view of the fact that remission deed was not available, the register was required to be produced to prove the execution of deed in question with thumb-impression of respondent No.2 and that if the original deed would have been available with petitioner, there was no need of making such an application. He further contended that the refusal to the petitioner to bring on record the direct evidence of petition-writer would amount to deny him a fair opportunity of hearing. Learned counsel argued that as per observation of the learned Civil Judge, the evidence of Finger Print Expert even, if this brought on record, it would not be a conclusive proof of the fact, therefore, the rejection of the application instead of advancing the cause of justice suppressed the same.
5. Learned counsel for the respondent No.2 raising preliminary objection regarding the maintainability of this petition argued that an interlocutory order under attack was not challengeable through this Constitutional petition as the validity of the same can be questioned if ultimately the suit is decreed against the petitioner. His next contention was that the evidence of the parties having completed the case was ripe for decision, therefore, the grant of the application in question for production of secondary evidence at this belated stage would cause unnecessary delay in the disposal of the suit. He emphasised that without proof of non-availability of primary evidence, the secondary evidence cannot be allowed in proof of execution of the deed in question.
He placing reliance on S. Azhar-ul-Hassau Naqvi v. Mst. Hamida Bibi and 2 others 1979 CLC 754, Syed Shaukat Abbas v. Mst Bushra Rani and another PLD 1982 Lah. 281 and Zubaida Khatoon v.
Administrator, Union Council Uch Gillani, Tehsil and District Bahawalpur and another 1996 MLD 1689 prayed for the dismissal of the writ petition.
6. In reply learned counsel for the petitioner placing reliance on Muhammad Farooq and 4 others v.
District Judge, Mardan and 2 others 1992 CLC 379 and Ghulam Muhammad and others v. Munir Ahmad Shah and others 1994 CLC 14 argued theat if the interlocutory order is not passed in proper exercise of the jurisdiction or the same is passed while disposing of an ancillary matter, deciding the fate of the case is always amenable to the Constitutional jurisdiction of this Court.
7. After hearing the learned counsel for the parties at length, I regret to subscribe with the view taken by the learned Family Judge. The precise objection raised on behalf of respondent before the learned Judge was that the secondary evidence could not be allowed to be produced without the proof of primary evidence, therefore, the comparison of the alleged thumb-impression of respondent No.2 on the register of the petition-writer could not be an exclusive proof of execution of remission deed. It is correct that the evidence of the Finger Print Expert by itself may not be the whole evidence and the fact in issue is to be decided after considering the entire evidence available on the record. The parties in a suit before the Court are entitled to produce on record the evidence available with them and also can seek permission to bring the same on record through process of law providing them proper opportunity if not in their direct reach. According to the petitioner the deed in question was executed shortly after marriage in the year 1984, whereas the separation between the parties took place after continuous association of about twelve years, therefore, the availability of the deed in question on the register of the petition-writer is suggestive of its execution and existence of the same subject to its proof of genuineness. The stand of the petitioner that the same being in custody of respondent No.2 has not available with him was sufficient explanation of its non-production and consequently, the refusal of the prayer of the petitioner by the learned Civil Judge was not proper. The necessity of the production of the register of A petitioner-writer with the evidence of Finger Print Expert for the comparison of the, thumb- impression of the lady was felt as the deed in question was not available with the petitioner, therefore, the learned Judge without attending the circumstances and appreciating the matter properly dismissed the application with the observation to provide speedy justice to the respondents depriving the petitioner even from a right of fair trial. The quantum of dower amount of Rs.13,00,000 is not disputed rather controversy relates to its payment, therefore, the pivotal question would remain for decision, whether after waiver of the dower in the above manner a were was still entitled to demand .The same during the existence of the marriage or after separation.
Therefore, the comparison of thumb-impression of the respondent with the thumb-impression statedly affixed by her on the register of petition-writer and the production of Finger Print Expert as witness will advance the cause of justice without causing any prejudice to respondent. The respective stand of the parties regarding the liability of the petitioner will definitely be determined under the law on the subject but the refusal to the petitioner to bring on record the evidence of the Finger Print Expert in support of his case would tantamount to refuse him a fair and proper opportunity of hearing causing him serious prejudice. The learned Civil Judge by making very strong observation regarding the admissibility of the evidence in question and its' effect and further the expression of opinion regarding the deed and the thumb-impression on it has virtually decided the whole matter and, therefore, the interlocutory order not confining to a limited question but directly effecting the merits of the case is amenable to the Constitutional jurisdiction of this Court. The objection of the learned counsel for the respondent regarding maintainability of the petition is, therefore, repelled. Consequently, writ petition is allowed and the order dated 7-3-1998 impugned herein is declared illegal and of no consequences. The learned Judge will provide fair opportunity of production of evidence of Finger Print Expert through comparison of thumb- impression of respondent No.2 and to produce the register of petition-writer with permission to produce him the Finger Print Expert as witnesses, if need be.
8. The learned Civil Judge, who earlier dealt with the case as Judge Family Court has expressed his opinion on the merits of the case tending to grant of decree against the petitioner, therefore, the case is transferred from this Court with the direction to the learned District Judge, Multan to entrust the same to some other Court of competent jurisdiction to be decided before the commencement of summer vacation, 1998. The writ petition is allowed.