Stereo. HC JD A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT,
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Writ Petition No.1277 of 2014

Muhammad Irfan
Versus
The State etc.

JUDGMENT
Date of hearing: 07.07.2014

Petitioner by: Sh. Ahsan ud Din, Advocate

Respondents by: Sh. Muhammad Yaqub, Advocate

Mr. Shahid Mahmood Abbasi, AAG with

Majeed S.I.

ARSHAD MAHMOOD TABASSUM, J: A criminal

case vide FIR No.449, dated 11.12.2013, offence under
Section 489-F, PPC, was registered against the petitioner
at Police Station Wah Cantt. During trial, through an
application dated 28.03.2014, the petitioner prayed for
sending his admitted signatures and cheque in dispute to
the Forensic Science Agency, Lahore for comparison of his
signatures, on the ground that he had not issued the
cheque in dispute rather the complainant had stolen his
cheque book and had forged his signatures on the cheque
in dispute. The said application did not find favour with
the learned trial court, which was dismissed vide order
dated 05.04.2014. The petitioner, then preferred a criminal
revision petition to assail the said order, which also failed
as the same was dismissed by the learned Additional
Sessions Judge, Taxila, vide order dated 17.04.2014. It is
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Writ Petition No.1277 of 2014

in this background that the petitioner has preferred the

instant petition under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973.
2. It appears that what prevailed upon the learned
trial court to dismiss the application of the petitioner was
as under:-
“It reveals that previously the same prayer was
put forth by the accused before the learned
Justice of Peace/Additional Sessions Judge Taxila
through his petition under section 22-A, 22-B,
Cr.P.C. but the same was not granted. The accused
has not challenged the said order before any
forum. Anyhow, without being indulged into the
technicalities, it is crystal clear that the
prosecution evidence has already been recorded in
toto and the defence taken by the accused has
unambiguously come on record through the cross
examination conducted by him upon the prosecution
witnesses. Moreover, Article 84 of Qanun-e-
Shahadat Order, 1984 empowers the court to
make comparison so even if the prayer of the
accused is granted and an expert opinion is invited
the same shall obviously be not binding upon the
court. It means to say that there is no need to get
the impugned signatures/handwriting compared as
prayed for and it would just hinder the conclusion
of trial.”

There is no denial of the fact that the petitioner, on

16.12.2013, had submitted an application under Section
22-A/22-B, Cr.P.C. for direction to the police concerned to
get verified the signatures of the petitioner on the said
disputed cheque from Forensic Science Agency, Lahore
and that the said application was dismissed by the
learned Justice of Peace vide order dated 20.12.2013 with
the following observation:-
“From the perusal of record, it reflects that the
FIR has already been registered u/s 489-F PPC.
Since pertaining to occurrence, FIR had already
been registered, therefore, no direction can be
issued for verification of any signatures from FSL.
However, Investigation Officer of the case is
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Writ Petition No.1277 of 2014

directed to investigate the case properly in

accordance with law. This petition is disposed of.
Copy of this order be sent to the SHO concerned
for information and compliance.”

It appears that the challan in this case was forwarded to

the court by the SHO on 18.12.2013, thus, it was for the
learned trial court to see as to whether the cheque in
dispute was liable to be sent to the Forensic Science
Agency, Lahore alongwith admitted signatures of the
petitioner, hence, the learned Justice of Peace was not
proper forum for making such an application. It also
appears that the petitioner, when applied for grant of bail
before this Court by filing Crl. Misc. No.298/B of 2014,
had also submitted CM No.173/M of 2014 with the
following prayer:-
“Therefore, it is earnestly prayed that it will be in
all fairness and in the interest of justice that the
I.O. may be directed to get the writing and
signatures of petitioner on the cheque in question
be verified from the handwriting expert for just
decision of bail application.”

Yet another CM bearing No.220/M of 2014 was also filed,

which was disposed of by this Court on 25.03.2014 with
the following observation:-
“The scope of a petition moved under the
provisions of Section 497, Cr.P.C. is either to grant
the bail to the petitioner or refuse it and in the
petition, moved, as such, no interim relief over and
above to the main and ultimate relief is legally
possible. The request prayed for in Criminal
Miscellaneous No.173/M of 2014 is nothing but
would amount either to interference in the
investigation of a criminal case or to pre-empt the
jurisdiction of the learned trial court. Since the
trial is underway, therefore, the petitioner would
be at liberty to move the trial court for having
such relief as prayed for here, if permissible under
the law. The relief, which could not have been
granted finally in proceeding, cannot be asked for
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Writ Petition No.1277 of 2014

by means of some miscellaneous and interim

proceedings.”

It is also borne out from the record that learned counsel for
the petitioner had suggested the complainant, while he
was under cross-examination, being P.W.1, during trial of
the case, as under:-
“It is incorrect to suggest that the entry as well
as signatures upon the impugned cheque Ex.P.C. is
fake and fabricated. I have got no objection if the
entries or signatures of Ex.P.C. are got examined
from the FORENSIC Lab.”

Similarly, the Investigation Officer of the case, namely

Majeed Ahmad S.I., while appearing as P.W.3 stated
during cross examination as under:-
“I recorded the statement of the accused on
12.12.2013. It is correct that in his statement
recorded by me, it has been claimed by the
accused that he did never issue any cheque to the
complainant nor stood surety for any of his
obligation. It is correct that he did also take the
version that the FIR was lodged on the basis of
fabrication.”

3. The above circumstances clearly suggest that

the petitioner from the day one, has been agitating that the
cheque in dispute was not issued by him and that the
same was a forged document. In this view of the matter, it
was incumbent upon the Investigation Officer to have
secured the admitted signatures of the petitioner and then
to send the cheque in dispute alongwith admitted
signatures to the Forensic Science Agency, Lahore for
comparison of the signatures in order to arrive at truth, but
for the reasons best known to him, needful was not done.
The petitioner was also unsuccessful before the learned
Justice of Peace in this regard obviously for the reason
that the matter, at that time, was before the learned trial
court. This Court has also observed in its order dated
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Writ Petition No.1277 of 2014

25.03.2014, passed in CM No.220/M of 2014 that the

petitioner was at liberty to move the learned trial court for
having such relief in the said application, if permissible
under the law, but the learned trial court dismissed his
application. It appears that what found favour with the
learned trial court to dismiss the said application was
dismissal of earlier application of the petitioner by the
learned Justice of Peace, which had no significance, as it
was the job of the learned trial court to send the document
for comparison by the Finger Print Expert. Similarly,
conclusion of prosecution evidence was also no ground to
refuse sending the cheque in dispute to the Finger Print
Expert for comparison of signatures.
4. Another reason, which prevailed upon the
learned trial court to dismiss the application of the
petitioner was that the prosecution evidence had already
been recorded in toto. To my mind, this was also no a
valid ground to refuse to send the disputed cheque for
comparison to the Finger Print Expert, because FIR in this
case, was registered on 11.12.2013, and the application
was moved on 28.03.2014, as such it could not be said
that the trial was lingering on for a long time.
5. As regards the power of the learned trial court
to itself compare the cheque in dispute with the admitted
signatures of the complainant, as envisaged under Article
84 of Qanun-e-Shahadat Order, 1984, to my mind, the
said provision also does not debar the learned trial court
from sending the cheque in dispute for comparison to the
Finger Print Expert. The expert evidence is admissible in
evidence under Article 59 of Qanun-e-Shahadat Order,
1984, and if such an evidence is not available, only then,
the leaned trial court may itself compare the cheque with
the admitted signatures of the petitioner. It has been
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Writ Petition No.1277 of 2014

observed in the case titled “Sohbat Ali Vs. Muhammad

Alam” (PLD 2012 SC (AJ & K) 1), that the court in order to
form an opinion may seek assistance from an expert’s
opinion, the relevant portion whereof reads as under:-
“A perusal of Article leaves no doubt that when
the Court has to form an opinion upon the identity
of finger print impression, the opinions of the
persons “experts in such fields” are relevant. The
expert witness is one who has devoted time and
study to a special branch of learning and thus is
specially skilled on the points is admissible to
enable the court to come to a satisfactory
conclusion.”

In another case titled “Muhammad Kabeer ud Din Vs.

Muhammad Munir ud Din” (1993 CLC 747). It has been
observed as under:-
“11. One of the scientific modes of proving a
disputed signature is to refer it to a handwriting
expert with admitted signature for his opinion. It
was open to the appellant to apply for examination
of disputed and admitted signatures to handwriting
expert. This step has not been taken by him
although from 1972 when the appellant filed suit
No.1006/72 Muniruddin had denied the execution
of the agreement.
12. No doubt the Court is competent to compare
the disputed and admitted signatures to ascertain
the genuineness of the disputed signature but such
procedure is risky and has to be adopted with
caution and sparingly. In the present case the
volume of evidence is against the appellant’s
contention. The mode provided under law for
proving disputed signatures has not fully been
adopted by the appellant, therefore, in these
circumstances, it will not be a safe course for the
Court to compare the signatures and give a finding
on it.”

Thus, in the above circumstances, when the expert’s

evidence can be procured with regard to the signatures on
the cheque in dispute, there appears no reason why
should the court take it on its own shoulder to make an
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Writ Petition No.1277 of 2014

observation regarding comparison of the disputed

signatures with the disputed signatures of the petitioner.
Needless to mention that ultimate decision has to be given
by the learned trial court keeping in view the pro and
contra evidence of the parties.
6. It is also worth-mentioning here that an accused
is entitled to fair trial more particularly in view of the
newly inserted Article 10-A of the Constitution of the
Islamic Republic of Pakistan, 1973. The denial on the part
of the learned trial court to send the cheque in dispute to
the Finger Print Expert, to my mind, is violative of the
provisions of the said Article.
7. In the light of above discussion, I have arrived
at an irresistible conclusion that the learned trial court as
also learned first appellate court have failed to exercise
their jurisdiction, vested in them under the law and they
have illegally dismissed the application, submitted by the
petitioner. The instant petition is, therefore, allowed and
the impugned orders are hereby set aside. The application
dated 28.03.2014, submitted by the petitioner, is,
therefore, allowed and the learned trial court is directed to
secure the admitted signatures of the petitioner and then
forward the said signatures alongwith cheque in dispute
to the Forensic Science Agency, Lahore for comparison of
the signatures and then to proceed with the matter strictly
in accordance with law.

(ARSHAD MAHMOOD TABASSUM)

Judge

APPROVED FOR REPORTING

Judge
Jamshaid Kasuri