Oath Needs To Be Modified

OATH NEEDS TO BE MODIFIED OATH NEEDS TO BE MODIFIED By Ch. Muhammad Bashir, Advocate, Faisalabad Under section 7 of the Oaths Act, 1873; all oaths and affirmations made under section 5 are required to be administered in such form as the High Court may from time to time prescribe. Section 5, inter alia, provides that oath or affirmation shall be made by‑‑ (a) all witnesses o may lawfully be examined or give or be required to give evidence by or before any Court or person having by law or consent of parties authority to examine such person or to receive evidence. (b) ... ... ... .. ... ... (c) ... ... ... ... ... ... Section 6, as amended on 8‑7‑1981 by Federal (Revision and Declaration) Ordinance (XXVIII of 1981) provides: "When the witness is a Muslim, he shall make an oath" The Lahore High Court, in exercise of its power under section 7 has prescribed the following oath for Muslim witnesses. "I swear by Allah Almighty that the evidence I shall give before the Court in this case shall be the truth, the whole truth and nothing but truth, that I shall conceal nothing from the Court and that if I say anything which is untrue or conceal anything, the wrath of Allah may fall on me." It has been given out that the said oath has been amended so as to substitute the words "the wrath of Allah may fall on me" with "Allah may be displeased with me" but I have not been able 'to lay hand on the said amendment. Even if it be so still the invocation of displeasure of Allah is no less than wrath, in consequence, as we deprive ourselves from mercy and forgiveness of Allah. Previous to the said oath the witnesses including the Muslims, were administered affirmation which is reproduced hereunder: ‑‑ "I solemnly affirm in the presence of Almighty God that the evidence which I shall give to the Court in the case shall be the truth, the whole truth and nothing but the truth." Section 14 provides as under:‑‑ "Every person giving evidence on any subject before any Court or person hereby authorised to administer oath and affirmation shall be bound to state the truth on such subject. " Section 13 provided as under:‑‑ "No omission to take any oath or make any affirmation no substitution of anyone for any other of them and no irregularity whatever in the form m which anyone of ahem is administered, shall invalidate any proceeding or render inadmissible any evidence whatever in or in respect of which such omission, substitution or irregularity took place or shall affect the obligation of a witness to state the truth. In a set of precedents it has been held that there is no option for a Muslim witness but to take oath as prescribed by High Court and non‑compliance therewith vitiates the trial. A few of the cases representing the said view arc detailed below: (i) 1988 PCr.LJ 2347, (ii) 1991 MLD 48. In another set of precedents while giving effect to section 13, it has been held that omission to administer oath and recording evidence on solemn affirmation is merely an irregularity which does not affect the validity of proceeding or evidence. A few of the cases representing the said view are given below: (1) 1991 PCR, LJ 568. (ii) 1992 SCMR 408. (iii) PLJ 1998 Lah. 1525. (iv) 1999 SCMR 845. (v) PLD 2001 Lah. 499. The object of recording evidence of a witness on solemn affirmation or oath is to make the witness conscious of his obligation to state the truth. In Islam it is the obligation of a Muslim to tell the truth in all circumstances whether under oath or not. The relevant verses are reproduced hereunder in English. (i) Al Baoarah, Verse 284: "And hide not testimony; and whoever hides it, his heart is certainly sinful." (ii) Al Baearah, Verse 43: "Do not mix truth with falsehood and do not hide truth." (iii) Al‑Nahl, Verse 45: "And make not your oaths a means of deceit between you or your foot will slip after it has been firmly established and you will taste evil because by acting, thus you turned people away from the path of Allah and you will have a severe punishment." (iv) Al Qalam, Verse 9: "So comply not with the wishes of those who reject the truth." (v) Al Qalam, Verse 11: "Yield thou not to any mean swearer.*