Law and Procedure for Decision of Case on The Basis of Oath

LAW AND PROCEDURE LAW AND PROCEDURE FOR DECISION OF CASE ON THE BASIS OF OATH By Saeed Akhtar Civil Judge Class-1, Dera Ghazi Khan The common legal recognized mode for decision of a controversy raised in a suit is to decide it on the basis of available evidence of the party(s). However, there are some exceptions to this, firstly to decide the lis on the basis of legal issue, secondly, to decide the lis on the basis of admission of other party to the facts and controversy raised by first party and lastly to decide the lis on the basis of an oath of party to lis or of third person. In these situations, ordinarily there is no need to record evidence of the party(s) for decision of a lis raising a controversy. Here, we shall be concerned with decision of the case on the basis of oath. Commonly, it is known as decision of the case on Special Oath. But, in statutory law there is nothing mentioned as Special Oath. Exactly, at present, there is no comprehensive statutory law dealing with decision of the case on oath except Article 163 of the Qanun-e-Shahadat Order, 1984 and Section 8, 9, 10 and 11 of the Oaths Act, 1873. 1. LAWS DEALING WITH DECISION OF CASE ON THE BASIS OF OATH In Pakistan following statutory laws are applicable for decision of a case on the basis of oath. 1.1 ARTICLE 163 OF THE QANUN-E-SHAHADAT ORDER, 1984 Article 163 of the Qanun-e-Shahadat Order, 1984 is substantive and procedural provision of statutory law which is reproduced for convenience as under: Acceptance or denial of claim on oath. --- (1) When the plaintiff takes oath in support of his claim, the court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath. (2) The Court may pass such orders as to costs and other matters as it may deem fit. (3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases. This provision of law contains power of the court to decide the case on oath and it also provides a short procedure thereof. The procedure provided in Article 163 of the Qanun-e-Shahadat Order, 1984 is neither exhaustive nor sufficient to deal with and cover all situations which may be faced by court seized with the case for decision of the same on oath. Article 163 specifically ordains that no decision of case on oath is permissible which relates to enforcement of Hudood or other criminal cases. 1.2 WHETHER ARTICLE 163 OF THE QANUN-E-SHAHADAT ORDER, 1984 IS CONTRARY TO INJUNCTION OF ISLAM Article 163 of Qanun-e-Shahadat Order, 1984, is not contradictory to islamic injunctions. Qazi Muhammad Haroon, Advocate, High Court, Balochistan v. Federal Government of Pakistan (PLD 2013 FSC 7). In the absence of any legal/Constitutional command to the contrary, the Islamic mode for resolution of land dispute, was perfectly lawful. Abdul Qayyum Beg v. Rehmat Wali and 4 others (PLD 1993 SC 289). 1.3 SECTION 8, 9, 10 AND 11 OF THE OATHS ACT, 1873 The Oaths Act, 1873 also contains some provisions which are substantive as well procedural in nature to decide the case on oath. For convenience Section 8 of the Oaths Act, 1873 is reproduced: Power of Court to tender certain oaths. If any party to, or witness in, any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything herein before contained, tender such oath or affirmation to him. Section 8 provides certain conditions in order to exercise power for decision of the case on oath which are as under: a) There must be an offer by the party or by the witness to the proceeding to give evidence on oath or solemn affirmation. b) There must be pending judicial proceeding for decision of which offer is made. The nature of the proceeding pending is very material. If a proceeding does not fall within ambit of judicial proceeding then Section 8 of the Oaths Act, 1873 become inapplicable. For example, a family case which is quasi-judicial in nature could not be decided in terms of Section 8 and 9 of the Oaths Act, 1873. In case of Khizar Hayat v. Judge Family Court, Sargodha and another, [Lahore] (2018 MLD 1480), case of Rehmdil v. Mst. Bibi and 3 others [Balochistan (Turbat Bench)] (2023 CLC 994), case of Abdul Rehman v. Mst. Ruqia Begum and others [Lahore] (2018 CLC Note 35), case of Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365), case of Asim Irfan Ahmad v. Additional District and Sessions Judge, Islamabad and others [Islamabad] (2023 YLR 1123) it was held by superior Courts of Pakistan that proceeding before Family Court is quasi-judicial in nature. The provisions of Section 8, 9, 10 and 11 of the Oaths Act, 1873, on their own force, are not applicable to the proceedings before Family Court for the reasons stated above. However, by virtue of Sub-section (2) Section 17 of West Pakistan Family Courts Act, 1964 the provisions of Sections 8, 9, 10 and 11 of the Oaths Act, 1873are made applicable to all proceedings before the Family Courts in respect of Part I of Schedule annexed with. Family Court is not specifically precluded from decision of case on the basis of oath in terms of Article 163 of Qanun-e-Shahadat Order, 1984. However, by virtue of Subsection (1) Section 17 of West Pakistan Family Courts Act, 1964 all provisions of Qanun-e-Shahadat Order, 1984 including Article 163 is made inapplicable to the proceedings before Family Courts. Superior Courts of Pakistan have up held decisions of cases on oath by Family Courts in case Irfan Javed and 2 others v. Additional District Judge, Toba Tek Singh and 2 others [Lahore] (2023 MLD 483) and in case of Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153), case of Mst. Raheela Salamat v. Additional District Judge, Faisalabad and 2 others [Lahore] (2010 YLR 314),case of Muhammad Imam-ud-Din v. Mst. Saira Bano and 2 others [Balochistan] (2021 CLC 911)but in these cases whether family case being quasi-judicial in nature could be decided on the basis of oath never remained under discussion. c) The form and wording of the oath must be common or binding amongst the parties to the lis. d) The oath, its form and wording must not be repugnant to justice, decency and it must also not be illegal and void. e) The oath must relate to the fact in issue between the parties and it must not affect the person who happen not party to the suit. f) If all above conditions are fulfilled then lastly the court must also think it fit to decide the case on oath. The words "the Court may, if it thinks fit" relates to the facts and circumstances of the case. The fitness of the case, in the opinion of the court, for its decision on oath must be based upon the judicial considerations. For example, decision of the case on oath when evidence of the parties either has commenced or concluded is not considered fit by the superior Courts of Pakistan. When evidence of the parties is commenced or is concluded then case must be decided on the basis of evidence alone. Section 9 of the Oaths Act, 1873 also is relevant in this regard which provides power of the court to administer oath to the party or to the witness if such an offer is accepted by other party. For convenience Section 9 is reproduced as under: Administration of oath if accepted. If such party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it, and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court. In terms of Section 9 of the Oaths Act, 1873 court could administer oath to the party or to the witness who had shown his willingness to take oath. The oath may also be administered though appointment of commission in terms of Sections 75 to 78 read with Order XXVI of the Code of Civil Procedure, 1908. Section 10 of the Oaths Act, 1873 relates to binding effect of the oath administered to the party or to the witness. For convenience Section 10 of the Oaths Act, 1873 is reproduced as under: Evidence conclusive as against person offering to be bound. The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. In terms of Section 10 of the Oaths Act, 1873 the statement so made by the party or witness on oath has been given status of evidence and too conclusive in nature. Article 2(9) of the Qanun-e-Shahadat Order, 1984 proves that when one fact is declared by Qanun-e-Shahadat Order, 1984 to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it. Court could decide the suit on the basis such a statement made on oath by the party or by the witness. However, in certain circumstances, which shall be discussed later on, the court could refuse to decide the case on the basis of statement made on oath. So far as the conclusiveness and unwaveringness of evidence as against the person offering to be bound is concerned, Section 11 elucidates lucidly and unambiguously that the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. The phraseology "conclusive proof" brings into play inconspicuously the general principle of estoppel and sets forth that a party, who offers to be bound by the evidence given by the opposite party or a witness on special oath, shall not have the right to challenge the evidence which shall be conclusive and definitive proof of the matter. Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153). The words "be conclusive proof of the matter stated" in Section 11 of the Oaths Act, 1873, obviously mean that the evidence on oath so given shall be conclusive proof in the suit in which such evidence is recorded of the matter in respect of which the parties have agreed to be bound. Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841). Section 11 of the Oaths Act, 1873 provides for refusal of the party or witness to take oath in terms of offer made for taking such an oath by it/him and decision of the case on its basis. The party or witness who offering to take oath and requesting the court to decide the case on its basis may on justified reasons could be allowed to relies therefrom. The Court in such a situation is required to take in writing all the proceedings and the reasons offered by the party or witness to refuse to take proposed oath. 1.4 DECISION ON OF CASE ON THE BASIS OF STATEMENT MADE ON OATH POSSIBLE IF BOTH PARTIES AGREE TO THAT PROCESS Decision on oath is possible if both parties agree to that process. Muhammad Sharif v. Bashir Ahmad [Lahore] (1987 CLC 2006). Provisions of Art.163, Qanun-e-Shahadat Order, 1984 were applicable only when plaintiff had taken oath in support of his claim in a case for decision. Sher Bahadur Khan and another v. Haji Wali Bat Khan and 7 others [Peshawar] (1992 MLD 46). Learned counsel for the petitioner has stated that the petitioner put in an application for decision of the case on oath but the respondent refused to agree to that process and has argued that an adverse presumption from the same may be drawn against the respondents. This is not the correct legal position. Decision on oath is possible if both the parties agree to that process. Muhammad Sharif v. Bashir Ahmad [Lahore] (1987 CLC 2006). 1.5 DIFFERENCE BETWEEN OATH UNDER SECTION 8 TO 11 OF THE OATHS ACT, 1873 AND ARTICLE 163 OF TH|E QANUN-E-SHAHADAT ORDER, 1984 Article 163 of Qanun-e-Shahadat Order, 1984 is relevant and not Sections 8 to 11 of the Oath Act, 1873. The oath prescribed in Oaths Act, 1873 is binding, upon the parties, while oath under Article 163 of Qanun-e-Shahadat Order, 1984 is not binding. In case of rebuttal of oath by the other side, the Court would proceed by recording evidence. The Magistrate seems to have influenced from Oath Act, 1873 and lost sight of Article 163 of Qanun-e-Shahadat Order 1984. Abdul Khaliq v. Gul Faraz (PLD 2011 Peshawar 112). Article 163 of the Qanun-e-Shahadat Order, 1984 provides a mechanism to accept or denial through the claim on oath although it is different from Oaths Act, 1873 and though the said Article is applicable in civil proceedings only Mst. Jamila v. The State [Islamabad] (2019 P.Cr. J 1176).Article 163 of the Qanun-e-Shahadat Order, 1984 and Section 9, 10 and 11 of the Oaths Act, 1873 are not in consonance with each other rather are contradictory. Article 163 of the Qanun-e-Shahadat Order, 1984 exclusively deals with the civil matters as it firstly relates to plaintiff and secondly it specifically has excluded the cases relating to criminal matters. Section 9 of the Oaths Act, 1873 deals with the cases in judicial proceedings. It does not exclude decision of case on the basis of oath in criminal matters, whereas, Article 163 of the Qanun-e-Shahadat Order, 1984specifically prohibits decision of the criminal cases on oath. Both the provisions as discussed supra i.e. Article 163 of Qanun-e-Shahadat Order and Sections 8 to 11 of Oaths Act, 1873 are opposite to each other. Muhammad Rafique v. Nasir Mehmood (PLD 2016 Lahore 428). Oath under Qanun-e-Sahadat Order, 1984 and the one under the Oaths Act, 1873, were diametrically opposed to each other, and no inference could be drawn by the Court against the plaintiff on his refusal to take oath under Article 163 of Qanun-e-Sahadat Order, 1984. Bashir Ahmed v. Muhammad Luqman (1999 SCMR 378). The oath within, the contemplation of Sections 8 to 11 of the Oaths Act, 1873 stems from a voluntary agreement between the parties and when taken has a binding effect leaving the party making the offer with no choice to turn around and strike a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908, Firm Chiragh Hussain v. Khawaja Habib Joo PLD 1983 SC (AJ&K) 86, Khan Sher v. Mst. Kabla and another PLD 1988 Peshawar 86 and Muzaffer Ali and 2 others v. Ch. Asghar Ali 1991 CLC 2110 while the oath, envisaged by Article 163 of the Qanun-e-Shahadat, 1984 is entailed by the initiative taken by the plaintiff who takes an oath in support of his claim first and then on his application the Court calls upon the defendant to deny the claim on oath and in any event the Court is not precluded from recording evidence of the parties and deciding the case on merits as observed in Rehmatullah v. Nasir Khan and 7 others 1991 MLD (Posh.) 101, Nazir Ahmad v. District Judge, Laiah PLD 1986 Lahore 137 and Muhammad Shahbaz v. Ghulam Rasool 1987 CLC 1512. In technical terms the oath referred to in Article 163 of the Oanun-e-Shahadat, 1984 is a general oath and the oath provided by the Oaths Act,1873 is a special oath and both are diametrically opposed to each other. Bhore Khan v. Noor Din (PLD 1993 Peshawar 72). 2. PROCEDURE FOR DECISION OF CASE ON THE BASIS OF OATH The statutory law available at present does not prescribe procedure comprehending all issues which could crop up for decision by the court seized with matter for its decision on the basis of oath. This fact has been judicially recognized by superior Courts of Pakistan in case of Irfan Javed and 2 others v. Additional District Judge, Toba Tek Singh and 2 others [Lahore] (2023 MLD 483), case of Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841), case of Ahmad Khan and others v. Jewan (PLD 2002 SC 655) and case of Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823).Some guidelines could be found from Article 163 of the Qanun-e-Shahadat Order, 1984 and from Section 8, 9, 10 and 11 of the Oaths Act, 1873. Besides this some principles have been settled by our superior Courts in this regard. We are bound to follow the decision of Supreme Court, respective High Court and Federal Shariat Court in terms of Article 189, 201 and 203-GG of the Constitution of Islamic Republic of Pakistan 1973. Further in terms of Article 4 of the Constitution of Islamic Republic of Pakistan 1973 the decision of the superior Courts deciding question of law or enunciating principles of law falls within definition of law. An attempt is made to collect all decisions of Superior Courts of Pakistan to know the procedure to be followed by the Courts for decision of case on the basis of oath in terms of Sections 8, 9, 10 and 11 of the Oaths Act, 1873 and Article 163 of the Qanun-e-Shahadat Order, 1984 which is as under: 2.1 WHEN DECISION OF CASE ON THE BASIS OF STATEMENT MADE ON OATH IS PERMISSIBLE In Islamic Law the decision of lis on oath is permissible when although a party has a cause of action against other party but has no evidence for its proof. When party has evidence for proof of its case and the same is either in progress or is concluded then decision of the case on oath is not permissible under law. Same is provided in terms of Section 8 of the Oaths Act, 1873 which provides that offer of the party or witness for decision of the case on oath may proceed further if Court thinks fit. It shall not be in fitness of things that offer of a party or witness for decision of case on the basis of oath be proceeded with when party has evidence for proof of its cause. It is also possible under Article 163 of Qanun-e-Shahadat Order, 1984 if there is no evidence available with a plaintiff and he can support his claim only by his own oath and by no other means. In that case if the plaintiff of a case takes the oath the respondent also takes the oath and if he refuses the claim of the plaintiff the case or plea of the plaintiff fails. This is known as Half-e-Radd. But when evidence is available and can be produced then resort to Article 163 ibid cannot be made. Both parties have led evidence and, therefore, the provisions of Sections 8,9, 10 and 11 of the Oaths Act, 1873 could not apply to it. Therefore, no adverse presumption against the respondent could be drawn Muhammad Sharif v. Bashir Ahmad [Lahore] (1987 CLC 2006). The superior Courts also laid down a principle by interpreting Article 163 of Qanun-e-Shahadat Order, 1984 that when evidence is available and can be produced then resort to Article 163 cannot be made. Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others [DB Lahore] (2003 MLD 131).The application under Article 163 of the Qanun-e-Shahadat Order, 1984 containing was rejected by the trial Court on the ground that both parties completed their evidence and case was fixed for final decision on the same date, consequent upon conclusion of arguments. Haji Nauroze Khan v. Malik Raz Muhammad and 2 others [DB Quetta] (2006 CLC 144).The Superior Courts also laid down a principle by interpreting Article 163 that when evidence is available and can be produced then resort to Article 163 cannot be made. Where both the parties have led evidence, the provision of this Article should not be applied Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others [Lahore] (2007 CLC 1372). It seems thus evident that under the original concepts in Islamic Fiqh a plaintiff has first to raise a claim. If he has witnesses in support of the claim the matter has to be decided on the basis of evidence led, apparently, from either side. It is only in cases where there are no witnesses available in support of the claim that the plaintiff, upon raising the demand, is entitled to exact do oath from the defendant and that is the plaintiff's right. If the defendant declines to make oath the plaintiff (on taking oath himself) should have his decree. Alternatively, on the defendant making oath of denial the plaintiff must fail. It is these concepts of Fiqh, which are implicitly ingrained in the framing of Article 163 of the Qanun-e-Shahadat Order, 1984. Similar views were expressed by Abdul Karim Khan Kundi, J. (as he then was), in Khan Sher versusKabla (Mst.) PLD 1988 Peshawar 65, where Nazir Ahmad v. District Judge, Leiah PLD 1986 Lahore 137, was substantially dissented from. The rule seems to be also recognised by the Supreme Court in Muhammad Fazil v. Bibi Sughran 1991 SCMR 1371. Muhammad Luqman v. Bashir Ahmad (PLD 1994 Karachi 492). The apex Court, while interpreting the provision of Article 163 of the Qanun-e-Shahadat Order, 1984, has laid down principle that when both the parties have led evidence, the provision of this Article shall not be applied. Mir Sahib Khan and others v. Ghazi Muhammad and others (PLD 2014 Peshawar 29). Article 163 will come into play only when the plaintiff could not substantiate his claim through evidence but when a claim could be established through evidence there will be no occasion for the disposal of the suit on taking oath by the plaintiff in support of his claim and oath by the defendant in denial of the claim. Laiq Dad and others v. Mst. Noor Jehan and others (PLD 2004 Peshawar 30). The provision of Article 163 of Qanun-e-Shahadat Order, 1984 is operative in a case when the plaintiff has no evidence in support of his claim and he seeks decision on the basis of an oath then he may place his case on a special oath and if the same is denied on oath by the defendant on oath, the plaintiff's Suit fails. Ali Asghar Dawood Bhoy through Attorney v. Ibrahim [Sindh] (2020 CLC 1503). Article 163 can be invoked only in cases where the plaintiff cannot produce requisite evidence in support of his claim when he may opt to the decision of the case on oath. Khan Sher v. Mst. Kabla and another (PLD 1988 Peshawar 65). 2.2 MATTER LEFT TO THE COURT TO DEVISE REASONABLE PROCEDURE TO PROCEED WITH THE MATTER FOR DECISION OF CASE ON THE BASIS OF OATH If, on the other hand, when the claim made is shown to be prima facie valid but the plaintiff is unable to produce evidence and demands that the defendant to be put to his oath, in that case Qazi must administer oath to him. The demand of plaintiff is requisite to the exaction of oath as it is his right. This has not been so provided in Article 163 of the Qanun-e-Shahadat Order, 1984 as the matter has been left to the Court to proceed with the matter as it may deem fit. Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823). It may not be out of place to observe that Sections 9, 10 and 11 of the Oaths Act, 1873 have not provided any procedure for recording of the statement on special oath but the Court can lay down its own procedure to ensure that prejudice is not caused to any of the parties depending upon the circumstances of each case. Ahmad Khan and others v. Jewan (PLD 2002 SC 655). 2.3 OFFER AND ACCEPTANCE FOR DECISION OF CASE ON THE BASIS OF OATH MUST BE MADE THROUGH WRITTEN APPLICATION AND WRITTEN REPLY RESPECTIVELY Essentially, there is an ambiguity in acceptance of offer by Jewan, therefore, learned Presiding Officer may have called upon the plaintiffs (petitioners) to submit application specifying the nature of the statement which they wanted to obtain on oath for the decision of the case and then the defendant Jewan should have also been provided an opportunity to categorically accept or reject the offer being made by the plaintiffs. Ahmad Khan and others v. Jewan (PLD 2002 SC 655). 2.4 SEPARATE STATEMENTS OF THE PARTIES FOR OFFER TO TAKE OATH AND ACCEPTANCE THEREOF MUST BE RECORDED ON SEPARATE DATES The Court should be careful to see that such offers and acceptances are not recorded with the same snap speed with which they are made, for such offers and acceptances would not be founded in piety and grace and would not be made at the highest level of truth. For no sooner a person makes an offer to another to make a statement on the Holy Qur'an or his Holy Book, whichever it may be, with regard to any matter or fact, the effect of which will be to bind him in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement on the Holy Book shall place himself figuratively before his Maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent haste, or which otherwise, from the apparent conduct of any of the parties, appear to be such as would make a mockery of the oath. Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841). It is also not advisable for the Courts to accept the offer of anyone of the parties for decision of the case on oath so promptly because there is every possibility that may be, for the time being, the offer for the decision of the case on special oath is accepted without knowing its consequences but after some time the party may resile from such offer for any cogent reason. In this behalf this Court has already made certain observations in the case of Muhammad Ali v. Maj. Muhammad Aslam and others PLD 1990 SC 841. Ahmad Khan and others v. Jewan (PLD 2002 SC 655).The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over-emphasised, for such a procedure would give parties some short time to think over the matter and extricate themselves from hasty decisions, before appending their signatures to their statements. We do not wish to go down on the record as suggesting that this procedure must invariably be observed, for there is no such legal compulsion, not do we want to suggest that certain safeguards suggested here should be treated as rules of prudence to be observed in such cases, because sections 9 to 11 of the Oaths Act, 1873 do not admit of such intrusions, but we would say that all this may be treated as a note of caution, for a Court is as much bound to ensure the solemnity of these proceedings, as the parties are bound to respect them. Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841).No separate statements regarding offer by the respondent or acceptance by the petitioner were recorded by the learned trial Court rather their signatures were obtained on the margins of interim orders sheets. Impugned proceedings before the learned trial Court therefore lack due care, caution and solemnity. Abdul Aziz v. Muhammad Yousaf (PLD 2015 Lahore 348). In the absence of any such satisfactory or sufficient cause the Court is obligated to implement the agreement and to record the statement of the party concerned to make decision in the case accordingly. Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153). 2.5 OFFER AND ACCEPTANCEFOR DECISION OF CASE ON THE BASIS OF STATEMENT ON OATH SHOULD BE RECORDED IN WORDING OF THE PARTIES Before the High Court an objection was raised that the offer and acceptance was recorded in the shape of a note, which could not be acted upon, as the trial Court had failed to record separate statements of the appellant and respondent No. 1 showing the precise wording of their offer and acceptance and that, therefore, the offer and acceptance had no validity. As already stated by us, this should have been done, as it was a salutary procedure. Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841). 2.6 OMISSION TO RECORD SEPARATE STATEMENTS FOR DECISION OF CASE ON THE BASIS OF STATEMENT ON OATH It is also settled principle of law that omission to record appellant's statement separately was merely an irregularity, which would not in law invalidate the entire proceedings of taking oath and recording the statement. Muhammad Mazhar v. Arshad Mehmood (DB Decision) (PLD 2005 Lahore 304). The plaintiff was present in Court when the offer was made by the defendant and he must have agreed with the offer, otherwise the learned trial Court would not have proceeded to record the statement of the defendant. Even otherwise the omission to record the plaintiff's statement separately is merely an irregularity which does not, in law, invalidate the entire proceedings of taking oath and recording statement. Muhammad Siddique v. Noor Muhammad and 2 others [Lahore] (1996 CLC 695). Thus visualized, a mere irregularity in not following the procedure prescribed in the aforesaid provisions of law would not ipso facto render the impugned order void in the absence of any prejudice to either of the parties which has not even been alleged therein. Khadim v. Judge, Family Court, Samundari District Faislaabad and another [Lahore] (1991 MLD 1250). 2.7 HASTE IN DECISION OF CASE ON THE BASIS OF STATEMENT ON OATH Article 163 of Qanun-e-Shahadat Order, 1984 was interpreted by the superior Courts and laid down a principle that no doubt decision of a case on oath is one of the established modes for disposal of the case, but at the same time the Courts are bound to handle such cases with great care because such cases involve sensitiveness and to avoid haste and rationalize emotional outbursts. Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others [DB Lahore] (2003 MLD 131). The provisions of Article 163 of Qanun-e-Shahadat Order, 1984 based on a principle that no doubt decision of a case on oath is one of the established modes for disposal of the case but at the same time, the Courts are bound to handle such cases with great care because such cases involve sensitiveness and to avoid haste and rationalize emotional outbursts. Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others [Lahore] (2007 CLC 1372). The evidence of the deceased petitioner was concluded and thereafter respondent No.1 had entered in the witness box. After her examination-in-chief, she was subjected to lengthy cross-examination. Towards almost the fag end thereto, the said statement was made by respondent No.1 and immediately thereafter her statement was recorded. The offer was accepted and oath was taken and the suit was decided. I have examined the judgment cited by the learned counsel for the parties. To my mind the following excerpts quoted from the judgment in the case of PLD 1990 SC 841 and reproduced by their lordships in the case of Ahmad Khan and others at pages 658 and 659 wholly supports the observation of the learned Additional District Judge in the impugned judgment: "In case such as the present, where it is not possible to lay down guiding principles as to what facts or circumstances in a given case would induce a Judge to permit a party to resile from either the offer or the acceptance, it is necessary for the Court to guard itself and the parties against snap decisions taken by the parties in this connection. More open than not, during examination of a party or a witness or during a heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do. The Court should be careful to see that such offers and acceptances are not recorded with the same snap speed with which they are made, for such offers and acceptances would not be founded in piety and grace and would not be made the highest level of truth. For no sooner a person makes an offer to another to make a statement on the Holy Qur'an or his Holy Book, whichever it may be, with regard to any matter or fact, the effect of which will be to bind him in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement on the Holy Book shall place himself figuratively before his Maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent haste, of which otherwise, from the apparent conduct of any of the parties, appear to be such as would make a mockery of the other. The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over emphasized, for which a procedure would give parties some short time to think over the matter and extricate themselves from hasty decisions, before 'appending their signatures to their statements. We do not wish to go down on the record as suggesting that this procedure must invariably be observed, for there is no such legal compulsion, nor do we want to suggest that certain safeguard suggested here should be treated as rules of prudence to be observed in such cases, because sections 9 to 11 of the Oaths Act do not admit of such instructions, but we would say that all this may be treated as a note of caution; for a Court inasmuch bound to ensure the solemnity of these proceedings, as the parties are bound to respect them." 5. It will be noted that it has been emphasized by their lordships that in such like manner Courts are not required to act too promptly as has been done by the learned trial Court in the present case. Khushi Muhammad through L.Rs. v. Mst. Nazira Bibi and 4 others [Lahore] (2007 CLC 1874). It is also not advisable for the Courts to accept the offer of anyone of the parties for the decision of the case on oath so promptly because there is every possibility that may be, for the time being, the offer for the decision of the case on special oath is accepted without knowing its consequences but after some time the party may resile from such offer for any cogent reason. In this behalf this Court has already made certain observations in the case of Muhammad Ali v. Maj. Muhammad Aslam and others PLD 1990 SC 841. Ahmad Khan and others v. Jewan (PLD 2002 SC 655).Article 163 of Qanun-e-Shahadat Order, 1984 was interpreted by the superior Courts and laid down a principle that no doubt decision of a case on oath is one of the established modes for disposal of the case, but at the same time the Courts are bound to handle such cases with great care because such cases involve sensitiveness and to avoid haste and rationalize emotional outbursts. Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others [Lahore] [DB Decision] (2003 MLD 131). No doubt, decision of a case on oath is one of the established modes for disposal of cases but at the same time the Courts are bound to handle such cases with great care for involving in it the sensitiveness and to avoid haste and rationalising emotional outbursts. It is also the duty of the Court to scrutinize the relevant record and to record the necessary statements. In such a situation, when no statement had yet been recorded on oath and the alleged offer and acceptance of the oath was obviously the result of heated discussion between the plaintiff and the defendant in the Court at a stage when the plaintiff was going to record his examination-in-chief, the approach of the learned trial Court to the facts and circumstances of the case was quite correct and the learned District Judge has erred in law while accepting the revision petition. Shakirullah v. Hidayatullah and 3 others [Peshawar] (1999 MLD 389) 2.8 PARTY OFFERING STATEMENT ON OATH FOR DECISION OF THE CASE MUST BE MENTALLY CALM AND CONSIDERING EFFECTS OF OATH UPON HIS RIGHTS There are circumstances in which such offer is made to the opposite party after considering its effect and the opposite party may either accept or reject the offer after considering its consequences. In such circumstances, the parties are well-composed and not overcome by spontaneous emotions. The party offering the oath must be mentally calm and considering when he so offers, must not be under the influence of emotions and must be in a position to clearly know that he will lose his right, if any, if the oath is taken by the opposite party. Muqadar Shah and others v. Mudam Gul [Peshawar] (2005 CLC 1441). More often that not, during examination of a party or a witness, or during a heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do. Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841). 2.9 OATH TO PARTY OR TO WITNESS MUST BE ADMINISTERED IN PRESENCE OF OTHER PARTY How an oath could be administered to the mortgagee in the absence of the mortgagor when he neither offered it nor accepted the offer for resolution of dispute on its basis? If at all the resolution of dispute was sought to be made on the basis of oath, it should have been, in the first instance offered to the plaintiff-mortgagor and then to the defendant-mortgagee. Umar Baz Khan through L.Hrs. v. Syed Jehanzeb and others (PLD 2013 SC 268). 2.10 COURT WILL TAKE OATH IN COMPLETE SILENCE AND THE PERSON WHO IS GIVING OATH MUST BE STANDING BEFORE THE PRESIDING OFFICER OF THE COURT Court will take oath from the witness in complete silence and the witness who is giving oath must be standing before the Presiding Officer of the Court. Furthermore, the words will be repeated in a clear voice phrase by phrase. Meaning thereby, each and every word will be made known to the witness so as to make him understand what is the oath which he is going to give. Ehsan Ellahi Baig v. Muhammad Pervaiz (PLD 2018 Lahore 693). 2.11 STATEMENT MADE ON OATH SHOULD HAVE BEEN REDUCED INTO WRITING VERBATIM AND THEN READ OVER TO MAKER AND HAD HE ADMITTED IT CORRECT THEN HE TO SIGN/THUMB-IMPRESSED THE SAME In fact the statement made on special oath should have been reduced into writing verbatim and then read over to the respondent and had she admitted the correctness of the same, then her signature/thumb-impression should have obtained in token of correctness. Mst. Khairan Bibi v. Mst. Hajran Bibi [Lahore] (2012 YLR 2054). 2.12 OFFER TO ABIDE BY STATEMENT ON OATH MAY BE ACCEPTED BY PARTY PERSONALLY OR THROUGH HIS AGENT It is also settled principle of law that the word 'party' as hinted in sections 8 and 9 of Oaths Act, 1873 includes an Advocate of the party also and the offer to abide by the special oath under Section 9 may be accepted not by party personally but by a party through an agent. Reliance in this regard may safely be placed on "Haji Dilbar Khan Mahaar, A.A.G. Mewo and another v. Mst. Lal Khatoon" (PLD 1962 Kar. 162), wherein it was held that an Advocate empowered by a party to enter into a compromise etc., was fully competent to make an offer to abide by the special oath and in doing so he must be deemed to have been instructed by his client. In "Hata v. Samail" (AIR 1932 Lahore 414) it was held that any act required or authorized to be done by a party to a suit can be done by his recognized agent provided the act falls generally within the scope of the latter's authority. It cannot be held that an offer to be bound by the oath of the other party must be made by the party personally and not by his duly authorized agent. Irfan Javed and 2 others v. Additional District Judge, Toba Tek Singh and 2 others [Lahore] (2023 MLD 483). A counsel acting on behalf of his client is not to be treated on a better footing than an attorney acting on behalf of his principal. In nutshell the power of counsel emanates from the Vakalatnama and is dependent upon the terms thereof, therefore, if some power does not find mention in the Vakalatnama the same cannot be exercised by the counsel even by invoking the principle of implied authority. Sh. Muhammad Fazil v. Sh. Abdul Qadir and 7 others [Lahore] (1997 CLC 243). Law is well-settled that a counsel appointed by the parties has the power to make such an offer as the same flows from the terms of his appointment. I have gone through the power of attorney/Vakalatnama executed in favour of the learned counsel for the revision petitioners and find that express power was given to him to make such an offer. Talah Safdar and another v. Bashir Ahmad and others [Lahore] (1997 CLC 601). In case the aforesaid basic facts are put in a juxta position then it is crystal clear that the appellant has himself signed the power of attorney in favour of the Advocate, therefore, offer accepted in presence of his counsel by his Special Attorney is binding upon the appellant. Muhammad Mazhar v. Arshad Mehmood (DB decision) (PLD 2005 Lahore 304). The power of attorney in favour of an Advocate does bear a clause that all acts done by the attorney would be deemed to have been done by the parties but the same pertains to the routine matters and a counsel is not authorized to make an offer for decision of the suit on special oath unless so instructed by the parties concerned in black and white. The respondent did not make any statement on special oath and her statement was confined only to the effect that she had heard the above statement and same was correct. In fact the statement made on special oath should have been reduced into writing verbatim and then read over to the respondent and had she admitted the correctness of the same, then her signature/thumb-impression should have obtained in token of correctness. The statement made by the learned counsel for the petitioner in this case was not authorized as he had no specific instructions in this regard from the petitioner. Mst. Khairan Bibi v. Mst. Hajran Bibi [Lahore] (2012 YLR 2054). Although it has not been specifically mentioned in his Vakalatnama that he was empowered to settle the dispute in terms of special oath yet the said two recitals leave little room for doubt that he had the authority to agree to the disposal of suit on the basis of that oath. Muzaffar Ali and 2 others v. Ch. Asghar Ali [Lahore] (1991 CLC 2110). There is thus preponderance of views in favour of the principle that prima facie a party to the judicial proceedings in Sections 8 and 9 of the Oaths Act, 1873 would include an Advocate of the party also. It appears to us that an Advocate empowered by a party to enter into a compromise etc., is fully competent to make an offer to abide by the special oath and in doing so he must be deemed to have been so instructed by his client. This appears to us to be a well settled principle of law. Haji Mewo and Another v. Mst. Lal Khatoon (PLD 1962 (WP) Karachi 162). 2.13 OFFER AND ACCEPTANCE ON BEHALF OF MINOR LITIGANT FOR DECISION OF CASE ON THE BASIS OF STATEMENT ON OATH Law by now is fairly well settled that the offer of oath as was made by the next friend of the petitioner in the instant case is only a special method of proof adopted by the next friend and is not in the nature of an agreement or compromise and, therefore, it does not require the sanction/leave of the Court contemplated by Order XXXII Rule 7, C.P.C. Refer "Muhammad Mahmud Chaudhry and others v. Behary Lal Saha and others" (AIR 1930 Calcutta 463) wherein it was held "The offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on a special oath stands on a very different ground from an agreement or compromise contemplated by Order 32, Rule 7, and in such a case the minor is bound by the consent of his guardian although given without the leave of the Court provided there is no fraud or gross negligence on the part of the guardian." Again in the case reported as AIR 1936 Lahore 235 Sultan Muhammad and others v. Mehr Khan and others, the view taken was that "when the next friend of a minor expressed willingness to be bound by the oath of a certain witness, it was not in, the nature of a compromise." It was a method of proof which the next friend had adopted. There was nothing illegal at all in that method. This view was followed in a Peshawar case reported in PLD 1966 Peshawar 137 wherein it was held that the offer of next friend of the minor to abide by the oath of the opposite party on the crucial question involved in the suit was not in the nature of compromise but was method of proof, adopted by the next friend and no illegality was attached to that matter. Obaid Asghar v. Farhat Shaheen (1995 SCMR 865). The question which requires consideration in this case is as to whether the offer made by the learned counsel for the revision petitioners for decision of the case on the basis of special oath if taken by the opposite party was the agreement or compromise of the kind and nature as contemplated by Order 32, Rule 7, C.P.C. which required express permission of the Court before the same was allowed to be materialised and acted upon in case the same also affected the rights of minor in the suit. This question came up for consideration in a case reported as Jafar Abbas and 2 others v. Ahmad and another (PLD 1991 SC 1134) relied upon by the learned counsel for the respondents. In this judgment after examining the law and considering the judgments of the Full Bench of the Punjab Chief Court in Malak Sorab v. Anokh Rai and others (18 P.R. 1891) and judgment of Calcutta High Court in Sheo Nath Saran v. Sukh Lal Singh (ILR 27 Cal. 229) it was held that such an offer did not constitute agreement or compromise as contemplated by Order XXXII, Rule 7, C.P.C., therefore, the same did not require express permission of the Court and the same could be acted upon without such leave as the statement if made on special oath amounted to evidentiary admission and form of proof. Talah Safdar and another v. Bashir Ahmad and others [Lahore] (1997 CLC 601).It was authoritatively laid down that settlement to decide the matter on oath constituted a valid agreement from which parties could not conveniently wriggle out until contract was ex-facie shown to be void or incapable of implementation, which is not the case of present petitioner. Muhammad Azam v. Additional District Judge and others [Lahore] (2019 CLC 207). 2.14 OFFER OF A PARTY FOR DECISION OF CASE ON THE BASIS OF STATEMENT ON OATH WITHOUT ACCEPTANCE BY OTHER PARTY The plaintiffs had not offered disposal of the suit on the basis of oath as they were confident to establish their claim by means of evidence. The offer made by the defendant was also denied and thus without an agreement between the contesting parties for disposal of the dispute through special or general oath, the Court cannot force the plaintiff to take oath in support of their claim or to accept the offer of the defendants for taking oath in rebuttal of the claim of the plaintiffs. Laiq DAD and others v. Mst. Noor Jehan and others (PLD 2004 Peshawar 30). If the party or the witness refuses to take the oath or solemn affirmation, he shall not be compelled to make such an oath. The court shall record this fact as a part of the proceedings together with reasons, which may be assigned for such refusal. Since the oath offered by the appellant was not accepted by the respondent and he rested his claim before the court on the basis of evidence by showing enough confidence, therefore, the case was to be decided on its own merits. Muhammad Asif v. Muhammad Idrees [Lahore] (2013 MLD 1395). 2.15 UNILATERAL OATH TAKEN UNDER ARTICLE 163 OF QANUN-E-SHAHADAT ORDER, 1984 BY THE PLAINTIFF IN HIS FAVOUR, WOULD NOT BE TREATED AS AN EVIDENCE The unilateral oath, taken by the plaintiff in his favour, would not be treated as a conclusive piece of evidence as to be given preference over evidence produced by the parties. A deposition of party on oath in his favour nevertheless remains evidence. Mir Sahib Khan and others v. Ghazi Muhammad and others (PLD 2014 Peshawar 29). A deposition on oath by a party in his own favour nevertheless remains evidence. Mirza Khan and another v. Muhammad Ilyas (PLD 1991 SC 383). In this case, if the defendants would have left the plaintiff's oath uncontested then, obviously, it would have been liable to be considered as strong evidence in support of the truth of his case which the defendants could have disproved in the usual manner by means of evidence and in taking the desired oath they cannot be considered to have placed the matter at any higher footing because therein they had not done anything more than merely destroying the weight which would otherwise have attached to the plaintiff's statement made on oath. Mst. Husni alias Husna Begum and 2 others v. Nayyar Qayyum [Lahore] (1987 CLC 2485) 2.16 OBJECTIONS OF THE PARTY GOING TO BE AFFECTED BE INVITED BEFORE DECISION OF THE CASE PURSUANT TO STATEMENT ON OATH After administration of oath and before decision of the case on the basis of oath objections of the party going to be affected by statement on oath should be called. There may be cases where such party may offer some genuine facts and adduce evidence which prompted the offeree to make statement on oath such as he may have been bribed to make such statement on oath or other similar natter. It was in, view of this incident that the said party was permitted to resile from his offer and the said decision was upheld till the Supreme Court of Pakistan. In the present case also it was brought to the notice of the Court that some of the parties had quarrelled with each other in the office of Income Tax Officer with the result that relations between them had worsened and that the said parties had lost confidence in the honesty and integrity of Sh. Manzoor Elahi i.e. the offeree of the oath. Obviously, Sh. Manzoor Elahi did not mind picking a quarrel with his brother Sh. Abu Bakar. his nephew and another for the reason that he knew that the cases are going to be decided on the basis of his statement. Even otherwise the time spent between offer of oath and the administration thereof was definitely a negative feature because the intervening events had made all the differences inasmuch as almost all the parties had filed objections that they had either no confidence in the integrity and honesty of Sh. Manzoor Elahi or had lost confidence because of the quarrel. Needless to add that Javed Iqbal etc., had also objected on the ground that they had not instructed their counsel to make such a statement. Manifestly the events as they took place between the offer of oath and the administration thereof were enough to relieve the parties of the effect of their admission/submission or to permit them to resile therefrom. Sh. Muhammad Fazil v. Sh. Abdul Qadir and 7 others [Lahore] (1997 CLC 243). 2.17 WITHDRAWAL, RESILING FROM OFFER TO DECIDE CASE ON THE BASIS OF STATEMENT ON OATH The plaintiff did not make an offer for administering special oath as provided in Article 163 of Qanun-e-Shahadat Order, 1984 rather the defendant administered oath in the light of a mutual agreement of the parties and the said mutual consent is the basic theme as provided in the above referred provisions of Oaths Act, 1873. The defendant after acceptance of the offer made by the plaintiff administered special oath and to my mind the plaintiff being bound by his words cannot re-open the matter. The mere contention urged by learned counsel that the plaintiff could not understand the consequences of the offer so made is no ground to retract from the offer, which has already been acted upon. Muhammad Rafique v. Nasir Mehmood (PLD 2016 Lahore 428). Legal position it is quite clear that after the offer of special oath made by the petitioners before the trial Court was accepted by the respondents, the petitioners could not be allowed to resile from the said oath unless they were able to establish that the agreement arrived at for disposal of the suit in accordance with special oath was either void or was frustrated. Muhammad Rafique and another v. Sam Muhammad and others (PLD 1996 SC 237). The learned District Judge rightly held that the above reproduce statement made by the appellant amounted to conceding the claim of the plaintiff and, therefore, now he cannot turn around and resile from this statement. Muhammad Yousaf v. Bulanda through Legal Heirs (1999 SCMR 2115). In the absence of any satisfactory or sufficient cause the Court is obligated to implement the agreement and to record the statement of the party concerned to make decision in the case accordingly. The petitioner cannot wriggle out or withdraw his offer which was given by him voluntarily before the Family Court and the same acted upon according to his will. Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153). The offer was made on behalf of the appellant, as such not the appellant (defendant) but the respondent (plaintiff) was required to take oath, as such in case of non-appearance, the matter may be decided in favour of the respondent after administering special oath on him or if the appellant has withdrawn his offer before administration of oath, there will be no question of administering oath. Ali Asghar Dawood Bhoy through Attorney v. Ibrahim [Sindh] (2020 CLC 1503).Under the Oaths Act, 1873 once the offer is made and is accepted by the other party even then prior to the passing of the final order the person making the offer cannot resile from his offer. In a case-law reported in (PLD 1997 SC 823) captioned "Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others" it was observed that special oath made basis of the decision, therefore, is not covered by Art.163, Qanun-e-Shahadat Order, 1984 and reference to said Article and alleged violation of any supposed prescribed procedure was not relevant in circumstances. Almost same principle was laid down in a case reported in "Muhammad Ijaz v. Additional District Judge, Islamabad and 3 others" (2005 CLC 1164). Thus the settled law on the point is that when any person makes an offer to the other party to make statement on oath then the said offer is not under Art.163 of the Qanun-e-Shahadat but under the Oaths Act, 1873 if this offer is accepted then the person making the offer cannot resile from it. Abdul Ghani v. Muhammad Sharif [Lahore] (2011 MLD 1377). It is settled proposition of law that petitioner cannot be allowed to back out from his own offer/stand, merely on technical ground. In arriving to this conclusion I am fortified by the judgment reported as, Malik Khan Muhammad alias Khani v. Maulvi Luqman and others (1993 CLC 1552). The aforesaid proposition of law is also supported by the law laid down by Hon'ble Supreme Court in Muhammad Ali's case PLD 1990 SC 841. It is also settled proposition of law that offer once made by any party and accepted by the same has become binding contract between the parties and nobody is allowed to resile from the contract. In arriving to this conclusion. I am fortified by the law laid down by the Supreme Court in Salim Ahmad's case 1974 SCMR 224. The aforesaid proposition of law is also supported by the following judgment of the Hon'ble Supreme Court PLD 1970 SC 241 Muhammad Akbar v. Muhammad Aslam and PLD 1970 SC 331 Mst. Asifa Sultana v. Honest Traders. Rafi Kashif v. Imtiaz Ahmad and 2 others [Lahore] (2001 MLD 128). Petitioner cannot be allowed to back out from his own offer/stand, merely on a technical ground. Malik Khan Muhammad alias Khanay v. Moulvi Luqman and 3 others [Quetta] (1993 CLC 1552). Superior court had disallowed the withdrawal of offer when the offer has been accepted and in some of cases it has been held that even if the offer is accepted the oath is administered even then according to the facts and circumstances of each case the court is empowered to allow the withdrawal of the offer. Mst. Shama Talib and 2 others v. Additional District Judge, Rawalpindi and 4 others (PLD 2014 Lahore 189). The letter of the law makes it unequivocally clear that under the provisions of the Oaths Act, 1873 a party in litigation can offer the opposite party to accept or reject the claim on special oath, but they cannot compel each other to take the special oath, however if the offer is accepted by the other party then a binding agreement comes into existence and the party making the offer has no right and authority in law to resile from it. When the Court communicates the offer to the other party and gets hold of his assent or refusal, as the case may be, it in fact plays a role as an intermediary between the parties and when the offer is accepted by the other party, the acceptance is transmitted to the party inviting the other to take special oath, thereafter the agreement is completed between the parties unless the offer is withdrawn before its acceptance by the other side. The stipulations of the Oaths Act cannot be construed to give an unfair or inequitable advantage to one party over the other, so in the event of an offer or proposal to be bound by the oath of the opposite party, then obviously, due to the mutuality of the promise between them, the party making an offer has no right to resile from it after the offer is accepted and the special oath is taken. In the absence of any such satisfactory or sufficient cause the Court is obligated to implement the agreement and to record the statement of the party concerned to make decision in the case accordingly. The petitioner cannot wriggle out or withdraw his offer which was given by him voluntarily before the Family Court and the same acted upon according to his will. 7. In the case of Muhammad Ali v. Major Muhammad Aslam and others (PLD 1990 SC 841), it was held by this Court that the words "be conclusive proof of the matter stated" in Section 11 of the Oaths Act, 1873 obviously means that the evidence on oath so given shall be conclusive proof in the suit in which such evidence is recorded of the matter in respect of which the parties have agreed to be bound. Whereas in the case of Muhammad Mansha and 7 others v. Abdul Sattar and 4 others (1995 SCMR 795), this Court held that the offer was voluntarily made by the plaintiff which was accepted there and then by the defendant and, as such, the Trial Court rightly disallowed the plaintiff to resile from it and after administering the oath according to the desire of the plaintiff, dismissed the suit of the plaintiff and the appellate Court as well as the High Court rightly concurred with it. While in the case of Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823), it was held by this Court in paragraph 10 of the judgment that "the special oath is administered to a party or nominated person or a witness when a party offers to bind itself to the statement to be made on oath by the other party. In Mst. Asifa Sultana v. Honest Traders, Lahore and another (PLD 1970 SC 331) it was observed that the offer to abide by the oath of opposite-party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and circumstances of each case. Again, in the cases of Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241; Attiqullah v. Kafayatullah 1981 SCMR 162; Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCMR 795; Muhammad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908 and Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 the principle laid down is that a party offering to have a cause decided on oath and undertaking to abide by the special oath of a person (party or not a party to the suit) cannot be allowed to resile from it, for it amounted to a binding contract unless it was found to be void or stands frustrated. So validity of decisions given on the basis of special oath was upheld under the provisions of Oaths Act, 1873. It will, therefore, be seen that "special oath" made basis of the decision in the instant case is not covered by Article 163 of the Qanun-e-Shahadat and reference to Article 163 and alleged violation of any supposed prescribed procedure urged by the learned counsel is misconceived" Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153). Basically, therefore, the principle still is that there is no section in the Oaths Act, 1873, dealing with the question whether a party who has made an offer to be bound by the statement on oath, or special oath, by the opposite party or witness, can resile from such an offer and the matter being one left to be decided on general principles, the question whether the party who has made an offer can resile from it, depends upon the facts and circumstances of each case. Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841).A discrete study of Article 163 of Qanun-e-Shahadat Order, 1984 read with Sections 9 and 10 of the Oath Act, 1873, reveals that when an offer made by one party is accepted by the other party then none can be allowed to travel beyond the offer made. Asif Ali v. Additional District Judge, Faisalabad and others [Lahore] (2018 CLC 1350). As a matter of fact there were enough good reasons to allow the parties to resile from the offer of oath, therefore, the findings recorded by the learned trial Court in regard thereto are hereby reversed and the parties are allowed to resile from the offer of oath as also relieved of the effect of their, submission made in that regard. Sh. Muhammad Fazil v. Sh. Abdul Qadir and 7 others [Lahore] (1997 CLC 243). It is settled principle of law that once an offer is made and is accepted by the other side then the other side has no right whatsoever to wriggle out from that offer, which was accepted by the other party on the well?known principle of approbate and reprobate and also on the principle that the offer by a party to a suit as to being bound by a statement on oath of his opponent on being accepted by the opponent is in the nature of a binding agreement. Arshad Mehmood (DB Decision) (PLD 2005 Lahore 304). Party accepting the offer to settle any dispute by special oath could not be compelled to abide by the oath if it decided to resile from agreement in that behalf. Bashir Ahmad v. Plastic Bag Packaging Limited and others (PLD 1991 Lahore 386). We do not want to go into this point and leave it open for examination some more appropriate case because in our opinion the order dated 2-10-1974 was based on the consent of both the parties in accordance with which the respondent had duly taken the oath and in this context, we do not feel any jurisdiction to take exception to the same especially when the aforesaid statement had duly been acted upon. For this reason, we do not feel that this is a fit case for examination by this Court inasmuch as the parties themselves settled the matter by a just arrangement and there is no justification to realise them from their aforesaid undertaking. Maulvi Muhammad Ramzan v. Muhammad Ismail (1982 SCMR 908). What else is required to be done after the proceedings which were held at the option and volition of the petitioner who in any case is bound to honour his undertaking. It is well established that breach of undertaking to the Court amounts to contempt of Court. Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823).In a later judgment of this Court in case Attiqullah v. Kafayatullah (1981 SCMR 162) in which the judgment of Muhammad Akbar's case was also referred and considered and it was held that party undertaking to be bound by the evidence given on special oath by the opposite-party cannot resile from it as it amounts to a binding contract and unless it is found to be void or frustrated, the Court is not justified to permit the petitioner to resile from his offer when it has already been accepted by the opposite side. In the case in hand too the offer was voluntarily made by the plaintiff which was accepted there and then by the defendant and, as such, the trial Court rightly disallowed the plaintiff to resile from it and after administering the oath according to the desire of the plaintiff. Muhammad Mansha and 7 v. Abdul Sattar and 4 others (1995 SCMR 795). It will thus be noticed that there is no section in the Oaths Act, 1873 dealing with the question whether a party making an offer to abide by a statement on oath, or special oath, by another party or witness can resile from such an offer. This question, therefore, must be decided on general principles of law. This aspect of the question was recently considered by a Bench of this Court in the case of Muhammad Akbar and another v. Muhammad Aslam and another. It was held in that case as under: "This correct position, therefore, is that the agreement dated the 3rd November 1963, that the matters in dispute may be decided in accordance with the statement of Abdur Razzak was in the nature of a contract and the trial Court could in its discretion decline to hold the appellants by it. The exercise of discretion will depend on the facts and circumstances of each case." This principle is applicable to the facts of the present case. The offer to abide by the oath of the opposite party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and the circumstances of each case. Mst. Asifa Sultana v. Honest Taders, Lahore and another (PLD 1970 SC 331). The oath within, the contemplation of Section 8 to 11 of the Oaths Act, 1873 stems from a voluntary agreement between the parties and when taken has a binding effect leaving the party making the offer with no choice to turn around and strike a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908, Firm Chiragh Hussain v. Khawaja Habib Joo PLD 1983 SC (AJ&K) 86, Khan Sher v. Mst.Kabla and another PLD 1988 Peshawar 86 and Muzaffer Ali and 2 others v. Ch. Asghar Ali 1991 CLC 2110 while the oath, envisaged by Article 163 of the Qanun-e-Shahadat, 1984 is entailed by the initiative taken by the plaintiff who takes an oath in support of hisclaim first and then on his application the Court calls upon the defendant to deny the claim on oath and in any event the Court is not precluded from recording evidence of the parties and deciding the case on merits as observed in Rehmatullah v. Nasir Khan and 7 others 1991 MLD (Pesh.) 101, Nazir Ahmad v. District Judge, Laiah PLD 1986 Lahore 137 and Muhammad Shahbaz v. Ghulam Rasool 1987 CLC 1512. In technical terms the oath referred to in Article 163 of the Oanun-e-Shahadat, 1984 is a general oath C and the oath provided by the Oaths Act,1873 is a special oath and both are diametrically opposed to each other. Bhore Khan v. Noor Din (PLD 1993 Peshawar 72). The High Court rejected both the contentions and held that there was no ground in law or in equity on which the petitioner could claim the right of resiling from the solemn agreement which was entered into by him. Such an agreement was in the nature of a contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated. None of these eventualities had occurred in this case. Indeed even the attempt to resile was only a half-hearted attempt, for even after filing the application the petitioner himself offered the Holy Quran to Wali Mohammad and the latter took the oath. The petitioner now seeks special leave to appeal and it is contended on his behalf that the High Court was wrong in taking the view that the petitioner could not resile from his statement. In support of this contention reliance is sought to be placed on a decision of this Court in the case of Mohammad Akbar v. Mohammad Aslam (PLD 1970SC 241). This case does not, however, support the petitioner's contention. All that is said there is that such an agreement though not an adjustment of the suit under O. XXIII, Rule 3 of the Code of Civil Procedure, 1908 is in the nature of a contract and whether the contracting parties should be bound to that contract will depend on the facts and circumstances of each case. This view was further clarified and confirmed in the case of Mst. Asifa Sultana v. Honest Traders (PLD1970SC331). Applying this principle to the facts of the present case we have no hesitation in holding that the High Court was right in taking the view that the trial Court acted on correct principles in deciding the suit on the basis of the special oath. Saleem Ahmad v. Khushi Muhammad (1974 SCMR 224).The question as to whether or not a person making an offer to get the case decided on oath to be taken by the opposite party can be permitted to resile from the offer when the other party has accepted the same was considered inter alia in Jalal Din v. Chiragh Din and others (PLD 1972 Kar. 622), wherein relying on AIR 1941 Lah. 173, AIR 1948 All. 125 and A I R 1957 Orissa 226, it was observed that "an agreement made in Court to be bound by evidence given on special oath is a settlement to which the Court is also a party, therefore, such an agreement is not one of these agreements which a party may keep or break as it liked subject only to a claim from the aggrieved party for damages. To allow a party to resile, without adequate reasons, from an undertaking of this nature would amount to allow him to play the game of hide and seek with the other party and even to abuse the process of the Court. Attiqullah v. Kafayatullah (1981 SCMR 162). Evidently settlement to decide the matter on oath constitutes valid agreement from which parties cannot conveniently wriggle out unless contract is ex-facie shown to be void or incapable of implementation. Syed Abdul Hakeem v. Abdul Wahid [Quetta] (1991 MLD 762).Now considering background of case, the incorporation of facts in the impugned order and reaffirmation of agreement for taking special oath by way of signature of appellant, his counsel constitute sufficient proof, that impugned order and decree is quite lawful. Appellant cannot be permitted to take any somersault or resile from Oath which has been factually acted upon. Syed Abdul Hakeem v. Abdul Wahid [Quetta] (1991 MLD 762). When the statement on oath was for the satisfaction of the plaintiff' and he had offered to withdraw his appeal in the event of Rahmat Ali taking an oath, the question of his retraction did not arise. Abdul Hameed v. Mian Muhammad Akhtar and others [Lahore] (1983 CLC 595). After making an offer of special oath permission could not be given to resile from the same except in very proper case. Ikram-ul-Haque v. Khan Rafique Ahmed Khan [Quetta] (1992 MLD 867).As the petitioner himself made an offer to the respondent No.2 to give statement on the Holy Our'an in presence of his counsel which he did and the same was duly signed by the learned Addl. District Judge as such the petitioner is now bound by the statement of the opposite party and he cannot resile after such an oath. Syed Muhammad Ramzan v. Muslim Zaidi and others (1990 SCMR 681). When the plaintiffs took oath on the Holy Qur'an in the open Court, the petitioners did not object to it. Now, when the plaintiffs have taken oath on the Holy Qur'an and the District Judge has decided the suit accordingly, it does not lay with the petitioners to resile from agreement and their offer and to say that the decision was made against their consent. Najibullah Khan and another v. Fazal Karim and 2 others (1997 SCMR 1085). 2.18 WITHDRAWAL, RESILING FROM OFFER TO DECIDE CASE ON THE BASIS OF STATEMENT ON OATH AMOUNTS TO CONTEMPT OF COURT What else is required to be done after the proceedings which were held at the option and volition of the petitioner who in any case is bound to honour his undertaking. It is well established that breach of undertaking to the Court amounts to contempt of Court. Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823). Breach of undertaking to a Court is amount to contempt of Court. Mst. Raheela Salamat v. Additional District Judge, Faisalabad and 2 others [Lahore] (2010 YLR 314). 2.19 DECISION OF CASE ON THE BASIS OF OATH MUST BE SUPPORTED BY REASONS AND MUST DETERMINE RIGHTS OF THE PARTIES Taking it from another angle, the order passed by the learned District Judge on the basis of oath is not supported by any reason nor recorded after due process of law for determination of right of the parties. So, this order of the District Judge cannot bind the petitioners nor can deprive her from her legal right. Likewise, it has nowhere been declared by the learned District Judge that the suit property is not a legacy of Shahi Lal and rightly so because he could not do so without recording evidence. In this view of the matter, order/judgment of District Judge based on agreement of oath cannot operate as res-judicata nor effect the interest of the petitioner. Haji Sultan Yousaf and others v. Mastoria and others [Peshawar] (2012 YLR 398). 2.20 WHEN BOTH PARTIES HAVE TAKEN OATH IN SUPPORT OF THEIR RESPECTIVE CASE An examination of Article 163 would show that it does not contemplate the dismissal or decree of a suit in a case where both the parties support their claim on oath under this Article. Sub-clause (2) A of this Article provides that Court may pass any order as it may think fit regarding the costs and other matters. It was held in Nazir Ahmad v. District Judge, Leiah PLD 1986 Lah. 137, "if the Legislature had intended that in case of defendant's failure to deny the plaintiff's claim on oath, the plaintiff's suit is to be decreed or some other penal consequence is to follow, it could have made its intention manifest by making a clear provision to that effect. Muhammad Shahbaz and another v. Ghulam Rasool [Lahore] (1987 CLC 1512). In this case, if the defendants would have left the plaintiff's oath uncontested then, obviously, it would have been liable to be considered as strong evidence in support of the truth of his case which the defendants could have disproved in the usual manner by means of evidence and in taking the desired oath they cannot be considered to have placed the matter at any higher footing because therein they had not done anything more than merely destroying the weight which would otherwise have attached to the plaintiff's statement made on oath. Mst. Husni alias Husna Begum and 2 others v. Nayyar Qayyum [Lahore] (1987 CLC 2485). 2.21 BINDING EFFECT OF STATEMENT ON OATH UPON A PERSON WHO ALTHOUGH WAS PARTY TO LIS BUT WAS NOT PARTY TO OATH PROCEEDINGS It is also general principle of law as well, that if a person is not party to any legal proceedings he would not be bound by any order or decree of the court passed in those proceedings. Taking it from another angle, the order passed by the learned District Judge on the basis of oath is not supported by any reason nor recorded after due process of law for determination of right of the parties. So, this order of the District Judge cannot bind the petitioners (who were not party to oath proceeding) nor can deprive her from her legal right. Haji Sultan Yousaf and others v. Mastoria and others [Peshawar] (2012 YLR 398). 2.22 ROLE OF THE COURT WHILE DECIDING CASE ON THE BASIS OF STATEMENT ON OATH When the Court communicates the offer to the other party and gets hold of his assent or refusal, as the case may be, it in fact plays a role as an intermediary between the parties and when the offer is accepted by the other party, the acceptance is transmitted to the party inviting the other to take special oath, thereafter the agreement is completed between the parties unless the offer is withdrawn before its acceptance by the other side. Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153).The question as to whether or not a person making an offer to get the case decided on oath to be taken by the opposite party can be permitted to resile from the offer when the other party has accepted the same was considered inter alia in Jalal Din v. Chiragh Din and others (PLD 1972 Kar. 622), wherein relying on AIR 1941 Lah. 173, AIR 1948 All. 125 and AIR 1957 Orissa 226, it was observed that "an agreement made in Court to be bound by evidence given on special oath is a settlement to which the Court is also a party, therefore, such an agreement is not one of these agreements which a party may keep or break as it liked subject only to a claim from the aggrieved party for damages. Attiqullah v. Kafayatullah (1981 SCMR 162). 2.23 NATURE OF DECREE PASSED WHEN CASE IS DECIDED ON THE BASIS OF STATEMENT ON OATH Admittedly the matter was decided on special oath with the consent of the parties. Under Section 96(3), CPC no appeal shall lie from a decree passed by the Court with the consent of parties Muhammad Nasrullah Khan v. Shaukat Ali and others [Lahore] (2021 CLC 1798). It is settled law that consent decree or decree based on compromise has no better status in law than agreement between the parties albeit it bears seal of the court. Haji Sultan Yousaf and others v. Mastoria and others [Peshawar] (2012 YLR 398). The findings arrived at by the learned District Judge are in consonance with law and the claim of the respondent had been conceded by the appellant and it amounted to a consent decree and, thus, the appellant now cannot be allowed to turn around so as to challenge the consent decree. Muhammad Yousaf v. Bulanda through Legal Heirs (1999 SCMR 2115).Settlement on oath between the parties has resulted in a consent decree which is not appealable as held in Rahmat Ali v. Muhammad Yousuf 1985 CLC 72. Syed Abdul Hakeem v. Abdul Wahid [Quetta] (1991 MLD 762). We are, therefore, convinced that the appellant had rightly taken the oath that he had not sold more than one Chakoram of land and sanctity being attached to oaths, the decree based thereon could not be annulled on any ground by any higher forum. Abdul Qayyum Beg v. Rehmat Wali and 4 others (PLD 1993 SC 289). Where any dispute was resolved in pursuance of offer of oath made by one party and accepted by the other and oath was completed on basis of such offer and acceptance culminated in decree, such decree should not be lightly interfered with and set aside on flimsy and technical grounds in view of sanctity attached to oath on Holy Qur'an. Nasrullah Jan v. Rastabaz Khan (1996 SCMR 108). 2.24 ONLY MAIN SUIT COULD BE DECIDED ON THE BASIS OF STATEMENT ON OATH AND NOT ANY SUBSIDIARY MATTER INVOLVED IN SUIT Evidently the application under Article 163 of' the Qanun-e-Shahadat Order, 1984 was not submitted in support of the plaintiffs' claim as envisaged under the provisions of the Article 163 which primarily are meant in respect of the claim as made in the suit and not to be resorted to in respect of any other fact or event relatable to the subject-matter of the suit, thus, the application being not related to the claim of the plaintiff was not required to be proceeded with. The trial Court no doubt did not reject the application on the above mentioned ground, yet the application even if be competent under Article 163, was rejected on valid ground. Haji Nauroze Khan v. Malik Raz Muhammad and 2 others [DB Quetta] 2006 CLC 144). For the proposition that for the application of Section 11 of the Oaths Act, 1873 it is necessary that the statement given by a person should relate to a matter in controversy between the parties, Rati Ram v. Hardewa (AIR 1927 All. 676) and Ghinno Ram v. Kanhya (AIR 1957 Him Pra. 35) have been cited. Muhammad Alt v. Major Muhammad Aslam and others (PLD 1990 SC 841). 2.25 REFUSAL TO TAKE OATH AND ITS EFFECTS IN TERMS OF ARTICLE 163 OF QANUN-E-SHAHADAT ORDER, 1984 Question which arises for consideration is as to what is the effect of the defendant failure to deny on oath the claim of the petitioner made on oath. Should the claim of the petitioner have been decreed straightaway without any further proof as contended by the learned counsel? Quite clearly such a result is not countenanced by the language of Article 163, Even sub-clause (2) of the Article only provides that the Court may pass such orders as it may think fit regarding the costs and other matters. If the legislature had intended that in case of defendant's failure to deny the plaintiff's claim on oath, the plaintiff's suit is to be decreed or some other penal consequence is to follow, it could have made its intention manifest by making a clear provision to that effect. In the absence of any specific provision laying down the penal consequence of the defendants non-appearance to deny the claim on oath, learned trial Court acted rightly in proceeding to adjourn the case for the petitioner's evidence. Nazir Ahmad v. District Judge, Leiah and 9 others (PLD 1986 Lahore 137). An appeal thereagainst filed by the plaintiff came up for hearing before the learned District Judge, Jhang who found that whereas the plaintiff himself had not offered in his application that his suit may be dismissed in the event of the defendants taking the proposed oath on the Holy Quran, such was not the consequence provided even in the Qanun-e-Shahadat Order, 1984. Mst. Husni alias Husna Begum and 2 others v. Nayyar Qayyum [Lahore] (1987 CLC 2485). An inference was attempted to be drawn by the learned counsel that the plaintiff was a liar and that having made the gift voluntarily, she should not be permitted to resile from the same. This argument is not tenable because bringing the Holy Quran in such matters besides being alien to law could not be a substitute for leading positive evidence on the point in issue. Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373). In the case in hand no statement of offer and acceptance of the parties has been recorded. Only on the day of arguments the plaintiff stated on oath, which was refused by the other party, therefore, adverse presumption does not come against the defendant. In another case of Bashir Ahmed v. Muhammad Luqman 1999 SCMR 378 the Hon'ble Supreme Court has observed that refusal of a party to take oath, in contemplation of Section 9 of the Oaths Act, 1873, cannot result in itself defeating the claim or defence of that party. Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others [Lahore] (2007 CLC 1372). If the legislature had intended that in case of defendant's failure to deny the plaintiff's claim on oath, the plaintiff's suit is to be decreed or some other penal consequence is to follow, it could have made its intention manifest by making a clear provision to that effect. In the absence of any specific provision laying down the penal consequence of the defendants non?appearance to deny the claim on oath, learned trial Court acted rightly in proceeding to adjourn the case for the petitioner's evidence. Nazir Ahmad v. District Judge, Leiah and 9 others (PLD 1986 Lahore 137).If without making such statement, the appellant had refused to take oath in rebuttal, then of course no decree could have been passed under Article 163(2) of the Order because the said provision of law does not provide any penalty in the event of the opposite party's refusal to take oath in rebuttal. Muhammad Yousaf v. Bulanda through Legal Heirs (1999 SCMR 2115). When both the parties have led evidence, then provision of this Article shall not be applied. Any initiative taken by the plaintiff contrary to the provision of Article 163 of the Qanun-e-Shahadat, 1984 shall not burden the defendant and no adverse inference could be drawn against him when the necessary conditions of the oath as enumerated in Article 163 are missing. Mir Sahib Khan and others v. Ghazi Muhammad and others (PLD 2014 Peshawar 29). There is also no cavil with the proposition that if a party without consent of his adversary at his own made a statement on special oath and in rebuttal the latter did not opt to make such type of statement, then no adverse inference could be drawn against him. The fact remains that unilateral statement of a party, if any, made on special oath has to be collaborated by the other independent evidence. Abdul Rehman and others v. Ghulam Fatima and others [Lahore] (2017 YLR 2276). The above statement of law, as would be noticed, visualises a situation when both the plaintiff and the defendant agree to take the oath but does not lay down the penal consequence of refusal on the part of the defendant to take oath, This authority, I am afraid, is not of any help to the petitioner. Rehmatullah v. Nasir Khan and 7 others [Peshawar] (1991 MLD 1011).In this case, if the defendants would have left the plaintiff's oath uncontested then, obviously, it would have been liable to be considered as strong evidence in support of the truth of his case which the defendants could have disproved in the usual manner by means of evidence and in taking the desired oath they cannot be considered to have placed the matter at any higher footing because therein they had not done anything more than merely destroying the weight which would otherwise have attached to the plaintiff's statement made on oath. Mst. Husni alias Husna Begum and 2 others v. Nayyar Qayyum [Lahore] (1987 CLC 2485). 2.26 REFUSAL TO TAKE OATH AND ITS EFFECTS IN TERMS OF OATHS ACT, 1873 While it is settled law that a refusal of a party to take oath, in contemplation of section 9 of the Oaths Act, 1873 cannot result in itself defeating the claim or defence of that party such is an important piece of material under Section 12 of the Act and can always be considered in conjunction with other facts of the case to arrive at a proper finding. This we can do even at this stage. The refusal, together with other material on the record, has definitely weakened the plaintiff's claim in the suit. Bashir Ahmed v. Muhammad Luqman (1999 SCMR 378). The reason why the case had proceeded ex parte against the father was because of the latter's failure, or it may be refusal, to attend the Court in person in order that he should be put to the oath as to whether the plaintiff's case was true or not. We are unable to see that the powers given by Order IX, Rule 12, Civil Procedure Code can be employed for such a purpose as in the present case namely, to force an old and respectable merchant, quite possibly from a sick bed, upon the demand of the plaintiff, to Court in order to make an oath in support or otherwise of the plaintiff's case. Indeed Section 9 of the Oaths Act, 1873, which enables the Court to give effect to an offer by one party to be bound by the oath of the opposite party clearly provides that "no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question" i.e. whether or not he will make the oath. Quite obviously, the power under Order IX, Rule 12, C.P.C. was misused in this case by the Munsif. It appears to be the foundation of the bias which from that point onwards seems to us to have affected his attitude in the case. Muhammad Ismail Chowdhury v. Abdul Khaleque Sowdagar and another (PLD 1960 SC (Pak.) 301). 2.27 VALUE OF STATEMENT ON HOLY QUR'AN Any statement made on oath is a solemn commitment and it is never made lightly, especially by a Muslim. In view of the sanctity of the Holy Qur'an, every Muslim shudders to make oath thereon. Even an illiterate Muslim is aware of the fact that he would incur the Wrath of Almighty Allah if a false oath is made on the Holy Our'an. Muzaffar Ali and 2 others v. Ch. Asghar Ali [Lahore] (1991 CLC 2110). 2.28 COURT CAN DIRECT PARTIES TO ADDUCE EVIDENCE INSPITE OF THE FACT THAT ANY ONE OR BOTH OF THE PARTIES HAVE TAKEN OATH IN SUPPORT OF THEIR CASE Article 163 of the Qanun-e-Shahadat Order, 1984 does not in any way preclude a Court from recording evidence of the party in spite of the oath by both the parties or either of the parties. The learned trial Judge was, therefore, correct to ignore the refusal of the respondent to take the desired oath at the behest of the petitioner and direct them to adduce evidence in support of their respective stands. Rehmatullah v. Nasir Khan and 7 others [Peshawar] (1991 MLD 1011). 2.29 DECREE PASSED ON THE BASIS OF STATEMENT ON OATH COULD OPERATE RES-JUDICATA It is also general principle of law as well that if a person is not party to any legal proceedings he would not be bound by any order or decree of the court passed in those proceedings. Taking it from another angle, the order passed by the learned District Judge on the basis of oath is not supported by any reason nor recorded after due process of law for determination of right of the parties. So, this order of the District Judge cannot bind the petitioners nor can deprive her from her legal right. Likewise, it has nowhere been declared by the learned District Judge that the suit property is not a legacy of Shahi Lal and rightly so because he could not do so without recording evidence. In this view of the matter, order/judgment of District Judge based on agreement of oath cannot operate as res judicata nor effect the interest of the petitioner. Haji Sultan Yousaf and others v. Mastoria and others [Peshawar] (2012 YLR 398). 2.30 DECISION OF CRIMINAL CASE ON THE BASIS OF STATEMENT ON OATHIS PROHIBITED IN TERMS OF ARTICLE 163 OF QANUN-E-SHAHADAT ORDER, 1984 The criminal cases cannot be decided on oath and such proceedings on oath are not applicable in criminal cases reliance Mst. Bashiran Bibi v. Ghulam Mohy-ud-Din and others PLD 1990 SC 83, Abdul Sattar and others v. The State (1995 PCr.LJ 1793). Mst. Jamila v. The State [Islamabad] (2019 PCr.LJ 1176). The evidentiary value of taking oath by the accused or other party in criminal proceedings has been held to be not legal in view of Article 163 of Qanun-e-Shahadat Order, 1984 as ruled by the august Supreme Court of Pakistan in PLD 1990 SC 83. Naveed Ahmad v. The State (2000 YLR 2820). The same proposition came under consideration before the Supreme Court and their Lordships in the case of Mst. Bushran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 observed that even under Article 163 of the Qanun-e-Shahadat Order,1984 procedure of swearing on Holy Qur'an (oath proceedings) is not applicable in criminal cases. Muhammad Munir v. The State [Lahore] (1995 PCr.LJ 1255). Contends that third investigation was also carried out by Crime Branch Punjab, however, the petitioner was found involved on the basis of special oath offered in the mosque which is against the spirit of Article 163 of Qanun-e-Shahadat Order, 1984. Noor Muhammad v. The State and another (2020 SCMR 1049). And secondly, because there was no provision in any law which empowered an Investigating Officer to examine people on oath. Examining them on the Holy Qur'an even while sitting in a Mosque would not cure the illegality. It is so because, as has been discussed above in some detail, it is not the function of an investigating officer to find out whether an accused person was or was not guilty of committing the crime of which lie was being accused. Such is the task assigned, by law, to the Courts and it is the Courts alone which then have the authority to examine people on oath including their examination on special oath. It also needs to be known that an investigation is not a judicial proceeding and as per section 4(1)(m) of the Cr.P.C., it is in judicial proceedings that evidence could be taken on oath. Muhammad Arshad and others v. The State and others (PLD 2011 SC 350). In case of Mst. Jamila v. The State [Islamabad] (2019 PCr.LJ 1176) it was held by Hon'ble Islamabad High Court that Article 163 of the Qanun-e-Shahadat Order, 1984 provides a mechanism to accept or denial through the claim on oath although it is different from Oaths Act, 1873 and though the said Article is applicable in the civil proceedings only. The criminal cases cannot be decided on oath and such proceedings on oath are not applicable in criminal cases reliance Mst. Bashiran Bibi v. Ghulam Mohy-ud-Din and others PLD 1990 SC 83. Abdul Sattar and others v. The State [Lahore] (1995 PCr.LJ 1793). Nevertheless, the learned Judge lost sight of the fact as to whether the procedure of swearing on Holy Qur'an was applicable in criminal proceedings. Mst. Bashiran Bibi v. Nisar Ahmed and others (PLD 1990 SC 83). 2.31 POWER OF COURT OF APPEAL AND COURT OF REVISION TO DECIDE CASE ON THE BASIS OF STATEMENT ON OATH Perusal of underlined portion of above provision of law makes it crystal clear that only a plaintiff and a defendant can make statements on oath in support or rebuttal of the claims made in the suit. For being a plaintiff and a defendant, there should be a suit pending before the court. Admittedly, the said application was filed by the petitioner before learned revisional court in a civil revision. Appeal is a continuation of suit but a revision petition is not. Since there was no suit, there was no plaintiff or defendant in the revision petition and when there was no plaintiff or defendant, the application under Article 163 of Qanun-e-Shahadat Order, 1984 was not entertainable and the same merited for dismissal. Dr. Farooq Anwar Khawaja v. Mst. Naila Anwar Khawaja and 3 others [Lahore] (2018 CLC 1699).