P L D 1972 Lahore 534 (PLP)

(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence: (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors; Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties. Section

13. Proceedings and evidence not invalidated by omis sion of oath or irregularity.‑No omission to take any oath or make tiny affirmation, no substitution of any one for any other of them, and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, In or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."

5. Learned counsel's argument was that oaths of the kind involved herein were governed by the provisions of the Oaths Act (X of 1873) and since members of the Tribunal under the Criminal Law (Amendment) Act were (in reality) "Jurors", therefore, any failure to take an oath on their part was a mere irregularity curable under section 13 of the Oaths Act. We have given our anxious consideration to the submissions of the learned counsel but we regret that we cannot endorse the same and our reasons in this respect are as follows:‑ (a) Section 13 of the Oaths Act, on which reliance has bee placed, in our opinion, does not apply to cases where oaths arc taken not, under that Act, but under any other law. This is so laid down in section 3 of the Oaths Act itself which reads as follows:‑ Section

3. Saving of certain oaths and affirmations.‑Nothing herein contained applies to proceedings before Courts Martial, or to oaths, affirmations or declarations prescribed by or under any law President's warrants or for the time being in force." A perusal of the section, reproduced above, will show that it excludes:‑ (a) Proceedings before Courts Martial; (b) Oaths, affirmations or declarations, prescribed by or under any law; (c) Oaths, affirmations or declarations prescribed by or under President's warrants; and (d) Oaths, affirmations or declarations for the time being in force. The oath in question was to be taken under a special enactment, namely, section 7 of the Criminal Law (Amendment) Act read with rule 10 ibid, and not under the Oaths Act. In the face of this legal position, it is not possible for us to give effect to the plea of the learned counsel for the petitioners which is based on the provisions of the Oaths Act alone. (b) In our opinion oath by members of a Tribunal is of the essence of its very constitution. The language of section 7 and rule 10 ibid is of a mandatory nature, as is evident from the use of word "shall" and also because it makes the oath t condition precedent before entering upon the reference. Similar provision exists for the members of a Jury in England and abouthem Halsbury in his Laws of England, Third Edition, Volume X at page 411 writes as follows:‑ A jury is not properly constituted until all the twelve persons serving on it are sworn or have taken an affirmation to try the issue raised by the defendant's plea of no guilty." Similarly talking about the importance of official oath the learned author in Volume VII at page 342‑343 writes a follows:‑ "The oath of allegiance and official oath must be tendered to and taken by certain executive officers and the oath c allegiance and judicial oath by certain members of the judiciary in the form and manner prescribed, as soon as may be after their acceptance of office, and failure to take the oaths when tendered, or the solemn affirmation or declaration permitted in place of the oaths, entails vacation of the office, it already entered upon, or disqualification from holding the same, not already entered upon, but no person may be compelled in respect of the same appointment to the same office to take the oaths, affirmations, or declarations more the once. " The principles quoted above can safely be applied to a Tribunal under the Criminal Law Amendment Act, where the members have failed to take any oath. The aforesaid law is of a special character. It excludes the various general provisions of the Criminal Procedure Code and the Evidence Act. Sanctity about the proceedings of the Tribunal inter alia depends upon its special characteristics namely:‑ (i) that it is a trial by one's own equals i.e., Members of the Tribunal; (ii) it purports to curtail the possibility of official oppression through modes of justice; (iii) punishments awardable under it make a greater conces sion to principles of humanity than those laid down in the Pakistan Penal Code as for example death sentence is not awarded; (iv) it is based on broader principles of public policy etc. etc. We are not here to count the merits or demerits of this law, but our aim only is to point out its special features. Another aspect leading to its sanctity is the fact that its members take oath, and before they enter upon the reference the accused carp object to their sitting in tribunal. If this essential element is missing in any case, then it means that the very constitution ur the tribunal is incomplete, illegal and improper, and proceedings) of such a tribunal cannot be upheld by those whose duty it is to administer or interpret law. (c) It is highly doubtful as to whether members of a Tribunal under the West Pakistan Criminal Law Amendment Act, 1963 can be called "jurors" within the contemplation of section 51 of the Oaths Act. "Jurors" are mentioned in various section of the Criminal Procedure Code, with reference to trials of certain accused by a "Jury" and in that context section 3811 of that Code provides that "when the foreman has been appointed the jurors shall be sworn under the Oaths Act, 1873". Since) the Criminal Procedure Code makes reference to a swearing id under the Oaths Act, in the latter Act, therefore, when it is/ written as per section 5 that oaths and affirmations shall inter alia be made by jurors, it is jurors mentioned in Cr. P. C., to whom, reference is contemplated. This will be consistent with the interpretation of section 3 as we have made above, where it is; written that Oaths Act is not to apply where oaths are prescribed by or under any other law. The word "prescribed" can have reference both to the very mandate to take an oath or to the form prescribed. The first aspect has been attended to by us separately, but judging even from the point of view of the' form of oath since the form of oath under section 281, Cr. P. C. for a juror is the same which is prescribed in the Oaths Act, therefore, these oaths remain subject to the incidents of that Act, but no other oaths forms whereof are different from those prescribed in the Oaths Act. The form of an oath under the Criminal Law Amendment Act is vitally different from the one prescribed under the Oaths Act and from this point of view well, sections 5 and 13 of the Oaths Act would not be attracted to the facts and circumstances of the present case. The forms of oath under the Criminal Law Amendment Act and those under the Oaths Act, may be reproduced here with advantage. They read as follows:-- Under the Oaths Act

1. Simple affirmation t I solemnly affirm that I shall well and truly try, and true verdict give, between the State and the prisoner at the bar according to the evidence.

2. Solemn affirmation I solemnly affirm in the presence of Almighty God, that I shall well and truly try, and a true verdict give, between the State and the prisoner at the bar according to the evidence.

3. Oath: I solemnly swear that I shall well and truly try, and a true verdict give, between the State and the prisoner at the bar according to evidence; so help me God. Amendment Act I‑‑do solemnly swear that as member of the Tribunal T will discharge my duties, and perform my functions, honestly and to the best of my ability: That I will not allow my personal interest or extraneous considerations to influence my conduct or decision: And that in all matters connected with the reference before the Tribunal of which I am a member, I will act justly and without fear or favour, affection or ill‑will." A comparison of the above will show that even from the point of view of the form of the prescribed oath under the two Statutes there is a great difference and the provisions of the Oaths Act cannot be invoked in the instant case which must be decided with reference to the Criminal Law (Amendment) Act and not the Oaths Act. (d) A closer study of the Oaths Act of 1873 shows that when it was promulgated there were twenty‑seven Statutes which dealt with the matter of oaths, details whereof were given in the Schedule which was to be read with section of the Act which stated that, "the enactments specified Schedule hereto annexed, are repealed to the extent mentioned in the third column thereof". For original version of the Bills of the Oaths Act, see the Gazette of India (1837), Part V, dated 8‑2‑1.873, 15‑2‑1873 and 22‑2‑1873, pages 4 to

29. To quote a few illustrations reference may be made to the Punjab Chief Court Act IV of 1866. Section 5 of that Act stated that, "previously to entering upon the execution of the duties of his office every Judge appointed under this Act, shall make or subscribe the following declaration before the Lieutenant‑Governor or such authority or person as he may commission to receive the same . . . . ". Another statute which may be referred to is the Justices of the Peace Act of 1869. Section 7 whereof stated that, "Provided that no person other than a person who now acting as a Justice of the Peace under a commission shall be capable of acting as a justice of the Peace until he shall have made and subscribed before some other Justice of the Peace or the Chief Civil Officer of any station within the territories or place in and for which he shall have been appointed declarations to the following effect .. . . . ." The next Statute which may be referred to is the Bengal Civil Court's Act VI of 1871, section 13 whereof stated that, "Every District Judge, Additional Judge, Subordinate Judge or Munsif, appointed after the passing of this Act, shall previously to entering on the duties of his office make and subscribe a solemn declaration according to the following form: . . . . ". This will show that prior to the promulgation of the Oaths Act, various statutes provided for judicial and official oaths. All these Statutes were pro Canto repealed as was suggested in the objects and reasons of the Act where it was written:‑ "The object of the Bill is two‑fold‑to consolidate the law relating to judicial oaths and affirmations and to repeal the laws requiring declarations to be made by Judges, Magistrates and c., before entering on their official duties. The Bill if it become law, will replace 27 enactments. The Bill does not apply to proceedings before Courts Martial or to oaths prescribed by laws which the Governor- General‑in‑Council has not the power to repeal. Incidentally the Bill will remove the doubt which has been raised as to the powers of the Courts in certain parts of India to administer oaths and affirmations." For this purpose apart from the relevant repeal of the various Statutes, section 16 of the Oaths Act was more specific as it read as fellows:‑ "V-Official Oaths Section

16. No Judge, Magistrate, Justice of the Peace, Judges &c., or other officer shall, before entering on not to be required to make the execution of the duties of his office, official oath or affirmation. be required to make any oath, or to make or sub scribe any affirmation or declaration, that he will faithfully discharge such duties, or to the like effect." Though sections 2 and 16 were repealed later on, but historical study of the enactment will show that the official and judicial oaths were rather abolished by the Oaths Act and in spite of that if it is still argued that the said Act applied to and regulated all official and judicial oaths under any law enacted subsequently, the contention cannot hold water.

6. What has been written above is sufficient to dispose of this writ petition and it is not necessary to advert to or examine the other grounds given by the learned District Magistrate in his order of remand, dated 20‑4‑1966; because his aforesaid order can be maintained on the point hereinbefore discussed.

7. The next question to be seen is as to what is the effect of the repeal of the Criminal Law (Amendment) Act, 1963 as brought about by the West Pakistan Criminal Law (Amendment) Act (Repeal) Ordinance XLII of 1969 promulgated on 1‑12‑1959 and the West Pakistan Criminal Law (Amendment) Act (Transfer of Pending Cases) Ordinance (Punjab Ordinance VII of 1971) promulgated on 26‑4‑1971 to the facts and circumstances of the present case. If the aforesaid two Statutes are read together, they show that all those cases in which the Tribunal (Jirga) has not submitted its finding to the District Magistrate, shall stand transferred to the respective Criminal Courts having jurisdiction therein for enquiry or trial as the case may gel tin accordance with the provisions of the law applicable to such cases. In the present case since the Tribunal (after the remand) has submitted recommendations to the District Magistrate, this case is saved and is not to be transferred to the ordinary Criminal Courts. In fact, on this point the learned counsel for the petitioners did not join issue and did not claim that the case should be sent to the ordinary criminal Courts.

8. The last point argued was that the learned District Magistrate remanded the case under clause (a) of subsection (2) of section 10 of the Criminal Law (Amendment) Act to another Tribunal, though according to the learned counsel, under the aforesaid clause, the case could be and ought to have been remanded to the same Tribunal. This argument is based on comparison of sub‑clauses (a) and (b) of subsection (2) of section 10 and by pointing out that in sub‑clause (b), the words used contemplate remand to a "second Tribunal". The argument has no force. Clause (a) ibid, in our view, is not exhaustive of all the situations. Even otherwise, in the report submitted to this Court, it has been pointed out that on the date when the order of remand was passed by the District Magistrate, three Members of the previous Tribunal had ceased to be on the approved panel from which selection of Members is made; and the Chairman had also been transferred from the District. It is obvious that in these circumstances, the plea that the case should have been remanded to the same Tribunal cannot be accepted.

9. The upshot of the above discussion is that this writ petition is dismissed with the result that the learned District Magistrate will be at liberty to proceed with the matter pending before him under section 10 of the West Pakistan Criminal Law (Amendment) Act, 1963. There will be no order as to costs. Petition dismissed.