P L D 1988 Peshawar 65 (PLP)

(c) Qanun‑e‑Shahadat (10 of 1984)‑

‑‑‑Art.163‑‑Oaths Act (X of 1873), Ss.8 & 11‑‑One defendant had himself proposed a special oath under S.8, Oaths Act, 1873 to other defendant who was alleged to be an agent on the plaintiff, "that let him take oath if he had not received the sale price from other defendant and in view of such special oath his appeal be dismissed"‑‑Defendant accepted the offer and took the proposed special oath before Court, which as such rightly resulted in the dismissal of the appeal‑‑Held, there could not be any exception to dismissal of appeal since the proposed oath made by a party or a witness after the acceptance of the offer shall serve as conclusive evidence against the party offering to be bound by such oath as envisaged under S.11, Oaths Act, 1873 and Court rightly exercised its jurisdiction. Tariq Jamal for Petitioner. Nemo for Respondents. Date of hearing: 13th April, 1988. Civil Revision No.114 of 1986 is directed against the judgment and decree of the Court of Additional District Judge, Swabi dated 18‑12‑1985 vide he dismissed the petitioner's appeal since he had made an offer to Ahmad Sher, respondent No.2 that if he was to take an oath that he was not paid the sale price of the suit land by the petitioner then his appeal be dismissed which offer was accepted and Ahmad Sher, respondent No.2 took the proposed oath in the open Court and resultantly the petitioner's appeal was dismissed.

2. The revision petition was got admitted under a contention that second oath administered by the appellate Court was not between the plaintiff and defendants but between defendants inter se which was not the intention of Article 163 of the 'Qanun‑e‑Shahadat' Order 1984, hereinafter referred to as Order. In fact in the trial Court Mst. Kabala, herein respondent No. 1, has brought a suit for declaration and perpetual injunction and in the alternative for possession as against Khan Sher, the petitioner and Ahmad Sher, respondent No.2 claiming to be the owner of the suit land and to have not sold the same to the defendants vide mutation No.8023 attested on 2‑11‑1963. She had entered into a compromise with Ahmad Sher, respondent No.2 and had resultantly withdrawn her suit as against him. Khan Sher, the petitioner remained the sole contestant in the field who claimed acquisition of title through adverse possession, besides agitating pleas of estoppel, limitation and collusion. He also claimed that mutation No.8023 was rightly sanctioned for a consideration duly paid to Mst. Kabala. At the trial plaintiff has made an application under Article 163 of the Order, stating that she was prepared to take oath on the Holy Qur'an. As such the Court made Khan Sher defendant No.2, the petitioner to understand that plaintiff was prepared to give statement on oath in support of her claim and that if he was also to take oath in denial of her claim, the suit would be dismissed, otherwise decreed. The plaintiff took oath in support of her claim and in denial defendant No.2 also took oath that he had paid the sale price to the plaintiffs agent and that her suit was wrong. Plaintiff objected that she had not appointed any attorney and that defendant No. 1 allegedly represented by defendant No. 2 as her attorney was rather his brother. Defendant No.2 was accordingly asked by the Court that he should take such oath that the plaintiff had received the sale price and that the plaintiff's suit was wrong. Defendant No.2 denied to take such oath. The Court accordingly passed a decree in favour of the plaintiff as against defendant No.2 while her suit was dismissed as withdrawn as against defendant No.1.

3. As far as Article 163 of the Order is concerned it falls in Chapter XII, with heading 'Decision of cases on the basis of oath'. It provides that once the plaintiff takes oath in support of his claim and he exercises his option of administering oath to the defendant to deny his claim on oath he will make an application to the Court in this respect, which shall accordingly call upon the defendant to deny the plaintiff's claim on oath. In clause (2) of the Article it has been left to the discretion of the Court to pass such orders as to costs and other matters as it may deem fit. 'Other matters' shall also include the decision of the case one way or the other, nonetheless, in. the circumstances of the case as deemed fit by the Court.

4. The preamble of the Order states that the law of evidence was revised, amended and consolidated as to bring it in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Let us examine Article 163 of the Order in the light of Islamic injunctions. In‑Book XXIV, Chapter II of Hedaya compiled by Charles Hamilton, 1982 Edition after reference of the tradition of the Holy Prophet (p.b.u.h.) that evidence is incumbent on the part of the plaintiff and an oath on that of the defendant. Imam Abu‑Hanifa is said to have reasoned that oath cannot be exacted from the plaintiff and that the right in the plaintiff to exact an oath from the defendant is also founded on the supposition of his inability to produce evidence and that only in case of his such apparent inability to produce evidence he can call upon the defendant to deny his claim on oath. Reference was made to Imam Shafi who had maintained that Qazi must not pass a decree on the refusal of the defendant to take oath but first administer oath to the plaintiff and then pass a decree against the defendant. It has been also laid down therein that an oath cannot be exacted from the defendant in claims respecting marriage, divorce, ailas, bandage, will, punishment or Laan since refusal to take an oath is shown to be a concession of the thing in dispute which cannot likely to have effect in the aforementioned cases as they are not of the nature to admit concession.

5. In the context reference is further made to 'Islami Qanun‑e‑Shahadat' compiled by Abdul Malik Urfani, 1980 Edition, Part I. In Chapter XIV, titled 'Qasam' it is laid down in section 92 subsection (1) that when a person gives evidence in Court as a witness he shall take oath before recording his evidence that he shall state the truth and the truth in his evidence. In subsection (2) it is laid down that besides the aforesaid oath as and when there will be taken oath, the same will be a special oath which will be taken in the form and shape on demand of a person according to 'Riwaj' and as specified by the 'Qazi'. Again in subsection (3) ibid it is laid down that in the book where‑ever there is a reference to oath, the same shall be a reference to special oath as provided under subsection (2). In the illustration it is reported that in the early days of Islam witnesses were not given oath before recording their evidence but when falsehood became common, theologians; prescribed oath to the witnesses at the time of giving evidence. In the illustration it is further laid down that a witness is given common oath before his evidence and whenever there C is felt a necessity to make a statement on oath it will be always on a special oath as prescribed by the 'Qazi' in accordance with' prevalent the Holy Prophet (p.b.u.h) has referred to the special oath to be taken from the defendant. In section 93 it is provided that where there has been given evidence by the witnesses against a person, he can demand before the pronouncement of judgment, from the 'Qazi, that the witnesses be obliged to take oath if they) have spoken the truth and in case of their denial such evidence oil the witnesses may be rejected. In section 94 there is laid down that I when plaintiff cannot produce a second witness and for the proof of his claim he offers .to take oath as testimony of a second witness Qazi may take oath from him. In the illustration it is stated that if the plaintiff has produced one witness in support of his claim and has also given a special oath in further support it shall be deemed that he has produced two witnesses in support of his claim. In section 95 it is laid down that when plaintiff fails to prove his claim by the evidence of witnesses and the defendant denies his claim then on his demand Qazi shall call upon the defendant to deny his claim on oath and in case the defendant refuses to take oath the case shall be decided against him and if he takes the oath plaintiffs case shall be dismissed. In the said section it is also laid down that if the plaintiff's witnesses are present in Court defendant cannot be obliged to deny the plaintiff's claim on oath. In section 96 it is laid down that oath can be taken in case of all claims except Hudood, Laan and Qisas.

6. As far the manner of swearing and requiring of oath are concerned the oath must be taken in the name of God. The Holy Prophet (p.b.u.h.) has said "whoever tales an oath, let him take it in the name of God otherwise let him omit the oath entirely". He further declared "whoever takes an oath otherwise than in the name of God is most certainly an Associator". Hedaya lays down that Qazi has the option either of adding the corroboration to the oath or of omitting it but in any case the oath must be taken in the name of God. So, in section 98 of the Islami Qanun‑e‑Shahadat it is laid down that oath can be taken only in the name of Allah. Therein reference was made to a tradition of Holy Prophet (p.b.u.h.) "Whomsoever amongst you takes oath he should take oath in the name of Allah and whomsoever ‑has taken oath other than in the name of Allah, he is Associator". In the illustration it is stated that oath cannot be taken in the name of any prophet or any book of Allah. In the Islami Qanun‑e‑Shahadat, Part‑I, Chapter XIV, section 98, it is provided that oath other than by Allah is not permitted and that corroboration of oath by time and material is also not correct. In the illustration it is stated that oath can be only taken in the name of Allah and that the Holy Prophet (p. b. u. h.) has said that whomsoever amongst you is to take oath, let him take oath in the name of Allah and that who has taken oath other than by Allah, he is the Associator and that there cannot be taken oath in the name of any prophet or book of Allah. There may be taken oath in the name of Allah permissably corroborated by words like "who has sent such prophet or book".

7. In the Holy Qur'an too in 'Sura Almaida' Ayahs 106 and.107, I it is ordained to swear by Allah, In 'Sura Alnoor' Ayahs 6 to 9 it is, however, ordained that for those who accused their wives but have no witness except themselves; let the testimony of one of them be four testimonies, (swearing) by Allah that he is of those who speak the truth and fifth time he shall invoke the curse of Allah on him if he is of those why lie and so the woman shall avert the punishment from her if she bear witness before Allah four times that the thing he (husband) saith is indeed false and fifth time she shall invite the wrath of Allah upon her if he (husband) speaketh the truth. In the context reference is made to the oath prescribed under the Oaths Act, 1873 "I swear by Allah that I will give true evidence and if I give false evidence, I would thereby invoke wrath and curse of Allah upon me". The above form of oath appears to have been drawn on the pattern of special oath prescribed in 'Sura Noor' in case of accusition of wives with adultery by their husbands. The general oath as earlier referred to provided in Sura Almaida and the traditions of the Holy Prophet (p.b.u.h.) is the swearing by Allah only. Qazi has, no doubt, the power of adding the corroboration to the oath or of omitting it but in all cases the oath is to be taken in the name of God. Testimony of a party or a witness on oath is to be ordinarily on general oath and not special oath. The oath prescribed, however, gives the impression of a special oath. The concerned quarters will, therefore be moved to re-examine the subject-matter.

8. It thus comes to that 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 that he will have first to take oath himself in support of his claim whereafter he will make an application to the Court to call upon the defendant to deny his claim on oath and in case the defendant also takes oath in denial of the plaintiff's claim the Court would ordinarily dismiss the plaintiffs case. The above procedure appears to be more akin to the procedure laid down in the Oath Act, 1873 where under sections 8 to 10 the Court administers oath to a party or a witness in judicial proceedings offering to give evidence on oath in the form not repugnant to justice and decency and also not affecting any third person after the acceptance of the offer of such oath and that under section 11 of the Oath Act the evidence so given shall, as against the person who offered to be bound, be conclusive proof of the matter stated. Under Article 163 too the plaintiff by his application to the Court makes an offer to the defendant that let him deny his claim on oath and as and when the defendant is called upon by the Court. and he comes forward to deny the plaintiffs claim on oath, his such denial on oath shall be read as conclusive evidence against the plaintiff. Anyhow as far as the defendant's.‑refusal to deny the plaintiff's claim on oath is concerned the Sharia has laid down that oath cannot be exacted from the defendant in certain cases like marriage, divorce, aila, bondage, will, punishment or laan etc. and so the Court has been left with discretion not to allow the claim of the plaintiff in certain cases in spite of the ,defendant's refusal to deny the plaintiff's claim on oath. Article 163 of the Order has received interpretation in a case Nazir Ahmad v. District Judge, Liea and 9 others P L D 1986 Lah.

137. It was held that defendant's failure to deny on oath claim of the plaintiff made on oath, Court would pass such orders as it may deem necessary with regard to costs and other matters but would not be bound to decree claim of plaintiff straightaway without any further proof. With due respect I will agree with the learned Judge to the extent that in case of the defendant's refusal to take oath in denial of the plaintiff's claim the, Court would not be bound to decree plaintiff s claim in all cases, however, clause (2) of Article 163 providing for that the Court may pass such orders as to costs and other matters‑as it may deem fit would not be put to extra strict interpretation that the Court would not even dismiss the plaintiffs suit in case the defendant denies his claim on oath as proposed. Further, in certain other simple cases like loan transactions the defendant's refusal to take oath in denial of the plaintiff's claim made on oath may, in the fitness of circumstances, oblige the Court to decree the plaintiffs claim. Other matters would, therefore, cover the decretal and dismissal of the suit as may be deemed fit in the fitness of the circumstance of each and every case.

9. As far the instant proceedings purportedly conducted under Article 163 of the Order by the trial Court are concerned, the same appear to be wrong for the simple reason that plaintiff had herself taken special oath on Holy Qur'an and so she proposed a special oath on Holy Qur'an to the defendant for the denial of her claim. Article 163 bespeaks of general oath and not special oath. Plaintiff and defendant both have to swear by Allah in support and denial of the claim respectively. In case of a refusal by the defendant to take oath in denial of the plaintiffs claim, there shall not necessarily be passed a decree against him but the Court has to see to the facts and circumstances of each and every case and it may pass any order as to costs or other matters as it deems fit. However, in the facts of the case as pointed above there was no occasion for the trial Court to pass a decree against the defendant in obedience to the provisions of Article 163 of the Order. The judgment and decree of the trial Court were thus, liable to be struck down by the appellate Court. However, the matter does not end here. In the appellate Court defendant No.2 has himself proposed a special oath under section 8 of the Oaths Act to defendant No.l who was alleged as agent of the plaintiff that let him take oath if he had not received the sale price from defendant No.2 and that in view of such special oath his appeal be dismissed. Defendant No.1 accepted the offer and took the proposed special oath before the appellate Court which as such rightly resulted in the dismissal of the appeal and there cannot be taken any exception to the said decision since the proposed oath made by a party or a I witness after the acceptance of the offer shall serve as conclusive evidence against the party offering to be bound by such oath as envisaged under section 11 of the Oaths Act.

10. To sum up, since the present revision is directed against the decision of the petitioner's appeal on special oath by the respondent as proposed and accepted under the Oaths Act there has not been, therefore, found any case of non‑exercise of jurisdiction vested in the appellate Court or exercise of jurisdiction not vested or to have acted with illegality or material irregularity to justify interference in the revisional jurisdiction. Resultantly the Revision Petition is dismissed with costs. M.B.A. /610/P Petition dismissed.