1991 PLP 1011 (MLD)

Firstly, that the learned trial Judge had erred to read the provisions of Article 163 in isolation which ought to have been read not only in conjunction with Article 165 and the Preamble to the Qanun-e-Shahadat but also the relevant provisions of the Muslim Personal Law; Secondly, that under the above provisions of law, the learned trial Judge was obliged to have extracted the desired oath from the respondents on the authority of oft quoted Hadith of the Holy Prophet (p.b.u.h) i.e. (Evidence is incumbent upon plaintiff and oath is on the defendant); and Thirdly, that by rejecting the application of the petitioner for settling the dispute on oath, the learned trial Judge has committed illegality and material irregularity in failing to exercise jurisdiction vested in her.

4. In support of these contentions the learned counsel, placed reliance on Muhammad Sharif v. Bashir Ahmed (1987 C L C 2006). In that case, the petitioner put in an application for decision on the case on oath but the respondent declined the desired oath. The contention raised on behalf of the petitioner therein that adverse presumption may by 'drawn against the respondents was repelled by Muhammad Asadullah, J., as his Lordship then was and observed:-- .....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. In this case both the parties have led evidence and, therefore, the provisions of the said section could not apply to it. Therefore, no adverse presumption against the respondent could be drawn."

5. 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.

6. On the contrary I have been able to lay hand on the following case-law:-- (1) Nazir Ahmed v. District Judge Leiah (PLD 1986 Lahore 137). (2) Muhammad Shahbaz v. Ghulam Rasool (1987 C L C 1512). (3) Husni v. Nayyar Qayyum (1987 C L C 2485) In Nazir Ahmed's case, Zia Mahmood Mirza, J., interpreted the provisions of Article 163 ibid in the following terms:-- "Question which arises for consideration is as to what is the effect of the defendant-respondent's 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 plaintiffs 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 defendant's non-appearance to deny the claim on oath, learned trial Court acted rightly in proceeding to adjourn the case for the petitioner's evidence. In the case of Muhammad Shahbaz both the parties in suit supported their case on oath on Holy Book. The learned trial Judge dismissed "the plaintiffs suit under Article 163 of Qanun-e-Shahadat, 1984". On the appeal, the learned Additional District Judge, accepted his appeal and remanded the suit to the trial Court for decision on merits. In revision before the High Court, Qurban Sadiq Ikram, J., while affirming the appellate order, referred to law laid down in Nazir Ahmed v. District Judge, Leiah (PLD 1986 Lah. 137) and added:-- "In the case in hand, as stated above, both the parties in the suit supported their case on oath on Holy Book. It, therefore, was necessary for the trial Court to put the parties on issues and ask them to lead evidence in support of their respective claims. This Article does not, in any way, preclude a Court from recording evidence of the parties in spite of the oath by both the parties or either of the parties." In Husni v. Nayyar Qayyum (1987 C L C 2485). Amjad Khan, J., made the following statement of law:-- There was no offer made by the plaintiff to have his suit dismissed in consequence of some counter-oath to be taken by the defendants and the relevant provision is silent about the consequences, therefore, in absence of any specific provision laying down the penal consequence, the suit could not be dismissed. The natural result of an oath getting pitched against a similar oath would be to treat the matter left where it was, so that the suit of the plaintiff became liable to be tried uninfluenced by the oaths of the parties. Contention of the learned counsel cannot be sustained and is accordingly repelled." The ratio that emerges from the case-law cited above is that Article 163 ibid does not provide for any penal consequence in case of refusal of defendant to take oath at the demand of the plaintiff. A salutary principle of interpretation of statute is that a penal provision cannot be invoked unless specifically enacted in the statute itself. In the instant case if the legislature intended to add the penal provision consequent upon the refusal on the part of delinquent party, the wording of Article 163 would have been different and clear. Having not enacted such a consequence the intention that can be gathered is that this penal provision was intentionally omitted from this Article. Respectfully following the dictum in case of Nazir Ahmed cited above it is reiterated that Article 163 ibid 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.

7. The learned counsel for the petitioner was thus unable to point out any material irregularity in the impugned order. I, therefore, find no merit in this revision petition. It is accordingly dismissed in limine. A.A./1165/P. Revision dismissed.