P L D 1997 Supreme Court 559 (PLP)

MUKHTAR AHMAD JUNEJO, J.-The sole point to be determined in this petition for leave to appeal is, whether evidence of a witness can be received in a judicial proceeding on solemn affirmation or necessarily it is to be on oath. Relying on the case of Sajjad Ahmad v. State 1992 SCMR 408 decided by the Supreme Appellate Court learned Judge in Chamber in the impugned judgment dated 18-2-1996 upheld the view taken in said case, that omission to record the evidence on oath is a mere irregularity and the same cannot be ignored on that account. By taking such view, the Supreme' Appellate Court in Sajjad Ahmad's case followed the view taken by the Federal Shariat Court in the case of Zeb-ul-Haram v. State PLD 1991 Federal Shariat Court

1. In latter it was observed as follows : " ... ...According to section 6 of the Oaths Act, 1873 as amended by .Ordinance No.XXVII of 1981 where a witness or an interpreter is Muslim, he shall take oath. But according to section 13 of this Act the proceedings and evidence shall not be invalidated by the omission of oath as it is merely an irregularity." In Zeb-ul-Haram's case reliance was placed on the case of Shah Nawaz v. State PLD 1986 FSC 242 where the view taken was that the evidence on solemn affirmation instead of oath, would not invalidate the proceedings. In the case of Zeb-ul-Haram, it was also observed that according to Islamic law, oath is not to be taken by the witness and his evidence without taking oath is admissible, if it is otherwise a_ admissible. At the same time, it was observed that if a Court deems it necessary, in the circumstance of a case, it may take oath from the witness, but omission to administer oath or its substitution by solemn affirmation, will not invalidate the evidence except in certain cases e.g. when it is a case of oath of denial or "Qasamah". It will be advantageous to reproduce para. 14 of the said judgment and it follows: "

14. It is pertinent to mention here that according to Verse 106 of Surah Al-Maidah, the Holy Qur'an has laid down taking oath from the non Muslim witnesses when they testify to a will of a Muslim during a journey if there is any suspicion. From this the jurists have derived that when there is any summation about the evidence of a witness whether Muslim or non-Muslim. oath should be demanded from him. Hazrat Ali used to take oath from the accused and the witnesses. Ibn Qayyam has related from many earlier Qazis and Junsu that they used to take oath from the witnesses. (Al-Turuq al-Hukamiyyait Cario, 1953, pages 147-148; According to section 1727 of the Majellah, 'if the defendant insists that oath should be taken from the witness and there are grounds ;;161 that, the Court shall take oath from the witness and if he denies, his evidence will not be accepted ' in fact* according to the Hanafis the witness must first utter the word 'Ashhadu' while deposing before the court. The word 'Ashhadu' carries with it the meaning of oath As already stated said case was followed in the case of Sajjad Ahmad 1992 SCMR 408, where the evidence of witnesses was not recorded by the Trial Court on oath. It was observed in said case by the Supreme Appellate Court that non-recording of evidence on oath is not such a fatal flaw which may vitiate the whole trial and that 'the irregularity is certainly curable under section 13 of the Oaths Act, 1873. Initially section 6 of the Oaths Act provided the oath to be taken by a witness or by an interpreter. Said section was materially amended by Federal Laws (Revision and Declaration) Ordinance (Ordinance No.XXVII of 1981). It has been provided in section 6 of Oaths Act after the amendment that where the witness or interpreter is a Muslim, he shall make an oath. However, no corresponding amendment was made in section 13 of the Oaths Act, which provides that no omission to take any oath or make any affirmation and 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 has taken place. It has been cautioned in the case of Zeb-ul-Haram PLD 1991 FSC 1 by the Federal Shariat Court that in these days when falsehood is rampant in the society and it has become very difficult to have truthful witnesses, the trial Courts should be conscious of the change of the rule of taking evidence on oath as embodied in section 6 of the Oaths Act amended by Ordinance No.XXVII of 1981, to obtain sanctity and high measure of evidentiary, value, for public good. Qanun-e-Shahadat is not clear if a witness is required to give oral evidence under Article 70 on oath or solemn affirmation. This is provided by section 5 of the Oaths Act, which says that oaths or affirmations shall be made by the witnesses and by the interpreters, except where a witness is a child under twelve years of age and he does not understand the nature of his oath or affirmation. The evidence of such child witness shall not be rendered inadmissible, as per proviso below section 5 of .the Oaths Act.. Lahore High Court took view in Jafar Ali v. Muhammad Tufail 1991 MLD 48 that it had prescribed oath in 1987, pursuant to the newly amended provision of the Oaths Act and hence statement of a witness recorded on solemn affirmation was inadmissible. Contrary view was taken by the same High Court in the case in 1991 MLD 1250 and Khadim v. Judge, Family Court, Samundri 1991 MLD 1250, where the view taken by a learned Single Judge was, that where no prejudice has been caused to a party for strict non-compliance o1 sections 6 and 7 of the Oaths Act, the omission was merely an irregularity in not following the prescribed procedure under sections 6 and 7 of the Oaths Act and it would not ipso facto render the order in the case void. Here again reliance was placed on the case of Zeb-ul-Haram. The High Court of Balochistan took view in the case of The State v. Abdul Samad and another PLD 1984 Quetta 72 that examination of a witness aged fifteen years on oath was a legal requirement under section 5 of Oaths Act, which can be dispensed with only if the witness is a child under twelve years and -does not understand the nature of. oath of affirmation, but the statement of a witness aged fifteen years should have been recorded on solemn affirmation. After taking such view, the High Court directed re-examination of the same witness on solemn affirmation. The High Court of Sindh took view in the case of Abdur Rehman v. State 1988 PCr.LJ 2347 that while taking down the depositions of witnesses during the course of inquiries or trials, the Courts should give oath in the latest prescribed form and should . no more record the statements on solemn affirmation or on oath in the old, form. In said case the point at issue was about swearing of an affidavit. Same High Court in case of Michael Maseeh and another v. The State 1993 MLD 529 ordered recall of the witnesses who were not given oath in the form prescribed by Rule 10, Chapter V, Part A of Sindh Courts Criminal Circulars. No authority of this Court was cited by learned counsel appearing in the case. However, the view taken by the Federal Shariat Court in the case of Zebul-Haram PLD 1991 FSC 1 appears to be correct and is supported by sound reasons and ample authorities. Such view has been followed by the Supreme Appellate Court, which was presided over by a learned Judge of this Court. Approving such view to be correct and relying on section 13 of the Oaths Act, we are of the view that although in a judicial proceeding evidence of witness should be received in accordance with section 6 of the Oaths Act, as amended. yet evidence recorded on solemn affirmation cannot be brushed aside simply on the ground that it was not taken on oath. Consequently, the impugned judgment by the High Court is maintained and the instant petition, stands dismissed. A.A./S-1096/S Petition dismissed