P L D 2010 Federal Shariat Court 221 (PLP)

HAZIQUL KHAIRI, C.J.

The petitioner Syed Muhammad Jamaluddin Shah Kazmi has established a Darool `Uloom under the nameand style of QAMRUL `Uloom, imparting religious education to students for the last over a decade. According to him the present form of oath under the Oaths Act, 1873 (hereinafter called "the Act"), is repugnant to the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him) under Article 203D of the Constitution of the Islamic Republic of Pakistan and is liable to be set aside.

2. Under section 7 of the Act "All oaths and affirmations shall be administered under section 5 of the Act according to such forms as the High Court may from time to time prescribe and till any such forms are prescribed by the High Court, such oaths and affirmations shall be administered according to the forms now in use'. The petitioner states that the form of oath prescribed and in practice in all the High Courts and subordinate Courts is as follows:-

3. According to the petitioner, a witness or Shahid is a respectable `invitee' or `guest' of the Court and deserves a befitting treatment. Under no circumstances, he should be taxed or burdened with any incriminating treatment. Reliance was placed on Qur'anic Verse; (And let no harm be done to scribe or witness (2:282).

4. The petitioner submitted that in Qur'anic language oath is called Yameen. In its primitive sense it means strength or power. In the language of the law it signifies an obligation by means of which the resolution of a vower is strengthened in the performance or the avoidance of any thing, and the man who swears or vows is termed the Haliff and the thing sworn to or vowed the Mahloof `alihec. The petitioner proposed the following text of oath in place of present form of oath:-

5. The petition was admitted for hearing and it was ordered that notices be issued to the Federal as well as the Provincial Governments with direction to file their comments.

6. The Federal Government at the outset raised the plea that the verse of the Holy Qur'an relied upon by the petitioner has no relevancy and the petition is misconceived. It was further stated: "The provisions of the Qur'an and Sunnah have not fixed any form, procedure, space, time and occasion for an oath. 'The companions of the Prophet (S.A.W.S.), Muslim Jurists and Muslim Judges had adopted different forms and procedure according to different occasions and circumstances. A Judge is at liberty to adopt any form and procedure to make an oath effective and helpful in the administration of justice."

7. The Hon'ble Lahore High Court in its letter confirmed that the form of oath under Chapter 12-A High Court Rules and orders Volume IV through Notification No. 339/Rules X.B. 9(a) dated 26-11-1992 was as under:--???? "I swear by Almighty Allah that I shall state the truth and if lie or conceal anything, the wrath of Allah Almighty may fall on me."

8. Similar form of oath was prescribed by the Balochistan High Court, Sindh High Court and Peshawar High Court. The difference between the form of oath referred to by the petitioner in urdu and prescribed by the provincial High Courts in English is that the words "conceal anything" are missing in Urdu translation. However, under section 14 of the act "Every person giving evidence on any subject before any Court or person authorized to administer oath and affirmation shall be bound to state the truth on such subject."

9. In the case of Muhammad Tahir v. The State PLD 1984 Peshawar 56, the form of Oath prescribed by the High Court in Chapter 12-A of the High Court Rules and Orders was not found in a proper form to be used by Courts for a Muslim witness. Accordingly a workable solution was proposed that form of oath commonly used by Muslims in area concerned may be used for resolving disputes or differences before the Courts until appropriate form is prescribed by the High Court. It was found that the forms of solemn affirmations and oaths prescribed by the High Court relate to jurors and not witnesses which was "On my honour, I shall state the truth, nothing but the truth". The form of oath for Muslim witnesses in vogue was "I swear by Allah that I shall state the truth, nothing but the truth". In Khan Sher v. Mst. Kabla and another PLD 1988 Pesh. 65, it was held that "in Holy Qur'an and Sunah the general oath was one to swear by Allah only".

10. We are in full agreement with the learned Judges of the Peshawar High Court. The following Verses of the Holy Qur'an reveal that oaths are to be sworn in by Muslim witnesses in the name of Allah only. "Then will the believers say (unto the people of the scripture); Are these they who swore by Allah their most binding oaths that they were surely with you? Their works have failed, and they have become the losers." (5:53) "And they swear a solemn oath by Allah that if there come unto them a portent they will believe therein. Say: Portents are with Allah and (so is that with telleth you that if such came unto them they would not believe."(6.110) "And they swear by Allah their most binding oaths (that Allah will not raise up him who dieth. Nay, but it is a promise (binding) upon Him in truth but most of mankind know not." (16:38) "And they swear by Allah solemnly that if thou order them they will go forth. Say swear not; known obedience (is better). Lo! Allah is informed of what ye do." (24.53) "And they swore by Allah, their most binding oath, that if a Warner came unto them they would be more tractable than any of the nations; yet, when a Warner came unto them, it aroused in them naught save repugnance." (35:42). "O ye believe! Let there be witnesses between you when death draweth nigh unto one of you, at the time of bequest--two witnesses, just men from among you, or two others from another tribe in case ye are campaigning in the land and the calamity of death befall you. Ye shall empanel them both after the prayer, and, if ye doubt, they shall be made to swear by Allah (saying): We will not take a bribe, even though it were (on behalf of) a near kinsman nor will we hide the testimony of Allah, for then indeed we should be of the sinful. "(5:106) "Allah does not call you to account for unintentional and meaningless oaths, but will surely take you to task for oaths taken deliberately and in earnest. Allah is Forgiving and Forbearing. "(2:225) "But then; if it is afterwards ascertained that both of them merit (the suspicion of) sin, let two others take their place of those nearly concerned, and let them swear by Allah, (saying): Verily our testimony is truer than their testimony and we have not transgressed (the bounds of duty), for then indeed we should be of the evil-doers" (5:107) Almighty Allah has commanded the believers to fulfil all their agreements, Allah says: "Fulfil the covenant of Allah when ye have covenanted, and break not your oaths after the asseveration of them, and after ye have made Allah surety over you. Lo! Allah knoweth that ye do". (16:91) "And be not like unto her who unravelleth the thread, after she hath made it strong to tin filaments making your oaths a deceit between you."(16:92) "Do not use Allah's name for such oaths which are taken to keep back from virtue, piety and the welfare of the mankind. Allah hears everything you utter and knows everything. "(2:224) "Allah does not take you to task for the inadvertent oaths you swear, but He will call you to account for the intentional and deliberate oaths you make. The expiation (of breaking such an oath is to feed ten indigent persons with the normal food you serve in your own family or to give them clothes or to free one slave, or to fast for three days if one cannot afford any of them this is the expiation of breaking the solemn oaths you have taken, be mindful of your oaths. "(5:89) This issue is more elaborately discussed in the following Hadiths: "Abu Muad narrated that he came to Allah's Messenger (may peace be upon him) along with a group of people belonging to the tribe of Ash'ari, asking him to provide them with riding camels. He (the Holy Prophet) said: By Allah, I cannot provide you with riding animals. And there is noting with me with which I can provide you a mount. We stayed (for some time there as Allah willed, and there was brought to Allah's Messenger (may peace be upon him) booty of camels. He called us and commanded that we should be given five white humped camels. As we were about to go back, some of us said to the other; As we made Allah's Messenger (may peace be upon him) forget oath, there would be no blessing for us (in his gift). We went back to him and said: "Allah's Messenger, we came to you to provide us with riding animals and you took an oath that you would never equip us with mounts and then you have provided us with the riding beasts. Allah's messenger have you forgotten"? There upon he said: "I swear by Allah that if Allah so wills, I shall not swear an oath, and then consider something else to be better than it without making atonement for my oath and doing the thing that is better. So you go"; Allah, the Exalted and Glorious, has given you riding animals. (Muslim Ibn al-Haijjaj: Al Jami'al Sahih; the book of Oaths (Kitab Al-Aiman: Book 15: Hadith 4046.

11. Ibn `Umar heard Allah's Messenger (may peace be upon him) as saying: He who has to take an oath, he must not take oath but by Allah. The Quraish used to take oath by their fathers. So he (the Holy Prophet) said: Do not take oath by your fathers. (Muslim Ibn al-Haijjaj: Al Jami'al Sahih; Book 15; Hadith 4040). `Abdullah (B. Umar) reported that Allah's Messenger (may peace be upon him) found, `Umar b. al-Khattab amongst the riders and he was taking oath by his father. Allah's Messenger (may peace be upon him) called them (saying); Our Allah, the Exalted and Majestic, has forbidden you that you take oath by your father. He who has to take an oath, he must take it by Allah or keep quiet. (Muslim Ibn al-Haijjaj: Al-Jami'al Sahih; Book 15 The Book of Oaths (Kitab Al-Aiman).

12. We do not agree with the petitioner that a witness is a guest of the Court no doubt, Islam accords due respect to witnesses, litigants and even accused in the matter of dispensation of justice. The Almighty Allah has ordained: "O believers! Stand firm for justice and bear true witness for the sake of Allah even though it is against yourselves, your parents or your relatives (4:135)" What further follows from the dictates of Holy Qur'an and Sunnah is that a witness is (a) duty bound to depose what he knows and what he knows not (b) the oath might be in the row of Allah; (c) he should not transgress the limit as witness; (d) in case he transgresses the limits prescribed by Allah, he will be an evil doer; and (e) hiding testimony should be sinful.

13. In the end, we may add that parties may offer and accept special oath under sections 8 and 9 of the Oaths Act 1873 and evidence as given there under may be conclusive in terms of section 10 thereof. However, even an Oath on the holy Qur'an has not greater sanctity than an oath on its creator, Allah, the Almighty, the Benevolent, the Merciful.

14. In view of the foregoing, we do not find any substance in the petition and further state that the present form of oath is not at all repugnant to Qur'an and Sunnah and is hereby dismissed. N.H.Q./52/FSC?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.