P L D 1997 Supreme Court 823 (PLP)

KHALIL-UR-REHMAN KHAN, J.

This petition is directed against the order dated 28-8-1996 passed in Intra-Court Appeal and the order dated 5-8-1996 passed in the Constitution petition by the learned Judges of the Lahore High Court, Lahore.

2. The relevant facts, briefly stated, are that the petitioner in the Constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, sought a direction to the Senior Superintendent of Police, Lahore (respondent No.2) and Deputy Superintendent of Police, Naulakha Circle, Lahore (respondent No.3) to register a criminal case against respondents Nos.5 to 11 for committing offences as detailed in paragraph 1 of the petition, in Police Station Mozang, Lahore. Respondents Nos.5 and 6 are police officials while other respondents are citizens including Mst. Bano Begum cited as respondent No.7. The allegations contained in paragraph of the Constitution petition, in brief, are that Mst. Bano Begum, respondent No.7 borrowed Rs.9,40,000 from the petitioner for construction of her house. She returned Rs.1,30,000 and balance amount i.e. Rs.8,10,000 is still due from the said respondent who with a view to grab the said amount constituted a gang of desperate persons led by Dr. Ziaullah Bangish respondent No.11. It was also alleged that whenever Mst. Bano Begum was approached to pay the amount, she advanced threats in the garb of respondents Nos.4 to 6 (police officials) and respondents Nos.8 to 11 (private citizens) for committing murder of petitioner and that on 7-7-1996, respondents Nos.5, 6, 8 to 11 came armed at the residence of the petitioner to murder him but due to intervention of respectables of the locality petitioner saved himself from their clutches and so they left giving threats of dire consequences. The plea was that despite lodging report of the incident with Police Station Mozang, Lahore and telegram to respondents Nos.l to 3 (Inspector-General of Police and others) criminal case was not registered but a mere report was recorded. 4 * Learned Judge, vide order dated 25-7-1996 directed S.H.O. concerned and Mst. Bano Begum respondent No.7, to appear before the Court on 5-8-1996. Both of them appeared and after hearing the petitioner, the S.H.O. and respondent No.7 (described as Bano Begum), the facts which transpired (as noted in the order dated 5-8-1996) are that-- (a) the petitioner is son of maternal uncle of Mst. Akhtar Bano Begum (respondent No.7) and was brought up by latter's mother and the two had been brought up and had grown together like brother and sister; (b) the petitioner had borrowed from her more than rupees seven lacs about two years ago and now when her children are to be married, she demanded return of the amount due, and the petitioner instead of satisfying the liability has started giving threats and making fake application to authorities. Learned Single Judge noted that the petitioner had concealed the factum of relationship with respondent No.7 and that the petitioner when asked about the claim made by the respondent No.7 falsely contradicted the same but subsequently offered that if Mst. Akhtar Bano Begum respondent and Allah Ditta, her brother present in Court, take oath on the Holy Qur'an and state that the petitioner owed any money to respondent No.7, he would pay the same to her. Both of them accepted the offer of the petitioner. They were sent to the High Court Mosque alongwith the petitioner and Reader of the Court for the purpose of oath. On their return, Reader of the Court reported that Mst. Akhtar Bano Begum respondent as well as her brother Allah Ditta had after performing ablution, taken oath on the Holy Qur'an in the presence of the petitioner to the effect that the petitioner owed Rs.7,14,000 to Mst. Akhtar Bano Begum. Learned Judge further noted that the petitioner verified these facts before him in Court and even made a statement to this effect in writing signed by him and countersigned by his learned counsel. This statement was formed part of the record.

5. The petitioner at that stage requested the Court to allow him to liquidate the admitted liability of Rs.7,14,000 in the form of monthly instalments of Rs.50,000 each with the condition that he shall clear the entire liability within one year. This offer was also accepted by Akhtar Bano Begum, though with some reluctance. Learned Judge made the aforenoted proceedings of the compromise arrangement part of the Court record and directed the petitioner to bring the sum of Rs.50,000, the amount of first. instalment, for payment to the respondent on 5-9-1996, to which date the proceedings were adjourned.

6. The petitioner then assailed this order dated 5-8-1996 in appeal (Intra Court, Appeal No.321 of 1996) before a Division Bench of the Lahore High Court. This appeal was dismissed in limine vide order dated 28-8-1996 observing, inter alia, that matter in controversy was decided on oath of Holy Qur'an taken by Mst. Akhtar Bano Begum and her brother Allah Ditta on the offer of the petitioner and his counsel and as such no interference is called for,

7. The present petition challenging both these orders was then filed. Learned counsel in support of the petition submitted that learned Single Judge had acted illegally in decreeing the claim of Mst. Akhtar Bano Begum as in Constitutional jurisdiction money claim could not be entertained and decreed. According to him, Mst. Akhtar Bano Begum respondent should have been asked to file a suit for recovery of money in the Civil Court as in exercise of Constitutional jurisdiction, High Court could not have taken upon itself to settle money dispute between the two parties and that the impugned order tantamounts to awarding decree without the payment of court-fee. Learned counsel lastly contended that- the taking of oath was not in conformity with the procedure prescribed in Article 163 of the, Qanun-e Shahadat, 1984. He did not elaborate this submission as, obviously no procedure has been prescribed under Article 163 of the Qanun-e-Shahadat. This Article provides that when the plaintiff takes oath .in support of his claim, the Court shall on the application of the plaintiff call upon the defendant to deny the claim on oath. Nothing has been said in this provision as to the consequences which will follow on taking oath by the defendant denying the claim in answer to the taking of the oath in support of his claim by the plaintiff. No procedure for taking the oath by the parties has been either prescribed or spelled out.

8. This provision has not adopted fully the concept of "deciding a claim on oath" as propounded by old masters of Muslim Jurisprudence on the basis of the tradition of the Holy Prophet (S.A.W.):-- (the burden of proof beyond all doubts is on the plaintiff while oath is to be exacted from the one who denies i.e., the defendant). For discussion on the subject, see Charles Hamilton's Hedaya (Volume 3), page 401; Ainul Hedaya, Vol. 3 pages 444, 445 and 449; and Durul Mukhtar (Urdu Edition), Vol. '3, page

364. The principle deducible from this discussion is that if the plaintiff produces evidence in attestation of his claim as the initial burden of proof is on him, then the defendant shall also produce his evidence and Qazi is to pronounce the judgment on the basis of the evidence on record. If, on the other hand, when the claim made is shown to be prima facie valid but the plaintiff is unable to produce evidence and demands that the defendant to be put to his oath, in that case Qazi must administer oath to him. The demand of plaintiff is requisite to the exaction of oath as it is his right. This has not been so provided in Article 163 of the Qanun-e-Shahadat as the matter has been left to the Court to proceed with the matter as it may deem fit. However, it is open to the Court to adopt the mode of deciding a cause in accordance with the tradition of the Holy Prophet (S.A.W.).

9. The situation which prevailed in the instant case was that the petitioner himself offered that real cause of the dispute agitated in the Constitution petition be decided on the basis of statement on oath of respondent No.7 and her brother, This situation i.e., the offer to decide the dispute, controversy or claim according to statement on oath of a party or a nominated person and undertaking to bind oneself. with such a statement is covered by the provisions of Oaths Act. 1873. Sections 8 and 9 of the Oaths Act read as hereunder:-- "

8. If any party to, or witness in, any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him.

9. If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in section 8, if such oath or affirmation is made by the other party to, or by any witness in, such proceedings, the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation: Provided that no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question." Oath is administered under section 10 and the next succeeding section (section 11), which read as under:-- "

10. If such party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it, and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court.

11. The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated."

10. So, the special oath is administered to a party or nominated person or a witness when a party offers to bind itself to the statement to be made on oath by the other party. In Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331 it was observed that the offer to abide by the oath of opposite-party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and circumstances of each case. Again, in the cases of Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241; Attiqullah v. Kafayatullah 1981 SCMR 162; Muhammad Mansha and 7 others v. Abdql Sattar and 4 others 1995 SCMR 795; Muhammad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908 and Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 the principle laid down is that a party offering to have a cause decided on oath and undertaking to abide by the special oath of a person (party or not a party to the suit) cannot. be allowed to resile from it, for it amounted to a binding contract unless it was found to be void or stand frustrated. So validity of decisions given on the basis of special oath was upheld under the provisions of Oaths Act, 1873. It will, therefore, be seen that "special oath" made basis of the decision in the instant case is not covered by Article 163 of the Qanun-e-Shahadat and reference, to Article 163 and alleged violation of any supposed prescribed procedure, urged by the learned counsel is misconceived.

11. The other pertinent aspect to be noted is that the facts that the petitioner had offered the respondent No.7 (Mst. Bano Begum) and Allah Ditta to take oath; that petitioner owed her the money, that the petitioner undertook to be bound with the statement to be made by them on Holy Qur'an and that they did take the oath and made the statements, were not denied even before us. The petitioner then'by making request to the High Court to allow him the facility of instalments to pay off the liability incurred due to the sworn deposition again signified his acceptance of the liability and binding nature of his undertaking given to the opposite-party as well as to the Court. The order to liquidate the liability within a period of one year is outcome of the mode of decision adopted and chosen by the petitioner. His request to grant him the facility of liquidating the liability through instalments was also allowed. The petitioner has chosen his own mode of deciding the controversy and having offered to bind himself with the statement on Holy Qur'an cannot be allowed to resile from the liability so incurred and established as the statement on Holy Qur'an so made is to be treated as conclusive proof of the matter in question to allow him to wriggle out of the liability would amount to making mockery of the solemn proceedings. The petitioner cannot be heard to say that after adopting the course that he chose for resolution of the respective claims and establishment of his liability, his undertaking be .not enforced and the respondent should be asked to her remedy from Civil Courts. Such a dishonest conduct cannot be countenanced, what to say of accepting the same as it amounts to ridiculing the process of the Court and defeating the purpose for which the Courts of justice exist i.e. resolving the real cause of dispute and affording the necessary relief to the party wronged. Procedure exists for advancing cause of justice. This Court has repeatedly held that proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his (See Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382). Moreover, what else is required to be done after the proceedings which were held at the option and volition of the petitioner who in any case is bound to honour his undertaking. It is well established that breach of undertaking to the Court amounts to contempt of Court. The petitioner by challenging the order passed in fact seeks to avoid the liability so incurred by him. Substantial justice has been done and on merits nothing was urged. Hence interference is not warranted.

12. Before parting with this judgment, we may add that the plea that a High Court in exercise of Constitutional jurisdiction vested under Article 199 of the Constitution cannot direct payment of money in any case is without substance. The High Court normally does not entertain a petition under Article 199 of the Constitution to enforce the civil liability arising out of a breach of contract to pay the amount of money due to the claimant and ordinarily leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose but an order for payment of money may be made in Constitution petition against State or its functionaries to enforce a statutory obligation. It is usual for the Courts to order refund of the money illegally collected as a duty or a tax. The Supreme Court of India has even allowed compensation to the aggrieved person where it was found that the responsibility prima facie was traceable to act of criminal omissions and commissions on part of concerned authorities. The wife of deceased officer was found entitled to compensation and a sum of Rs.6,00,000 was awarded by the Supreme Court itself in Suit. Charanjit Kaur v. Union of India and others AIR 1994 SC 1491 as compensation. In the instant case, the High Court was competently seized of the petition instituted by the petitioner himself against the said functionaries and the private respondents and the real cause of the dispute agitated in the petition was decided in accordance with the mode/procedure chosen by the petitioner himself. The liability so incurred cannot be awarded off by raising dishonest pleas. 4 13 For all these reasons, we are not persuaded to intervene in the matter. Leave to appeal is, therefore, refused and the petition is dismissed MUKHTAR AHMAD JUNE10, J.--I have gone through the order authored by my learned brother Khalil-ur-Rehman Khan, J., and find myself unable to agree with the conclusion as well as with its reasons. A pure and simple Constitution petition was filed in the Lahore High Court by petitibner Mahmood Ali Butt with following prayers:-- "It is, therefore, most respectfully prayed that the writ petition of the petitioner may kindly be issued directing the respondents 2 and 3 to register a criminal case against the respondents Nos. 5 to 11 for committing the offence as mentioned in the preceding para. No. 1, in Police Station, Mozang, Lahore. It is further prayed that the respondent No.4, may also be directed not to involve the petitioner in any case on the behest of respondents Nos. 5 to 11 in Police Station Misri Shah, Lahore, or in any Police Station of the city." During the course of arguments, learned Single Judge dealings with petitioner's writ petition, found that the petitioner was maternal cousin of Mst. Akhtar Bano Begum, who appeared in Court and controverted the assertions made by the petitioner. She alleged that the petitioner had taken from her more than seven lacs of rupees for the purpose of marriages of his children two years prior. Mst. Akhtar Bano Begun alleged that instead of returning said amount, the petitioner had started giving her threats. During the proceedings before the learned Single Judge, the petitioner contradicted the allegations coming from Mst. Akhtar Bano Begum, but stated that if she and her brother Allah Ditta take oath on Holy Qur' an that any amount of money was due to him, he would pay the same amount. Learned Single Judge thereafter sent the parties to a mosque in the High Court, alongwith his Reader. The Reader of the Court is said to have informed leaned Single Judge that Mst. Akhtar Bano Begun and her brother had taken oath on Holy Qur'an that an amount of Rs.7,14,000 was due from the petitioner to them. On receiving such report from the Reader, learned Single Judge called upon the petitioner to verify the fact and he made a statement in writing, which was countersigned by his counsel and was kept on the record. Subsequently, learned Single Judge made the compromise between the parties as part of the order of his Court and directed the petitioner to pay Rs.50,000 to Mst. Akhtar Bano Begun on 5th of every month starting with 5-9-1996 and to pay the entire amount of Rs.7,14,000 by 5-9-1997. The petitioner was informed that any default on his part shall be deemed to be disobedience of the order of the Court. Aggrieved by said order, the petitioner filed Intra-Court Appeal, which was dismissed in limine under the impugned judgment dated 28-8-1996. Hence this petition. Mr. S.M.K. Lodhi, learned counsel for the petitioner argued that oath said to have been taken in the present case was in conflict with Article 163 of the Qanun-e-Shahadat. It was next argued that while exercising jurisdiction under Article 199 of the Constitution of Pakistan, the High Court cannot make any agreement between the parties as rule of the Court and that a disputed question of fact cannot be decided by a High Court while exercising the Constitutional jurisdiction, more particularly on oath to be taken by any of the parties. Article 163 of the Qanun-e-Shahadat reads as follows: "

163. Acceptance or denial of claim on oath.--When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath. (2) The Court may pass such order as to costs and other matters as it may deem fit. (3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases. " Even in Article 163 the words "plaintiff" and "defendant" have been used and not the words petitioner and respondent. This shows that even the provisions contained in Article 163 of the Qanun-e-Shahadat are applicable only when matter is pending in a Civil Court between a plaintiff and a defendant. , Article 199 of the Constitution of Pakistan empowers a High Court inter alia to make an order on the application of an aggrieved party directing a person performing within its territorial jurisdiction functions in connection with the affairs of the Federation or a Province or a local authority, to refrain from doing anything he is not permitted to do under law, or to do anything that he is required by law to do, or declaring that any act done or proceeding taken within its jurisdiction, by a person performing functions in connection with the affairs of the Federation or a Province or a local authority has been done or taken, without lawful authority and of no legal effect. In the instant case, the petitioner invoked said provisions with a view that a direction be issued to the S.S.P., Lahore and the D.S.P., Naulakha Circle, Lahore to register a case against respondents Nos.5 to

11. Learned High Court had two alternatives, either to issue such direction or to dismiss the writ petition. Article 199 of the Constitution of Pakistan did not give third option to the High. Court. A High Court exercising constitutional jurisdiction under Article 199 of the Constitution of Pakistan, has to act within the four cornors of law and cannot overstep or enlarge its jurisdiction, which is not available under the law. I, therefore, hold that this is a fit case for grant of leave to appeal, to consider whether the High Court while entertaining a petition under Article 199 of the Constitution of Pakistan could pass the order of the nature passed by learned Single Judge, and whether the High Court while exercising such jurisdiction could decide the matter on taking of oath by a party. ORDER OF THE COURT M.B.A./M-33/S Petition dismissed