Last Updated: Monday December 15, 2008

Oaths’ Act, 1873

Preamble

(X OF 1873)

5th April, 1873

An Act to consolidate the law relating to Judicial Oaths, and for other purposes.

Preamble. Whereas, it is expedient to consolidate the law relating to judicial oaths, affirmations and declarations, and to repeal the law relating to official oaths, affirmations and declarations; It is hereby enacted as follows:-

1. Short title:---This Act may be called the Oaths’ Act, 1873.

Local extent. It extends to the whole of Pakistan.

I --- PRELIMINARY

2. Repeal of enactments:---Rep. by the Repealing Act, 1873 (XII of 1873).

3. Saving of certain oaths and affirmations:---Nothing herein contained applies to proceedings before Courts Martial, or to oaths, affirmations or declarations prescribed by or under any law or President’s warrants for the time being in force.

II. --- AUTHORITY TO ADMINISTER OATHS AND AFFIRMATIONS

4. Authority to administer oaths and a information:---The following Courts as persons are authorized to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law:---

(a) all Courts and persons having by law or consent of parties authority to receive evidence;

(b) the Commanding Officer of any military, naval or air force station or ship occupied by the Armed Forces of Pakistan, provided that the oath or affirmation is administered within the limits of the station or on the ship.]

Provided,---

(1) that the oath or affirmation be administered within the limits of the station, and

(2) that the oath or affirmation be such as a Justice of the Peace is competent to administer in [Pakistan].

III.--- PERSONS BY WHOM OATHS OR AFFIRMATIONS MUST BE MADE

5. Oaths or affirmations to be made by-witnesses:---Oaths or affirmations shall be made by the following persons:-

(a) all witnesses, that is to say, all powers who may law fully be examined, or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence; [and]

(b) Interpreters; interpreters of questions put to, and evidence given by, witnesses

Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmisable any evidence given by such witness nor affect the obligation of the witness to state the truth.

Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that the will faithfully discharge those duties.

6. Oath by a Muslim or by a non-Muslim who has no objection:---(1) Where the witness or interpreter is a Muslim, he shall make an oath.

(2) Where the witness or interpreter is not a Muslim, he shall make an oath or, if he has an objection to making an oath, an affirmation.]

Court Decisions

Whether evidence of a witness can be received in a judicial proceeding on solemn affirmation or necessarily it is to be on oath. No authority of S.C was cited by learned counsel appearing in the case. However, view taken by Federal Shariat Court in case of Zeb-ul-Haram (PLD 1991 FSC 1) appears to be correct and is supported by sound reasons and ample authorities. Such view was followed by Supreme Appellate Court, which was presided over by a learned judge of Supreme Court. Approving such view to be correct and relying on section 13 of Oath Act, S.C is of the view that although is a judicial proceeding evidence of witnesses should be received in accordance with Section 6 of 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. PLJ 1997 SC 702 - PLD 1997 SC 559 -NLR 1997Civil 486.

Acceptance of on ground that witnesses were not examined upon Oath prescribed by High Court. Revision against. It is settled principle of law that controversy between parties must be decided on merits instead of technicalities. Appeal can also be converted into revision for its hearing on merits. Although in a judicial proceeding evidence of witness should be received in accordance with Section 6 of Oaths Act, as amended, yet evidence recorded on solemn affirmation cannot be brushed aside simply on ground that it was not taken on Oath. PLJ 1998 Lah. 1525 = 1999 MLD 2151.

Failure to abide procedure, Whether vitiate proceedings. According to S. 99 of CPC, any defect or irregulating in procedure does not vitiate decree passed by trial Court, It is also to be noticed that at time when statements of witnesses were recorded on solemn affirmation, no objection whatever was raised by respondent and this plea for first time appears to have been taken before trial Court. Learned counsel for respondents has not convassed that there was no deliberate failure to adhere to Section 6 of Oaths Act, 1873. Failure to abide by procedure prescribed by Section 6 of Oaths Act, does not vitiate proceedings. PLJ 1997 Lah. 227=1996 CLC 1975 = NLR 1997 Civil 24.

IV.--- FORM OF OATHS AND AFFIRMATIONS

7. Forms of oaths an affirmations:---All oaths and affirmations made under section 5 shall be administered according to such forms as the High Court may from time to time prescribe.

And until any such forms are prescribed by the High Court, such oaths and affirmations shall be administered according to the forms now in use.

8. Power of Court to tender certain oaths:---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 herein before contained, tender such oath or affirmation to him.

Court Decisions

Disposal of case on basis of oath. Plaintiffs offer for disposal of case on basis of oath of defendants was accepted by defendant and on statement on oath of defendants plaintiffs suit was dismissed. Plaintiff's subsequent application to resile from their offer and for decision of suit on merits was dismissed by trial Court and by Revisional Court. Validity. Plea that statement made by plaintiff “A” was not binding on other plaintiffs, has not force for the simple reason that plaintiff A an advocate had common interest with other plaintiffs. Order sheet reveals that offer was voluntarily made which was accepted by defendants. Such offer when accepted matured into agreement binding on parties and the same was enforceable under law. Plaintiff 'A' being Advocate was holding power of attorney on behalf of their plaintiffs. Even revision was filed by plaintiff 'A' as also Constitutional petition has been filed by him, therefore, plea that Trial Court had exerted pressure on such Advocate was not warranted. Provisions of Oath Act, 1873 do'es not prescribe any form or procedure for recording offer made by one party and its acceptance by other. Parites having chosen their own procedure for resolving dispute none of them can unilaterally seek annulment of agreement and ask the Court to ignore contract and decide the case in accordance with law and procedure as prescribed by Civil Procedure Code, 1908. Offer of oath having been voluntarily made when the same was accepted by defendant; -Trial Court rightly disallowed plaintiff to resile from it and after administering the oath, according to desire of plaintiff dismissed suit, and revisional Court rightly maintained order of Trial Court. There being no illegality, infirmity or jurisdictional defect in the order passed by Courts below, no interference therein was warranted in Constitutional jurisdiction. PLJ 2000 Lah. 1354.

Plaintiffs offer that if defendant makes Statement on oath that he had purchased tube-well, his appeal as also his suit be dismissed, was accepted by defendant and he made such statement whereupon, Court on basis of statement of defendant dismissed plaintiffs appeal as well as his suit. Validity. Defendant on acceptance of plaintiffs offer swore on Holy Qur'an that he had purchased tubewell from plaintiff and had paid him specified amount as agreed by parties. Appellate Court on basis of such statement had dismissed appeal as well as suit vide its impugned order. Order in question, clearly showed that same had been passed, when defendant had made statement before Court on offer of plaintiff. Omission to record independent and separate statement containing that very admission would not retract value of admission made in open Court and mentioned in final order. Impugned order not suffering from any illegality or irregularity would not warrant interference. PLJ 1999 Lah. 1612.

Party offering or accepting to abide by oath of Opposite Party or its nominee later retracting from such agreement. Validity. Oath of person who does not inspire confidence would be of no consequence and on proof of such person's incredibility, his oath even of recorded being of no consequence, no heed could be paid to the same in any solemn proceedings. Trial Court thus, committed material irregularity by insisting on recording of special oath and by refusing to decide case on merits. Impugned order was set aside and case was remanded to Appellate Court for decision on merits. PLJ 1999 Lah. 786 = PLD 1999 Lah. 328.

Plaintiffs assertion that he had not signed the statement for disposal of suit on defendants' oath was of no consequence. Plaintiff, however, admitted his presence in Court and proposal of statement having been made by both parties and mode of disposal of case having been agreed. Provisions of O.XXIII, R. 3 C.P.C. were not attracted in circumstances of case in as much as parties had agreed to get the matter settled if defendant takes oath on Holy Qur'an. Such mode of disposal of cases would fall within realm of Oaths Act, 1873. To allow plaintiff to resile from undertaking of such nature would amount to approbate and reprobate not only with defendant but also the Court. No party could be allowed to take inconsistent positions in Court. Disposal of case by Court on statement of defendants* oath did not suffer from any illegality and was un-exceptional. PLJ2000 Lah. 1515.

Absence of oath agreement between parties:-- Without an agreement between contesting parties for disposal of dispute through special or general oath, the Court cannot force any off the parties to take oath in support of its claim or to accept the offer of the other party for taking of oath in rebuttal of the claim of the party. PLD 2004 Pesh. 30

Special oath‑‑Alleged debtor himself offered that real cause of dispute agitated (advancing of loan by claimant) be decided on the basis of statement on oath on Holy Qur'an by the claimant and her brother‑‑Such offer to decide the dispute, controversy or claim according to statement on oath of a party or a nominated person and undertaking to bind himself with such a statement is covered by provisions of Oaths Act, 1873‑‑‑Alleged debtor having chosen his own mode of deciding the controversy and having offered to bind himself with the statement on Holy Qur'an could not be allowed to resile from the liability so incurred and established as the statement on Holy Qur'an so made was to be treated as conclusive proof of the matter in question‑‑‑Breach of such undertaking amounted to contempt of Court‑‑‑Special oath made basis of the decision therefore, is not covered by Art. 163, Qanun‑e‑Shahadat and reference to said Article and alleged violation of any supposed prescribed procedure was not relevant in circumstances.

Oath is administered under sections 10 and of the Oaths Act, 1873.

The situation which prevailed in the present case was that the petitioner himself offered that real cause of the dispute agitated be decided on the basis of statement on oath of respondent 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.

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.

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.

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 stands 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" trade basis of the decision in the present 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, is misconceived.

The facts that the alleged debtor had offered the claimant to take oath; that he owed her the money, that the debtor undertook to be bound with the statement to be made by her on Holy Qur’an and that she did take the oath and made the statements were not denied. The debtor 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 debtor. His request to grant, him the facility of liquidating the liability through instalments was also allowed. The debtor had chosen his own mode of deciding the controversy and having offered to bind himself with the statement on Holy Qur'an could not be allowed to resile from the liability so incurred and established as the statement on Holy Qur'an so made was 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 debtor could not 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 claimant should be asked to her remedy from Civil Courts. Such a dishonest conduct could not be countenanced, what to say of accepting the same as it amounted 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. Proper place of procedure in any system of administration of justice was to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it was 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 was defective to that extent. The ideal must always be a system that gives to every person what is his.

Breach of undertaking to the Court amounted to contempt of Court. The debtor by challenging the order passed in fact sought to avoid the liability so incurred by him. P L D 1997 S. C. 823

Charles Hamilton's Hedaya Vol. 3 p.401; Ainul Hedaya, Vol.3, pp.444, 445 apd 449; Durul Mukhtar (Urdu Edn.), Vol. 3, p.364; Mst. Asifa Sultana v. Honest Traders, Lah. and another PLD 1970 SC 331; 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. Abdul Sattar and 4 others 1995 SCMR 795; Muharnmad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908; Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 ref.

9. Court may ask party or witness whether he will make oath proposed by opposite party:---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 proceeding, 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.

Court Decision

Party offering or accepting to abide by oath of Opposite Oath of person who does not inspire confidence would be of no consequence and on proof of such person's incredibility, his oath even of recorded being of no consequence, no heed could be paid to the same in any solemn proceedings. Trial Court thus, committed material irregularity by insisting on recording of special oath and by refusing to decide case on merits. Impugned order was set aside and case was remanded to Appellate Court for decision on merits. PLJ 1999 Lah. 786 = PLD 1999 Lah. 328.

Plaintiffs assertion that he had not signed the statement for disposal of suit on defendants' oath was of no consequence. Plaintiff, however, admitted his presence in Court and proposal of statement having been made by both parties and mode of disposal of case having been agreed. Provisions of O.XXIII, R. 3 C.P.C. were not attracted in circumstances of case in as much as parties had agreed to get the matter settled if defendant takes oath on Holy Qur'an. Such mode of disposal of cases would fall within realm of Oaths Act, 1873. To allow plaintiff to resile from undertaking of such nature would amount to approbate and reprobate not only with defendant but also the Court. No party could be allowed to take inconsistent positions in Court. Disposal of case by Court on statement of defendants* oath did not suffer from any illegality and was un-exceptional. PLJ2000 Lah. 1515.

Applicability of Rule of Caution‑‑‑Defendant's offer for decision of suit on Oath of plaintiffs' father was accepted by plaintiffs and their father appeared in the Court for making statement on oath, butt before his statement could be recorded, defendant made application mentioning therein reasons to resile from his offer‑‑‑Trial Court did not consider the application and on recording statement of plaintiffs' father decreed the suit‑‑‑Defendant's first and second appeals were dismissed‑‑‑Defendant's contention was that Trial Court was bound to examine the reasons mentioned in application and decide same before administering oath by applying the Rule of Caution‑‑‑ S. C. granted leave to appeal to consider the contention which involved question of public importance with regard to interpretation of Ss.9, 10 & 12 of Oaths Act, 1873 as well as Art. 163 of Qanun‑e‑Shahadat, 1984 and the application of Rule of Caution by the Courts seized with the matter in such‑like cases. P L D 2002 S. C. 261

PLD 1970 SC 241; PLD 1970 SC 331, 1974 SCMR 224; 1981 SCMR 162; PLD 1990 SC 841; 1995 SCMR 795; PLD 1990 SC 237 and PLD 1997 SC 823 ref.

Special oath:-- Alleged debtor himself offered that real cause of dispute agitated (advancing of loan by claimant) be decided on the basis of statement on oath on Holy Qur'an by the claimant and her brother‑‑Such offer to decide the dispute, controversy or claim according to statement on oath of a party or a nominated person and undertaking to bind himself with such a statement is covered by provisions of Oaths Act, 1873‑‑‑Alleged debtor having chosen his own mode of deciding the controversy and having offered to bind himself with the statement on Holy Qur'an could not be allowed to resile from the liability so incurred and established as the statement on Holy Qur'an so made was to be treated as conclusive proof of the matter in question‑‑‑Breach of such undertaking amounted to contempt of Court‑‑‑Special oath made basis of the decision therefor, is not covered by Art. 163, Qanun‑e‑Shahadat and reference to said Article and alleged violation of any supposed prescribed procedure was not relevant in circumstances.

Oath is administered under sections 10 and of the Oaths Act, 1873 8301 D

The situation which prevailed in the present case was that the petitioner himself offered that real cause of the dispute agitated be decided on the basis of statement on oath of respondent 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.

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.

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.

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 stands 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" trade basis of the decision in the present 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, is misconceived.

The facts that the alleged debtor had offered the claimant to take oath; that he owed her the money, that the debtor undertook to be bound with the statement to be made by her on Holy Qur'an and that she did take the oath and made the statements were not denied. The debtor 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 debtor. His request to grant, him the facility of liquidating the liability through instalments was also allowed. The debtor had chosen his own mode of deciding the controversy and having offered to bind himself with the statement on Holy Qur'an could not be allowed to resile from the liability so incurred and established as the statement on Holy Qur'an so made was 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 debtor could not 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 claimant should be asked to her remedy from Civil Courts. Such a dishonest conduct could not be countenanced, what to say of accepting the same as it amounted 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. Proper place of procedure in any system of administration of justice was to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it was 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 was defective to that extent. The ideal must always be a system that gives to every person what is his.

Breach of undertaking to the Court amounted to contempt of Court. The debtor by challenging the order passed in fact sought to avoid the liability so incurred by him. P L D 1997 S. C. 823

Charles Hamilton's Hedaya Vol. 3 p.401; Ainul Hedaya, Vol.3, pp.444, 445 apd 449; Durul Mukhtar (Urdu Edn.), Vol. 3, p.364; Mst. Asifa Sultana v. Honest Traders, Lah. and another PLD 1970 SC 331; 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. Abdul Sattar and 4 others 1995 SCMR 795; Muharnmad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908; Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 ref.

10. Administration of oath if accepted:---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.

Court Decisions

Disposal of dispute through oath:-- Without an agreement between contesting parties for disposal of dispute through special or general oath, the Court cannot force any off the parties to take oath in support of its claim or to accept the offer of the other party for taking of oath in rebuttal of the claim of the party. PLD 2004 Pesh. 30

Party offering or accepting to abide by oath of Opposite Party or its nominee later retracting from such agreement. Validity. Oath of person who does not inspire confidence would be of no consequence and on proof of such person's incredibility, his oath even of recorded being of no consequence, no heed could be paid to the same in any solemn proceedings. Trial Court thus, committed material irregularity by insisting on recording of special oath and by refusing to decide case on merits. Impugned order was set aside and case was remanded to Appellate Court for decision on merits. PLJ 1999 Lah. 786 = PLD 1999 Lah. 328.

Disposal of plaintiffs suit on basis of oath taken by defendant in response to proposal made by plaintiff. Plaintiffs assertion that he had not signed the statement for disposal of suit on defendants' oath was of no consequence. Plaintiff, however, admitted his presence in Court and proposal of statement having been made by both parties and mode of disposal of case having been agreed. Provisions of O.XXIII, R. 3 C.P.C. were not attracted in circumstances of case in as much as parties had agreed to get the matter settled if defendant takes oath on Holy Qur'an. Such mode of disposal of cases would fall within realm of Oaths Act, 1873. To allow plaintiff to resile from undertaking of such nature would amount to approbate and reprobate not only with defendant but also the Court. No party could be allowed to take inconsistent positions in Court. Disposal of case by Court on statement of defendants* oath did not suffer from any illegality and was un-exceptional. PLJ2000 Lah. 1515.

Decision of suit on Special Oath‑‑‑Defendant's offer for decision of suit on Oath of plaintiffs' father was accepted by plaintiffs and their father appeared in the Court for making statement on oath, butt before his statement could be recorded, defendant made application mentioning therein reasons to resile from his offer‑‑‑Trial Court did not consider the application and on recording statement of plaintiffs' father decreed the suit‑‑‑Defendant's first and second appeals were dismissed‑‑‑Defendant's contention was that Trial Court was bound to examine the reasons mentioned in application and decide same before administering oath by applying the Rule of Caution‑‑‑ S. C. granted leave to appeal to consider the contention which involved question of public importance with regard to interpretation of Ss.9, 10 & 12 of Oaths Act, 1873 as well as Art. 163 of Qanun‑e‑Shahadat, 1984 and the application of Rule of Caution by the Courts seized with the matter in such‑like cases. P L D 2002 S. C. 261

PLD 1970 SC 241; PLD 1970 SC 331, 1974 SCMR 224; 1981 SCMR 162; PLD 1990 SC 841; 1995 SCMR 795; PLD 1990 SC 237 and PLD 1997 SC 823 ref.

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

Court Decisions

Disposal of plaintiffs suit on basis of oath taken by defendant in response to proposal made by plaintiff. Plaintiffs assertion that he had not signed the statement for disposal of suit on defendants' oath was of no consequence. Plaintiff, however, admitted his presence in Court and proposal of statement having been made by both parties and mode of disposal of case having been agreed. Provisions of O.XXIII, R. 3 C.P.C. were not attracted in circumstances of case in as much as parties had agreed to get the matter settled if defendant takes oath on Holy Qur'an. Such mode of disposal of cases would fall within realm of Oaths Act, 1873. To allow plaintiff to resile from undertaking of such nature would amount to approbate and reprobate not only with defendant but also the Court. No party could be allowed to take inconsistent positions in Court. Disposal of case by Court on statement of defendants* oath did not suffer from any illegality and was un-exceptional. PLJ 2000 Lah. 1515.

12. Procedure in case of refusal to make oath:---If the party or witness refuses to make the oath or solemn affirmation referred to in section 8, he shall not be compelled to make it, but the Court shall record, as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal.

Court Decisions

Resile from Offer:-- Defendant's offer for decision of suit on Oath of plaintiffs' father was accepted by plaintiffs and their father appeared in the Court for making statement on oath, but before his statement could be recorded, defendant made application mentioning therein reasons to resile from his offer‑‑‑Trial Court did not consider the application and on recording statement of plaintiffs' father decreed the suit‑‑‑Defendant's first and second appeals were dismissed‑‑‑Defendant's contention was that Trial Court was bound to examine the reasons mentioned in application and decide same before administering oath by applying the Rule of Caution‑‑‑ S. C. granted leave to appeal to consider the contention which involved question of public importance with regard to interpretation of Ss.9, 10 & 12 of Oaths Act, 1873 as well as Art. 163 of Qanun‑e‑Shahadat, 1984 and the application of Rule of Caution by the Courts seized with the matter in such‑like cases. P L D 2002 S. C. 261

PLD 1970 SC 241; PLD 1970 SC 331, 1974 SCMR 224; 1981 SCMR 162; PLD 1990 SC 841; 1995 SCMR 795; PLD 1990 SC 237 and PLD 1997 SC 823 ref.

V. --- MISCELLANEOUS

13. Proceedings and evidence not invalidated by omission of oath or irregularity:---No omission to take any oath or make any affirmation, 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 took place, or shall affect the obligation of a witness to state the truth.

Court Decisions

Acceptance of on ground that witnesses were not examined upon Oath prescribed by High Court. Revision against. It is settled principle of law that controversy between parties must be decided on merits instead of technicalities. Appeal can also be converted into revision for its hearing on merits. Although in a judicial proceeding evidence of witness should be received in accordance with Section 6 of Oaths Act, as amended, yet evidence recorded on solemn affirmation cannot be brushed aside simply on ground that it was not taken on Oath. PLJ 1998 Lah. 1525 = 1999 MLD 2151.

Whether evidence of a witness can be received in a judicial proceeding on solemn affirmation or necessarily it is to be on oath. No authority of S.C was cited by learned counsel appearing in the case. However, view taken by Federal Shariat Court in case of Zeb-ul-Haram (PLD 1991 FSC 1) appears to be correct and is supported by sound reasons and ample authorities. Such view was followed by Supreme Appellate Court, which was presided over by a learned judge of Supreme Court. Approving such view to be correct and relying on section 13 of Oath Act, S.C is of the view that although is a judicial proceeding evidence of witnesses should be - received-'in accordance with Section 6 of 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. PLJ 1997 SC 702 - PLD 1997 SC 559 -NLR 1997Civil 486.

14. Persons giving evidence bound to state the truth:---Every person giving evidence on any subject before any Court or person hereby authorized to administer oaths and affirmations shall be bound to state the truth on such subject.

15. Amendment of Penal Code, S. 178 and 181:---Rep. by the Repealing Act, 1938.

16 Official oaths abolished:---Subject to the provisions of sections 3 and 5, no person appointed to any office shall, before entering on the execution of the duties of his office, be required to make any oath, or to make or subscribe any affirmation or declaration whatever.