The respondent/plaintiff filed suit for the recovery of Rs,1,02,000 against the petitioner/defendant in the Court of learned Senior Civil Judge, Kohat. It was during the pendency of the suit that the petitioner/defendant himself made an application on 9-9-2003 that he was ready to take oath on Holy Qur'an and his wife would stand divorced if his oath was wrong that he has paid the entire amount to the respondent/plaintiff. A further offer was also made that in case the respondent/plaintiff would take oath on Holy Qur'an, the suit filed by him be decreed in his favour.
2. The learned trial Court directed the respondent/plaintiff to file reply to the said application. In the reply, the respondent/plaintiff admitted that he is ready to take oath on Holy Qur'an as per offer of the petitioner/defendant. It was eventually on 25-10-2003 that the respondent/plaintiff took oath on Holy Qur'an in Court. In addition to that he also stated that his wife would stand divorced in case he told lie before the Court. Upon taking oath on the Holy Qur'an, the learned trial Court decreed the suit of the respondent/plaintiff as per offer made by the petitioner/defendant vide judgment and decree dated 25-10-2002. Being not contented with the said judgment and decree, the petitioner/defendant filed appeal in the Court of learned District Judge,
3. Kohat which was dismissed vide judgment and decree dated 11-2-2005. Feeling aggrieved with the judgments and decrees of both the Courts below, the petitioner/defendant has filed the revision petition in hand.
4. Mr. Muhammad Siddique Haider Qureshi, Advocate the learned (sic) petitioner/defendant had offered the respondent/plaintiff to take oath on Holy Qur'an but he had himself offered to take such oath but this fact was ignored by the learned trial Court.
5. It was further argued that under Article 163 of the Qanun-e- Shahadat, 1984 even if the respondent/plaintiff had taken oath on Holy Qur'an, no decree can be passed against the petitioner/defendant. Reliance in this regard is placed on PLD 1991 SC 383 and 1987 CLC 1512.
6. I have heard the learned counsel for the petitioner/defendant at length and perused the available record.
7. The argument of the learned counsel for the petitioner that no decree could be passed even if the respondent/plaintiff had taken oath on Holy Qur'an has no force. Under Article 163-of Qanun-e- Shahadat, 1984, 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 and the Court may pass such order as to costs or other matters as it may deem fit. In the case in hand the respondent/plaintiff had taken oath on the offer made by the petitioner/defendant vide application dated 9-9-2003 that in case the respondent/plaintiff would take oath on Holy Qur'an then he would be ready for payment of the entire amount claimed by him. The said offer was accepted by the respondent/plaintiff in his reply to the application filed on 6-10-2003 and it was on 25-10--2003 that the respondent/plaintiff took oath on the Holy Qur'an before the Court. While taking oath he also stated that in case he was telling lie before the Court his wife would stand divorced. He had not only taken oath on Holy Qur'an but had also made his wife divorced in case the oath was wrong. The learned trial Court was satisfied that the claim of the respondent/plaintiff was genuine.
8. After the offer made by the petitioner/defendant, under section 8 of the Oaths Act, 1873, if any party to, or witness in, any judicial proceedings 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 purporting to affect any third the Court may, if it thinks fit, notwithstanding person, anything hereinbefore contained, tender such oath or affirmation at him.
8. The Court under section 9 of the Act ibid was to ask other party as to whether offer of oath was acceptable to it or not. In the case in hand the learned trial Court directed the respondent/plaintiff to file written reply to the application whereby offer of oath was made and the reply was made on 6-10-2003 in which the said offer was accepted. The Court under section 10 of the said Act proceeded to administer oath and the respondent/plaintiff took oath on Holy Qur'an that his claim was genuine and correct and that in case his oath was wrong, his wife would stand divorced. The petitioner/defendant under section 11 of the Act ibid was bound by the offer made and the oath taken by the respondent/plaintiff was evidence and conclusive proof of the matter.
9. Similar question came up for hearing before the august Supreme Court of Pakistan in Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823 in which it was held:-- "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 acceptable 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 SCM R 162; Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCM R 795; Muhammad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237, Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCM R 908 and Saleem Ahmad v. Khushi Muhammad 1974 SCM R 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 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' 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."
10. Likewise in a case Attiqullah v. Kafayatullah 1981 SCM R 162, the august Supreme Court of Pakistan held that: "The defendant challenged the said order before the High Court through revision petition which was dismissed. Saleem Ahmad then filed a petition before this Court which upheld the decision of the High Court in the following words:- The High Court rejected both the contentions and held that there was no ground in law or in equity on which the petitioner could claim the right of reselling from the solemn agreement which was entered into by him. Such an agreement was in the nature of a contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated. None of these eventualities had occurred in this case.' We notice that in the present case also the petitioner had not raised any contentions or alleged any facts on the basis whereof the trial Court (or for that matter this Court) could either reach the conclusion that the contract was void or had become frustrated. As such we are of the view that the learned trial Court was justified in refusing to permit the petitioner to resile from his offer to be bound by the oath."
11. The petitioner/defendant cannot be allowed to make mockery of Holy Book and cannot be allowed to resile from the offer given by him, fer it amounted to a binding contract unless it was found to be void or stands frustrated.
12. The judgments cited by the learned counsel for the petitioner/defendant are not applicable to the case in hand. In PLD 1991 Supreme Court 383, special oath was not offered but the statements were only given on oath. The admissibility was discussed by the august Supreme Court of Pakistan.
Similarly in 1987 CLC 1512 both the parties had taken special oath, therefore, it was held that the Court in such eventuality could proceed under the law and decide the case on merits.
13. The learned trial Court has properly decreed the suit and the learned Appellate Court has rightly dismissed the appeal of the petitioner/defendant. I have not been able to find out any illegality or any material irregularity or jurisdictional error or defect warranting interference in the impugned concurrent findings of the Courts of competent jurisdiction.
14. Since the petitioner/defendant has made mockery of the Holy Qur'an by himself offering the oath and then take shelter of the technicalities in laws, therefore, the revision petition in hand is dismissed in limine along with C.M.No,726 of 2005 with costs of Rs,10,000 (Rupees Ten thousand only).