Zia-ud-Din Khattak, J.--Fazle Rehman, plaintiff (herein after called as "the Respondent No, 1") filed Suit No, 9/1 of 2003 for the recovery of Rs, 6,35,000/- against Laiq Zaman, etc. defendants (herein after called as the petitioners"). The latter contested the suit by filing a written statement. During the proceedings, the Respondent No, 1 submitted an application for deciding the case on oath. The petitioners, however, declined the offer and requested that the Respondent No, 1 may be asked to prove his case. However, the learned Civil Judge/Illaqa Qazi, Samarbagh who seized of the case, accepted the application and vide order dated 7.7.2004 allowed the Respondent No, 1 to take oath on the Holy Quran in support of his claim in terms of Section 10 of the Oaths Act, 1873. Civil Revision No, 19/12 Nim of 2004 filed against the said order was dismissed by the learned District Judge/Zilla Qazi, Dir Payeen vide judgment dated 5.4.2005.
2. Feeling aggrieved of the order, the petitioners filed this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan on the ground that they could not be compelled to take oath and that the case should be decided on merits as it is the basic requirement of the law.
3. The Respondent No, 1 despite service omitted to turn up hence was placed ex-parte. We have heard Mr. Safdar Khan, Advocate, learned counsel for the petitioners and perused the documents annexed with the petition.
4. The provisions relating to decision of a case on the basis of oath are contained in Section 9/10 of the Oaths Act, 1873 and Article 163 of the Qanun-e-Shahadat Order, 1984. According to the Oaths Act, 1873, offer and acceptance are must and are also the relevant ingredients for deciding the case on oath, while Article 163 envisage that when the plaintiff takes oath in support of his claim, the Court on the application of the plaintiff call upon the defendant to deny the claim on oath.
However, it does not lay down the consequences if defendant does or does not deny plaintiffs claim on oath. In this case, the petitioners had declined the offer of decision of the case on oath, as such, the Court should have asked the Respondent No, 1 to adduce evidence in support of his claim but it did not do so and instead allowed the Respondent No, 1 to take oath on the Holy Quran which is otherwise not permissible under Shariah. In Book VI, Chapter II of the Hedaya by Hamilton, it is provided that an oath may be expressed by using the name of Allah or any of his customary attributes such as Rehman, Rahim and 97 others. The Hedaya has also quoted the Holy Prophet (S.A.W.) that "if any man takes an oath, he must swear by the name of Allah, or else his oath is void. If a person also swear by the Holy Quran, it does not constitute an oath, although, the Holy Quran be the word of Allah because men do not swear by the Quran".
5. In the result, we allow this writ petition, set aside the impugned order of the learned two Courts below and remand the case to the learned trial Court for decision of the case on merits.