ATIR MAHMOOD, J.--Briefly stated the facts leading to filing of this Regular Second Appeal are that the respondent filed a suit for possession through specific performance of the property mentioned in para 1 of the plaint. It was averred by the respondent that there was agreement to sell dated 06.01.2005 between the parties; the price of the suit property was fixed as Rs,14.50.000/- out of which Rs,300,000/- was paid as earnest money whereby the rest of the sale consideration was to be paid by 06.05.2005; that the possession of the property was handed over to the respondent who was already residing in the suit property as tenant but afterwards, the appellant refused to transfer the property in the name of the respondent. Hence the suit was filed.
2. The suit was resisted by the appellant by filing written statement. Issues were framed and evidence led by the parties was recorded. Thereafter, learned trial court proceeded to decree the suit of the respondent subject to payment of Rs,800,0000- as additional consideration in addition to the remaining consideration vide judgment and decree dated 10.11.2010. The appellant filed RFA which was dismissed by learned lower appellate court vide judgment and decree dated 14.09.2015.
Hence this RSA has been filed.
3. Arguments heard. Record perused.
4. Learned counsel for the appellant has emphasized on the point that the examination-in-chief of the respondent-plaintiff, Muhammad Pervaiz as PW.1, Safdar Hussain, PW.2 and Muhammad llyas PW.3 was recorded on 22.03.2008 but their cross-examination was conducted on 22.10.2018 (i,e, after seven months of recording of their examination-inchief) without oath, therefore, their evidence neither had any legal value nor it could be relied upon while passing the impugned judgments and decrees. He has referred to Section 6 of the Oaths Act, 1873 (hereinafter called "the Act") in this regard. On the other hand, learned counsel for the respondent has relied upon Section 13 of the Act to state that omission in taking oath at the time of recording of evidence does not vitiate the whole trial, as such, the cross-examination of PW.1 to PW.3 conducted without oath is in accordance with law.
5. Sections 6 and 13 of the Act have been relied upon by both sides in favour of their respective stances which read as under: Section 6 of the Act "6. Affirmation by natives or by person objecting to oaths. Where the witness, interpreter or juror is a Hindu or Mohammadan, or has an objection to making an oath, he shall, instead of making an oath, make an affirmation.
In every other case the witness, interpreter or juror shall make an oath."
Section 13 of the Act "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."
(Emphasis provided)
Perusal of above transpires that Section 6 provides that except a Hindu, Mohammadan or an objector to making an oath, each witness, interpreter or juror shall be put to oath. The legislature has used the word 'shall' which makes the taking of oath mandatory. In addition, in Rule 5(1), Chapter 12 of Volume IV of the High Court Rules and Orders, the manner in which the oath is to be taken has been given as under: "5. Manner of administering oath. (1) Before a witness is called on to give evidence he should be made to stand in front of the Presiding Officer who will himself administer the oath or affirmation to him solemnly and impressively, making the witness repeat the words in a clear voice, phrase for phrase. While the oath or affirmation is thus being administered every one in Court shall be made to stand in complete silence."
It is evident from the rule 5(1) ibid that the court will take oath from the witness in complete silence and the witness who is giving oath must be standing before the Presiding Officer. Furthermore, the words will be repeated in a clear voice phrase by phrase. Meaning thereby, each and every word will be made known to the witness so as to make him understand what is the oath which he is going to give. This shows the importance of the oath to be taken from the witness by the court at the time of recording of his evidence. Even otherwise, the legislature in Section 6 of the Act has used the words "shall make an oath" which makes taking of the oath mandatory. In my considered view, putting a witness to make statement on oath has a specific purpose of stopping him from telling a lie while giving his evidence. When the words and sentences prescribed for the oath are repeated by the witness, he, if he is Muslim, must feel fear of Allah Almighty in him which forces him to speak the truth only, though it is not necessary in all the cases as receipt of education and training and thoughts of people differ from each other. It is common in our society that people who do not hesitate in telling lies generally, but when they are put to state on oath, they usually speak the truth to avoid torment and wrath by Allah Almighty for their lies on oath. Therefore, the oath before recording of evidence, in my considered opinion, is necessary so that the witness who comes to the court for evidence in favour of a party could be forced to speak the truth only and not otherwise, as decision of the court is always based on the documentary as well as oral evidence produced by the parties. The courts are now bound under the law to administer oath from each and every witness failing which the whole proceedings or trial may not vitiate but the evidence taken without oath being unauthentic and suffering from doubts cannot be relied upon to reach a just and fair conclusion.
6. I am not oblivious of the fact that according to Section 13 of the Act, the proceedings of the court will not stand vitiated if the evidence of the witnesses is not taken on oath. This may be taken in the sense that if evidence of a witness is not taken on oath, this irregularity can be cured by re- recording evidence of that witness on oath but evidence without oath is, in my view, not permissible under the law. In this regard, I am fortified by the dictums laid down by the Hon'ble Supreme Court of Pakistan in case Sajjad Ahmad and another v. The State (1992 SCMR 408).
7. Another aspect of the matter is that cross-examination of witnesses of the respondent-plaintiff is in question in this appeal. If the said witnesses are cross-examined again, there will be no harm to the respondent as his witnesses may say again on oath what they have earlier said, if they are speaking the truth. Undoubtedly, the appellant-defendant will have the right to rebut whatever is said in cross-examination by the said witnesses.
8. Both the learned courts below have failed to take into consideration the above aspect of the case, therefore, the impugned judgments and decrees cannot sustain.
9. As a result of above discussion, this appeal is allowed, the impugned judgments and decrees passed by both the learned courts below are set aside and the case is remanded to learned. trial court who will provide opportunity to the appellant-defendant to cross-examine PW.1, PW.2 and PW.3 again along with right to rebut the version taken by the said witnesses in the cross- examination and thereafter the suit will be decided afresh, in accordance with law.