MUJAHID MUSTAQEEM AHMED, J. By filing this appeal in terms of Section 54 of the Land Acquisition Act, 1894 (the Act) the appellants have assailed legality and propriety of the judgment and memo. of costs dated 31.5.2016 passed by learned Referee Judge/Senior Civil Judge, Attock whereby Reference filed by respondents No.1 and 2 (respondents) in terms of Section 18 of the Act was allowed and Award bearing No. 245/LAC/HA dated 20.4.2011 was modified in terms that the respondents were held entitled to receive compensation of their land of different categories at following enhanced rate: Nul Chahi: Rs. 10,00,000/- per kanal alongwith 15% compulsory acquisition charges and 8% compound interest from the date of possession till final payment.
Baniar Qadeem, Ghair Murnkin Bhurra and Ghairmumkin Makan of tubewell: Rs. 6,00,000/- per kanal alongwith 15% compulsory acquisition charges and 8% compound interest from the date of possession till final payment.
Khundar kind of land: Rs. 6,00,000/- per kanal alongwith 15% compulsory acquisition charges and 8% compound interest from the date of possession till final payment.
2. Brief facts of the case necessary for its fair and just adjudication are that 180 kanal land of Mauza Pir Mandiala Tehsil Hassanabdal, Distt. Attock was acquired by the appellants for the purpose of Air Weapons Complex Wah Cantt which also included 26 kanal 4 marla land of respondents. Rates of different kinds of acquired land were fixed by the Land Acquisition Collector as follow: Kind of land Rate per kanal Null Chahi Rs. 2,50,000/- Banjar Qadeem Rs. 1,40,000/- Ghair Mumkin Rs. 1,40,000/- Khundar Rs. 1,40,000/- House (Maira) Rs. 1,75,000/- Bhura Rs. 1,40,000/-
3. Feeling dissatisfied with the rates of compensation so fixed in the award, the respondents/owners of afore-referred chunk of land filed a Reference before the learned Senior Civil Judge, Attock being Referee Judge which was contested by the present appellants. On divergent claims of the parties, the learned Referee Judge framed the following issues:
1. Whether the reference is not maintainable in its present form? OPR.
2. Whether the petitioners were awarded inadequate compensation and hence they - are entitled for its enhancement? OPA.
3. Relief
4. After recording evidence and hearing arguments of both the parties, the learned Referee Judge vide judgment and Memo of costs dated 31.5.2016 modified the Reward as noticed above. Hence this appeal on the grounds of being based on mis-reading and non-reading of evidence and not sustainable in the eye of law.
5. Learned counsel for the parties have been heard and record perused with their assistance.
6. Contention of learned counsel for the appellants on legal plain that statement of one of the respondents as AW-2 was recorded without oath and as such his testimony has no legal sanctity/credibility and should not be relied upon, could not be rebutted by learned counsel for the respondents for any valid or cogent reason. It is an admitted fact that the statement of AW-2 was recorded without Oath. The point raised by learned counsel for the appellants is dealt with by Section 5 of the Oaths Act, 1873. It would be advantageous to reproduce said provision of law which reads as under: "(5) Oaths or affirmation to be made by witnesses interpreters; jurors. Oath or affirmation shall be made by the following persons:---
(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or persons having by law or consent of parties authority to examine such persons or to receive evidence;"
The above provision shows that the witnesses to be examined in the Court shall take Oath. It further reveals that Court has no option but to record the statement of witnesses after administering Oath or affirmation. It was held in case Obaidullah Khan v. Umer Hayat Khan and another [2011 YLR 1731 (Peshawar)] that it is duty of the Judge to administer Oath to witness. If he examines him without administering Oath it would definitely reflect adversely on the evidence. Best way is to remand such-like case to the Court concerned for recording evidence of the witnesses where Oath was not administered 'to them because the omission committed by Judge or Court should not prejudice any of the party. The omission to administer Oath to a witness will amount to an illegality which cannot be cured. It is thus settled law that it is obligation of a Court to record testimony of a witness on Oath and statement of witness recorded without oath is inadmissible in evidence.
Reliance in this regard is placed on cases Sajjad Ahmad and another v. The State (1992 SCMR 408) and Ehsan Ellahi Baig v. Muhammad Pervaiz (PLD 2018 Lahore 693). Moreover learned Referee Court on the very day of recording examination-in-chief of aforesaid AWs.2 and 3 struck down, right of cross-examination of the appellants. Conduct of proceedings by learned Referee Court in such a hasty manner cannot be approved. As per settled law right of cross-examination is a valuable right of a party to dig out the truth so as to reach a just conclusion by the court. Any, deviation from such procedure may result in injustice to a party.
7. Perusal of the impugned judgment further reveals that learned Referee Court has not even minutely scanned the documentary evidence led by the parties and in quite a casual manner referred statements of the witnesses and mainly placing reliance on documentary evidence (Exhibits-A-13 to A-17) allowed the Reference. Whereas, as pointed out by learned counsel for the appellants Ex.A-13 to A-17 did not pertain to "Mauza Mandiala" and related to "Mauza Lab Thathoo".
Thus there is force in the contention of the learned counsel for the appellants that the impugned judgment suffers from mis-reading of evidence. It is settled principle of law that a court should deliver detailed judgment which should not only state the finding but also the evidence and how it supports the finding. Reliance in this regard may be placed on cases Pakistan Refinery Ltd.
Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd and others (2019 SCMR 1726) and Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736).
8. In view of what has been noticed and observed above, this appeal is allowed in terms that the impugned judgment is set aside and the matter is remanded to learned Referee Court/Senior Civil Judge, Attock to record de novo statement of respondent/AW.2. The appellants be provided fair opportunity to cross-examine A.Ws. 2 and 3. In case of non-availability of the said witness any other respondent may be examined. It will be open for both the parties to lead further oral as well as documentary evidence to substantiate their respective case. After the above exercise the learned Referee Court will decide the Reference by due appraisal of oral as well as documentary evidence. Learned Reference Court is directed to ensure that Reference is decided within three months from the next date of hearing fixed before him. Parties are directed to appear before the learned Referee Court on 3-2-2020.