' This regular second appeal is directed against two concurrent judgments and decrees of Courts below whereby the suit of the plaintiff for declaration was dismissed.
2. Brief facts are that on plaintiff's suit for declaration and consequential relief, an offer was made for a special oath by the plaintiff. The offer was that if Mst. Jawai took oath on Holy Quran in the big mosque of the village that she had not made a gift of the land in dispute, he will be bound by it and in case of her failure the suit may be decreed. This offer was accepted by Mst. Jawai and Mst.
Roshnai. The learned trial Court appointed a local Commissioner to administer the oath. The statements of the parties and their counsel were also recorded by the trial Court. Mr. Muhammad Iqbal, Advocate was accordingly appointed as a local Commissioner and was directed to visit the village of the parties and to call them in the big mosque and then ask Mst. Jawai to take the prescribed oath making a statement about the alleged gift. This order was conveyed to the local Commissioner on 12th July, 1969 and he had been asked to submit his report by 16th July, 1969. On 15th July, 1969 the Commissioner visited the mosque in the village at about 5 p. m. All the respectable' persons of the village were present but the plaintiff was absent. However, his second son namely Allah Rakha was present at the initial stage and then left. In the presence of the assembly, the local Commissioner asked Mst. Allah Jawai to take the oath on Holy Quran. She accordingly took the oath and stated that no gift was made in favour of the plaintiff.
3. However, in his report to the Court, the local Commissioner towards the end made a suggestion to the effect that as the current month was the month of Sawn, it was customary amongst the tribe of the parties that they refuse to take any oath in this month and in case the Court was firmly of the view that oath must be administered in the presence of the parties then in that event a fresh date after the month of Sawan should be given. The trial Court on perusing the Commissioner's report vide order dated 16th July, 1969 observed that it would be desirable if oath was taken in presence of the plaintiff. The Commissioner was asked to fix an appropriate date for proceeding in presence of the parties and to submit the report before 15th September, 1969. The plaintiff thereupon moved the High Court by way of a revision petition challenging the order of the trial Court for decision of the matter on the basis of special oath. This petition was however not pressed and withdrawn on 4th September, 1969.
4. On 5th September, 1969 the plaintiff moved an application before the trial Court on the plea that Mst. Jawai had openly declared in the village that she would take a false oath on the Holy Quran and later on she would give kufara and as such the case could not be decided on oath. The trial Court on this application framed an issue whether the plaintiff was entitled to revoke his undertaking to be bound by the oath. The evidence was recorded and thereafter, a finding was given that the plaintiff had failed to prove that Mst. Jawai had publicly announced that she would take a false oath and that she would give kufara. The application of the plaintiff was thus rejected.
5. The same local Commissioner Mr. Muhammad lqbal, Advocate then sent notices to the parties for taking oath on 25th January, 1970. The local Commissioner went to the spot on that day but this time again the plaintiff was absent and his son was present. He was further informed that the plaintiff was present in the village but he was avoiding to come forward. In this set of circumstances, Mst. Jawai was again taken to the big mosque where she took the prescribed oath on the Holy Quran. She declared that no gift was made by her in favour of the plaintiff. This second oath was accepted by the trial Court and the suit was dismissed on 3rd March, 1970.
5. This led to an appeal by the plaintiff before a learned Additional District Judge. This appeal was dismissed vide order dated 25th October, 1971. The learned Additional District Judge was of the view that the plaintiff had failed to prove that Mst. Jawai had made any pronouncement to the effect that she would take a false oath and give kufara. He was further of the opinion that a party offering to be bound by the oath of the other party was entitled to resile at any time before special oath is taken and it was necessary that the Court should be satisfied that the party had good reasons for resiling. According to him, it was the discretion of any party to resile from oath and in exercising that discretion that party has not to give any reasons. Reliance was placed for this proposition on a pre-independence precedent from Allahabad jurisdiction reported as AIR 1935 All.
276.
6. The learned Additional District Judge was of the view that the first oath taken on 15th July, 1969 was not accepted by the trial Court on the ground that oath should have been taken in the presence of the plaintiff and for the same reason the second oath was directed to be taken.
According to the appellate authority there was no such condition imposed that oath must be taken in the presence of the plaintiff. It was thus held that the first oath taken by Mst. Jawai on 15th July, 1969 was binding on the plaintiff and it was conclusive proof of the matter stated against him. It was thus held to be conclusive proof against the plaintiff that no gift was made in his favour. In this view of the matter, there was no valid scope for ordering a second oath by the trial Court.
Moreover, the prescribed oath factually having been taken there was no scope left for discretion to resile from it.
7. The latest pronouncement of the August Supreme Court of Pakistan on the subject in the case of Attiqullah v. Kafayat Ullah is now available. I have respectfully examined this high precedent. The enunciation made by the Supreme Court is to the effect that the party undertaking to be bound by evidence given on special oath by opposite-party cannot resile from it unless it was found that such contract was void or frustrated because such an offer when accepted amounted to an agreement in the nature of contract. Therefore, a party undertaking to be so bound, could not back out unless contract was shown to be either void or frustrated. The enunciation of law by the1 Supreme Court in the cited precedent is the last word on the subject, The learned Court has also taken note of the earlier case-law. The impugned decision of the learned Additional District Judge appears to be in accord with the decision of the Supreme Court in Attiqullah's case.
8. Coming to the facts of the present case, it is to be noticed that Mst. Allah Jawai had taken the prescribed oath on 15th July, 1969 and the first appellate Court was of the view that there was no justification for the trial Court to send the Commissioner for second time to administer the oath to Mst. Allah Jawai. According to the first appellate Court, there was no such requirement that the first oath was to be administered in the presence of the opposite side. Therefore, once the agreement had been reached and in pursuance thereto oath had been taken, there was no discretion left with any party to resile from the agreement. The finding of the first appellate Court, therefore, does not appear to suffer from any infirmity so as to warrant interference or reversal in second appeal.
9. As regards the second objection of the appellant that the pro.. Visions of Oaths Act were repugnant to Holy Quran and Sunnah, I am afraid, these matters cannot be canvassed in the course of R. S. A. Because exclusive jurisdiction in that respect is enjoyed by the Federal Shariat Court by virtue of the Constitution. The Oaths Act existed on the Statute book, when the decisions were made. Thus, the impugned decision would bind the appellant.
' There is no merit in this appeal and the same is hereby dismissed with costs. 1981 SCMR 162