' Arbab Sikandar Khan Khalil was fired at fatally on 7-3-1982 at 10 a.m. The report of the occurrence was made by one Waris Khan the same day at 11-15 a.m. To S. I. Sabaz Ali Khao, which was later incorporated in F. I. R. No, 69 of Police Station, University Town, Peshawar. After completing the investigation the case was sent by the Investigating Agency to the Court of Ilaqa Magistrate, wherefrom, as required by law, it was transferred to the Court of Sessions for trial. The case has been registered under section 302/307/ 109/114/120-B, P. P. C. And the accused facing trial in the Court of Additional Sessions Judge-II, Peshawar, to which Court the case has been entrusted for disposal, are Muhammad Tahir, Muhammad Turab and Sheikh Muhammad Abdullah.
2. The case was fixed for evidence when on 14-5-1983' Muhammad Tahir, one of the accused, made an application to the Court praying therein that the witnesses should give evidence on oath and not on solemn affirmation. The arguments of the learned counsel for the parties, including the State, were heard and the learned trial Judge, while considering this application together with one other application made by the same accused, by a single Order, disposed of this application in the following terms : "So far as the second application of the accused/applicant is concerned that all male Muslim witnesses should take oath before giving a statement, it is regarding the amendment carried out in section 6 of the Oaths Act, 1873.
' The learned counsel for the accused/applicant argued that it is also mandatory and every Muslim witness will depose against the accused only if he takes oath. The P. P. Argued that no doubt amendment has been carried out in section 6 of the Oaths Act but form has not been prescribed by,the High Court so far.
' Regarding the application, my conclusion, in short, is that so far the High Court has not prescribed the form, the witnesses will be examined in accordance with the existing form and the application is disposed of accordingly."
3. This Order has aggrieved accused Muhammad Tahir, who has come against it to this Court in revision. It is stated in the revision petition that after section 6 of the Oaths Act, 1873, hereinafter referred to as the said Act, was amended by the Federal Laws (Revision and Declaration)
Ordinance, 1981 (Ordinance XXVII of 1981), it was mandatory for a Muslim witness to make an oath, instead of affirmation, before recording statement in the Court ; that the form to be prescribed by the High Court under section 7 relates to section 5 of the said Act and not to section 6 thereof and for that reason no form is required to be prescribed for a Muslim witness ; that the learned trial Judge's refusal to administer oath to the Muslim witnesses was in clear violation of the amended section 6 and that the view held by the learned trial Judge in this regard being incorrect and illegal merited to be set aside.
4. Dr. Khalid Ranja, Advocate, assisted by Mr. Bashir Ahmad Malik, Advocate, appeared on behalf of the petitioner, Mr. M. Zahoorul Haq, Advocate-General for the Province, appeared on behalf of the State and Mr. Hidayatullah Khan, Advocate appeared on behalf of the complainant. Their arguments were beard and since the matter in controversy was of much importance having far- reaching effects, the learned Deputy Attorney-General for Pakistan (Mr. Raza A. Khan) was given notice to assist the Court, who conveniently made himself available and addressed the Court on the last day of arguments, on which date Dr. Khalid Ranja, Advocate was not present in Court and the petitioner remained represented by Mr. Bashir Ahmad Malik, Advocate.
5. Dr. Khalid Ranja, the learned counsel for the petitioner, while attacking the impugned order, argued that the purpose behind the specific amendment introduced by Ordinance No, XXVII of 1981 in section 6 of the said Act was not properly understood by the learned trial Judge and for that reason he fell into error in holding that until the High Court prescribed a new form of oath, the witnesses would .Continue to be examined in accordance with the 'existing form'. The learned counsel further contended that while so interpreting the law the learned trial Judge proceeded to examine the witnesses on solemn affirmation and not on oath, Which was in disregard of the mandatory provisions of law thus rendering inadmissible the evidence so recorded. He also contended that since the relevant amendment in law has been brought about in the stride towards the Islamization of laws, the oath to be administered by the Court to a Muslim witness, until the High Court prescribes a form for the purposes, would be in the customary form which say be in use for the Muslims for related matters in the area concerned.
6. The learned Deputy Attorney-General, who was requested to assist the Court, argued that the proposition of law admits of no doubt that after amendment in section 6 of the said Act came into force, that is to say from the 8th July, 1981 if the Court elected to examine a witness who was a Muslim, then it had no option but to administer oath to him before recording his statement. He went on to argue that any accidental or negligent omission made by the Court in that regard would stand cured by section 13 of the said Act but not a deliberate omission. He further argued that until the High Court prescribed a new form of Oath for Muslim witnesses, the form of Oath already prescribed by the High Court in paragraph (c) of Chapter 12-A of the High Court Rules and Orders, Volume IV, could be used by the Court for the purpose. He contended that it was not correct to say that the oath to be administered to a Muslim witness would be in the form customarily used for Muslims in such or related matters.
7. The contention of M. Zahoorul Haq, the learned Advocate-General, was that after the amendment in section 6 of the said Act came into operation, it became imperative for the Court to administer to a Muslim witness, if he were not a child below the age of 12, an oath and any statement of such a witness recorded by the Court on solemn affirmation would not be taken to be in conformity with the provisions of amended section 6 of the said Act. In respect of the- statements of such witness recorded on solemn affirmation by the Court after the amendment in section 6 came into force, the learned Advocate-General contended that such omission could either be due to accident or negligence, or could be deliberate. In regard to any accidental or negligent omission his view was that such defect would stand cured by section 13 of the said Act. In regard to -deliberate omission, however, he took a changing position. In the beginning he stressed that such omission would also stand cured because the provisions of section 13 being of very wide application would also provide cover to such an omission. At later stage, however, he withdrew from this argument and contended that where in a case an objection is raised to a Muslim witness, who is not a child below 12 years, being examined on solemn affirmation that he be administered an oath, or where in a case the attention of the Court is drawn to the amended provisions of section 6 of the said Act and yet the Court examines such a witness on solemn affirmation, then the omission to administer oath to such a witness would constitute a deliberate violation of an express provision of law and would not stand cruel by section 13 of the said Act.
8. Mr. Hidayatullah Khan, Advocate, who appeared on behalf of the complainant, adopted the arguments of the learned Advocate-General.
9. In order to appreciate the arguments addressed at the Bar in their true perspective and for facility of reference to sections 5, 6, 7 and 13 of the said Act, as they now stand on the statute book, may be reproduced hereunder : "5. Oaths or affirmations to be made by witnesses ; interpreters ; Jurors. Oaths or affirmations 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 ; and
(t) interpreters of question put to, and evidence given by, witnesses : ' Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor the obligation of the witness to state the truth.
' Nothing herein contained shall render it lawful to administer, in a criminal proceedings an oath or affirmation to the accused person, unless he is examined as a witness for the defence or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation to the effect that he will faithfully discharge those duties.
"6" Bath by a Muslim or by a non-Muslim who has no objection. -(1)
Where the witness or interpreter is a Muslim, he shall make an oath.
(2) Where the witness or interpreter is not a Muslim, he shall make an oath or, if he has an objection to making an oath, an affirmation.
"7Forms of oaths, and affirmations.-All oaths and affirmations made under section 5 shall be administered according to such forms as the High Court may from time to time prescribe.
' And until any such forms are prescribed by the High Court, such oaths and affirmations shall be administered according to the forms now in use.
"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."
' The whole of section 6 aforesaid has been substituted by Ordinance XXVII of 1981, already referred to, which, to the relevant extent, came into force on 8th July, 1981. Section 6 as it stood earlier than this amendment was as follows : "6. Affirmation by natives or by persons objecting to oaths.-Where the witness, interpreter or juror is a Hindu or Muhammadan, 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."
10. Section 5 of the said Act makes it obligatory for the Court, once it has elected to take statement of a person other than excepted under that section as an evidence, to administer an oath or affirmation to him. Section 6 of the said Act as it stood before amendment, specifically excluded a 'Hindu' or a 'Muhammadan' witness from making an oath, and such a witness was required by law to make an affirmation. The amendment brought about in section 6 by Ordinance XXVII of 1981 drastically changed the policy of law and made it compulsory for a Muslim witness, subject to exceptions contained in section 5, to make an oath. This conscious and specific amendment of a sweeping character made in the law, with a view to securing a guarantee for truth, was to be given full effect to form the day of amending Ordinance had come into force. The amendment was mandatory in nature and such being its character, it would be wrong to suggest or conceive that even after it came into force the Muslim witnesses, who were able to comprehend the solemnity of an oath, could be examined on solemn affirmation and not on oath. Such an interpretation would only be possible by doing violence to the express language employed in section 6. There would, therefore, be no escape from the conclusion that from 8th July, 1981 onwards, the date on which Ordinance No, XXVII of 1981 had come into force, the statement of a Muslim witness was to be recorded by the Court, or by the person having by law or consent of parties authority to examine such persons or to receive evidence, on oath and not on solemn affirmation.
11. However, as I am informed by the learned counsel for the parties, the amendment made in section 6 of the said Act has not been put into operation, and the Courts are continuing with the practice of recording the statements of Muslim witnesses on solemn affirmation and not on oath. I have no doubt in my mind that the solemn affirmation being administered by the Courts to Muslim witnesses is not the oath which is envisaged by new section 6. If both had been the same, then the law-maker would not have made any 8 amendment in section 6. In practice, therefore, the Courts are clearly violating an express provision of law. There also appears to be census amongst the learned counsel for the parties on this point, and that undoubtedly is the correct position in law.
12. This would naturally bring us to the question as to whether the omission by the Court to administer oath to a Muslim witness after 8th July, 1981 would render inadmissible his evidence recorded by the Court. The answer to this question can be found in section 13 of the said Act, which, for the sake of reference, has already been reproduced. This section has remained controversial in pre-partition India. Various High Courts in India were not unanimous on the interpretation of this section. The controversy on the law as it stood prior to the amendment made in the year 1981 in section 6 was, however, set at rest by the Privy Council in the case referred to hereafter. No doubt, the law laid down by the Privy Council in Muhammad Sugal Era Mamasan Rer Allah v. The King (1), was that "section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of Legislature, it would have been simple to insert words in the section to that effect."
That, however, was a case in which the testimony of a child witness, who was not capable of understanding the religious or moral obligations of an Oath, was under scrutiny, and the case related to the period when amendment made in section 5 of the said Act by the Oaths (Amendment) Act (Act XXXIX of 1939) had not come into force. The question would, therefore, arise whether the rule laid down by the Privy Council in the case referred to above would still be the law when in section 6 of the said Act an amendment of a sweeping nature. Was designated introduced by the Legislature ? Wean be noticed that despite the fact that the law-maker made a drastic amendment in section 6, he did not make any amendment in section 13 of the said Act. That being so, it could be forcefully urged that since section 13 was not amended, the amendment made in section 6, making it compulsory for a Muslim witness to make an oath instead of affirmation, did not alter the position, and even a deliberate omission made by the Court to administer an oath to a Muslim witness would not render his evidence inadmissible, exactly on the same premises when an omission to administer solemn affirmation to such a witness before {{FOOT NOTE}} (1)AIR1946PC3 {{FOOT NOTE}} the relevant amendment came into force could not render his statement inadmissible, as held by the Privy Council. Contrary to this, the argument could be, as contended by the learned Deputy Attorney-General and the learned Advocate-General, that the law-maker by making amendment in section 6, in relation to a Muslim witness, made a drastic change in the policy of law, with , a view to securing guarantee for, truth, which ought to be implemented in latter and spirit and be not thrown to the whims of the Court to be violated by it as and when it chooses. On my part, I would favour the second view, because the law-maker being aware of the state of law never intended to make an exercise in futility, and when the intention of the lawmaker was express it should not be defeated by an interpretation to the contrary. I am, therefore, of the view that after an objection is raised by any C party to the effect that a Muslim witness above the age of 12 years, to whom the Court elects to examine, should, before deposing, make an oath, or where the attention of the Court is drawn to the amendment made in section 6, then the Court has no option but to administer to such a witness an oath and not the solemn affirmation. Any deliberate omission by the Court in this regard would, therefore, not be cured by section 13 of the said Act. Any interpretation to the contrary would not only make ineffectual a specific legislation introduced in the law, but would also, besides defeating the object and the purpose of such legislation, be contrary to the settled principle of the interpretation of statutes that where two provisions in a statute appear to be irreconcilable, then effort should be made to keep both the provisions, alive.
The two sections of the said Act, i,e, section 6 and section 13, can in, my view co-exist when the language employed in section 13 is now interpreted in the manner that the accidental or negligent omission would be cured by section 13 but not the deliberate one.
13. In the case in hand, however, there is nothing on the record to suggest that the omission to administer oath to the witnesses, who have already recorded statements, was deliberate. The objection raised by the petitioner was by way of an application moved on 14-5-1933. The record reveals that all the fourteen witnesses examined in the case were examined by the Court on earlier' dates. Although in reply to the arguments of the learned counsel for the complainant, Mr. Bashir Ahmad Malik, the learned counsel for the petitioner, attempted to argue that the objection of the nature under consideration was raised in the very beginning, but he was unable to substantiate his point from the record. That being so, the omission, or for that matter the substitution of the solema affirmation for oath, by the Court being accidental or negligent, and not being deliberate, stands cured by section 13 of the said Act. In future, however, the Court shall administer oath to the witnesses above the age of 12 years, who may be elected to be examined in Court.
14.Having held that section 6 of the said Act makes it imperative for the Court to examine a Muslim witness above the age of 12 years on oath, it becomes essential to find out the form. Of oath which may be used by the Court. The learned counsel for the petitioner and the learned counsel' representing the State and the complainant, including the learned Deputy Attorney-General, are at variance on this issue. Dr. Khalid Ranja, the learned counsel for the petitioner, contended that the form of Oath which may be used by the Court, in absence of the one prescribed by the High Court, would be the one which is generally used by the Muslims for resolving their disputes or other related questions. Referring to section 7 of the said Act he contended that according to law the form of oath to be used would be the one prescribed by the High Court and until such form is so prescribed, the Court has to follow the rule laid down in paragraph 2 of section 7.
15. The learned Deputy Attorney-General argued that it was true that according to section 7 of the said Act the High Court has to prescribe the form of Oath for a Muslim witness and that the High Court has not so far prescribed any such form. He, however, suggested, as already mentioned in earlier portion of this judgment, that since there was available a form of. Oath, prescribed by the High Court, in Chapter 12-A of the High Court Rules and Orders, Volume I V, the same could be used by the Court even for a Muslim witness until the High Court prescribes a new form for the purpose: The learned Advocate-General and the learned counsel representing the complainant, agreeing with the learned Deputy Attorney-General, put forth almost same contentions.
16. The word 'Oath' has not been defined in the said Act, nor any form therefor prescribed therein.
According to section 7 thereof it was left to the High Court to prescribe the forms of Oath and affirmation. Such forms with the changing conditions can also be amended or totally changed by the High Court. Since prior to the coming into force of Ordinance XXVII of 1981. Section 6 of the said Act expressly excluded a Hindu or a Muhammadan witness from making an oath, the High Court while prescribing the form of Oath in paragraph (c) of Chapter 12-A of the High Court Rules and Orders, Volume IV, specifically provided therein that the form so prescribed would be used for a person who was not a Hindu or Muhammadan. Obviously, therefore, while prescribing this form of Oath the High Court had kept out of consideration the sentiments and the religious feelings of the Muslims and the sanctity which they attach to an Oath taken by them before deposing to a fact.
The idea of administering Oath to a Muslim witness finds foundation in the religious belief to the effect that it furnishes guarantee for truth. That being so, any form of oath prescribed by the High Court for the witnesses who were not to be Muhammadans would, in my view, not serve the purpose and the policy of the amendment made in section 6 of the said Act and would, therefore, not be a good substitute for the form intended by the law-maker to be used for the Muslim witnesses. I would, therefore, not accept the contention 'that the form of Oath already H prescribed by the High Court in Chapter 12-A aforesaid could be used by the Court for a Muslim witness until a new form was prescribed by the High Court.
17. I am conscious, as was the Legislature in the year 1873, of the difficulties which could arise in prescribing a form of Oath. The Legislature, therefore, very wisely laid down in paragraph 2 of section 7 "that until any such forms are prescribed by the High Court, such Oaths and affirmations shall be administered according to the forms now in use". The word 'now' used in the concluding part of paragraph 2 of section 7 is significant and with reference to time would only mean the forms which were in use in the year 1873 when the said Act had come into force. Since it would be very difficult, if not impossible, for each Court to out the form of oath which was in use in the year 1873, the only workable solution would be, as suggested by Dr. Khalid Ranja, that the form of Oath commonly used by Muslims in the area concerned for resolving their disputes or differences may be used by the Court until an appropriate form is prescribed by the High Court,
18. To conclude, therefore, a Muhammadan witness, not excepted under section 5 of the said Act, appearing before the Court, or the person having by law or consent of parties authority to examine him or to receive his evidence, shall before deposing make an Oath in the fort in use for Muslims in the area where his evidence is recorded. This practice would continue until the High Court prescribes an appropriate form under section 7 of the said Act.
19. This revision petition is accepted in the above terms. The learned trial Judge would now proceed with the case in accordance with law.