K. E. CHAUHAN, J.-In connection with a First Information report bearing No. 59/64 registered at Police Station, Barana District Jhang on the 30th of June 1964, the case against the petitioners was referred by the District Magistrate, Jhang, for trial to a Tribunal (hereinafter called the Jirga) under the West Pakistan Criminal Law Amendment Act VII of 1963. The Tribunal recorded a verdict of "not guilty", in favour of the petitioners and submitted its recommendations to the District Magistrate under section 10 of the Criminal Law Amendment Act. The learned District Magistrate found:-
(a) That the second President of the Tribunal (who was appointed after the first had been transferred) was appointed in the absence of the complainant without affording him an R124 opportunity to raise objections;
(b) that the members of the Tribunal had not taken an oath before entering upon their office (or to be wore precise before cja entering upon a reference), as required by section 7 of the Criminal Law Amendment Act. On the factual aspect that no oath was taken, the learned District Magistrate hold that it was conspicuous from the record as there was no note or any other type of proceeding to chow that any oath was taken; and
(c) that the Members of the Tribunal had been nominated in the absence of the complainant without giving him an opportunity to object as required by section 6 of the Criminal Law Amendment Act.
2. After recording the above findings, the learned District Magistrate by means of his order, dated 20-4-1966, remanded the case to another Tribunal for fresh trial in accordance with law. Tae new Tribunal gave a verdict against the petitioners and sent its Award to the District Magistrate on 31- 12-1966. The petitioners appeared before the learned District Magistrate and addressed arguments.
The case was fixed for orders on 6-2-1967, but it appears that feeling apprehensive that the District Magistrate may decide the matter against them, the petitioners filet the present writ petition in this Court on 21/23-1-1967 claiming the following reliefs:- "It is most respectfully prayed that the impugned order passed by the learned District Magistrate, Jhang, be declared to have been made without any lawful authority and is of no consequence, with a further prayer that the District Magistrate be directed to pass an order under section 10 (2)
(c) acquitting the petitioners."
3. The first point argued by the learned counsel for the petitioners was that the view taken by the learned District Magistrate in his order, dated 20-4-1966, whereby he held that failure to take an oath ors the part of the Members of the Tribunal vitiated the whole trial was not 'correct. The relevant provisions for constitution of a Tribunal are contained in sections 4, 5, 6, 7 and 7-A of the West Pakistan Criminal Law Amendment Act and Rules 8, 9 and 10 of the West Pakistan Criminal Law Amendment Rules, 1963 respectively. It is necessary to reproduce the aforesaid sections and Rules. They read as follows:-
4. Compositions of Tribunal. The Tribunal shall con--sist of-
(a) a President, who shall be a Magistrate exercising powers of an Additional District Magistrate, or a Sub-Divisional Magistrate, or who is invested with powers under section 30 of the Code of Criminal Procedure, 1898, or who has exercised powers of a Magistrate of the First Class, whether continu--ously or otherwise, for a period of not less than three years; and
(b) four other persons to be appointed by the District Magistrate from amongst the panel constituted under section 5.
5. Constitution of panel.-(1) The Commissioner shall, for each District fn his Division, constitute in the prescribed manner a panel consisting of not less than sixty and not more than one hundred persons.
(2). In making appointments to the panel the Commissioner shall take into consideration the integrity, education and social status of the persons to be appointed.
6. Appointment of members.-(1) Where a reference to a Tribunal is made under section 3, the District Magistrate shall, as soon as may be but ordinarily not later than fifteen days from the date of the receipt of the reference, nominate the members of the Tribunal and communicate the names of the members so nominated to the parties and any objection which any party may then make to the- nomination of any such person shall be recorded.
(2) The District Magistrate shall consider every objection made by a party under subsection (1), and may, in his discretion, either acceptor reject the objection Provided that where he rejects the objection he shall record his reasons for so doing.
(3) The District Magistrate shall, after disposing of any objection made by a party under subsection (2), appoint the members of the Tribunal.
Explanation.-For the purposes of this section, party shall mean the accused and the person or persons primarily inter--ested in the prosecution of the case, including the prosecutor, if any.
7. Oath.-Every member of the Tribunal shall, before the Tribunal enters upon a reference made to it under section 3, take an oath in the form set forth in the Second Schedule (in the language that is understood by such member).
7-A. Appointment of a member in place of a member per--sonally interested etc.-(I) If any member of a Tribunal is personally interested in any party In the reference made to it under section 3 or is prejudiced against any such party, he shall, before taking the oath, disclose such fact to the President, who shall thereupon refer the matter to the District Magistrate for appointing another member in his place from the panel constituted under section 5."
(2) If any member of a Tribunal dies, refuses to act, becomes incapacitated from acting, or falls to attend any two or more meetings of the Tribunal without sufficient cause to the satisfaction of the President, the President shall refer the matter to the District Magistrate for appointing another member in his place from the panel constituted under section 5 and when another member is so appointed by the District Magistrate to the Tribunal, the name of the member replaced shall he removed from the panel constituted under section 5.
(3) In appointing a member of the Tribunal, the District Magistrate shall,, so far as may be, follow the procedure prescribed in section 6.
Rule 8. Appointment of members of Tribunal.-(1) On receipt of an order of the Commissioner referring a case for decision by a Tribunal, the District Magistrate shall issue a notice to the parties requiring them to appear before him on a specified date, time and place, when he shall proceed to appoint the members of the Tribunal.
(2) On the date and time and at the place' specified in the notice, the District Magistrate shall, unless he fixes some other date, time or place (of which he shall give due notice to the parties) proceed to select in the presence of such parties as are present, four persons whose names appear in the panel constituted for his District, for appointment to the Tribunal.
(3) Where the parties or such of them as are present do not object to the persons selected by the District Magistrate under sub-rule (2), the persons so selected shall be appointed a members of the Tribunal.
Rule 9. Nomination of President and his powers for conven--ing of meeting of Tribunal.-(1) When the members of the Tribunal have been appointed under the provisions of rule 8, the District Magistrate shall nominate (a ,Magistrate qualified in the manner provided in clause (a) of section 4 of the Act) to be the President of the Tribunal, and communicate to him the names of the members of the Tribunal, and require him to convene, within a period of fifteen days of such intimation or such longer period as the District Magistrate may in any specified case deem fit, a meeting of the Tribunal for the purpose of entering upon the reference.
(2) The President shall send a written request to the members of the Tribunal to meet at a place (date which shall be within the period provided in sub-rule (1)) and time, specified by him, and shall also require the attendance of the parties and their witnesses at the aforesaid place, date and time.
(3) Where the accused is in custody, the President shall by his warrant require the production of the accused before the Tribunal on the date, place and time fixed under sub---rule (1).
Rule 10. Oath.-(1) On the date, time and place fixed under rule 9, every member of the Tribunal, including the President, shall, before the Tribunal enters upon the reference and proceeds with the enquiry into the case, take an oath in the form prescribed in the Second Schedule in the presence of the parties.
(2) The President shall first take the prescribed oath in the presence of the other members and thereafter he shall administer the oath to the other members.
4. After quoting the aforesaid provisions of law, learned counsel for the petitioners referred to sections 5 and 13 of the Oaths Act (X of 1873), which read as follows:- Section 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 person having by law or consent of parties authority to examine such persons or to receive evidence:
(b) interpreters of questions put to, and evidence given by, witnesses; and
(c) jurors; 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 the 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 affect the obligation of the witness to state the truth.
Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, 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 that he will faithfully discharge those duties.
Section 13. Proceedings and evidence not invalidated by omis--sion of oath or irregularity.-No omission to take any oath or make tiny 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."
5. Learned counsel's argument was that oaths of the kind involved herein were governed by the provisions of the Oaths Act (X of 1873) and since members of the Tribunal under the Criminal Law (Amendment) Act were (in reality) "Jurors", therefore, any failure to take an oath on their part was a mere irregularity curable under section 13 of the Oaths Act. We have given our anxious consideration to the submissions of the learned counsel but we regret that we cannot endorse the same and our reasons in this respect are as follows:-
(a) Section 13 of the Oaths Act, on which reliance has bee placed, in our opinion, does not apply to cases where oaths arc taken not, under that Act, but under any other law. This is so laid down in section 3 of the Oaths Act itself which reads as follows:- Section 3. Saving of certain oaths and affirmations.-Nothing herein contained applies to proceedings before Courts Martial, or to oaths, affirmations or declarations prescribed by or under any law President's warrants or for the time being in force."
A perusal of the section, reproduced above, will show that it excludes:-
(a) Proceedings before Courts Martial;
(b) Oaths, affirmations or declarations, prescribed by or under any law;
(c) Oaths, affirmations or declarations prescribed by or under President's warrants; and
(d) Oaths, affirmations or declarations for the time being in force.
The oath in question was to be taken under a special enactment, namely, section 7 of the Criminal Law (Amendment) Act read with rule 10 ibid, and not under the Oaths Act. In the face of this legal position, it is not possible for us to give effect to the plea of the learned counsel for the petitioners which is based on the provisions of the Oaths Act alone.
(b) In our opinion oath by members of a Tribunal is of the essence of its very constitution. The language of section 7 and rule 10 ibid is of a mandatory nature, as is evident from the use of word "shall" and also because it makes the oath t condition precedent before entering upon the reference. Similar provision exists for the members of a Jury in England and abouthem Halsbury in his Laws of England, Third Edition, Volume X at page 411 writes as follows:- ---A jury is not properly constituted until all the twelve persons serving on it are sworn or have taken an affirmation to try the issue raised by the defendant's plea of no guilty."
Similarly talking about the importance of official oath the learned author in Volume VII at page 342-343 writes a follows:- "The oath of allegiance and official oath must be tendered to and taken by certain executive officers and the oath c allegiance and judicial oath by certain members of the judiciary in the form and manner prescribed, as soon as may be after their acceptance of office, and failure to take the oaths when tendered, or the solemn affirmation or declaration permitted in place of the oaths, entails vacation of the office, it already entered upon, or disqualification from holding the same, not already entered upon, but no person may be compelled in respect of the same appointment to the same office to take the oaths, affirmations, or declarations more the once. "
The principles quoted above can safely be applied to a Tribunal under the Criminal Law Amendment Act, where the members have failed to take any oath. The aforesaid law is of a special character. It excludes the various general provisions of the Criminal Procedure Code and the Evidence Act. Sanctity about the proceedings of the Tribunal inter alia depends upon its special characteristics namely:-
(i) that it is a trial by one's own equals i.e., Members of the Tribunal;
(ii) it purports to curtail the possibility of official oppression through modes of justice;
(iii) punishments awardable under it make a greater conces--sion to principles of humanity than those laid down in the Pakistan Penal Code as for example death sentence is not awarded;
(iv) it is based on broader principles of public policy etc. Etc. We are not here to count the merits or demerits of this law, but our aim only is to point out its special features. Another aspect leading to its sanctity is the fact that its members take oath, and before they enter upon the reference the accused carp object to their sitting in tribunal. If this essential element is missing in any case, then it means that the very constitution ur the tribunal is incomplete, illegal and improper, and proceedings) of such a tribunal cannot be upheld by those whose duty it is to administer or interpret law.
(c) It is highly doubtful as to whether members of a Tribunal under the West Pakistan Criminal Law Amendment Act, 1963 can be called "jurors" within the contemplation of section 51 of the Oaths Act.
"Jurors" are mentioned in various section of the Criminal Procedure Code, with reference to trials of certain accused by a "Jury" and in that context section 3811 of that Code provides that "when the foreman has been appointed the jurors shall be sworn under the Oaths Act, 1873". Since) the Criminal Procedure Code makes reference to a swearing id under the Oaths Act, in the latter Act, therefore, when it is/ written as per section 5 that oaths and affirmations shall inter alia be made by jurors, it is jurors mentioned in Cr. P. C., to whom, reference is contemplated. This will be consistent with the interpretation of section 3 as we have made above, where it is; written that Oaths Act is not to apply where oaths are prescribed by or under any other law. The word "prescribed" can have reference both to the very mandate to take an oath or to the form prescribed. The first aspect has been attended to by us separately, but judging even from the point of view of the' form of oath since the form of oath under section 281, Cr. P. C. For a juror is the same which is prescribed in the Oaths Act, therefore, these oaths remain subject to the incidents of that Act, but no other oaths forms whereof are different from those prescribed in the Oaths Act. The form of an oath under the Criminal Law Amendment Act is vitally different from the one prescribed under the Oaths Act and from this point of view well, sections 5 and 13 of the Oaths Act would not be attracted to the facts and circumstances of the present case. The forms of oath under the Criminal Law Amendment Act and those under the Oaths Act, may be reproduced here with advantage.
They read as follows:-- Under the Oaths Act
1. Simple affirmation t I solemnly affirm that I shall well and truly try, and true verdict give, between the State and the prisoner at the bar according to the evidence.
2. Solemn affirmation I solemnly affirm in the presence of Almighty God, that I shall well and truly try, and a true verdict give, between the State and the prisoner at the bar according to the evidence.
3. Oath: I solemnly swear that I shall well and truly try, and a true verdict give, between the State and the prisoner at the bar according to evidence; so help me God.
Form of oath under the Criminal Law Amendment Act I--do solemnly swear that as member of the Tribunal T will discharge my duties, and perform my functions, honestly and to the best of my ability: That I will not allow my personal interest or extraneous considerations to influence my conduct or decision: And that in all matters connected with the reference before the Tribunal of which I am a member, I will act justly and without fear or favour, affection or ill-will."
A comparison of the above will show that even from the point of view of the form of the prescribed oath under the two Statutes there is a great difference and the provisions of the Oaths Act cannot be invoked in the instant case which must be decided with reference to the Criminal Law (Amendment) Act and not the Oaths Act.
(d) A closer study of the Oaths Act of 1873 shows that when it was promulgated there were twenty- seven Statutes which dealt with the matter of oaths, details whereof were given in the Schedule which was to be read with section of the Act which stated that, "the enactments specified Schedule hereto annexed, are repealed to the extent mentioned in the third column thereof". For original version of the Bills of the Oaths Act, see the Gazette of India (1837), Part V, dated 8-2-1.873, 15-2- 1873 and 22-2-1873, pages 4 to 29. To quote a few illustrations reference may be made to the Punjab Chief Court Act IV of 1866. Section 5 of that Act stated that, "previously to entering upon the execution of the duties of his office every Judge appointed under this Act, shall make or subscribe the following declaration before the Lieutenant-Governor or such authority or person as he may commission to receive the same . . . . ". Another statute which may be referred to is the Justices of the Peace Act of 1869. Section 7 whereof stated that, "Provided that no person other than a person who now acting as a Justice of the Peace under a commission shall be capable of acting as a justice of the Peace until he shall have made and subscribed before some other Justice of the Peace or the Chief Civil Officer of any station within the territories or place in and for which he shall have been appointed declarations to the following effect .. . . . ." The next Statute which may be referred to is the Bengal Civil Court's Act VI of 1871, section 13 whereof stated that, "Every District Judge, Additional Judge, Subordinate Judge or Munsif, appointed after the passing of this Act, shall previously to entering on the duties of his office make and subscribe a solemn declaration according to the following form: . . . . ". This will show that prior to the promulgation of the Oaths Act, various statutes provided for judicial and official oaths. All these Statutes were pro Canto repealed as was suggested in the objects and reasons of the Act where it was written:- "The object of the Bill is two-fold-to consolidate the law relating to judicial oaths and affirmations and to repeal the laws requiring declarations to be made by Judges, Magistrates and c., before entering on their official duties. The Bill if it become law, will replace 27 enactments.
The Bill does not apply to proceedings before Courts Martial or to oaths prescribed by laws which the Governor---General-in-Council has not the power to repeal.
Incidentally the Bill will remove the doubt which has been raised as to the powers of the Courts in certain parts of India to administer oaths and affirmations."
For this purpose apart from the relevant repeal of the various Statutes, section 16 of the Oaths Act was more specific as it read as fellows:- Though sections 2 and 16 were repealed later on, but historical study of the enactment will show that the official and judicial oaths were rather abolished by the Oaths Act and in spite of that if it is still argued that the said Act applied to and regulated all official and judicial oaths under any law enacted subsequently, the contention cannot hold water.
6. What has been written above is sufficient to dispose of this writ petition and it is not necessary to advert to or examine the other grounds given by the learned District Magistrate in his order of remand, dated 20-4-1966; because his aforesaid order can be maintained on the point hereinbefore discussed.
7. The next question to be seen is as to what is the effect of the repeal of the Criminal Law (Amendment) Act, 1963 as brought about by the West Pakistan Criminal Law (Amendment) Act (Repeal) Ordinance XLII of 1969 promulgated on 1-12-1959 and the West Pakistan Criminal Law (Amendment) Act (Transfer of Pending Cases) Ordinance (Punjab Ordinance VII of 1971) promulgated on 26-4-1971 to the facts and circumstances of the present case. If the aforesaid two Statutes are read together, they show that all those cases in which the Tribunal (Jirga) has not submitted its finding to the District Magistrate, shall stand transferred to the respective Criminal Courts having jurisdiction therein for enquiry or trial as the case may gel tin accordance with the provisions of the law applicable to such cases. In the present case since the Tribunal (after the remand) has submitted recommendations to the District Magistrate, this case is saved and is not to be transferred to the ordinary Criminal Courts. In fact, on this point the learned counsel for the petitioners did not join issue and did not claim that the case should be sent to the ordinary criminal Courts.
8. The last point argued was that the learned District Magistrate remanded the case under clause
(a) of subsection (2) of section 10 of the Criminal Law (Amendment) Act to another Tribunal, though according to the learned counsel, under the aforesaid clause, the case could be and ought to have been remanded to the same Tribunal. This argument is based on comparison of sub- clauses (a) and (b) of subsection (2) of section 10 and by pointing out that in sub-clause (b), the words used contemplate remand to a "second Tribunal". The argument has no force. Clause (a) ibid, in our view, is not exhaustive of all the situations. Even otherwise, in the report submitted to this Court, it has been pointed out that on the date when the order of remand was passed by the District Magistrate, three Members of the previous Tribunal had ceased to be on the approved panel from which selection of Members is made; and the Chairman had also been transferred from the District. It is obvious that in these circumstances, the plea that the case should have been remanded to the same Tribunal cannot be accepted.
9. The upshot of the above discussion is that this writ petition is dismissed with the result that the learned District Magistrate will be at liberty to proceed with the matter pending before him under section 10 of the West Pakistan Criminal Law (Amendment) Act, 1963. There will be no order as to costs.
"V-Official Oaths Section 16.
No Judge, Magistrate, Justice of the Peace, Judges &c.,or other officer shall, before entering onnot to be required to makethe execution of the duties of his office, official oath or affirmation.Be required to make any oath, or to make or sub--scribe any affirmation or declaration, that he will faithfullydischarge such duties, or to the like effect."