1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a defendant against whom a civil suit has been decreed throughout on the basis of special oath administered to Mst. Zaitoon Bibi respondent on the offer made by the petitioner.
2. The oath taken' by Mst. Zaitoon Bibi on acceptance of the petitioner's offer was, that she took in her hands a minor child and the Holy Qur'an and made the statement sought by the petitioner, as representing the truth about the controversy and contention between the two sides. Learned counsel relying on `Abdur Rahim v. Sher Gul and 5 others (1987 C.L.C. 1602) decided by the same learned Judge who rendered the impugned judgment in this case, contended that the nature of the Oath in this case was repugnant to justice and decency and that it affected a third party; therefore, it could not be made the subject-matter of an oath under the. Oaths Act, 1873 with the necessary results and consequences.
3. ' The learned Judge of the High Court in. Chambers who is author of both the judgments has made proper distinction between the facts of the two cases. We agree with him. The effect of the. Oath in the case of Abdur Rehman might have rendered the wife of a party to that case into a divorcee without her fault. In this case respondent No,1 was not required to utter any such word or do any such gesture as would have adversely affected the interests or rights of the child she had in her lap. Faced with this situation learned counsel then relying on `Tulshi Ram v. Daya Ram' (1925 Allahabad 604) contended that in the that said case also a child was involved and the Oath was rejected as being repugnant to the provisions, of the Oaths Act, vis-a-vis, the interest of a third party. Although the said case is distinguishable from the present case yet the analogy even if existing would not be of any benefit to the petitioner.
4. ' This Court in similar cases has examined the question of application of the Oaths Act in the context that where the said law does not apply or could not be attracted--whether the disputed statement could not be relied upon as a "material" piece of "evidence," furnishing proof of contract/compromise between the parties on a vital issue, resolved in a particular manner; and or, whether such a situation could not be equated with the settlement between the parties and/or creating an estoppel against the party seeking to withdraw from the early commitment. When invited to argue the case in the aforenoticed context, the learned counsel after making few submissions which are not even noticeable, was unable to show that the case was not properly decided on the statement of respondent No,1, if treated as ordinary piece of evidence and/or as the subject-matter of compromise/settlement.
5. ' That being so, it is not a fit case for grant of leave to appeal and the same is refused.