M.B.K. Jehangiri J-The facts giving rise to this revision in brief are that Rehmatullah, petitioner, filed a suit against Nasir Khan and 7 others, the respondents, for specific performance of agreement to sell the land in dispute. It was averred in the plaint that on 23-3-1990, the respondent No.1 has entered into an oral agreement to sell the disputed land for Rs.56,000/- to Rehmatullah petitioner at the Bungalow of Colonel (Retired) Shah Nawaz Khan Katcheri Road, D.I. Khan and after receiving Rs.10,000/- as earnest money had delivered the possession. The gravamen of the petitioner is that the respondent No.1, illegally struck a bargain of sale of the said land with the respondents No.2 to 8 and got recorded on mutation No.1547 his statement on 10-5-1990 which was also sought to be annulled. The suit was contested by the respondent before the trial Judge by raising a m umber of preliminary objections and denying the averments of the plaint. Before further proceedings could be taken up, the petitioner, 14-6-1990, however, aded an application under Article 163 of the Qanun-e-Shahadat, 1984, for settling the dispute on oath. He offered not only to take oath in support of his claim but also maintained that if the respondents were prepared to take the oath specified in his application, he would abandon his claim. The respondents in replication, declined to take the desired oath, and prayed for adjudication of the dispute on merits. Upon this the learned trial Judge did not oblige the petitioner by passing a decree as prayed for by him. The operative part Of the impugned order being significant is reproduced as under: - "During the arguments on this application, plaintiff stressed that as defendants had refused to take oath, therefore, he be allowed to take oath. As the Oath is on defendants, therefore, plaintiff is not allowed to take Oath in support of his claim, anyhow, he is at liberty to bring the evidence in the instant case. I, reject the present application."
2. The petitioner, feeling aggrieved of above mentioned order, has come up to this Court in revision.
3. S. Muzaffar Shah, the learned counsel for the petitioner contended- Firstly that the learned trial Judge had erred to read the provisions of Article 163 in isolation which ought to have been read not only in conjunction with Article 165 and the Preamble to the Qanun-e- Shahadat but also the relevant provisions of the Muslim Personal Law; Secondly that under the above provisions of law, the learned trial Judge was obliged to have extracted the desired oath from the respondents on the authority of oft quoted Hadith of the Holy Prophet (P.B.U.H).i. e.
(Evidence is incumbent upon plaintiff and oath is on the defendant); and Thirdly that by rejecting the application of the petitioner for settling the dispute on oath, the learned trial Judge has committed illegality and material irregularity in failing to exercise jurisdiction vested in her.
4. In support of these contentions the learned counsel, placed reliance on Muhammad Sharif .. Vs. Bashir Ahmad (1987 CLC 2006). In that case, the petitioner put in an application for decision of the case on oath but the respondent declined the desired oath. The contention raised on behalf of the petitioner therein that adverse presumption may be drawn against the respondents was repelled by Muhammad Assadullah, J., as his Lordship then was, and observed:- "..... Under Article 163 of Qanun-e-Shahadat Order, 1984 if there is no evidence available with a plaintiff and he can support his claim only by his own oath and by no other means. In that case if plaintiff of a case takes the oath the respondent also takes the oath and-if he refuses the claim of the plaintiff the case or plea of the plaintiff fails. This is known as Half-e-Radd. But when evidence is available and can be produced then resort to Article 163 ibid cannot be made, ln this case both the parties have led evidence and, therefore, the provisions of the said section could not apply to it.
Therefore, no adverse presumption against the respondent could be drawn."
5. The above statement of law, as. Would be noticed, visualises a situation when both the plaintiff and the defendant agree to take the oath but does not lay down the penal consequence of refusal on the part of the defendant to take oath. This authority, I am afraid, is not of any help to the petitioner.
6. On the contrary I have been able to lay hand on the following case law:-
(1) Nazir Ahmad. Vs. District Judee Leiah (PLD 1986 Lahore 137).
(2) Muhammad Shahbaz Vs. Ghulam Rasool (1987 CLC 1512).
(3) Husni Vs. Nayyar Oawum (1987 CLC 2485)
In Nazir Ahmad's case, Zia Mahmood Mirza, J., interpreted the provisions of Article 163 ibid in the following terms:- "Question which arises for consideration is as to what is the effect of the defendant-respondent's failure to deny on oath the claim of the petitioner made on oath. Should the claim of the petitioner have been decreed straightaway without any further proof as contended by the learned counsel?
Quite clearly, such a result is not countenanced by the language of Article 163. Even sub-clause (2) of the Article only provides that the Court may pass such orders as it may think fit regarding the costs and other matters. If the legislature had intended that in case of defendant's failure to deny the plaintiff's claim on oath, the plaintiff's suit is to be decreed or some other penal consequence is to follow, it could have made its intention manifest by making a clear provision to that effect. In the absence of any specific provision laying down the penal consequence of the defendant's non- appearance to deny the claim on oath, learned trial Court acted rightly in proceeding to adjourn the case for the petitioner's evidence.
In the case of Muhammad Shahbaz both the parties in suit supported their case on oath on Holy Book. The learned trial Judge dismissed "the plaintiff's suit under Article 163 of Qanun-e-Shahadat 1984." On the appeal, the learned Additional District Judge, accepted his appeal and remanded the suit to the trial Court for decision on merits. In revision before the High Court, Qurban Sadiq Ikram, J., while affirming the appellate order, referred to law laid down in Nazir Ahmad. Vs. District Judge.
Leiah (PLD 1986 Lahore 137).And added- "ln the case in hand, as slated above, both the parlies in the suit supported their ease on oath on Holy Book. It, therefore, was necessary for the trial Court to put the parties on issues and as them to lead evidence in support of their respective claim. This Article does not, in any was, preclude a Court from recording evidence of the parlies in spite of the oath bv both the parties or either of the parties. "(Underlining is mine)
In Husni Vs. Nayyar Oawum (1987 CLC 2485). Amjad Khan, J., made the following statement of law:- There was no offer made by the plaintiff to have his in consequence of some counter-oath to be taken by the defendants and the relevant provision is silent about the consequences, therefore, in absence of any specific provision laying down the penal consequences, the suit could not be dismissed. The natural result of an oath getting attached against a similar oath would be to treat the matter left where it was, so that the suit of the plaintiff became liable to be tried uninfluenced by the oaths of the parties. Contention of the learned counsel cannot be sustained and is accordingly repelled."
7. The ratio that emerges from the case law cited above is that Article 163 ibid does not provide for any penal consequence in case of refusal of 'defendant to lake oath at the demand of the plaintiff.
A salutary principle of interpretation of statute is that a penal provision cannot be invoked unless specifically enacted in the statute itself. In the instant case if the legislature intended to add the penal provision consequent upon the refusal on the part of deliquenl party, the wording of Article 163 would have been different and clear. Having not enacted such a consequence the intention that can be gathered is that this penal provision was intentionally omitted from this Article.
Respectfully following the victum in case of. Nazir Ahmad cited above it is reiterated that Article 163 ibid does not, in any way, preclude a Court from recording evidence of the party in spite of the oath by both the parties or either of the parties. The learned trial Judge was, therefore, correct to ignore the refusal of the respondent to take the desired oath at the behest of the petitioner and direct them to adduce evidence in support of their respective stands, thus unable to point out any material irregularity in the impugned order. I, therefore, find no merit in this revision petition. It is accordingly dismissed in limine.