QAISAR AHMAD HAMIDI, J.- This is a revision application filed under section 439, Cr.P.C. The facts and the circumstances out of which it arises are a little curious.
2. Both applicants Michael Masih and Mrs Margret Najma are facing trial for the offence, under section 302/109 P.P.C. (Crime No. 55 of 1991), Ibrahim Hyderi P.S, before Mrs Rubina Farooque Khan, VI Additional Sessions Judge (East) Karachi. On 1-6-1992 the case proceeded and complainant Mst Rubina who is a Christian by faith was examined on oath. It is the case of the applicants that the oath as required under Chapter V, Part A of the Sindh Courts Criminal Circulars was not administered to Mst Rubina, although an objection was raised in this behalf. It is also alleged that an opportunity to confront Mst Rubina as to her previous statement in terms of Article 140 of the Qanoon-e- Shahadat, 1984, was denied to applicants causing serious prejudice to them. On 8- 7- 1992 an application to this effect was made on behalf of the applicants with the following prayer:- "It is, therefore, prayed that this Hon'ble Court may be pleased to administer oath to the complainant according to Chapter V, Rule 10(4) Sindh Courts Criminal Circulars and allow cross- examination in terms of Article 140, Qanoon-e-Shahadat, 1984, to the complainant."
3. Both these prayers were, however, refused by learned Additional Sessions Judge mainly for the reason that the application was belated. This order dated 28.10.1992 is the subject matter of the present revision application.
4. I have heard Mr. Sardar Muhammad Ishaque, learned counsel for the applicants and Mr. Abdul Hakeem Bijarani, learned AAG for the State.
5. Section 5 of the Oaths Act, 1873, provides that oath shall be administered to the witnesses who are examined in Court. An oath is a solemn appeal to the creator of the universe that the truth only shall be witnessed. It is an adjuration to God to punish the affiant if he swears falsely. It is an Outward pledge given by the person taking it that the attestation or promise is made under an immediate sense of his responsibility to God. An oath is a religious act by which the party invokes God not only to witness the truth and sincerity of his promise, but also to avenge any imposture or violated faith. (Refer Indian Oaths Act, 1873, by B.R. Beotra). However, an affirmation is a solemn and formal declaration or assertion that a declaration or affidavit is true, that the witness will tell the truth.
6. Rule 10, Chapter V, Part A of the Sindh Courts Criminal Circulars deals with forms of oaths and affirmations. Sub-rule (4) relates to oaths by Christians in the following manner:- "Christians shall be required to held the New Testament in their right hand and to repeat the following words: - " I swear that what I shall state shall be the truth, the whole truth, and nothing but the truth. So help me and shall be required to kiss the book."
7. Needless to say that the Sindh Courts Criminal Circulars have got the statutory force and are to be followed in letter and spirit. Obviously, therefore, the oath administered to Mst Rubina was not proper. However, the curative and validating provision of section 13 of the Oaths Act, 1873, is unqualified in its terms and following observations made in the case of Muhammad Ishaque vs The State, reported in NLR 1990 Criminal 501 are relevant:- "The above curative and validating provision is unqualified in its terms and there is nothing in it to suggest that it is to apply where the omission to administer the oath to a witness occur per incuriam. The case of Muhammad Sugal Esa Mamasan Rer Alalah v. The King reported in A.I.R. 1946 Privy Council 3, provides a complete answer to the objection raised on behalf of appellant."
8. Article 140 of the Qanoon-e-Shahadat, 1984, which corresponds to section 145 of the Evidence Act, 1872 (since repealed) provides as follows:- "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to these parts of it which are to be used for the purpose of contradicting him."
Article 140 of the Qanoon-e-Shahadat, 1984, permits cross-examination of a witness as to his previous statement. If it is intended to contradict a witness by his previous statement, it is necessary to draw his attention to such statement with particular reference to those specific parts which show contradiction between his previous and present statements. When the witness is not confronted with the previous statement as to contradictions as required under Article 140 of the Qanoon-e-Shahadat, 1984, the previous statement could not be considered as affecting the evidence of the witness given in the trial Court. A case, which is on all fours with this present case, is Muzaffar Khan Sikandar Khan and others vs Emperor, reported in A.I.R 1939 Lahore 268, decided by a Division Bench, where it was observed:- "It makes not the slightest difference whether the witness is literate or illiterate, attention can be drawn to any portion of a previous statement by reading the statement to the witness, he does not require to read it himself. This again has been the invariable practice in this province for generations. The result of the opinion held by the learned Sessions Judge is that we have to come to the conclusion that there has been a failure of justice in the hearing of this case. The mere fact that the Judge may have taken into consideration any discrepancies which might exist before he wrote his judgment does hot cure the failure of justice. It is quite possible that a witness on being effectively cross-examined in Court upon a vital difference in a previous statement might be so shaken in his evidence on that point as to make his evidence on other points of no value at all.
Counsel for the defence having been deprived of his proper opportunity of effectively cross- examining witnesses called for the prosecution, it is impossible to say that this has not occasioned a failure of justice. It is a failure of justice to deprive an accused of his legal rights, i.e. Of defending himself effectively."
9. There can be no doubt that the procedure adopted by the learned Additional Sessions Judge has got no legal sanctity. The impugned order is, therefore, set aside. The trial Court is directed to recall complainant Mst Robina and other witnesses (if examined), administer oath to them in accordance with Rule 10, Chapter V, Part A of the Sindh Courts Criminal Circulars and further to allow the defence advocate to cross-examine them in terms of law as laid down under Article 140 of the Qanoon-e-Shahadat, 1984.
10. In the result the revision application is allowed.