RAO NAEEM HASHIM KHAN, J. - The brief facts of the case are that a criminal case FIR No.330, dated 8.9.1992 under Section 330 PPC was registered against the petitioners at Police Station, City. Shah Kot. The ehallan was submitted to Court of competent jurisdiction after though investigation by the Investigation Agencies Ultimately charge was framed under Section 330 PPC' against the petitioners and evidence of PWs Mian Muhammad Innayal, Mujahid Raza, Raza and Muhammad Riaz were recorded on-solemn affirmation and not on oath. Meanwhile the prosecution filed an application in the trial Court for resummoning the aforesaid PWs for recording their statement on oath, which was allowed by the trial Court vide order dated 17.9.1995. The order of trial Court was assailed through Criminal Revision in the Court of learned Additional Sessions Judge, Jhang, which svas also dismissed on 22.10.1995. Hence this constitutional petition.
3. Learned counsel for the petitioners contends that non-recording of evidence on oath does not render it inadmissible and that such irregularity is curable under Section 13 of Oath Act, 1873.
Reliance is placed on 1992 SCMR 408 and PLD 1991 FSC 1. Adds that prosecution wants to fill in gaps in the evidence of its on. Witnesses, whereby the petitioners would be prejudiced in their defence.
4. I have given my anxious consideration to the arguments of the learned counsel for the petitioners and gone through the orders of the two Courts below.As well as the case law submitted by the learned counsel lor the petitioners in support of his case.
5. Admittedly after amendment in Section of the Oath Act, 1873, by way of Ordinance 27 of 1981, it is compulsory for a Muslim Witness to depose on oath. According to Section 7 of the Act. All the Courts are now bound to administer oath to witnesses in the prescribed amended form of oath, In the same case law (PLD 1'WI FSC 1) referred to by the learned counsel of for the petitioners, it was also held that trial Court should be conscious of change of rule of taking evidence on oath as embodied in Secliqn 6 of the Act to obtain sanctity and high measures of evidentiary value, for public good in these days when falsehood is rampant in the society be only to prevent justice being defeated by a hyper technical irregularity. Section 13 of the Oath Act, maintains the legal obligation of a witness to speak truth and at the same time it provides against possible failure of justice through a technical irregularity. This Section is quite 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 occurs per in curiam. Moreover, it does not debar the Court to remove or to cure the bona fide irregularity, omission or error particularly when the case is at early stage of trial.
7. In the case in hand, evidence of only 4 PWs have yet been recorded, and. As such, it is the proper stage when any kind of omission, irregularly or. Error can and should have been cured so that the trial may not be vitiated in the penalty mate end. Non-recording of evidence of prosecution witnesses on oath appears to be a bona fide and unintentional and can rightly be cured at this early stage of trial. Moreover, no prejudice is likely to be caused to the accused/pelilioners as they will definitely have proper opportunity of cross examination and also to adduce defence evidence.
Furthermore, in the ..Two case laws cited by the learned counsel for the petitioners the objection to the effect of non-recording of evidence on oath was raised at later stage i.e. During the final hearing of appeal, and learned counsel failed to cite any case law regarding this irregularity which is not material in nature and curable under Section 537 Cr.P.C.8. For what has been discussed above, I am of the opinion that the two Courts below have not committed any material irregularity or illegality rather applied their judicious mind independently while passing the impugned orders.
Resultantly this constitutional petition is dismissed in limine, as having no force and merits.