' The brief facts of the case are that a criminal case F.I.R. No,330, dated 8-9-1992 under section 336, P.P.C. Was registered against the petitioners at Police Station City Shah Kot. The challan was submitted to Court of competent jurisdiction after thorough investigation by the Investigating Agencies. Ultimately charge was framed under section 336, P.P.C. Against the petitioners and evidence of P.Ws. Mian Muhammad Inayat, 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 P.Ws. For recording their statements 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 was 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 Oaths 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 own 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 for the petitioners in support of his case.
5. Admittedly after amendment in section 6 of the Oaths 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 1991 FSC 1) referred to by the learned counsel 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 section 6 of the Act to obtain sanctity and high measure of evidentiary value, for public good in these days when falsehood is rampant in the society and it has become very difficult to have truthful witnesses. Keeping in view these circumstances this Court has already formulated the present form of oath so that by fearing of the God one should state truth as also to prevent the false involvement of innocent persons in the criminal and civil cases. Even otherwise the Courts have wide powers to summon or resummon any witness to meet the ends of justice and also to cure the irregularities and bona fide mistakes.
6. Although, as per section 13 of the Act, the proceedings and evidence shall not be invalidated by omission of oath as it is merely an irregularity. In the case-law PLD 1991 FSC 1 referred to by the learned counsel for the petitioner, it was further held that in determining whether any error, omission or irregularity in the proceedings under Criminal Procedure Code, 1898, has occasioned a failure of justice, the Court shall have regard to the fact whether the objection is raised at an early stage in the proceedings. The wit and wisdom of the Legislature with regard section 13 of the Act would be only to prevent justice being defeated by a hypertechnical irregularity. Section 13 of the Oaths 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 incuriam. 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 P.Ws. Have yet been recorded, and, as such, it is the proper stage when any kind of omission, irregularity 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 oaths 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/petitioners 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.