1. ' AITAULLAH SAJJAD (CHAIRNAN).-Ghulam Rasul, appellant General Secretary of Pakistan PVC General Employees' Union was convicted by Mr. Farhat Ali Khan, Member, National Industrial Relations Commission by order dated 2-2-1977 under section 16(0 (d) of Industrial Relations Ordinance, 1969 and sentenced him to imprisonment till rising of the Court. The learned Member further directed that the appellant would cease to hold office in the Union during the current term and will be further disqualified to hold any office in any Trade Union during the term immediately following the term In which he so ceases to hold office.
2. ' The allegation against the appellant was that on 14th July, 1975 he entered into the office of Mohammad Hussain Khan Administrative Officer of Pakistan PVC Ltd., Gharo, and assaulted him.
3. Having not been satisfied with his first assault he came back and gave three blows on the neck of Mohammad Hussain. Abdul Rehman who had actually been named as an accused and whose name was withdrawn by the complainant during the proceedings and one Mir Dad separated the parties.
4. ' Mr. Habibullah Siddiqui, General Manager, PVC Ltd. Was away from Gharo and Mohammad Hussain Khan, on his return on 16-7-1975 apprised him of what had happened on 14.7-75. The complaint was lodged before the National Industrial Relations Commission and after rather protracted proceedings the appellant was convicted as stated above.
5. ' The learned counsel raised a number of points including the one that actually no case of unfair labour practice has been made out on the evidence. While we were being taken through the record, It was brought to our notice by the learned counsel that another learned Member who dealt with this case for a brief time had recorded the statement of Ghulam Rasul on oath. This statement was not in the form of question and answers and is in the form of narrative. Actually the evidence against the accused has not been put squarely to the accused. Under subsection (4) of section 342 of Cr. P. C. No Court can administer oath to an accused person. Again section 5 of the Oaths Act of 1873 which defines the class of persons to whom oath or affirmation can be administered by a Court expressly states that "nothing herein contained shall render to be lawful to administer in a criminal proceeding on oath of affirmation to an accused person". It is an imperative and mandatory provision of law and its violation clearly amounts to an illegality. The plain meanings of provision of section 5 of Oaths Act, 1873 read with subsection (4) of section 342 are that if a person at the time he makes his statement is an accused person, it is illegal for the Court to put his on oath.
6. ' The statement of the accused on oath becomes inadmissible in evidence its consideration in the judgment has vitiated the proceedings. Respectfully following the dictum of the Supreme Court of Pakistan in Mohammad Bukhsh v. The State, we hold that the administration of the oath to the accused has vitiated the entire proceedings and we remand the case for retrial.
7. ' The case shall now go to Mr. Mamoon A. Kazi, Senior Member for disposal. PLD 1956 (Pak.) 420