ABDUR REHMAN Versus THE STATE

ORDER

By this Revision Petition it is prayed that this Court tray call for and examine the R & P of Sessions Case No. 60/1986 pending trial before the IVth Additional Sessions Judge Sukkur for the purpose of satisfying itself as to the correctness, legality and propriety of the said proceedings and in particular order passed on the applicant's application under Section 265-K, Cr. P.C. on 4-2-1988 and to set aside the same.

2. The background of these proceedings is that the applicant in the capacity of an Advocate of the defendant in Civil Suit iNo.5/1984 pending trial before the Civil Judge, Ghotki moved a transfer application before the District Judge, Sukkur and supported the same by his personal affidavit. The affidavit contained an allegation of corruption against the then Civil Judge, Ghotki, against which counter -affidavits were filed by the opposite-party, their Advocate and one witness. Prior to the adjudication of the said transfer application by the District Judge, Sukkur on merits the Civil Judge against whom the said application was made was transferred from Ghotki and therefore the District Judge dismissed the application as having become infructuous. He however, ordered issuance of show-cause notice against the applicant as to why he should not be prosecuted for perjury for having sworn a false affidavit. The affidavit is reproduced as under:-

AFFIDAVIT

"I, Abdur Rehman son of Arbab Khan Bullo resident of Village Kot Bulla, Taluka Panoakil, adult, Muslim, do hereby state on solemn affirmation as under:-

(1) That I am an Advocate for the applicants /defendants before learned Civil Judge, Ghotki, hence well conversant with the facts of the case.

(2) That one of the plaintiffs/ opponents Nazeer Shah has personally approached me that they have bribed learned Civil Judge, Ghotki, hence I should not pursue and defend the case of the defendants else they will have to meet financial loss as learned Judge having been promoted is to leave his charge today or tomorrow.

(3) That I being answerable to my God and conscience, morally and legally committed to my profession, legitimately apprehend that the said fact being true and correct and the attitude of learned Civil Judge, Ghotki, also indicates that he is inclined to the opponents/ defendants will ultimately decide the case against my clients without applying judicious mind and conscience.

(4) That one of my Advocate brothers Mr. Ali Raza Kalwar of Ghotki has also heard Ali. Jan defendant/opponent No.1, saying to his Advocate that the case should be got decided during the period of present Civil Judge, Ghotki.

(5) That for brevity sake the contents of accompanying transfer application may be treated as part and parcel of this affidavit.

(6) That whatever is stated above is true and correct to the best of my knowledge and belief.

Verified and signed this 17th day of March 1986 at Sukkur.

(Sd.)

Deponent.

17-3-1986

Identified by me.

Advocate.

On solemn affirmation before me. The declarant is known to Mr. A. Rahman Bullo, Adv. who is known to me personally.

(Sd.)

17-3

Commissioner for taking affidavits.

3. Mr. Abdur Rahman Bullo the applicant has himself argued the case. He has contended that the affidavit was verified not on oath but on solemn affirmation on 17-3-1986, although by that time the amendment made under section 6 of the Oaths Act made it obligatory that the same was to be sworn or, oath and the form of that oath was also other than the one that was previously in vogue and thus the solemn affirmation was no more recognised as an oath by Section 6 of the Oaths Act for Muslims. The second leg of his contentions is, that the affidavit did not specify as to which of the paragraphs therein were true and correct to the personal knowledge of the deponent and which of the paragraphs were true and correct in his belief. Thus the verification of the affidavit was not in prescribed form and therefore no action could be taken against him. In this connection he has relied upon State v. Mohammad Shabir reported in 1983 PCr.LJ 2405, Manzoor Elahi v. Abubakar reported in 1971 PCr.LJ 1021, Habib Bux v. Zahoorul Hassan reported in 1986 C L C 1119, Nazar Muhammad v. State reported in 1986 P L D Pesh. 32, Muhammad Ramzan v. State reported in 1987 P Cr. L J 53, G.S. Giddeon v. State reported in P L D 1963 SC 1. In order to fully appreciate the proposition of law enunciated in the above rulings it will be useful to reproduce the relevant provisions of law. Sub-rule (1) of Rule 3 of Order XIX, C.P.C. reads as under:-

"3. Matters to which affidavits shall be confined. -- (1) Affidavits shall be confined to such acts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: Provided that the grounds thereof are stated."

5. Rules 9 and 10 of Chapter 12-B, High Court Rules and Orders (Lahore), Volume IV, read as under:-

9. (i) Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject.

(ii) Every person, other than a plaintiff or defendant in a suit in which the application is made, making any affidavit, shall be described in such manner as will serve to identify him clearly; that is to say; by the statement of his full name, the name of his father, his profession or trade, and the place of his residence.

(iii) When the declarant in any affidavit speaks to any facts within his own knowledge, he must do so directly and positively, using the words 'I affirm' or 'I make oath and say'.

(iv) When the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant must use the expressions 'I am informed and, if such be the case, should add 'and verify believe it to be true' or he may state the source from which he received such information. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the declarant shall specify the source from which they were produced, and state his information or belief as to the truth of the facts disclosed in such documents.

10. Attention is drawn to Order XIX, Rule 3, which lays down that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except interlocutory applications (see Order XXXIX, Rules 6 to 10 on which statement of his belief may be admitted provided that the grounds thereof are stated."

Similar provisions are also contained in Rules 55 to 60, Sind Chief Court Rules (O.S.)

6. Section 6 of Oaths Act before the 1981 amendment read as under:-

"6. Affirmation by Natives or by persons objecting to Oaths .-- 6. Where the witness interpreter or juror is a Hindu or Muhammadan, or has an objection to making an oath he shall, instead of making an oath, make an affirmation. In every other case the witness interpreter or juror shall make an oath.

7. After the passing of Ordinance XXVII of 1981, section 6 stood amended as follows:-

"6. Oath by a Muslim or by a non-Muslim who has no objection.-

(1) Where the witness or interpreter is a Muslim, he shall make an oath.

(a) Where the witness or interpreter is not a Muslim, he shall make an oath, or if he has objection to making an oath, an affirmation .''

8. In exercise of powers given under section 7 of Oaths Act and Article 202 of the Constitution, the High Court has prescribed following form of oath:--

Rule 441 (1)--

(a) Muslims shall be required to repeat the following words:

"I swear by Allah, the Almighty that I will give true evidence; and if I give false evidence I would thereby invoke wrath and curse of Allah on me.

(b) Hindus shall be required to repeat the following words:-

"I solemnly affirm in the presence of Almighty God that what I shall state shall be the truth, the whole truth and nothing but the truth."

9. It would therefore, appear that before the passing of Ordinance XXVII of 1981 a Muslim could make an oath or if he had any objection to making of an oath he could instead of it make an affirmation in the prescribed form but after the passing of Ordinance XXVII of 1981 whereas the Hindus had still such an option but a Muslim had no option of making an affirmation instead of an oath. He was bound to take an oath and an oath alone.

In the above-mentioned first three cases it was held that the affidavit must conform to the requirements of law, provided under Order XIX, Rule 3(1), C.P.C. and High Court Rules and Orders (Lahore), Vol. IV, Chapter 12-B, Rules 9 and 10 and that it should be specifically stated in the verification that such and such paragraphs are true to the best of his knowledge and such and such paragraphs are based on his information and belief. Where it was not so stated, the affidavit was not a legal affidavit and the deponent could not it the circumstances be proceeded against for an offence under section 193 , P.P.C.

10. In P L D 1986 Peshawar 32, Nazar Mohammad v. The State, statement of Nazar Mohammad was recorded under section 164, Cr. P.C. on solemn affirmation and not on oath. It was held that since after the amendment of section 6 of Oaths Act, on 8-7-1981 by Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981), the statement under Section 164, Cr.P.C. Could have been recorded validly only on oath and not on solemn affirmation and therefore the statement recorded on solemn affirmation was in violation of legal provisions and could not be considered as a piece of evidence against the appellant in proceedings under Section 193, P.P.C. In Mohammad Ramzan v. The State reported in 1987 PCr.LJ 536, the circumstances were such that it could not be said with certainty that Mohammad Ramzan petitioner deliberately made false statement-before the learned District Judge. Moreover the learned District Judge himself accepting his statement ordered transfer of the ejectment petition from the Court of the Civil Judge,. It was held that the Sessions Judge had no justification to order petitioner's prosecution under section 193 in these circumstances. In G.S.Giddeon v. The State reported in P L D 1963 SC 1, it was held as follows:-

"In a case of this nature where one man's oath is pitted against the oath of another, we are of the view that before a prosecution for perjury is launched, the Court must be fully satisfied that the person whose oath is sought to be preferred is of such an outstanding character that it is impossible to conceive of him giving- an incorrect version or that his word is so strongly corroborated that no reasonable person could possibly doubt its correctness. In the present case, as we have endeavoured to show, it is not possible to state with that degree of certainty as to which version is correct, for, indeed there are three different versions In these circumstances, we are unable to agree with the learned Judges of the Division Bench that Malik Abdul Latif intentionally gave false evidence."

11. In view of the above discussion, I am of the view that the charge under section 193 cannot be established against the petitioner because the affidavit filed by him is (1) not sworn or oath, although he is a Muslim, (2) it is not stated which of its paras are true to his knowledge and which are true in his belief. (3) and it is not possible to say with certainty as to whether the affidavit of applicant or that of the other party is correct. Hence, further proceedings will be waste of time and energy of the Court and a futile exercise. I, therefore, quash the proceedings of Sessions Case No.60/1986 pending before the IVth Additional Sessions Judge, Sukkur against the petitioner and acquit the petitioner of the above charge.

12. Before parting with this case I would like to observe that most of the affidavits filed in this Court as well as in the lower Courts of the province even now-a-days are not in conformity with the provisions of Order XIX, Rule 3(1), C.P.C. and that most of affidavits filed by Muslims as well as evidence given by Muslims witnesses etc. still continue to be verified or given on solemn affirmation instead of oath and consequently no action can be taken against the deponents under section 193, P.P.C. even if it is later discovered that he had resorted to falsehood and lies. Such affidavits or depositions, cannot even be treated as sworn testimony and cannot even form part of evidence. Hence I would impress upon the subordinate Courts and the officers of this Court whose duty is to swear and accept the affidavits to ensure that the same are sworn on oath and drafted in proper form and it is stated clearly as to how much of their statement in the affidavit is based on personal knowledge and how much on the information received or believed to be true. Similarly while recording the statements under section 164, Cr.P.C. or while taking down the depositions of witnesses during the course, of inquiries or trials the Courts should give oath in the latest prescribed form and should no more record the statements on solemn affirmation or on oath in the old form as was being done prior to the amendment referred to above.

M.Y.H./A-394/K Proceedings quashed.