Iqbal Bibi etc. vs Adj etc.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT.

Civil Revision No.1967/2015.

Iqbal Bibi, etc.

Versus Additional District Judge, etc.

Date of Hearing 28.09.2026.

Petitioners by Mr. Aleem Baig Chughtai, Advocate.

Respondents Rana Zia-ul-Islam Manj, Advocate.

AHMAD NADEEM ARSHAD, J:- Through this Civil

revision petition, the petitioners have called-in-question the concurrent judgments and decrees dated 18.11.2011 passed by the learned trial Court and 19.06.2015 passed by the learned appellate Court, whereby the suit instituted by the respondent/plaintiff for specific performance of agreement to sell, possession and permanent injunction, was decreed.

2.Briefly stated, respondent No.3/plaintiff instituted a suit on 13.03.1990 against the predecessor of the petitioners namely Muhammad Latif, the defendant, pleading that the predecessor-in-interest of the petitioners had executed an agreement to sell dated 02.03.1982 in respect of the suit property situated at Katcha Habib Ullah Road, Lahore, for a total sale consideration of Rs.1,00,000/- on his Letter Head Pad. An amount of Rs.80,000/- was allegedly paid as earnest money at the time of execution of the agreement, whereas a further amount of Rs.15,000/- was paid vide receipt dated 02.05.1989, leaving only Rs.5,000/- outstanding.

3.According to the plaintiff, despite receipt of the substantial part of the sale consideration, the defendant subsequently declined to perform his part of the bargain on account of the increase in the value of the property, compelling him to institute the suit. The defendant resisted the suit, submitted written statement by raising certain preliminary objections and with regard to facts categorically denied the execution of any agreement to sell. The learned trial Court, after recording the evidence of the parties and considering the issues framed, decreed the suit vide judgment and decree dated 18.11.2011, subject to the plaintiff's payment of the amount found outstanding. The appeal preferred by the petitioners was dismissed by the learned appellate Court vide judgment and decree dated 19.06.2015. Hence, the present revision petition.

4.Learned counsel for the petitioners has principally assailed the impugned judgments and decrees on the following grounds:

(i)that the cross-examination of PW-3/plaintiff recorded on 26.09.1998, as well as the cross-examinations of DW-1 Maqbool Ahmad, DW-2 Rasheed Ahmad and DW-3 Muhammad Latif, were recorded without administration of oath, contrary to the provisions of the Oaths Act, 1873, and therefore could not lawfully be treated as evidence;

(ii)that reliance placed by the Courts below upon such evidence has vitiated the judgments and the matter ought to be remanded for fresh recording of evidence;

(iii)that the agreement to sell, Ex.P1, was executed upon plain paper/Letter Head Pad and not upon duly stamped paper and was consequently inadmissible;

(iv)that the scribe of Ex.P1 was not produced; and (v) that the receipt Ex.P2 was not duly proved as only one marginal witness thereof was produced.

Learned counsel has particularly relied upon, “Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others” (2012 SCMR 1258), “Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others” (2022 SCMR 933), “Rao Abdul Rehman (deceased) through legal heirs and others v. Muhammad Afzal (deceased) through legal heirs and others” (2023 SCMR 815), “Muhammad Ghaffar (deceased) through LRs and others v. Arif Muhammad” (2023 SCMR 344), “Obaidullah Khan v. Umer Hayat Khan and another” (2011 YLR 1731 (Peshawar), “Ehsan Ellahi Baig v. Muhammad Pervaiz” (PLD 2018 Lahore 693),

5.Learned counsel for the respondents has supported the concurrent findings, contending that the objection regarding oath is merely procedural and is expressly saved by section 13 of the Oaths Act, 1873; that Ex.P1 was admitted in evidence without objection; and that the findings regarding its execution and the plaintiff's entitlement are findings of fact concurrently recorded by the two Courts below.

6.I have heard the learned counsel for the parties and examined the record with their able assistance.

7.The principal question requiring determination is whether omission to administer oath to a witness, or omission to administer oath at a particular stage of his testimony, renders the evidence inadmissible and consequently necessitates setting aside otherwise concurrent judgments. Sections 5 and 6 of the Oaths Act, 1873 prescribe the administration of oath to witnesses. The statutory requirement is

therefore not to be treated lightly. The Court is under a duty to follow the prescribed procedure while recording evidence. That, however, does not conclude the matter. The legislature has itself provided the consequence of an omission in section 13 of the same Act, which reads:

“No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”

The language of section 13 of the Act, 1873, is comprehensive. It expressly addresses both proceedings and evidence and provides that an omission to administer oath, by itself, shall neither invalidate the proceeding nor render the evidence inadmissible.

The question is no longer a case of first impression. By virtue of Federal Laws Amendment Ordinance No. XXVII of 1981, section 6 of the Oaths Act, 1873, was substituted and shall read as follows:

“For section 6 the following shall be substituted, namely:-- “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.

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

In “Zeb-ul-Haram vs. The State” (PLD 1991 Federal Shariat Court 1) it was held that,

“14-A. It is thus concluded from the above discussion that according to Islamic Law oath is not to be taken by the witness and his evidence without taking oath is admissible if it is otherwise admissible. He is to first utter the word "Ashhadu" while deposing before the Court. However, if

the Court deems it necessary, in the circumstances of a case, it may take oath from the witness. But the omission to administer oath or its substitution by solemn affirmation will not invalidate the evidence except in certain cases e.g. when it is a case of "oath of denial" ( )حلف النکولor Qasamah ( )قسامتہ.”

In “Sajjad Ahmad and another v. The State” (1992 SCMR 408), the Hon'ble Supreme Court was directly confronted with an objection that prosecution witnesses had not been examined on oath. The Supreme Court repelled the objection and held that such omission was not a fatal flaw capable of vitiating the entire trial and that the irregularity was curable under section 13 of the Oaths Act, 1873. The Hon’ble Supreme Court held as under:

“The objection that the evidence of the P.Ws. was not recorded by the learned trial Judge on oath is not such a fatal flaw which may vitiate the whole trial and as such it is repelled. The irregularity is certainly curable under section 13 of the Oaths Act, 1873.”

More significantly, in “Shamsher Ali v. Mst. Qaim Khatoon alias Irshad Bibi and others” (PLD 1997 SC 559), the Hon'ble Supreme Court considered the effect of the amendment of Section 6 of the Oaths Act and reconciled it with section 13 of the Act ibid. The Court observed that although the amended section 6 required a Muslim witness to take oath, no corresponding amendment had been made in section 13, which expressly saved proceedings and evidence from invalidation on account of omission or irregularity in administration of oath. The Court accordingly treated the defect as an irregularity rather than a ground for rejecting the evidence altogether.

The same principle was reiterated by the Hon'ble Supreme Court in “Muhammad Aslam and others v. The State” (1999 SCMR

845). The Court considered the argument that evidence of witnesses recorded without the prescribed oath was inadmissible and, having regard to section 13, maintained the settled proposition that non-administration of oath does not invalidate the proceedings or render the evidence inadmissible.

Thus, the Supreme Court jurisprudence establishes an important distinction: the duty to administer the prescribed oath is mandatory as a matter of procedure, but the consequence of its omission is expressly controlled by section 13; the omission does not, merely by itself, render the evidence inadmissible or nullify the proceedings. The above principle has continued to be recognized in subsequent judicial treatment of section 13 of the Act. For example, the courts have consistently referred to the above referred cases of Sajjad Ahmad, Shamsher Ali and Muhammad Aslam as establishing that the omission of oath is curable and does not, without more, vitiate the trial.

9.The present case stands on an even more particular footing.

It is not the case that the entire testimony of the plaintiff or the defence witnesses was recorded without oath from its inception. As borne out from the record, the examination-in-chief of the relevant witnesses had been recorded on oath, while objection has been raised regarding the recording of cross-examination at certain stages. Cross-examination is not an independent proceeding divorced from the testimony of the witness. It forms an integral part of the examination of the witness and is directed towards testing, impeaching or clarifying the statement already brought on record. Where the witness has entered the witness box and his

evidence has commenced upon oath, an omission in the record concerning oath at a subsequent stage cannot, in the face of section 13 of the Act, 1873, be elevated into a jurisdictional defect so as to erase the evidence already recorded or nullify the entire adjudicatory process.

10.The case law reported as “Ehsan Ellahi Baig v. Muhammad Pervaiz” (PLD 2018 Lahore 693), relied upon by the petitioners, requires consideration. In that case, it was held that although section 13 of the Act, 1873, prevented the entire proceedings from being vitiated, evidence recorded without oath could not safely be relied upon and consequently remanded the matter for re-recording/cross-examination.

With utmost respect, however, that decision cannot be read as displacing the binding pronouncements of the Hon'ble Supreme Court in Sajjad Ahmad, Shamsher Ali and Muhammad Aslam cases. The statutory command contained in section 13 of the Act, 1873, as authoritatively interpreted by the Hon’ble Supreme Court, does not make admissibility dependent upon a subsequent re-recording of evidence in every case of omission. At the highest, where an omission has demonstrably caused prejudice, or where the evidentiary record is rendered materially uncertain so that a just adjudication cannot be made, the Court may, in an appropriate case, direct corrective proceedings. That is a question of prejudice and the ends of justice; it is not a rule that every omission of oath automatically renders the evidence inadmissible. In the present case, no such prejudice has been established.

11.Further, a material consideration is that the evidence in the present case was recorded in the presence of the opposite party and after

affording it full opportunity of participation and cross-examination. The very mischief which the law seeks to prevent by requiring evidence to be recorded in the presence of the adverse party is, therefore, absent. The Hon'ble Supreme Court has repeatedly emphasized that the essential feature of legally admissible judicial evidence is that the adverse party should have an opportunity to test the testimony through cross- examination. In “Arbab Tasleem v. The State” (PLD 2010 SC 642), the Hon'ble Supreme Court explained that evidence recorded in the presence of the adverse party, with an opportunity of cross-examination, carries the ordinary evidentiary value attached to judicial testimony. Conversely, the cases in which evidence is recorded at the back of a party stand on a materially different footing. This principle is also consistent with the statutory protection contained in section 13 of the Oaths Act, 1873, which expressly declares that omission to administer oath shall not invalidate the proceeding or render the evidence inadmissible. The recent judicial treatment of section 13 the Act, 1873, continues to recognize this Supreme Court position; in “Zain Pervez v. Election Commission of Pakistan and others” (2024 SHC 1014), the Court, while referring to “Sajjad Ahmad v. The State” (1992 SCMR 408), “Shamsher Ali v. Mst.

Qaim Khatoon” (PLD 1997 SC 559) and “Muhammad Aslam v. The State” (1999 SCMR 845), reiterated that non-administration of oath is a curable irregularity and does not, by itself, render the evidence inadmissible. Thus, where, as in the present case, the testimony was recorded during the adversarial proceedings, the opposite party was present, participated in the proceedings and had the opportunity to cross- examine the witness, no useful purpose would be served by remanding

the matter merely to repeat an exercise which has already been substantially undertaken. Remand is not to be ordered as a matter of course for curing an irregularity unless failure to do so has caused demonstrable prejudice or has resulted in failure of justice. In the absence of such prejudice, section 13 of the Oaths Act, 1873, squarely operates to save both the proceeding and the evidence.

12.The petitioners and their witnesses participated in the proceedings. The witnesses were subjected to cross-examination. The parties had full opportunity to place their respective versions before the Courts. The objection regarding oath was not shown to have caused deprivation of any substantive right of cross-examination or defence. Nor has learned counsel identified any particular answer, admission or piece of evidence which became unreliable solely because of the alleged omission. Section 13 the Act, 1873, itself further provides that the omission does not affect the obligation of a witness to state the truth. The evidentiary worth of the testimony therefore remains subject to the ordinary rules governing appreciation of evidence. The omission of oath does not confer upon the Court a license to accept unreliable testimony;

conversely, it does not authorize the Court to discard otherwise admissible evidence merely because of the procedural omission. The objection, therefore, does not furnish a ground for remand.

13.The next objection concerns Ex.P1. The petitioners submit that the agreement was written upon plain paper/Letter Head Pad and was not executed upon a duly stamped instrument. The objection, in the circumstances of the present case, is without legal consequence at this

stage. The record shows that the agreement to sell was produced by Rana Abdul Aziz, exhibited as Exh.P-1 while recording his statement as PW-1, and thereafter remained part of the evidentiary record. No timely objection to its admissibility on the ground of deficient stamping was raised when it was tendered and admitted in evidence.

14.Section 36 of the Stamp Act, 1899 is explicit that, subject to the statutory exception contained in section 61 of the Act ibid, once an instrument has been admitted in evidence, its admission cannot subsequently be called in question in the same suit or proceeding merely on the ground that it was not duly stamped. The Hon'ble Supreme Court has recently reaffirmed this principle in “Mehr Noor Muhammad v. Nazir Ahmed” (PLD 2024 SC 45=2024 CLD 193=Civil Appeal No.317-L of 2011, decided on 06.11.2023). The Hon’ble Supreme Court held that section 36 of the Stamp Act, 1899, is categorical: once a document has been admitted in evidence, the question of its admissibility on the ground of insufficient stamping is closed for the parties, and neither the trial Court nor an appellate or revisional Court can subsequently exclude the document on that ground, save for the statutory exception. Section 36 of the Act, 1899, reads as under:

“36. Admission of instrument where not to be questioned: Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

The august Supreme Court in the said judgment while discussing section 36 of the Act, 1899, observed as under:-

“This section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called into question at any stage of the suit or in proceedings, on the ground that the instrument has not been duly stamped. The only exception the section recognizes is the class of cases contemplated by Section 61, which is not material to the present moot. Section 36 does not admit other exceptions. It is now well settled that where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided there and then when the document is tendered in evidence. Once the Court, rightly or wrongly, admits the document in evidence and allows the parties to use it in examination and cross- examination, so far as the parties are concerned, the matter is closed. It is, therefore, essential that parties to litigation, where such a controversy is raised, must be cautious, and the party challenging the admissibility of the document must be alert to see that the document is not admitted in evidence by the Court. The Court is also required to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. On the contrary, the record in this case discloses that, notwithstanding the defendant's objection, the promissory note was marked as Ex.P.1 under the signature of the Court. It is not, therefore, one of those cases where a document had been inadvertently admitted. So, once the promissory note had been marked as an exhibit and the trial had proceeded along the footing that the promissory note was made an exhibit, and had been used by the parties in the examination and cross-examination of their witnesses, then Section 36 of the Stamp Act, 1899, will come into operation. Inasmuch as the promissory note had been admitted in evidence, as aforesaid, it was not open to the Trial Court to exclude it from consideration while writing the final judgment, nor to the appellate Court. It is clarified that the admission of the document in terms of Section 36 of the Stamp Act, 1899, cannot be reviewed or revised by the same Court or a Court of superior jurisdiction.”

15.The Hon’ble Supreme Court's earlier jurisprudence is to the same effect. In “Ch. Muhammad Saleem v. Muhammad Akram” (PLD 1971 SC 516), the Court recognized that once an unstamped instrument had been admitted and marked as an exhibit without objection, section 36 precluded a subsequent challenge to its admissibility on the ground of

want of stamp. It is therefore necessary to distinguish between validity of an instrument and its admissibility in evidence on account of stamp duty.

Deficiency of stamp does not, by itself, determine the substantive question whether an agreement was executed; the Stamp Act, 1899 regulates its admissibility and prescribes the consequences of non- compliance. Accordingly, in the present case, the belated objection regarding stamp duty cannot be used to dislodge Ex.P1 after its admission in evidence and its consideration by the two Courts below.

16.Apart from the stamp objection, the petitioner has questioned the execution of Ex.P1 on the ground that its scribe was not produced and that the Letter Head Pad upon which the document appeared was allegedly stolen. This contention essentially invites reappraisal of the evidence. The two Courts below noticed that the agreement appeared upon the Letter Head Pad of the predecessor-in- interest of the petitioners. The petitioners did not dispute ownership of the Letter Head Pad but alleged that it had been stolen. Significantly, no report/FIR regarding the alleged theft was produced. No convincing explanation was furnished as to why, if the document was fabricated upon stolen Letter Head Pad, immediate legal action had not been taken.

The marginal witnesses, namely Rana Abdul Aziz and Ch. Faiz Muhammad, appeared as PW-1 & PW-2 and supported the execution of the agreement and the payment of earnest money. The non-production of the scribe was also considered in the context that his death had not been specifically denied rather admitted.

It is settled that a document is not rendered unproved merely because every person associated with its preparation has not been produced, where its execution is otherwise established through legally acceptable evidence. The weight to be attached to the testimony of the attesting/marginal witnesses is primarily a matter of appreciation of evidence.

The learned courts below considered the entire evidentiary matrix, including the defence of forgery, the testimony of the marginal witnesses and the conduct of the parties. The petitioner has not demonstrated any perversity, misreading or non-reading of material evidence sufficient to attract revisional interference.

17.The objection concerning Ex.P2 also does not advance the petitioners’ case. The learned trial Court itself did not accept the plaintiff's assertion regarding payment of Rs.15,000/- under Ex.P2 as fully proved, observing that only one marginal witness had been produced. Consequently, the Court protected the defendants' interest by decreeing specific performance subject to payment of the amount found outstanding. The learned Appellate Court examined the matter and maintained the finding. This aspect demonstrates that the learned courts below did not mechanically accept the plaintiff's case in its entirety.

Rather, the evidence was examined claim by claim, and where the plaintiff failed to establish a particular payment to the required standard, the same was not extended in his favour. The ultimate decree thus preserved the defendants' entitlement to receive the balance consideration.

18.The scope of interference under section 115, C.P.C. is materially narrower than that of an appellate Court. Concurrent findings of fact ordinarily do not warrant interference merely because another view of the evidence is possible. The petitioners are required to demonstrate a jurisdictional defect, material illegality, material irregularity, or such misreading/non-reading of evidence as has resulted in a miscarriage of justice. No such defect has been established.

19.The learned trial Court framed the relevant issues, recorded the evidence, considered the rival contentions and rendered a reasoned decision. The learned Appellate Court independently examined the controversy and affirmed the findings. The present petition substantially seeks a fresh appreciation of the evidence concerning execution of Ex.P1, credibility of the marginal witnesses, the alleged theft of the Letter Head Pad, proof of Ex.P2 and the evidentiary consequences of the oath objection. Such reappraisal is not warranted in revisional jurisdiction in the absence of a material jurisdictional defect or perversity.

20.No material misreading or non-reading of evidence, jurisdictional defect, or illegality warranting interference under section 115, C.P.C. has been identified. Consequently, this civil revision is dismissed, with no order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE

Approved for reporting.

JUDGE

Gull*