Muhammad Azam Khan vs Akhtar Khan etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Civil Revision No.759/2023

Muhammad Azam Khan Versus Akhtar Khan etc.

JUDGMENT

Date of Hearing 07.10.2026 Petitioner by: Sardar Abdul Raziq Khan, Advocate. Respondents No.1 to 3 Sh. Kamran Shahzad, Advocate. by: Malik Sajjad Ahmed, Advocate.

Respondents No.4 to 7 Barrister Awais Arshad, Assistant by: Advocate General, Punjab.

Anwaar Hussain J: The petitioner has challenged the order dated 27.09.2023 passed by the Appellate Court below, whereby his application seeking withdrawal of an offer, to respondents No.1 and 3 (“the respondents”), extended for decision of the controversy through special oath was dismissed, holding that the offer stood accepted by the respondents.

2.Brief facts of the case are that during pendency of the appeal before the Appellate Court below, the petitioner, who is respondent before the Appellate Court below, through an application dated 19.08.2023, offered to have the controversy decided through special oath on the Holy Quran, by the respondents, coupled with a stipulation concerning divorce in the event of a false oath. On 22.08.2023, the respondents appeared before the Appellate Court below and expressed willingness to take the proposed oath, whereas

the petitioner, during the same proceedings, expressed his intention to withdraw the offer. The matter was adjourned to 24.08.2023, when the petitioner formally applied for withdrawal, while the respondents submitted their reply accepting the offer to the extent of taking oath on the Holy Quran but declining the stipulation concerning divorce. The Appellate Court below, through the impugned order, dismissed the withdrawal application and directed administration of the oath on the Holy Quran, excluding the stipulation concerning divorce being opposed to public policy. Hence, this Civil Revision.

3.Sardar Abdul Raziq Khan, Advocate, learned counsel for the petitioner submits that the offer had been withdrawn before its acceptance and, therefore, no binding agreement had come into existence. Contends that the Appellate Court below failed to appreciate the petitioner’s express unwillingness to proceed with the proposed oath during the proceedings dated 22.08.2023. Adds that the withdrawal was prompted by genuine feeling of fear and respect concerning the sanctity of the Holy Quran and the consequences of the proposed oath. Maintains that the impugned order is contrary to the principles governing withdrawal of an offer for special oath. Places reliance upon cases reported as Mst. Asifa Sultana v. Honest Traders, Lahore and another (PLD 1970 SC 331).

4.Conversely, Mr. Khurram Shahzad, Advocate, learned counsel for the respondents supports the impugned order and submits that the offer stood accepted on 22.08.2023 when the respondents appeared before the Appellate Court below and expressed willingness to take the oath. Contends that the petitioner could not thereafter withdraw the offer. It was further asserted that respondent No.3 had travelled from abroad specifically for taking the proposed oath, which demonstrated implied acceptance of the offer. Places reliance upon cases reported as Saleem Ahmad v. Khushi Muhammad (1974 SCMR

Civil Revision No.759/2023 3

224); Attiqullah v. Kafayatullah (1981 SCMR 162); and Muhammad Mansha and 7 others v. Abdul Sattar and 4 others (1995 SCMR 795).

5.Respondents No.4 to 7 are officials of Government of the Punjab. No relief has been claimed against them. Therefore, considering the importance of the legal question involved, Barrister Awais Arshad, Assistant Advocate General, Punjab was appointed as Amicus Curiae to assist this Court. He submits that an offer for special oath must be examined not only under the Oaths Act, 1873 (“Act, 1873”) but also in the light of the principles governing offer, acceptance and revocation under the Contract Act, 1872 (“Act, 1872”). Contends that acceptance does not automatically follow an offer and, in the present case, where the petitioner expressed his intention to withdraw the offer during the same proceedings in which the respondents conveyed their acceptance, it cannot be presumed that a concluded agreement had come into existence.

6.Arguments heard. Record perused.

7.The controversy essentially concerns the stage at which an offer for decision of a dispute through special oath becomes binding and whether the person extending such an offer can withdraw it before the proposed oath is administered. Its resolution requires consideration of the relevant provisions of the Act, 1873 and the principles governing offer, acceptance and revocation under the Act, 1872.

8.Before examining the legal position, it would be appropriate to notice the precise terms of the offer and the respondents’ response thereto. The material portion of the petitioner’s application dated 19.08.2023 reads as under:

رب فلح رقآن و الطق3 اور ربمن1 زمدی ربآں راپسیڈنٹن یک ہی آرف یھب ےہ ہک االیپٹن ربمن .3" کچ جمگاہ اک ہضبق87 یلست دے دںی ہک اوہنں ےن یھبک یھب ااقتنل دتموعہی ےک دعب آج کت ربمن رسخہ "دوعیاخرجرکدایاجےئ۔ ٰ راپسیڈنٹنےکوحاےلایکاھت۔وتالیپذہاوظنمررکےکریما

(Emphasis supplied)

The respondents, through their reply dated 24.08.2023, expressed their willingness in the following terms:

دروخاتسدرتسمیلستےہ۔3رقفہربمن .3"

دروخاتساسدحکتدرتسمیلستےہہکاالیپسٹنربفلحرقآناپکرہمسق4رقفہربمن ۔4 "یکیلستدےنیےکےئلایترںیہ۔ The Appellate Court below, while declining permission to withdraw the offer, observed as under:

“07. The contesting respondent No.1, made two offers to the appellants through his application dated 19.08.2023, first to swear an oath on Holy Quran and second to pronounce Talaq to the wife. Now coming to the first offer made by respondent No.1, for decision of suit as well as appeal on special Oath of Holy Quran is concerned, this prayer of respondent No.1 is quite legal comes within the definition of “legal offer” as law of the land/country and Islamic shrines fully backed such like offer.

08.As far as second option for decision of the suit as well as appeal on pronouncement of triple divorce by appellant No.1 and 3, is concerned, during arguments, the contesting respondent No.1 submitted that though in their application they did not specifically deny this offer but to satisfy the respondents, they are also ready to accept the second offer of the contesting respondents. The- contesting respondent No.1 straightaway refused to accept any offer. Irrespective of the fact that second option was offered or refused by the parties, this kind of offer is not approved by law as well as Islamic principles. Taking Oath on Talaq to one’s wife, and that too without fault on her part is not an approved action in Islam to which parties belonged. Oath proposed and accepted by parties on divorce to wife for decision of civil suit was in contravention of S. 8 of Oaths Act, 1873 and could neither be proposed nor taken because of being opposed to rule of decency and also affecting the third party. Reliance in this regard is respectfully placed on the case law titled as “Abdul Rahim Vs. Sher Gul and 5 others", reported in 1987 CLC 1602”. Thus while following the above said principle, the second fold option for decision of suit as well as appeal on pronouncement of triple divorce is hereby turned down being against Islamic Injunctions.”

(Emphasis supplied)

9.The legal position governing special oaths may first be noticed. Sections 9 to 11 of the Act, 1873 contemplate a special procedure whereby a party may offer to be bound by the evidence of another person upon a specified oath. The procedure derives its efficacy from the voluntary undertaking of the party offering to be bound and the acceptance of the proposed oath in accordance with law. Once the requirements of the statute are satisfied and the evidence is given pursuant to such oath, Section 11 attaches conclusiveness to that evidence against the person who offered to be bound. The statutory consequence, therefore, rests upon a legally recognizable arrangement and cannot arise independently of it.

10.In case of Mst. Asifa Sultana supra, the Supreme Court of Pakistan examined the nature of an arrangement relating to special oath and the circumstances in which a party may be permitted to resile. The arrangement was treated as possessing the character of an agreement, while recognizing that the question of withdrawal must be considered in the light of the circumstances attending the offer and its acceptance. The principles were subsequently considered in case reported as Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823). The binding character of a concluded arrangement has also been emphasized in cases reported as Muhammad Rafique and others v. Sakhi Muhammad and others (PLD 1996 SC 237) and Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153). The latter decision explains the role of the Court as intermediary in communicating the offer and its acceptance. Once acceptance of the proposed oath has been communicated and a binding arrangement has come into existence, a party cannot ordinarily escape its consequences merely by expressing a subsequent change of mind. The above referred authorities from the Supreme Court of Pakistan, however, proceed upon the existence of an agreement validly concluded in respect of the oath proposed.

11.The reliance placed by learned counsel for the respondents on Muhammad Mansha, Attiqullah and Saleem Ahmad, supra is distinguishable on facts. In case of Muhammad Mansha supra, the offer was accepted on the very day it was made, whereas withdrawal was sought subsequently, before administration of the oath. In case of Attiqullah supra, the offer had already been accepted and the matter was fixed for administration of the oath when withdrawal was sought, which was declined in view of the concluded agreement. In case of Saleem Ahmad supra, although an application for withdrawal had been moved, the oath was administered before its determination, whereafter withdrawal was not permitted. Unlike those cases, the present controversy concerns the very existence of a concluded agreement, as acceptance and withdrawal were expressed during the same proceedings, while the subsequent written response excluded a material component of the original offer. Besides, the original offer contained a stipulation which the Appellate Court below itself found to be opposed to public policy.

12.Viewed from another angle, the original offer contemplated a particular form of oath comprising a declaration on the Holy Quran and a stipulation concerning divorce in the event of falsity. The latter, having been found by the Appellate Court below itself to offend public policy, could not form part of an oath administered under Section 8 of the Act, 1873. Thus, the offer was not enforceable in its original form; nor could its remaining component be treated as a concluded agreement, since the respondents’ acceptance, after excluding a material stipulation, amounted at best to a counter-offer to which the petitioner never assented.

13.Thus, while the law recognizes the binding effect of an accepted offer for special oath, the anterior question in every such case remains whether the offer was accepted in the terms in which it was made. The principles concerning revocation become relevant only

after identifying the precise proposal and determining whether the response thereto constituted acceptance in law. It is at this stage that an aspect of the present record, not specifically addressed by the parties in their submissions, assumes significance.

14.A comparison of the original offer with the respondents’ written reply reveals that the proposed oath was not confined to placing one’s hand upon the Holy Quran or making a declaration in its name. It comprised two elements: the declaration on the Holy Quran and the stipulation concerning divorce to wife of the individual concerned in the event of its falsity. Both sides admit that this was the customary mode of special oath in the vicinity. The respondents, however, accepted the former while declining the latter. More importantly, the Appellate Court below itself considered the latter stipulation opposed to public policy and proceeded to enforce the remaining part. The question, therefore, arises whether the willingness to take an oath after excluding an element of the proposed form could constitute acceptance of the original offer at all.

15.Section 7 of the Act, 1872 requires acceptance of a proposal to be absolute and unqualified. Although proceedings concerning special oath are governed by the Act, 1873, the principles governing formation of an agreement remain relevant in determining whether the voluntary arrangement contemplated by that statute has come into existence. Acceptance of only part of a material proposal does not ordinarily conclude an agreement upon the original terms; rather, it constitutes a qualified acceptance requiring the assent of the offeror. Whether an excluded term is material must be determined from the language of the proposal, the nature of the arrangement and the circumstances in which it was made. In the present case, the two elements were presented as part of one customary mode of oath. The divorce stipulation was not introduced subsequently by the petitioner, nor was it an independent undertaking collateral to an otherwise

completed arrangement. It formed part of the very form of oath proposed by the petitioner. The respondents’ written response excluded that element, while the Appellate Court below adopted the remaining part as enforceable. No material has been identified showing that the petitioner separately offered, or subsequently agreed, to be bound by an oath confined to the Holy Quran without the accompanying stipulation. In these circumstances, the response could not be treated as an absolute and unqualified acceptance of the proposal as originally made and hence, there was no consensus ad idem (meeting of minds) between the parties.

16.At this juncture, it is imperative to observe that it is here where the Appellate Court below fell in error by failing to appreciate that the matter cannot be examined just from the lens of the Act, 1872, as a special oath is not a mere private contract but a distinct creature of statute—the Act, 1873. The parties sought to invoke a highly specific evidentiary procedure, the entire transaction is governed strictly by the statutory framework of the Act, 1873 in general, and the strict negative mandates of Section 8 in particular, which reads as under:

“8. Power of Court to tender certain oaths.— If any party to, or witness in, any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him.”

(Emphasis supplied) Section 8 of Act, 1873 explicitly circumscribes the Court’s power, dictating that a special oath must not be ‘repugnant to justice or decency’ and must not ‘purport to affect any third person’. These statutory boundaries are absolute thresholds. The petitioner’s conditional proposal—attaching the automatic talaq (divorce) of the oath-taker’s wife as a penalty for perjury—directly violated these

prohibitions by targeting a third party and deeply offending public decency. Because the proposal contained an element strictly forbidden by its governing statute, it was legally contaminated from its inception that completely undermines the foundation of the impugned order: since a valid offer never materialized, there was nothing in existence capable of being accepted, and the doctrine of consensus ad idem could never be triggered. An acceptance cannot float in a vacuum, and the respondents' subsequent willingness to take the oath without the divorce condition cannot retroactively cure a proposal that was a statutory nullity from the outset. The Appellate Court below fell into a fundamental error in its approach. Having found the stipulation concerning divorce, an integral component of the proposed oath, opposed to public policy, it nevertheless treated the remaining component as a valid and binding offer. Once the original proposal was found objectionable in part, the Court was required to examine whether its severance left any legally enforceable agreement between the parties. It could not reject one component of a composite offer and simultaneously enforce the other without establishing the offeror's assent to the modified arrangement. Therefore, this Court is of the opinion that in the eyes of the law, no lawful offer ever existed and this aspect of the matter has escaped notice of the Appellate Court below.

17.Even otherwise, the question of severability must be distinguished from that of public policy. The Appellate Court below was empowered to examine whether the stipulation concerning divorce could lawfully form part of an oath administered through judicial process. However, its conclusion that the stipulation was opposed to public policy did not, by itself, establish an agreement to the remaining portion. The Court’s power to decline an objectionable condition is one thing; its power to enforce an altered arrangement against a party who never assented to it is quite another. Section 24 of the Act, 1872 provides further context to the inquiry into the effect of

an unlawful component forming part of a single arrangement, although its application must remain consistent with the special statutory framework governing oaths.

18.This distinction exposes the principal difficulty in the impugned order. The Appellate Court below treated the respondents’ willingness to take the oath on the Holy Quran as sufficient acceptance, notwithstanding that the proposal contained an additional element which the respondents declined and the Court excluded. By doing so, it proceeded from the validity of the surviving form of oath to the existence of an agreement to adopt that form. The two conclusions are not interchangeable. An otherwise permissible form of oath cannot become binding upon the offeror merely because the Court considers it an acceptable substitute for the form originally proposed.

19.Even otherwise, the proceedings dated 22.08.2023 do not conclusively establish that an unconditional acceptance preceded the withdrawal, which reads as under:

“In response to the application filed by respondent, appellant Akhtar Khan and Shaukat Mehmood are in attendance to state on special oath as offered by the respondent but the respondent present in the court stated that he do not want to take oath from the appellant, as contrary to the application. He further stated that today his counsel is not available. Clerk of counsel for the respondent stated that today Malik Shafqat-ur-Rehman, Advocate is unable to appear before the court due to death of his uncle. Keeping in view the absence of learned counsel for the respondent, adjourned to 24.08.2023 for further proceedings on application filed by the respondent.”

Order dated 22.08.2023 records the respondents’ willingness and the petitioner’s refusal during the same hearing, without expressly determining their chronological priority. The narrative sequence in which those statements were recorded cannot safely be treated as proof of the sequence in which they were communicated. Sections 4

and 5 of the Act, 1872, read with the principles explained in case of Sajid Mehmood supra, make the communication of acceptance relevant to determining whether the proposal remained open to revocation. The absence of a clear finding on this aspect further weakens the conclusion that a binding arrangement had already come into existence.

20.The respondents also sought to establish implied acceptance by asserting that respondent No.1 had travelled from abroad specifically for taking the proposed oath. During proceedings before this Court, however, his passport was summoned, whereafter learned counsel for the respondents was confronted, who then acknowledged that respondent No.1 was already present in Pakistan. The factual premise underlying the assertion of his journey from abroad was thus displaced. Consequently, the alleged journey could not furnish an independent basis for inferring implied acceptance before the hearing dated 22.08.2023. This does not negate the willingness expressed during that hearing, but it removes the additional circumstance relied upon to establish an earlier implied acceptance.

21.The petitioner’s reasons for withdrawing the offer must also be considered in their proper perspective. His stated apprehension concerning the sanctity of the Holy Quran did not confer an unrestricted right to withdraw from an agreement already concluded. Nevertheless, the explanation was relevant to whether the withdrawal was bona fide, particularly when it was expressed during the same hearing in which willingness to accept the offer was recorded and before administration of any oath. The authorities concerning withdrawal of special-oath offers do not dispense with consideration of the surrounding circumstances or the existence of sufficient cause where the law permits such inquiry.

22.The cumulative effect of the above analysis is that there was no valid offer in existence, and even if it was, the respondents’ written reply did not constitute an unqualified acceptance of the original

proposal; the Appellate Court below excluded a material element without establishing that the remaining arrangement had independently been agreed upon; the proceedings dated 22.08.2023 did not conclusively establish acceptance before withdrawal; and the additional circumstance relied upon to infer implied acceptance was found factually unsustainable.

23.In view of the above discussions, the question formulated above is accordingly answered in the terms that an offer for decision of a dispute through special oath becomes binding upon its acceptance in accordance with law, but acceptance must relate to the offer as made. Where a material element of the proposed form of oath is declined and no agreement to the modified form is established, the Court cannot enforce the remaining portion merely by excluding the objectionable element. The impugned order, having proceeded on a contrary premise, cannot be sustained.

24.Consequently, this Civil Revision is allowed and the impugned order dated 27.09.2023 is set aside. The Appellate Court below shall proceed to decide the appeal on its merits in accordance with law, without treating the proposed special oath as binding upon the petitioner. Before parting with this judgment, this Court expresses its appreciation to the learned Assistant Advocate General, Punjab/ Amicus Curiae, for his valuable assistance in the matter.

(ANWAAR HUSSAIN)

JUDGE

Approved for reporting.

Judge

Announced in open court and, dictated on the same date, however, finalized on 23.10.2026.

Akram