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Criminal Revision No. 419 of 1986, decided on 24th September, 1986.

‑‑‑Preamble, Ss. 74, 76, 526, 87(3), 199‑B (2), 244‑A, 267 (2), 475(2), 510 & 539‑A‑‑Criminal proceedings‑‑No special provision available in Criminal Procedure Code which could permit facts in general to be proved by affidavit or statement in writing of a witness or by statement or certificate of an Officer of the Court‑‑Legislature enabling affidavits to be filed in Criminal Courts to be attested in manner prescribed in S. 539, Cr.P.C. or before any Magistrate desired to remove the difficulties arising in such cases‑‑Civil Procedure Code (V of 1908), S.30(c), O. XIX, R. 1 & O. XVIII, R. 4.

In the Code of Civil Procedure, 1908 there is a provision by which a civil Court can for sufficient reasons, permit any particular fact or facts to be proved by affidavit or permit the affidavit of any witness to be read at the hearing, on such conditions as the Court thinks reasonable. This is a special procedure permitting evidence to be received through affidavit, subject to such an order being passed under section 30(c) or Order XIX, rule 1 of the Code of Civil Procedure, specially where the parties to a civil litigation agree to such a procedure. This is, however, over and above the normal procedure under which evidence is ordinarily recorded orally under Order XVIII, rule 4 of the Code of Civil Procedure. There is no such special provision in the Code of Criminal Procedure permitting facts in general to be proved by affidavit or the statement in writing of that person or by the statement or certificate of an officer of the Court, though sections 74, 87(3), 199‑B(2), 244‑A, 267(2), 475(2), 510 and 539‑A refer to special cases where certain facts may be so proved. Other than these specific cases, the normal procedure of recording evidence, as stated in the different chapters of the Code of Criminal Procedure, is ordinarily resorted to. However, there are other provisions both in the Code of Civil Procedure and in the Code of Criminal Procedure where applications etc. have to be supported by affidavits. But these provisions basically do not cover evidence to be furnished by affidavit.

Nazir Ahmad and another v. The State P L D 1977 Lah. 1261 ref.

‑‑‑Art. 149‑‑Cross‑examination of witness as to his previous statement made by him through affidavit, in particular, to contradict him by its contents would be permissible only when signatures on such affidavit were proved to be in his handwriting, which could only be done by calling Oath Commissioner to prove same under relevant sections of Qanoon‑e‑Shahadat Order, 1984.

Nazir Ahmad and another v. The State P L D 1977 Lah. 1261 and Saleem Khan's case P L D 1985 Lah. 345 distinguished.

‑‑‑Preamble and Ss. 74 & 539‑A‑‑Civil Procedure Code (V of 1908), S.139‑‑Oaths Act (X of 1873), S. 13‑‑High Court Rules and Orders (Lahore) Vol. IV, Chap. XII, Vol. V, R. 8‑‑Criminal proceedings‑ Affidavit‑‑Admissibility as evidence.

There is no provision akin to section 139 of the Code of Civil Procedure, 1908 prescribing the category of persons entitled to administer oaths in respect of affidavits to be filed by persons under the Code of Criminal Procedure before Criminal Courts subordinate to the High Court, except section 74, which speaks of an affidavit by the process‑server effecting service of summons, and section 539‑A. which speaks of an affidavit in support of an application containing allegations against a public officer. As regards persons authorised to administer oath to persons desirous of furnishing affidavits under the said Code in respect of criminal matters before the High Court or any Officer of such Court, section 539 is present.

An affidavit is a declaration of certain facts in writing sworn before a person having authority to administer an oath. Though section 13 of the Oaths Act (X of 1873), mentions that a mere omission to administer an oath does not affect the validity of the statement, but where an oath .is administered by a person having no authority, the affidavit has no value.

It seemeth clear that no oath whatsoever taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature, without legal authority for their doing so, or before those who are legally authorised to administer some kinds of oaths, but not those which happen to be taken before them can ever amount to perjuries in the eye of the law, because they are of no manner of force but are altogether idle.

Affidavits are required to be filed only under sections 74 526 and 539‑A, CP.P.C. Under section 74, when summons issued by a Court has been served outside the local limits of its jurisdiction, an affidavit of the process‑server that such summons has been served can be admitted in proof of such service. The said section itself provides that such an affidavit can be made before a Magistrate. An application to the High Court for transfer of a case under section 526, Cr.P.C. has to be supported by an affidavit. Section 539, Cr.P.C. lays down various persons before whom such an affidavit required for use in the High Court may be sworn. Section 539‑A, Cr. P. C. speaks of an affidavit in support of an application containing allegations against any public servant. Where such an affidavit is to be filed before the High Court, the affidavit can be sworn before one of the persons specified in section 539. Where such an affidavit is to be filed before a Court subordinate to the High Court, then, by virtue of section 539(A)(1) it can be sworn in the manner prescribed in section 539, or before a Magistrate. With regard to affidavits to be filed before Courts subordinate to the High Court in support of applications or petitions, under other sections of the Code of Criminal Procedure, there is no section prescribing the persons who are competent to administer such oaths. Appointment of Oath Commissioners for the purposes of Order XIX to be made under section 139 (b) of the Code of Civil Procedure, is dealt with by Chapter 12‑A of the High Court Rules and Orders, Volume IV. Appointment of Oath Commissioners for the purposes of section 139(b) of the Code of Civil Procedure and section 539 of the Code of Criminal Procedure in respect of affidavits to be presented to the High Court, is dealt with by Chapter 1‑E of the High Court Rules and Orders, Volume V (See Rule 8 substituted by Correction Pamphlet No. 24, dated 3‑4‑1948). There is no provision in the High Court Rules and Orders for the appointment of Oath Commissioners or Magistrates as persons competent to administer oaths to persons desirous of filing affidavits in criminal proceedings in general in Courts subordinate to the High Court.

Rehmat Ali's case 1979 S C M R 30; Allah Bakhsh's case 1979 S C M R 137; Hawkins Treatise on Pleas of the Crown; Mayne's Criminal Law of India, Second Edition page 551 and Abdul Hussain Khan v. Bibi Sons Dero 8 I C 897 ref.

‑‑‑Preamble and Ss. 74 526 & 539‑A‑‑Oaths Act (X of 1873), S. 4‑‑Criminal proceedings‑‑Affidavits in cases not covered by Ss. 74, 526 & 539‑A, Cr.P.C. by whom to be sworn.

The Sessions Judge or the Magistrate before whom any Criminal proceeding is pending, in which an affidavit is to be filed, would normally have authority to receive evidence in the case. If he has such authority to receive evidence, he has power to administer oath himself to the person concerned or to administer oath through an officer empowered by him in this behalf, by virtue of section 4 of the Oaths Act, 1873. Since an affidavit is basically a statement on oath, the Sessions Judge or the Magistrate having authority to receive evidence, would obviously have authority to attest an affidavit.

Wahid and another v. State A I R 1963 All. 256 ref.

‑‑‑Ss. 74, 526 & 539‑A‑‑Penal Code (XLV of. 1860), S. 302‑‑Criminal trial‑‑Prosecution witness sworn affidavit before Oath Commissioner, much after investigation of case by police was completed, deposing to facts of case which contradicted testimony furnished by him at trial‑‑Such affidavit being a document required to be used before Sessions Judge, held, could be attested by Sessions Judge alone and could not be legally treated as an affidavit and was, therefore, inadmissible in evidence as affidavit‑‑Such document, however, could be put to Oath Commissioner for purpose of proving that same was signed by witness and to have same exhibited‑‑Said document though was not an affidavit but could still be treated as a statement of witness attested by another ordinary witness.

‑‑‑S. 439‑‑Revision‑‑Failure of Trial Court to properly apply law resulting in miscarriage of justice ‑Interference in revision to remedy wrong justified.

Sultan Ahmad for Petitioner.

Akhtar Shabir, A.A.‑G. and S.M. Nazim for the Complainant.

Date of hearing: 24th September, 1986.

This is a revision petition by Sarfraz Ahmad, petitioner, against the order dated 3‑9‑1986 passed by an Additional Sessions Judge of Lahore refusing to admit an affidavit purporting to have been signed and executed by Mushtaq Ahmad P.W.8, during the examination‑in‑chief of Rana Muhammad Bashir, Oath Commissioner, Lahore High Court, D.W.3, who had been summoned to prove the execution of the same.

2. The brief facts of the case are that Sarfraz Ahmad is one of the three accused being tried for offences under section 302/34, P.P.C. by an Additional Sessions Judge of Lahore. The trial bf the case is presently in progress. One of the prosecution witnesses, namely, Mushtaq Ahmad P.W.8, had sworn an affidavit before Rana Muhammad Bashir, Oath Commissioner, Lahore High Court, on 5‑10‑1985, much after the investigation of the case by the police had been completed, deposing to the facts of the case, which contradicted the testimony furnished by him at the trial. During cross‑examination, Mushtaq Ahmad P.W.8 denied having sworn any such affidavit and further disowned his signature thereon. He was duly confronted with the contents of the affidavit, which was marked 'A' by the trial Judge, as the witness had denied the execution. After the prosecution closed its evidence, an application was moved by the petitioner before the trial Judge for the submission of the said affidavit marked 'A' to the Handwriting Expert, together with the recovery memo. Exh.P.1, summons Exh.D.D. and a photostat copy of his identity card Exh.D.C., which documents bore the admitted signatures of Mushtaq Ahmad P.W.8, so that they could be compared and the report of the Handwriting Expert be brought on the record and formally proved later. The learned trial Judge, however, turned down the said application. Thereafter the petitioner, when examined under section 342, Cr.P.C., offered to produce his defence and summoned a number of witnesses, including Rana Muhammad Bashir, Oath Commissioner, Lahore High Court to prove the execution of the affidavit marked 'A' and the signature of Mushtaq Ahmad P.W.8 thereon. The defence witnesses having been summoned, Rana Muhammad Bashir, Oath Commissioner, was examined as D.W.3. During the examination‑in‑ chief, he admitted having attested the said affidavit, which was also sworn before him and he also stated that the same had been sworn by the person who had produced his identity card before him, the number of which was mentioned by him on the affidavit and that he had also signed the affidavit in his presence. At this stage, an objection was raised by the Deputy District Attorney that the affidavit was not legal evidence and as such could not be exhibited in Court. The learned trial Judge, after hearing arguments on this legal issue, on 3‑9‑1986 accepted the objection and refused to admit the document.

3. In rejecting the prayer of the petitioner for the affidavit of Mushtaq Ahmad P.W.8 to be exhibited, the trial Judge held that the same was not sworn before a Magistrate and that as there were only three sections in the Code of Criminal Procedure i.e. sections 76, 526 and 539‑A according to which facts could be got proved by affidavit and that since the affidavit in question was not covered by these sections, the same was not legal evidence and, therefore, the affidavit could not be admitted in evidence. The learned trial Judge relied upon Nazir Ahmad and another v. The State P L D 1977 Lah. 1261.

4. The petitioner, being aggrieved by the aforesaid order has now come up in revision.

5. I have heard the argument of the learned counsel for the petitioner, the complainant and the State and have given my anxious consideration to the same. In the Code of Civil Procedure there is a provision by which a civil Court can, for sufficient reasons, permit any particular fact or facts to be proved by affidavit or permit the affidavit of any witness to be read at the hearing, on such conditions as the Court thinks reasonable. This is a special procedure permitting evidence to be received through affidavit, subject to such an order being passed under section 30 (c) or Order XIX, Rule 1 of the Code of Civil Procedure, specially where the parties to a civil litigation agree to such a procedure. This is, however, over and above the normal procedure under which evidence is ordinarily recorded orally under Order XVIII, Rule 4 of the Code of Civil Procedure. There is A no such special provision in the Code of Criminal Procedure permitting facts in general, to be proved by affidavit or the statement in writing of that person or by the statement or certificate of an officer of the Court, though sections 74, 87(3), 199‑B(2), 244‑A, 467(2), 472(2), 510 and 539‑A refer to special cases where certain facts may be so proved. Other than these specific cases, the normal procedure of recording evidence, as stated in the different chapters of the Code of Criminal Procedure, is ordinarily resorted to. However, there are other provisions both in the Code .of Civil Procedure and in the Code of Criminal Procedure where applications etc., have to be supported by affidavits. But these provisions basically do not cover evidence to be furnished by affidavit.

5‑A. In the instance case, what the petitioner attempted to do was not to lead evidence of Mushtaq Ahmad P.W.8 through his affidavit. Mushtaq Ahmad P.W.8 had already come in the box to give evidence. What the petitioner tried to do was to cross‑examine the said witness as to his previous statement made by him through his affidavit and, in particular, to contradict him by its contents. This is permissible under section 149 of the Qanoon‑e‑Shahadat. But before this could be done, the signature of Mushtaq Ahmad P.W.8 on the affidavit had to be proved to be in his handwriting, which could only be done by calling the Oath Commissioner to prove the same, under the relevant sections of the Qanoon‑e‑Shahadat. The learned trial Judge has dealt with the case as if the evidence of Mushtaq Ahmad P.W.8 was being attempted to be furnished through his affidavit, which is not the case.

6. The learned trial Judge, whilst holding that the affidavit could not be admitted in evidence, relied upon Nazir Ahmad's case P L D 1977 Lah. 1261. It is, therefore, necessary to discuss this case.

7. Nazir Ahmad's case actually was a bail petition before the High Court, where two contradictory affidavits submitted by one Imam Din P.W. and purporting to have been attested by two different Oath Commissioners were pressed into service by the two opposing parties. In that case the learned Judge observed that either one of the two affidavits was false or that Imam Din P.W. was shifting his position and that as there were only three sections in the Code of Criminal Procedure i.e. sections 74 526 and 539‑A, Cr.P.C. by which facts could be got proved by affidavit, it followed that an affidavit not covered by these sections was not legal evidence. But then the learned Judge did observe that it would be for the trial Court to go into the matter about the contradictory affidavits of Imam Din P.W., after the said witness was examined by him at the trial. It is, therefore, clear that what the learned Judge meant was that one of the affidavits of Imam Din P.W., which the petitioner sought to rely, by itself did not prove the facts which it purported to contain and that it was not till the said witness was examined at the trial that the position would be clear. The learned Judge was merely considering the weight to be given to the contents of one of the two contradictory affidavits of Imam Din P.W., which was being pressed before him. The admissibility of the contradictory affidavits of Imam Din P.W. in evidence was not before the learned Judge.

8. There is another case dealt with by the same Judge who decided Nazir Ahmad's case (supra). This is Saleem Khan's case P L D 1985 Lah. 345. In this case an accused had filed an affidavit with his petition under section 249‑A, Cr.P.C. stating that he had convinced the relations of the deceased that he was not at fault in the accident and that the said relations had pardoned him. On the basis of this application, he secured his acquittal. The said learned Judge, whilst accepting the appeal preferred by the State against his acquittal, held that the affidavit furnished by the accused in support of his petition under section 249‑A, Cr.P.C. could not have been read as evidence in the case, that there were specific sections in the Code of Criminal Procedure under which affidavits could be accepted in proof of facts therein stated and that in a criminal case by no stretch of imagination an affidavit per se could be admitted in evidence, without confronting its maker at the trial. This ruling also clearly shows that what the learned Judge meant was that no affidavit per se could be blindly relied upon by a Criminal Court as proof of the fact therein stated, but that nothing prevented the trial Court from going into the same, if such witness was examined at the trial.

9. The above view contained in Nazir Ahmad's case (supra) relative to appreciation of facts submitted in affidavits filed in support of petitions for bail is, if I may say so, with respect, one view and a strict view. The learned Judge in Nazir Ahmad's case (supra) stated that the affidavit was inadmissible. The learned Judge did not state that it was inadmissible because it was attested by a person who was not authorised to attest the same. Perhaps what he meant was that it was inadmissible because per se its contents could not be treated as evidence in the case. There are, however, cases where the facts submitted in affidavits in support of bail petitions have ex facie been accepted as correct and entitling the accused to the concession of bail, without prejudice to the right of the trial Court to decide what weight, if any, it would attach to such affidavits, if they were used at the trial. See Rahmat Ali's case, 1979 S C M R 30 and Allah Bakhsh's case 1979 S C M R 137.

10. Whilst going through the Code of Criminal Procedure, one notices that there is no provision akin to section 139 of the Code of Civil Procedure prescribing the category of persons entitled to administer oaths in respect of affidavits to be filed by persons under the Code of Criminal Procedure before Criminal Courts subordinate to the High Court, except section 74, which speaks of an affidavit by the process‑server effecting service of summons, and section 539‑A which speaks of an affidavit in support of an application containing allegations against a public officer. As regards persons authorised to administer oaths to persons desirous of furnishing affidavits under the said Code in respect of criminal matters before the High. Court or any Officer of such Court, section 539 is present. It, therefore, remains to be seen whether the affidavit of Mushtaq Ahmad P.W.8 in the instant case was attested by a person duly authorised to administer an oath.

11. An affidavit is a declaration of certain facts in writing sworn before a person having authority to administer an oath. Though section 13 of the Oaths Act, X of, 18735 mentions that a mere omission to administer an oath does not affect the validity of the statement, but where an oath is administered by a person having no authority, the affidavit has no value. The following remarks from Hawkins Treatise on Pleas of the Crown is relevant in this respect: "It seemeth clear that no oath whatsoever taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature, without legal authority for their doing so, or before those who are legally authorised to administer some kinds of oaths, but not those which happened to be taken before them can ever amount to perjuries in the eye of the law, because they are of no manner of force but are altogether idle. Mayne's Criminal Law of India, Second Edition page 551. See also Abdul Hussain Khan v. Bibi Sona Dero 8 1 C 897.

12. An examination of the sections of the Code of Criminal Procedure shows that affidavits are required to be filed only under sections 74, 526 and 539‑A, Cr.P.C. Under section 74, when summons issued by a Court has been served outside the local limits of its jurisdiction, an affidavit of the process‑server that such summons has been served can be admitted in proof of such service. The said section itself provides that such an affidavit can be made before a Magistrate. An application, to the High Court for transfer of a case under section 526, Cr.P.C. has to be supported by an affidavit. Section 539, Cr.P.C. lays down various persons before whom such an affidavit required for use in the. High Court may be sworn. Section 539‑A, Cr.P.C. speaks of an affidavit in support of an application containing allegations against any public servant. Where such an affidavit is to be filed before the High Court, the affidavit can be sworn before one of the persons specified in section 539. Where such an affidavit is to be filed before a Court subordinate to the High Court, then, by virtue of section 539(A)(1), it can be sworn in the manner prescribed in section 539, or before a Magistrate. With regard to affidavits to be filed before Courts subordinate to the High Court in support of applications or petitions, under other sections of the Code of Criminal Procedure, there is no section prescribing the persons who are competent to administer such oaths. Appointment of Oath Commissioners for the purposes of Order XIX to be made under section 139(b) of the Code of Civil Procedure, is dealt with by Chapter 12‑A of the High Court Rules and Orders Volume IV. Appointment of Oath Commissioners for the purposes of section 139(b) of the Code of Civil Procedure and section 539 of the Code of Criminal Procedure in respect of affidavits to be presented to the High Court is dealt with by Chapter 1‑E of the High Court Rules and Orders Volume V. See Rule 8 substituted by Correction Pamphlet No. 24. dated 3‑4‑1948. There is no provision in the High Court Rules and Orders for the appointment of Oath Commissioners or Magistrates as persons competent to administer oaths to persons desirous of filing affidavits in criminal proceedings in general in Courts subordinate to the High Court.

13. In view of the above in respect of affidavits to be filed before criminal courts subordinate to the High court in cases not covered by sections 74, 526 and 539‑A, Cr.P.C., a question arises as to before which persons should such affidavits be sworn. In this connection section 4 of the Oaths Act, which is relevant, may be reproduced with advantage:‑--

"4. The following Courts and persons are authorized to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law:

(a) all Courts and persons having by law or consent of parties authority to receive evidence;

(b) ............................................................ "

The Sessions Judge or the Magistrate before whom any criminal proceeding is pending, in which an affidavit is to be filed, would normally have authority to receive evidence in the case. If he has such authority to receive evidence, he has power to administer oath himself to the person concerned or to administer oath through an officer empowered by him in this behalf by virtue of section 4 of the Oaths Act. Since an affidavit is basically a statement on oath, the Sessions Judge or the Magistrate having authority to receive evidence, would obviously have authority to attest an affidavit. See Wahid and another v. State A I R 1963 All. 256.

14. The affidavit marked 'A' in the instant case sworn by Mushtaq Ahmad P.W.8 was attested by Rana Muhammad Bashir D.W.3, Oath Commissioner of the Lahore High Court on 5‑10‑1985. The notification of his appointment dated 25‑6‑1983 shows that he was appointed by the High Court by virtue of its powers under section 139(b), C.P.C. and section 539, Cr.P.C. as Commissioner for administering oaths and affirmations to deponents of affidavits under the said Codes for a period of three years for the territory of Lahore High Court premises. The Oath Commissioner appointed under section 539, Cr.P.C. can only attest affidavits which are to be used in the High Court. Affidavit marked 'A' being an affidavit, required to be used before‑the Sessions, it should have been attested by the Sessions Judge, who, in a murder case, alone has authority to receive evidence in the inquiry or trial. An Additional Sessions Judge or a Magistrate could also have attested it, if at that stage any inquiry was pending before either of them, for they would then have had authority to receive evidence. But no such inquiry was pending before any such person in respect of this case then The Magistrate, during the stage of investigation, would not have had authority to attest this affidavit, for the Magistrate during investigation has no authority to receive evidence. He has power to record statements under section 164, Cr.P.C. in the manner prescribed for the recording of evidence, but this, at best, amounts to the collection of evidence during investigation and not receiving evidence, as such I would not like to go down on the record as giving any opinion in this matter about the position of a Magistrate, but would leave it for future disposal, should such a question arise at a later date. For the time being, I would only say that the Sessions Judge alone had the authority to attest the affidavit. It is therefore, clear that the said document cannot be legally treated as an affidavit. It is inadmissible in evidence as an affidavit. However, this does not mean that the document cannot be put to Rana Muhammad Bashir, Oath Commissioner D.W.3, for the purpose of proving that the same was signed by Mushtaq Ahmad P.W.8 and to have it exhibited. If the document legally does not hold water as an affidavit, it can still be treated as a statement of Mushtaq Ahma6 P.W.8, attested by Rana Muhammad Bashir D.W.3, as an ordinary witness, and can be put to the latter to prove that the former had signed it in his presence and to thus get it exhibited.

15. Whilst on the subject, I would like to add that section 539‑ AA (1) of the Code of Criminal Procedure, as framed by the Government of India, enables affidavits to be filed in criminal Courts subordinate to I the High Court, to be attested in the manner pr scribed in section 539 or before any Magistrate. A section similar like this should be added to our Code of Criminal Procedure, to removed the difficulties that presently arise in such cases.

16. In the instant case, it was necessary for the petitioner to prove the execution of the document marked 'A' which purported to bear the signature of Mushtaq Ahmad P.W.8, thereon. After the document is admitted, what evidentiary value it would have, would still be open fort the trial Judge to decide. The learned trial Judge erred in law in holding that the document could neither be admitted nor exhibited. In fact, the failure of the learned trial Judge to properly apply the law has resulted in miscarriage of justice. Interference in the revisional jurisdiction, therefore, is necessary to remedy the wrong.

17. For the foregoing reasons, this petition is accepted and the order of the learned trial Court dated 3‑9‑1986 refusing to admit the affidavit marked 'A' of Mushtaq Ahmad P.W.8 in evidence and exhibit the same, is set aside.

M.B.A. Petition accepted.

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