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Thursday, May 23, 2024

Op-ed: Dire need to eradicate falsehoods about oath-taking as a witness

In courts, when an allegation is put forth by someone, he has to prove it. Allegations may be true or false, but being a practicing advocate what I see quotidian is that witnesses are seldom true. One of the leading reasons is that the system requires it; otherwise, it is out of the question that delinquents could be brought to justice.

Justice means fair and moral treatment. In legal semantics, precisely, it means the legal process of judging and punishing people. Then comes the administration of justice. Salmond, a jurist, said that the Administration of Justice implies the maintenance of rights within a political community through the physical force of the state. The modern state chiefly consists of three pillars: Legislation, Executive, and Judiciary. The administration of justice is the work of the third one. However, the power to do justice is entrusted from
the first one, and the middle one is the enforcement agency.

In the administration of justice, witnesses play a decisive role. Their testimony is taken as per the procedure provided by the law. And thereafter, the process of evaluation is started. But the decision is quite impossible without evidence. And evidence oral or documentary is given by a witness; who is human. Therefore, being intrinsically biased in its nature, their
depositions are controlled by oaths.

Oath taking for truthful witnesses

The procedure of oath-taking is very simple. As per the Oaths Act, 1873 read with Chapter 12 Volume IV of the High Court Rules and Orders, before a witness is called on to give evidence he should be made to stand in front of the judge who himself will administer the oath. The witness is required to repeat the words of oath after the judge in a clear voice, and in the administration of justice, this is mandatory.

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Evidence without oath is inadmissible. The reason is quite logical: stopping him from telling a lie, and if the individual is a Muslim, he would naturally fear Allah from telling a lie after taking oath in His name. Education has nothing to do with this. Being human is sufficient to understand the value of an oath.

In courts, when an allegation is put forth by someone, he has to prove it. Allegations may be true or false, but being a practicing advocate what I see quotidian is that witnesses are seldom true. One of the leading reasons is that the system requires it; otherwise, it is out of the question that delinquents could be brought to justice. For instance, in a criminal case, parties are mostly at daggers drawn against each other, they more or less know who the culprit is, but they are not the witnesses; so, they have to introduce false witnesses through the complicity of police officers who investigate the case. Is it right to do so? Does Islam sanction it?

In the Holy Quran, Allah SWT says that “Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths …”. In Islam, there is no oath except that of Allah SWT. As the beloved Holy Prophet (PBUH) says, reported in Sahi-Muslim, Book 15, Hadith No 4038: “Abdullah (b. Umar) reported that Allah’s Messenger (PBUH) found, Umar b. al-Khattab amongst the riders and he was taking oath by his father Allah’s Messenger (PBUH) called them (saying); Our Allah, the Exalted and Majestic, has forbidden you that you take an oath by your father. He who bag to take an oath, he must take it by Allah or keep quiet”. And as per Sahi-Muslim, Hadith No 4065: “Abu Huraira reported Allah’s Messenger (PBUH) as saying: “An oath is to be interpreted according to the intention of the one who takes it”.

False oaths and how people perceive taking oaths in court

Nevertheless, once I heard a police officer, who appeared in a narcotics case as a witness, saying that this oath does not mean the oath which we take in Islam. The oath in a court of law is a different one. I do not understand his concept of oath in a court and out of court. Anyhow, the Holy Quran guides us, in this regard, in Surah Al Maidah, as narrated above, that “Allah will not take you to task for that which is inadvertent in your oaths”. But the procedure provided by the Oaths Act, 1873 makes it obligatory upon the judge to ensure that the witness is not deposing anything without understanding the meaning of the oath. If he is incapable to understand the meaning of the oath, he is not a competent witness.

Read more: New President of Pakistan takes oath

Anyhow, Islam being the religion of prosperity provides an expiation for the one who inadvertently took an oath, and for the one who considers it better to leave the oath if it outweighs in harm than the betterment. As it has been commanded in Surah Al Maidah verse No. 89 that “… So its expiation is the feeding of ten needy people from the average of that which you feed your [own] families or clothing them or the freeing of a slave. But whoever cannot find [or afford it] then a fast of three days [is required]”.

Be that as it may, this is not the ruling for the intentional false oath. False oath belongs to the category of greater sins. It is provided in Surah Al-i-Imran verse No. 77 “(As for) those who take a small price for the covenant of Allah and their own oaths, surely they shall have no portion in the hereafter, and Allah will not speak to them, nor will He look upon them on the Day of Resurrection nor will He purify them, and they shall have a painful chastisement”.

Oaths in Islam, countering the false oath phenomenon

In this respect, Muslim Jurists often quote an interesting incident, provided in Tafsir al-Mizan from the book Amali. Imrul Qays and another man had a dispute regarding some property.

Both of them came to the Holy Prophet (PBUH). He (PBUH) asked Imrul Qays, “Can you provide two just witnesses to substantiate your claim?” He replied, “No!” The Holy Prophet (PBUH) said, “Then your opponent should take an oath.” Imrul Qays said, “But what if he swears falsely and acquires my property?” The Holy Prophet (PBUH) replied, “If he swears falsely he shall be included among people who will not be eligible for Divine Mercy on the Day of Judgment and Allah shall not purify him of sins. There would be a dreadful punishment for such a man!”. Consequently, when the litigant heard these statements he was filled with horror and gave up his false claim to the property of Imrul Qays.

Read more: New Cabinet Ministers Take Oath

Therefore, it is high time for the authorities, legislatures, judges, executives, lawyers, Ulamas, teachers, everyone who has the knowledge and understanding of the basics of Islam must play their active role in the eradication of this false-oath-taking phenomenon that it is not the one that is punishable.

What is often seen in court-rooms is that people, even judges, and lawyers, consider that oath after doing ablution, and by putting hands on Holy Quran and thereafter by swearing in the name of Allah Almighty is the one punishable, and the oath under the Oaths Act, 1873 is the invention of Colonial masters, therefore, it is not a sin to take it repeatedly with impunity falsely. If authorities could not change the concept of people, then remove the oath from the procedural law, and let the justice system work without it. As it is of no use if the one taking it does not understand it.

The writer is an advocate of the high court and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches law. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.