The Concept of oath or affirmation is an important domain of Law of Evidence. Generally talking about the oath, idea of court proceedings or oath to an office like that of a President etc strikes the mind.
In court proceedings, an oath is administered to a party or a witness upon entering the dock. Court proceedings are formal, under the codified law and procedure, which needs to be followed in order to make an outcome that is truly according to law and precedent to sustain otherwise obviously it is reversed or remanded by the appellate or revisional forums. Under the Pakistani Law, Article 163 of Qanoon e Shahadat Order, 1963 and Oaths Act, 1873 give relevant provisions for special oath to decide a case.
As far as mediation proceedings are concerned, it is an informal and inflexible process which does not require any oath to be administered on any parties or witnesses as their statements are not to be used as an evidence in the court. Proceedings conducted by Mediator are sometimes in joint meetings of parties and sometimes in separate meetings. Above all, there is an important concept of confidentiality in mediation. Therefore, the laws relating to oath be it in law of evidence or in Oaths Act, 1873, are not relevant to mediation proceedings.
The role of mediator in mediation proceedings is to discuss the possible solutions for the conflict between the parties and generate options for them. During mediation proceedings at ADR Center Sargodha, I observed and felt the need to share with the readers that offer of special oath may be a good option in mediation proceedings in suitable cases. My observation in this regard was formulated when one of the parties in a case offered that if the other party takes oath on Holy Quran that there is no amount due in my favor against him, I will withdraw the civil suit. Similarly, in a civil suit between real brothers and sisters, one brother who had filed the suit, offered that if one (named) of his brothers takes oath on Holy Quran to the effect that former has already taken the share in inheritance, he will relinquish his claim. In another criminal case, complainant offered that if accused takes oath on Holy Quran that he is not guilty, complainant will be satisfied and will give statement for acquittal of accused. In all these offers, which were accepted resulting into successful mediation Oath on Holy Quran was administered putting an end to the litigation between the parties. In two of above mentioned offers, parties had business relationships. Parties agreed to continue the same relation in future.
Similarly, the above mentioned special oath may be administered to other persons who are not the parties to reference. This option has to be cautiously undertaken in order to successfully reach the outcome. Difficult but important task in such a case is to finalize the third party whom parties to the reference are ready to accept for special oath as it may take a lot of time and may frustrate the option or even the mediation set up. Once I was conducting a mediation proceeding in a criminal case in which both the parties were so stubborn that none of them was ready to surrender or proceed with any options. After conducting three separate sessions, one of the parties started the option of oath on Holy Quran. One party named seven persons for oath which were denied by the other by naming three persons of the other's choice. It took me more than an hour to finalize one person of the choice of both the parties for special oath and finally I made it up to successful mediation.
Special oath or oath on Holy Quran is discussed here to understand that it is to be taken as one of the options and it is not to be applied in every second mediation proceeding. Apart from that, it is an age old concept and deep rooted in our society, therefore, its importance in mediation regime cannot be denied.
During the last week, in the following references, option of special oath was successfully utilized at ADR Center Sargodha by me.
1. Mian Muhammad Vs Ghulam Ahmad Etc. Suit for recovery of Rs. 500,000/- and gold ornaments worth Rs. 300,000/- Reference by Judge Muhammad Haroon, learned Civil Judge, Sargodha. Special Oath taken by Mian Muhammad.
2. Nasir Iqbal vs Muhammad Yaseen etc. Civil Suit for declaration and permanent injunction regarding agricultural land referred by Judge Muhammad Haroon, Learned Civil Judge, Sargodha. Oath taken by Muhammad Saleem. Suit dimissed as withdrawn.
3. A criminal case of 489-F PS Atta Shaheed Sargodha referred by Judge Hasnat Aslam Gondal Learned Judicial Magistrate, Sargodha. A partner of accused named Ameen took oath on Holy Quran upon which complainant gave statement for acquittal of accused.
Yasir Hafeez Awan
Civil Judge.
Accredited Mediator
ADR-Center, Sargodha.
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