Hafiz Shahid Nadeem Kahloon, J. Through this criminal revision under Section 435/439 Cr.P.C. The petitioner has assailed the legality of order dated 05.09.2015 passed by learned Addl: Sessions Judge, Nankana Sahib, whereby during the statement u/s.342 Cr.P.C. The request of the petitioner- accused for adducing the defence evidence was dismissed in terms of Article 47 Qanoon-e- Shahadat Order, 1860. The petitioner has made the following prayer:- "Praying that impugned order dated 05.09.2015 passed by learned Additional Sessions Judge (respondent No.3) be set-aside, directing him to receive the proposed documents in defence and also provide opportunity to petitioner to produce oral defence evidence if so desired. Further praying that proceedings in the case be stayed till the pending the decision of revision petition before this Court."
2. The petitioner is facing the trial in case FIR No.440-2006 registered under Sections 302, 324, 109, 148/149 PPC at Police Station Warburton, District Nankana Sahib, wherein during the trial at the time of recording of statement under Section 342 Cr.P.C, the petitioner opted to adduce evidence in his defence in terms of Section 265-F(6) Cr.P.C. Seeking permission to adduce documentary evidence of Farzand Ali, Zahid Hussain, Haji Jan Muhammad and Mian Muhammad Afza, SI (PWs) and judgment of learned trial Court recorded in earlier proceedings during the trial of case of co- accused, but request of petitioner was turned down by learned trial Court vide impugned order dated 05.09.2015. Hence, the instant criminal revision.
3. The learned counsel for the petitioner has contended that learned trial Court acted arbitrary manner to pass the impugned order which is illegal and without jurisdiction vested with him under the law. Further argued that during the trial against the petitioner, evidence of both eyewitnesses namely Farzand Ali (PW-1) and Zahid Hussain (PW-2) along with depositions of some other witnesses including I.O. Recorded against acquitted accused in separate trial arising out of same FIR was mostly copied in recording evidence of eye-witnesses and as such, evidence so recorded is of no legal value. It is further argued that learned trial Court mis-took, misread and mis- interpreted the Article 47 of Qanoon-eShahdat Order, 1860 and Section 265-F(6) Cr.P.C. By refusing to receive the documentary evidence in defence of the petitioner and also by closing the defence evidence.
4. On the other hand, learned counsel for respondent No.2 while opposing this criminal revision has contended that in this case all the prosecution witnesses have been recorded and whose statements are required to be tendered in defence evidence have appeared before the learned trial Court and their statements have been recorded and they were also cross-examined by defence counsel earlier, therefore, the question of placing on record the certified copies of statements of aforesaid witnesses along with copy of judgment about trial of co-accused does not arise at all.
5. Arguments heard and record perused.
6. Section 265-F (6) Cr.P.C. Reads as under:- "If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence."
According to above mentioned section, learned trial Court shall receive the defence evidence, if so opted to adduce. The word "shall" cannot be termed as discretion of the learned trial Court rather some serious obligation casts upon learned trial Court to afford opportunity to the accused petitioner to adduce his defence evidence as cited above.
7. It is admitted fact that during the proceedings of trial, statement of the accused petitioner was recorded under Section 342 Cr.P.C. Wherein to answer a question, "would you want to produce defence evidence", the petitioner requires "Yes" and as such he opted to adduce the defence evidence. It has been observed by this Court that during the earlier trial of co-accused, statements of Farzand Ali & Zahid Hussain (PWs) along with some other witnesses including I.O. Were recorded and accused were acquitted out of the same FIR through judgment of acquittal of co-accused of present petitioner, who wanted to produce the above mentioned documents in his defence. The learned trial Court has not only dismissed the request of the petitioner rather the right to appear as own witness in defence was also closed on the ground that according to Article 47 of Qanoon-e- Shahdat Order, 1860 same cannot be allowed to produce the documents in defence evidence. The operative part of impugned order is as under:- "In the present case, all the PWs whose statements are required to be tendered in defence evidence have appeared before this Court and their statements have been recorded in defence side cross-examined them. So statements of said PWs recorded in earlier proceedings of co- accused cannot be allowed in defence evidence. Case law referred to by the learned defence counsel also does not allow such documents to be taken in evidence in later proceedings. The request is, therefore, turned down. Defence evidence sands closed."
Learned trial Court can only be refused to initiate proceedings under Section 265-F(6) Cr.P.C. As envisaged under Section 265/F(7) Cr.P.C, which is as under:- "If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing."
8. The bare reading of impugned order reveals that ground or reason for refusal to adduce defence evidence to the present petitioner as envisaged under Section 265/F(7) Cr.P.C. Is missing, therefore, order for refusal to that extent is illegal and without lawful authority. The impugned order further reveals that learned trial Court has not only refused the request of the petitioner to adduce defence evidence but also closed the defence evidence and as such the petitioner would not allow to appear as witness of his own defence, which is violation of Section 340(2) Cr.P.C. And such illegality is not curable under Section 537 Cr.P.C.
9. It has further been observed by this Court that learned trial Court has gone beyond jurisdiction as statement under Section 340(2) Cr.P.C. And read with Section 265-F(6) Cr.P.C. For adducing the documents being defence evidence, is mandatory provisions of law which cannot be denied. The learned trial Court can determine and ascertain the said statement & defence documents at the time of final adjudication of trial after hearing of both the parties. It is settled law that the accused is competent defence witness of his own and if he wants to appear in defence as required under Section 340(2) Cr.P.C. And refusal of trial Court to decline the mandatory provisions of law by refusing him to be his own witness is illegal as per law laid down by the Federal Shahriat Court in case reported as "Muhammad Siddique and another. Vs. The State" (1983 P.S.C. 497) and "Abdul Mannan. Vs. The State" (PLD 1962 Dacca 334). Wherein it has been held as under:- "Accused has statutory right to appear as defence witness. Failure on the part of the trial Court to call upon the accused to give evidence on oath and to record his evidence under Section 340(2)
Cr.P.C. Unless declined by the accused to do so, would render the trial in complete. Fact that accused was examined u/s.342 Cr.P.C. Would not make any difference because the purpose of examination of accused u/s.342 Cr.P.C. Is almost different from his examination under Section 340(2) Cr.P.C."
10. It also been noted by this Court that learned trial Court refused to receive defence evidence of the petitioner not only committed illegality but also failed to provide fair trial to the present petitioner as guaranteed under Article 10 (A) of the Constitution of Islamic Republic of Pakistan, 1973. Refusal to admit evidence in defence of present petitioner is the result of illegality, which is not curable under Section 537 Cr.P.C. To give defence evidence is the right of the accused as Section 340(2) and 265-F(6) Cr.P.C. Are mandatory in nature and no one can be deprived of such mandatory provision of law. Reliance can be placed in this regard in cases reported as "Farrukh Saryyar and others. Vs. The Chairman, Nab, Islamaadand & others." (PLJ 2004 S.C. 6) and "Archuleta Tanya Pauline and 2-others. Vs. State through Collector of Customs (Preventive) Customs House Karachi" (PLJ 1996 Cr. C. Karachi 597).
In view of above circumstances, this Court came to the conclusion that serious illegality has been found in the impugned order dated 05.09.2015 passed by learned trial Court, therefore, same is set- aside. Consequently, the instant Criminal Revision is accepted. The petitioner-accused is allowed to adduce the evidence in his defence and also to make statement under Section 340(2) Cr.P.C, if so required.