' This Criminal Appeal arises from the judgment of learned Special Judge, Anti-Corruption, Sargodha and Faisalabad Divisions with headquarters at Sargodna whereby he on 10-3-1985 convicted Faqir Hussain appellant under section 161, P. P. C. And sentenced him to 11 months' R. I.
And a fine of Rs, 10,000 in default thereof S. I. For 10 months.
2. Since after hearing the learned counsel for the parties, 1 feel inclined to set aside the conviction and sentence of the appellant because of legal infirmity in the trial on account of the non- compliance of recently amended section 340, Cr. P. C., I need not enter into the merits of the case, I find that on 21-2-1985 when amendment in section 340, Cr. P. C. Was made the case was still at trial stage, but the learned trial Court has neither examined the accused on oath nor did it give him opportunity of giving evidence on oath which to my mind tantamounts to an illegality not curable under section 537, Cr. P. C. The relevant provisions of law may be reproduced advantageously :- ' Criminal Procedure Code
(A) "New section 340(2), Cr. P. C. -Any person accused of an .Offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial : ' Provided that he shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character, unless- (i)the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried ; or
(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character ; or
(iii) he has given evidence against any other person charged with or tried for the same offence.
(B) Old section 340(2), Cr. P. C.-Any person accused of an offence before a criminal Court or against whom proceedings are instituted under this ' Code in any such Court, shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial :- ' Provided that -
(a) he shall not be called as a witness except on his own request,
(b) his failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against him or any person charged or tried together with him at the same trial, and
(c) he shall not be asked, and, if asked, shall not be required to answer, any question tending to show that be has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character, unless -
(a) the proof that he has committed or been convicted of such offence is admissble in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried, or
(b) he has personally or by Ms pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character, or
(c) he has given evidence against any other person charged with or tried for the same offence".
(C) "Section 342, Cr. P. C.-For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally cm the case after the witnesses for the prosecution have been examined and befor he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them, but the Court may draw such inference from such refusal or answer as it thinks just.
(c) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offences which such answers may tend to show he has committed."
' Law of Evidence (c...54-4
(i)
44. Accused persons to be liable to cross-examination.-All accused persons including an accomplice shall be liable to cross-examination.
(ii) Article 129. Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
' Illustrations ' The Court may pronounce (a) to
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it ;
(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him."
' Pakistan Penal Code Section 178. "Whoever refuses to bind himself by an oath or affirmation to state the truth when required so to bind himself by a public servant legally competent to require that he shall so bind himself, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
Section 179. "Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant, in the exercise of the legal powers of such public servant, shall be published with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
3. On the examination of the aforesaid provisions of law, it is very much obvious that under the old law, although the accused was a competent witness yet it was within his discretion to give evidence on oath in disproof of the charge or not, and that the Court was not authorised to call him as witness and his failure to give evidence on oath could also not be made the subject of any comment by the prosecution or give rise to any presumption against him. Through recent amendment in section 340, Cr. P. C., the proviso A and B to old section 340, Cr. P. C. B whereby the Court was restrained from calling accused as a witness or drawing under presumption against him and the prosecution was also restrained from comments upon the failure of the accused, to appeal as a witness, have been deleted. This is not without significance. The new section 340 (2), Cr. P. C. When read with the present Quanun-eShahadat, it becomes crystal clear that an accused is now required under the law to give evidence on oath in disproof of the charge against him. The further questions arise as to :
(i) Whether the accused can be compelled by the Court to give evidence on oath.
(ii) Whether on his failure to give evidence any adverse inference can be drawn against him or that the prosecution can be allowed to comment on such failure.
(iii) Whether on his failure to take oath or give evidence he will render himself liable to punishment ?
As far the first question, I find that the trial Court shall give opportunity of giving evidence on oath to disproof charge against him and in case the Court considers his evidence on oath necessary for disproving the charge against him, it can call him as a witness and his failure to give evidence on oath can be made the subject of any comment by the prosecution and the Court can also draw presumption/inferences against him if so liked. Since subsection 2 of section 342, Cr. P. C. Has not been omitted so far, and it exists as it was prior to the recent amendment in section 340, Cr, P, C.
Therefore the accused shall not render himself liable to is now punishment by refusing to answer such questions which may be put to he while being examined under section 342, Cr. P. C. Since the accused is now a competent witness and can give evidence on oath as and when called by the Court as a witness, therefore by refusing to bind himself by an oath or affirmation, he will render himself liable to prosecution and punished under section 178, P. P. C. And if after having taken the oath or affirmation, he refuses to make statement or answer permissible questions he will render himself liable to punishment under section 179, P. P. C.
4. It was during the trial of the instant case that section 340, Cr. P. C. Was amended and more particularly provisos A and B to of section 340, Cr. P. C. Were deleted. Resultantly valuable right to give evidence in disproof of allegations had accrued to him and failure to give evidence on oath could also be made the subject of any comment by the prosecution before the trial as well as the appellate Court which also can draw adverse inference/presumption against the accused. The new law also interfe.Es with the existing rights of the accused that be could refits to appear as a witness; that he could not be called as a witness by the Court; that failure to give evidence could not be made the subject of any comment by the prosecution and that the Courts could not draw any adverse presumption or inference against him. That being the position, I am of the view that the trial Court should have provided opportunity to the appellant to give evidence on oath. Had he given evidence in disproof of the allegations, the possibility that the result might have been otherwise cannot be excluded. Since the appellate Court has not provided any opportunity to the accused to give evidence on oath in disproof of allegations against him, therefore, the appellate Court i. e. This Court cannot properly appreciate the case and evidence on record. Neither this Court can allow the prosecution to comment on the failure of the appellant to appear as a witness nor can it draw any adverse inference against him.
5. The correct procedure to be followed by a trial Court appears to be; that for the purpose of enabling an accused to explain any circumstance appearing in evidence against him, the trial Court may even before the conclusion of the prosecution evidence; put such questions to him as it considers necessary. On the conclusion of the prosecution case if there appears no circumstance in evidence against the accused, the Court shall not put any question to him and shall not compel him to give evidence on oath because there being no proof of the charge against him, the question of his giving evidence on oath in disproof of the charge or allegations does not arise. The assumption that the accused shall give evidence on oath in each and every case is therefore, without substance. In cases of no evidence it would be too much to call him as a witness and subject him to cross-examination by th prosecution. It is rather unfair, to examine him to fill-in the lacuna in the case of the prosecution. On the conclusion of the prosecution evidence if there are circumstances appearing in evidence against the accused the trial Court shall put all incriminating evidence direct and indirect to the accused to enable him to explain the same and before asking him whether he would adduce evidence in defence, the trial Court shall specifically ask him whether, he would give evidence on oath in disproof of the charge against him In case he desires to give evidence the trial Court shall record his examination-in-chief and give opportunity to the prosecution to cross-examine him. In case he declines to give evidence on oath, the prosecution may comment upon his failure to do so and the Court may also draw presumption/inference against him. In case the Court thinks that the examination of the accused on oath in disproof of the charge against him is necessary for the just decision of the case or the Court otherwise desires to examine him on oath, the Court would be quite competent to call him as a witness and in that case the accused is legally bound to appear in the witness box, give evidence on oath and answer permissible questions which may be put to him by the Court or the prosecution. By refusing to take oath/affirmation or give evidence or answer questions, he will render himself liable to prosecution and punishment under sections 178 and 179, P. P. C. As the case may be and it would also be open to the prosecution to comment upon the failure of the accused to give evidence on oath and the Court may draw legal inferences against him.
6. The upshot of the above discussion is that there being serious infirmity in the trial of the accused/appellant, the appeal is accepted. The conviction and sentence of the appellant is set aside and the case is sent back to him for re-trial from the stage of the examination of the accused under section 342, Cr. P. C.