1. By this Revision Application, the applicant's Muhammad Saleh and Muhammad Shuaib have called in question the correctness of the order of Special Judge, Anti-Corruption, Hyderabad, dated 17-2- 1985.
2. The facts in brief leading to this case are as follows. The applicants are facing trial in the Court of Special Judge Anti-Corruption, Hyderabad. After the prosecution closed their side and the Court intended to proceed with recording of the applicants /accused's statement under section 342, Cr.P.C., the Law Officer (i.e. P.D.S.P.) incharge of the prosecution case sought permission of the Court to cross-examine the accused under Article 44, Qanun-e-Shahadat Order, 1984 (hereinafter referred as the said Article), which was allowed by the learned Special Judge. But before the cross- examination of the accused could begin, the learned counsel for the accused hastened to move application to forestall the intended cross-examination. After hearing the arguments of the learned counsel for the accused and the P.D.S.P., the learned Special Judge disallowed the. Application and hence this Revision Application.
3. I have heard the arguments of Agha Abdul Rasool in support of the application and Mr. Ghulam Hyder Shaikh on behalf of the State. The Revision Application was dismissed by short order, dated 2-10-1985 for reasons to be recorded separately. Following are the reasons in support of the short order.
4. The contention of the learned counsel for the applicants was that the said Article is not mandatory nor does it require the accused to be cross-examined at the stage of recording of his statement under section 342, Cr.P.C. In this connection he referred to subsection (4) of the said section which reads as under:- "(4) No oath shall be administered to the accused."
5. The argument of the learned counsel was that since the accused could not be administered oath at the time of recording of his statement, he could not be cross-examined at that stage.
6. Elaborating his arguments he further submitted that since the material elicited in course of cross- examination of the accused forms a part of evidence, it was necessary to put the accused on oath before proceeding to cross-examine him. In support of this argument he referred to clause (a) of section 5 of Oaths Act, 1873, which reads as under:- "5. Oath or affirmation shall be made by the following persons:-
(a) All witnesses, that is to say all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court, or person having by law or consent of parties, authority to examine such persons or to receive evidence; and (b)
7. The learned counsel also invoked section 7 of the Prevention of Corruption Act, 1947 (hereinafter referred as the 1947-Act) in support of his arguments. Under this section the accused charged with an offence punishable under section 161 or section, 165, P.P.C. Or under subsection (2) of section 5 of the 1947-Act can, on his own request, be examined as defence witness and give evidence on oath in disproof of the charges made against him or his co-accused. It further appears from the above section that accused's failure to give evidence could be made the subject of any comments by the prosecution or to give rise to any presumption against him or his co-accused.
8. On the basis of section 7 of the 1947-Act the learned counsel for the applicants developed his argument that proper stage of cross-examining the accused is only when he offers himself as witness in his defence. In this context, he also pointed out that it is not without significance that the said Article has been assigned the place in Chapter of Admissions and Confessions of the accused.
9. It is true that whatever is brought out from mouth of the accused in course of cross-examination forms a part of evidence. The question) is whether for that reason it would be necessary to put the accused on oath before proceeding to cross-examine him. The reply to this will obviously be in the negative. There can he various pieces of evidence ranging from confession and admission of accused or that of co-accused to dying declaration, expert's reports etc. Obviously such pieces of evidence are not collected or tested on oath and yet they can be used as evidence. Therefore, the argument of the learned counsel has no force that unless the accused is administered oath, anything brought out in course of his cross-examination cannot be treated as evidence.
10. Furthermore, while relying on section 5 of the Oaths Act the learned counsel seems to have overlooked the second para. Of the proviso following the said section. It reads as under: "Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person,------------------..--- Thus, even the law relied upon by the learned counsel for the accused does not support his argument that in absence of oath administered to, the accused, any thing said by him in cross- examination cannot be used as evidence. It is clear from section 5 of Oaths Act reproduced above, that condition of a giving oath is applicable to persons other than the accused who, on the contrary as is evident from the second pare. Of the proviso to the said section, is made exception to the general rule and is not required to be administered oath like other persons for the purpose of giving evidence.
11. As for section 7 of the 1947-Act it may be observed that it gives option to the accused to offer himself as a defence witness. Of course when he is examined as a witness the other party will have right to cross-examine him. But the question to be considered is whether the accused can be subjected to the cross-examination only when he chooses to examine himself as a witness in his defence. If this argument is accepted, then, in my opinion, the said Article will be rendered redundant. Because as stated above, if the accused offers himself to be examined as a witness, the prosecution has right to cross-examine him even in absence of the said Article. Therefore, I am of the view that section 7 of the 1947-Act and the said Article are independent of eath other. In other words the said Article is not dependent upon section 7 of the 1947-Act inasmuch as that the former will come into play only after the accused has availed the provisions of the latter. In my opinion the said Article is invokable regardless of the accused's wish to avail the right given to him by section 7 of the 1947-Act.
12. The objection of the learned counsel for the accused that if the said Article is invoked at the time of recording the statement of the accused under section 342, Cr.P.C. It will come in conflict with subsection (4) of section 342, Cr.P.C. Reproduced hereinabove has no substance. Evidently the said Article does not require the cross-examination of the accused to be made on oath. Therefore, subsection (4) referred to above which specifically prohibits giving oath to the accused is in consonance rather than in-conflict with the said Article.
13. Apart from what has been stated above, it seems the appropriate stage for cross-examining the accused is when his statement under section 342, Cr.P.C. Is recorded. The words 'cross- examination' pre-suppose the existence of some statement made by a person who is required to be cross-examined. In the case of the accused person the only statement on which he could be cross-examined in his statement under section 342, Cr.P.C., unless of course he has offered himself as a witness and has given his statement in that capacity. In latter case I of course the stage to cross-examine him will be when he has given his statement as a witness. Since it is optional for the accused to give evidence in his defence as a witness and if he decides not to avail the option, then he can be cross-examined only at the stage of recording of his statement under section 342, Cr.P.C. In the instant case the learned counsel for the applicants was unable to show that when he I raised objection to cross-examination of the accused, the latter had either already examined himself as a witness or had informed the Court at the time of raising of the objection about his intention to examine I himself as a defence witness. In absence of such indication on record the trial Court could not withhold its permission for cross-examination of the accused.
14. The learned counsel cited two authorities in support of his arguments. The first case relied upon by the learned counsel is of Faqir Hussain v. The State PLD 1985 Lah. 434. This case is distinguishable from the case in hand as in the above-reported case interpretation of the said Article was not involved whereas in the instant case the point to be determined is whether in view of the said Article accused could be cross-examined at the time of recording of his statement under section 342, Cr.P.C.
15. Another case referred to by the learned counsel is reported as Akhtar Gul v. The State PLD 1960 (W.P.) Pesh.
170. This case too is not applicable as the point involved in the said case was totally different having no bearing on this case.
16. For above reasons there was nothing wrong in the impugned order which was accordingly upheld and the Revision Application was dismissed.