' This revision petition is directed against the judgment and order of the Appellate Court/Sessions Judge, Abbottabad dated 19-4-1984 as well of the triat Court/Magistrate 1st Class, Abbottabad dated 3-2-1986 as the latter had earlier found the accused-petitioner guilty of the charge under section 307, P. P. C. And accordingly convicted and sentenced him to 3 years' R. I. And a fine of Rs, 5,000 or in default to suffer 9 months' S. I. Further and that out of the fine, if recovered,- Rs, 4,000 to be paid to the complainant as compensation while later on, on appeal the former Court dismissed the appeal and maintained the conviction and sentence as aforesaid.
2. Briefly stated, on 27-4-1984 at morning Azan Vela i. e. 4-45 a. m. Haji Muzaffar, the complainant, his wife Shamim. Akhtar and mother Roshan Jan were present in the house when a shot was fired near the gate at which they rushed outside and saw Umar Gut 9/10 years old boy standing at the wall outside the gate in injured condition who told the complainant that Pulla has injured him with a pistol shot and that he was running away. They too saw Saeed alias Pulla, the accused, running towards his house in the direction pointed out by the injured. The complainant did not chase the accused due to fear. There was shown enmity against the accused that the accused's father had charged the complainant for having caused illegitimate pregnancy to his. Daughter Mst. Nooreen and in which connection he had also forcibly procured a sum of Rs, 30,000 from his mother and sister and had also been threatening to finish his family. The F. I. R. Was registered at 09-30 hours in P. S. Nara at a distance of 15/16 kilometres from the spot.
3.Muhammad Manzoor I. H. C after recording the report had gone to the spot where he prepared the injury sheet of Umar Gul and sent the injured to hospital for examination and treatment. He conducted further investigation of preparation of site plan at the instance of the witnesses and also recorded their statements. Umar Gul was medically examined on 28-7-1984 at 13-30 hours and the doctor reported gutter wound x 1" X skin deep on front of right thigh joint medially deeper and laterally shallow. The injury was opined simple in nature caused by firearm within 24 hours' duration. The shirt and Shalwar of the injured, the latter with corresponding cut mark but without any blood stains, were handed over to the constable for onward delivery to the I.
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4.At the trial prosecution examined Umar Gul the injured, Roshan Jan his grandmother and Haji Muzaffar his uncle, the complainant, as eyewitnesses ; Mst. Ansar Jan the sister of the complainant for motive ; Muhammad Shabbir the maternal-uncle of the complainant as marginal witness of the recovery memo. Dr. Jumma Khan for medical evidence and Muhammad Manzoor I. H. C. As the I.
0. Accused-petitioner was examined under section 342, Cr. P. C. Where he professed innocence and claimed falsely charged due to enmity. He was asked a question if he was to present himself or any other person as a witness in defence which he replied in negative.
5.At the outset it was strenuously contended that material irregularity rather an illegality was committed by the trial Court in not examining the accused on oath in disproof of the charges and allegations levelled against him in conformity with the mandatory provisions of subsection (2) of section 340, Cr. P. C. Although the aforesaid amendment was enforced on 21-2-1985 whereas the accused-petitioner was examined by the trial Court on 9-1-1986 and as such the Failure on the part of the Court in this respect was an illegality not curable tinder section 537, Cr. P. C. And resultantly the trial stood vitiated.
6.The interpretation and effect of section 340 (2), Cr. P. C. As amended rather substituted by Code of Criminal Procedure (Amendment) Ordinance (XII of 1985) were dealt with by the High Courts and the Federal Shariat Court in different cases reported in PLD 1985 Lah. 434, PLD 1986 Lah. 222, 1986 P Cr. L J 2072, PLD 1986 Quetta 286 and 1984 P Cr. L I 1723. In Faqir Hussain's case (1) non-examina- tion of the accused on oath nor providing him opportunity of giving evidence on oath in disproof of the charges or allegations made against him in the prosecution evidence was considered a legal infirmity tantamounting to an illegality not curable under section 537, Cr. P. C. And accordingly conviction and sentence of the accused were set aside and case was sent back to trial Court for re-trial from the stage of examination of the accused. In PLD 1986 Lah. 222 Faqir Hussain's case was followed but the amendment was declared unjust and detrimental to the interest of the accused and as such was treated a substantial amendment to be given effect to prospectively. In 1986 P Cr. L J 2072, it was held that subsection (2) of section 340, Cr. P. C. As amended was making incumbent upon Court to record statement of accused as witness in his own defence but the same cannot be given retrospective effect and shall not be applicable to pending cases. In 1986 P Cr. L J 67, the learned Judge dealt with the interpretation and effect of Article 44 of the Qanun-e- Shahadat and held that the appropriate stage for subjecting accused to cross-examination was the time when his statement under section 342, Cr.P.C. Was to be recorded. In 1986 P Cr. L J 2190, it was held that the word "shall" having been used in section 340 (2), Cr. P. C. Puts the Court under obligation to examine accused on oath in disproof of charges or allegations made against him and that non-examination of the accused on oath is not an irregularity of the kind to be cured under section 537, Cr. P. C. And that non-compliance renders the conviction and sentence illegal and accordingly retrial was ordered from the stage of examination of the accused under section 342, Cr. P. C. In 1986 P Cr. L J 1723 (F. S: C.) the examination of the accused on oath under section 340 (2), Cr. P. C. In disproof of the charges or allegations was considered accused's right to avail and assert at the trial and he has to ask the Court that he intended to give evidence on oath and if the accused does not himself ask the Court while on the other hand the Court asks him if he has to produce evidence in defence and he replies in negative, the Court's duty is over and there will be no case of nugatory of trial on this score.
7. To begin with, section 340, Cr. P. C. As substituted by the Code of Criminal Procedure (Amendment) Act (XVIII of 1923) conferred an option on an accused person to offer himself as a witness in certain class of cases mentioned in subsection (2) thereof. Subsection (2) of section 340, Cr. P. C. Was subsequently substituted by Law Reforms Ordinance, 1972. By the said amendment, restriction of class of cases was wiped out and scope of option to an accused person to give evidence on oath in disproof charges was enlarged and extended to all delicts. He could, however, not be called as a witness except on his own request and his failure to give evidence would not raise any adverse presumption nor be made subject of any comment by the prosecution against him. A further alteration was recently made in the aforesaid provision on 21-2-1985, by (Amendment) Ordinance (XII of 1985) which, inter alia, made it imperative for an accused person to give evidence on oath in disproof of the charges or allegations made against him and also made him liable to cross-examination within the limits laid down in the proviso to the subsection.
However, to what extent, can an accused person be subjected to cross-examination under, {{FOOT NOTE}}
(1) PLD 1985 Lah. 434 {{FOOT NOTE}} Article 44 of Qanun-e-Shahadat, no limits are prescribed though such are provided only in the proviso to subsection (2) of section 340, Cr. P. C. While directing cross-examination under Article 44 of Qanun-e-Shahadat, a public prosecutor or a Lawyer for complainant may travel beyond the permissible limits and elicit thereby admissions converging on the guilt of an accused person. In this way, an accused may put his neck in the hangman's noose.. Obviously the latest amendment renders accused exposed to make involuntary admissions and thereby prejudices his case. To the above extent, provisions of section 340 (2), Cr. P. C. Are to the manifest disadvantage of an accused person in a variety of cases, provided always he is regarded competent to testify. But, here, a very crucial question will also arise. Would an accused person, if he has been convicted by a Court for perjury or giving false evidence, be regarded as competent to testify on oath under amended subsection (2) of section 340, Cr. P. C. In this context, Article 3 of the Qanun-e-Shahadat will come into play and render Article 44 and subsection (2) of section 340, Cr. P. C. Nugatory. Apart from this disparity, in a case based solely on confession of two co-accused, inculpating each other, and tried jointly, and neither of the two accused suffering from any disability to testify, could enter into witness-box on oath to explain the ambient circumstances attending the crime or confession as also the motive and reason as to why he is being involved by other accused in the commission of crime. Further where, an accused person pleads an exception or when any fact is especially within his knowledge, he may give evidence on oath by establishing the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code or to prove the fact within his exclusive knowledge. For this limited purpose, the amended subsection
(2) of section 340, Cr. P. C. Is beneficial to the accused. However, in a case of no evidence, it is not expedient and just to examine accused person to fill in pitfalls and shortcomings existing in the prosecution case. It may also not be expedient to examine accused on oath under section 340 (2), Cr. P. C. When the case is covered by sections 249-A and 265-K, Cr. P. C. Provisions of subsection
(2) of section 340, Cr. P. C. Envisage the desirability and necessity of examination of accused on oath, if there is cogent incriminating evidence, whether direct or circumstantial. In such an event, if an accused person declines to offer evidence on oath, the prosecution may draw presumption inference or may comment upon his refusal or failure to do so.
8. Article 44 of the Qanun-e-Shahadat renders all accused persons, including an accomplice, liable to cross-examination. In Legal Thesaurus by William C. Burton word "liable" has been given meaning accountable, amenable, answerable, bound to respond, chargeable, justly responsible, legally bound, under legal obligation etc. Word "liable" has also been used in various sections of Pakistan Penal Code as in section 381, P. P. C. Accused on conviction shall be punishable with imprisonment and shall also be liable to fine and this expression has been interpreted that the imposition of fine is discretional and not obligatory and the Court may or may not impose a fine. AIR. 1957 Punjab 55 is to the same effect. In 1984 PTD 87 word "liable" was found susceptible of two interpretations one the wider and broader sense meaning answerable and accountable in law and other the narrower and stricter sense connoting held liable after liability is fixed upon him by adjudication.' The above view is borrowed from the judgment of Denning L. J. In Little Wood v.
George Winpey & Co. Who summed upto the discussion that in his opinion the ordinary meaning of word "liable" in a legal context is to denote that person is responsible at law. In PLD 1978 SC 89 in Order VIII, rule 12 (1), C. P. C. The words "he shall be liable to have his defence, if any, struck out" were interpreted to mean that Court may strike off defence in an appropriate case and that it is not incumbent upon the Court to strike off defence in all cases otherwise the Legislature would have used the word "shall be struck off" as it did in subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In fact "liable" used in usual and ordinary sense as commonly employed expresses the state of being under obligation in law. Herein too in Article 44 words all accused shall be liable to cross-examination have been used and not that all accused shall be cross-examined thus making room for the contrary exercise of discretion by the Court in suitable cases. Further, it does not make sense that in all cases accused shall be cross-examined.
For instance in a case of plead guilty an accused need not be cross-examined. Moreover, examination, cross-examination and re-examination have been provided in the Chapter of the examination of witness and in Article 132 of the Qanun-e-Shahadat examination-in-chief has been defined the examination of a witness by the party who calls him ; the cross-examination the examination of a witness by the adverse party and the re-examination the examination of a witness subsequent to cross-examination by the party who called him. An accused will thus be liable to cross-examination if he is first examined as his witness and that eventuality will only arise at the time of D his examination under section 340(2), Cr.P.C. As his witness in his defence.
9. As far the examination of the accused under section 342, Cr. P. C. Is concerned the section vests a power in the Court to examine the accused at any stage of enquiry or trial for purpose of enabling him to explain any circumstance appearing in the evidence against him while for the aforesaid purpose the Court shall examine the accused after the conclusion of the prosecution evidence and before he is called on for defence. Neither the accused's examination under section 342, Cr. P. C. Is on oath nor be is examined as his witness in defence thereunder that the prosecution shall be provided with an opportunity to cross-examine him in compliance of the provision of Article 44 of the Qanun-e-Shahadat. I will, therefore, most respectfully differ on the point with the interpretation of the learned Single Judge of Sind High Court to the effect in his judgment published in 1986 P Cr. L J 67. The Code of Criminal Procedure (Amendment) Ordinance, 1985 is definitely a procedural amendment and, as discussed, has been found beneficial as well detrimental to the accused depending upon the circumstance of each case. It is to be given effect to in all pending cases before the trial Courts on 21-2-1985, the date of the enforcement Amending Ordinance. In this content I would most respectfully differ from the view point of the Single Judges of the Lahore High Court as expressed by them in their judgments reported in PLD 1986 Lab. 222 and 1986 P Cr. L J 2072 that the amendment is to operate with prospective effect and not retrospectively to pending cases.
10. To sum up the, afore going discussion there emerges a legal position that on the conclusion of the prosecution. Evidence the Court shall examine the accused under section 342, Cr. P. C. And shall put a question to him if he wants to 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 and if the answer is in affirmative the Court shall proceed to record the statement of the accused on oath and then also affording an opportunity of cross-examination to the prosecution or co accused, if and, against whom he has deposed within the limits prescribed under the proviso to subsection (2) of section 340, Cr. P. C. In case the accused refuses to give evidence on oath in disproof of the charges, although obliged under section 340 (2), Cr. P. C. When at then his liability to cross-examine was also to arise thereunder read with Article 44 of the Qanun-e-Shahadat, the Court may presume under illustration (G) to Article 129 of the Qanun-e-Shahadat that evidence withheld by the accused in disproof of the charges although obliged under the law to give theta evidence as such would, if produced, be unfavourable to him. Herein it I submitted that the accused is under obligation to give evidence only in disproof of the charges or allegations made against him in the prosecution evidence. Prosecution has to bring home charge to the accused on th strength of its own evidence and the accused is only required to give evidence on oath in disproof thereof. The adverse presumption/inference against the accused can only be-used in corroboration of the prosecution evidence and not to prove the guilt of the accused by itself. In my humble opinion Courts need not resort to prosecution and punishment of the accused)under sections 178 and 179, P. P. C. For refusal on his part to give evidence in his defence on oath in disproof of the charges as envisaged under section 340(2), Cr. P. C. And that an adverse inference envisaged under Article 129 of the Qanun-e-Shahadat would suffice and meet the ends of justice.
11. In cases when the accused is neither specifically asked if he was to give evidence on oath in disproof of the charges or allegations made against him in the prosecution evidence nor he himself volunteers to give evidence on oath in disproof of the charges and the conviction in a case proceeds in the absence of accused's statement on oath, the same shall amount to a material irregularity rather illegality on the part of the trial Court for non-compliance of the mandatory provisions of law contained in section 34012), Cr. P. C. Read with Article 44 of the Qanun-e- Shahadat and accordingly the conviction will be reversed and case sent back for retrial from the stage of the examination of the accused.
12. In the instant case the accused-petitioner was asked if he wanted to produce himself as a witness or any other witness in defence which he replied in negative. Frankly speaking it cannot be said with certainty that the learned trial- Court has put this question conscious of the amending provision of section 340(2), Cr. P. C. Read with Article 44 of the Qanun-e-Shahadat because there could be asked such a question in routine in conformity of the old provisions of sections 340J and 342, Cr. P. C. Anyhow the question as couched does also fulfil the requirement of law and the Court in case of refusal shall be entitled to draw an adverse inference/presumption against the accused-petitioner. But in the facts and circumstances of the case I would not draw any adverse inference against the petitioner on this score nor I would hold that there has been a non- compliance of the mandatory provision of law and that the trial stood vitiated.
13. Prosecution ocular evidence is from the mouths of the complainant his uncle and grandmother.
The enmity between the parties is an established fact. The occurrence took place at morning Azan Vela i. e. At 4-45 a. m. While the report was lodged at 9-30 a. m. In P. S. Nara at a distance of 15/16 kilomatres from the spot. Prosecution did not explain that how a time of 4-45 hours was consumed between. The occurrence and the registration of the case. Complainant was fired at from a distance of 20/30 yards as per medical evidence. It is a question if at that hour of the occurrence in the hilly surrounding the assailant has rightly been identified by the complainant as well the eye- witnesses who had appeared subsequently on the scene of occurrence when at the time the assailant was decamping from the spot. The victim a 9/10 years old boy was reportedly caused a fire-arm injury on 27-7-1984 at 4-45 a. m. Who was examined by the I.
0. On 27-7-1984 but was medically examined on 28-7-1984 at 1-30 p. m. The doctor was to give the duration of injury about 24 hours which works out that the injury was caused to the P. W. Sometime at 1-30 p. m. On 27-7-1984 while the injury was sustained by the P. W. As per ocular evidence on 27- 7-1984 at 4-45 p. m. The boy was caused a gutter. Wound x skin deep on the front of right knee joint simple in nature. No pellet or bullet was found in the wound or otherwise recorded. The doctor stated that the wound can be possibly caused by a big pellet or a bullet. There was found a corresponding one hole in the Shalwar but with no stains of blood on it nor there has been found any blood-stained earth on the spot. Enmity serves as motive prompting the accused to commit the offence but on the other hand it also prompts the complainant to falsely charge the accused on suspicion or otherwise. Delay in F.
1. R. Also matters in case of false charge on suspicion after deliberation. In view of the above observations this Court would proceed to weigh the ocular evidence with care and caution. In the F.
I. R. The complainant, his wife and mother were all reported to have come out of the house at the report of the fire shot while at the trial complainant was said to have come out of the house and that the two ladies had seen the accused decamping from the spot standing over the "thala" of over inside house. Umar Gul, the injured, has, however, admitted his police statement as correct that his grandmother, aunti and uncle, all three had come out of the house. He also did not say at the trial if he ever told his uncle and the women-folk that he was fired at by the accused-petitioner and that they had seen the accused decamping from the spot after the occurrence. Roshan Jan the grandmother of the injured admitted as correct that in her statement before the Magistrate under section 164, Cr. P. C. She had stated that when they had asked from Umar Gul injured about the injury sustained by him he had told them that he did not know as who had fired at him. She and the complainant both had claimed to have identified the accused from his back while decamping from the spot who must be at a distance farther than 12/15 paces and whether identification was feasible. The site plan prepared at the instance of the injured and t le eye-witnesses, has shown the injured at point No, 1 and accused at point No, 2 at distance of 5 paces from each other. The eye- witnesses have been shown at points Nos. 3, 4 and 5 at a distance of 2, 4 and 5 paces respectively from the accused who had further seen the accused at point No, 6 at the turning corner of his house at a distance of 10 paces. In case t le accused has fired at shot at the injured P. W. From a distance of 20/30 yards as per medical evidence he might be at the turning corner or beyond it.
Later on when the eye-witnesses were to come out from the house at the report of the fire shot and to see him decamping from the slot, the accused might have since crossed the turning corner towards his house and the eye-witnesses must not have seen him decamping. In the circumstance this Court shall in fact give due weight to the statement of list. Roshan Jan P. W. The mother of the complainant and grandmother of the injured P. W. Who had stated before the Magistrate during her examination under section 164, Cr. P. C. Which she also admitted as correct at the trial that when he enquired from Umar Gul as who had fired at him he stated that he did not know as who had fired at him. It may be an unwitnessed occurrence. As such it cannot be said that the ocular! Evidence brings home charge to the accused beyond all reasonable doubt.
14. Resultantly this revision petition is accepted. The impugned judgment and orders of conviction and sentence are, therefore, set aside and the forthwith release of the accused-petitioner is hereby ordered provided he is not wanted in some other case.
Accused acquitted.