' This is a revision petition filed by Shahid Nawab, petitioner, against the order of the learned Special Court (Suppression of Terrorists Activities), Punjab, Lahore, dated 31-5-1987.
2. The brief facts leading up to this petition are that a case under section 13 of the West Pakistan Arms Ordinance, 1965, is pending against the petitioner in the Court of the learned Special Court (Suppression of Terrorists Activities), Punjab, Lahore. On 20-5-1987, the evidence of the prosecution having been recorded, the special-Public Prosecutor closed the case. On the same day the learned Special Court recorded the statement of the petitioner without oath, as required under section 342, Cr.P.C. In answer to the question whether the petitioner would make a statement on oath in disproof of the charge or allegations made against him, the petitioner replied that the police had failed to prove the allegations against him, that although the recording of the statement under section 340(2), Cr.P.C. On oath was not warranted by law, as the said matter was pending adjudication before the Full Bench of the Supreme Court, but he would make the statement on oath on the Holy Quran in the case, if necessary. In answer to the question whether he would produce any evidence in defence, the petitioner replied in the affirmative. The petitioner also filed a detailed written statement on the same day and in the concluding part of the said, statement, the petitioner submitted that he would produce defence evidence and thereafter, if necessary, he would also appear as a witness in his own defence, by making a statement on the Holy Quran.
However, at this stage, the Special Public Prosecutor submitted that the statement on oath of the petitioner be recorded, as such statement was required to be recorded immediately after the examination of the petitioner under section 342, Cr.P.C. After the close of the prosecution case. This contention of the Special Public Prosecutor was repelled by the learned counsel for the accused.
The learned Special Court fixed the case for arguments of the parties, which were addressed on the next date of hearing. After hearing the arguments, the Special Court, by its order dated 31-5-1987, held that the petitioner could not defer his statement on oath till after the examination of his defence witnesses. Being aggrieved by the said order, the petitioner preferred a revision petition to the High Court against the said order, which is now before me for disposal.
3. On behalf of the petitioner it is submitted that according to an age old practice coming down ever since criminal Courts were created in this country, the conduct of the prosecution case has always been with the Public Prosecutor and since 1972, when the right of the accused to give evidence was allowed, the conduct of the defence has always been with the learned counsel for the defence and they have the right to determine how and in what manner witnesses are to be produced and at what stage, subject of course to any special order which the Court may consider it desirable to make in the circumstances of any particular case. In the light of this principle, it is submitted that it lay with the accused, through his counsel, to determine, 'whether on grounds of pure strategy or in the interest of the case, he should give evidence first or at the fag-end, after all the defence witnesses were examined, to prove his case. It is further submitted that according to the scheme of the Code of Criminal Procedure, wherever a specified act is required to be done or not to be done at a particular time or stage, the said time or stage is provided, such as, in sections 164, 338,-528, 539-B and .540, Cr.L and which such time or stage is not so provided, it remains discretionary with the party concerned to perform or not to perform the act at the time or stage most appropriate to the occasion. In this connection it is submitted that neither section 340 nor section 342 Cr.P.C. Prescribes the stage at which the accused should appear in his own defence on oath, as required under section 340(2), Cr.P.C., and, therefore the discretion is with him, whether to appear at the earliest stage or at the fag-end, after all his defence witnesses have been examined.
4. The learned Assistant Advocate General, who appears for the State, supports the learned counsel for the petitioner: On behalf of the State it is submitted that under section 130 of the Qanun-e-Shahadat, the order in which witnesses are to be produced and examined has to be regulated by the law and the procedure for the time being relating to civil and criminal procedure respectively and, in the absence of any such law, by the discretion of the Court. In respect of a complainant's case, it is submitted that neither the accused nor the Court can demand from the complainant that he should examine himself first and then his other witnesses. It is primarily for the complainant to choose his own witnesses in any way he likes and to examine them in the way he thinks best, for the purposes of unfolding his case against the accused. In this connection Charanjit Singh Sial v. State of Maharashtara 1971 Mah. L.J 311 is cited. It is further submitted that in respect of State cases, it is for the Public Prosecutor to determine the order in which his witnesses have to appear and that no adverse inference can be drawn against the prosecution merely because a particular witness has not appeared in a particular order. In this connection Gajadhar Singh v.
Emperor AIR 1943 Patna 424 is cited. On the same basis it is submitted that the accused, through his counsel, has a right of determining whether he should go in the box himself first, or after the evidence of all his other witnesses has been recorded. It is contended that sections 340 and 342, Cr.P.C. Do not regulate the order in which the accused has to give his statement on oath under section 340 (2), as found by the learned Special Court.
5. I have heard the arguments of the learned counsel for the petitioner and of the learned Assistant Advocate-General, who has appeared on behalf of the State. The only question that arises in this petition is whether an accused, who proposes to appear on oath to make a statement under section 340(2), Cr.P.C., must do so immediately after his statement is recorded under section 342, Cr.P.C., or he can defer the same till the witnesses produced by him in defence have been examined. The Special Court, under section 5(7) of the Suppression of Terrorist Activities (Special Courts) Act, XV of 1975, in all matters with respect to which no procedure has been prescribed by the Act, has to follow the procedure prescribed by the Code of Criminal Procedure for the trial of summons cases by Magistrates. The procedure prescribed for summons cases is contained in Chapter XX of the Code of Criminal Procedure. In the instant case, the petitioner did not admit the offence, when the charge was framed. Thus, under subsection (1) of section 244 of the Code, the Magistrate was duty bound to hear the complainant, if any, and to take all such evidence as was produced in support of the prosecution and also to hear the accused and to take all such evidence as was produced in his defence. Sections 340 and 342 Cr.P:C. Are not contained in Chapter XX, but in Chapter XXIV dealing with "GENERAL PROVISIONS AS TO INQU IRIES AND TRIALS:. Section 340, as the heading of this section itself shows, deals with the "right or person against whom proceedings are instituted to be defended and his competency to be a witness". Section 342, as its heading shows, deals with "power (of the Court) to examine the accused". All the sections in Chapters XXIV are random sections dealing with various matter which crop up during inquiries and trials and have no bearing to any chronological order in which an inquiry or trial is held. For instance, the fact that section 340(2) Cr.P.C. Appears earlier than section 342, Cr.P.C., does not imply that the statement of the accused on oath has to be recorded before he is examined under section 342 Cr.P.C. The mode of trial is contained in Chapter XX. Reading section 244(1), with sections 340(2) and 342(1) together, it is clear that after the evidence for the prosecution has been recorded, the accused has to be examined by the Court under section 342, Cr.P.C. And thereatfer the accused has to be heard and his evidence taken, including that of himself, in the order as he may choose. It is a well-established principle that the prosecution can examine its witness in any order it chooses and no adverse inference can be drawn from the mere fact that a particular witness has been examined at a particular stage, unless it is shown that the accused has suffered any prejudice by the particular stage at which he has been examined. However, sometimes Courts do direct the order in which a particular witness or witnesses shall be examined, for special reasons to be recorded by it, such as where the accused desire the eye-witnesses to be examined together, or where the complainant himself if conducting the case, without the aid of a counsel, and is directed to appear himself first and then examine his other witnesses. On the same lines, the defence can also, examine its witnesses in any order that it may choose to do so and no adverse inference can be drawn from the mere fact that the accused has got himself examined last. No distinct practice has grown up to show that a Court can also direct the order in which the accused shall call his witnesses in defence.
However, if in a given case the prosecution considers that the accused or a particular witness of the defence should be ordered to appear at a particular stage, which it considers necessary, it could make a request to the Court, in which case it would be within the power of the Court to examine whether such a request is within the scope of the practice established by Courts in this respect and, if so, whether it is reasonable and should be allowed. Since this particular question is not directly before me, I would not like to hazard any opinion in the matter, but would leave it for determination at some appropriate stage.
6. I now take up the reasoning given by the learned Special Court in arriving at the conclusions, which he did. According to the learned Judge, subsection (2) of section 340 as first substituted by the Law Reforms Ordinance, 1972, conferred on the accused the right of being "a competent witness for the defence", with the option of giving 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. Since earlier he was treated as "a competent witness for the defence". Which legal position has been taken away by the newly, substituted subsection (2) of section 340, the learned Special Judge has considered that the accused is no longer a witness for the defence, but only one charged with the statutory compulsion of having to give evidence on oath only in disproof of the charges and allegations made against him, which' does not include the right to controvert statements made by his own defence witnesses. Since the accused had been taken out of the category of "a competent witness for the defence", the learned Judge has assumed that he is no longer a defence witness in the established sense and must, therefore, appear immediately after his statement is recorded under section 342 (1) of the Code, leaving it open to him to call his defence witnesses later. It is true that in the last amendment brought about by the Code of Criminal Procedure (Amendment)
Ordinance, XXII of 1985, the accused has not been shown as a competent witness for the defence, but this does not change the position. The mere fact that the words "competent witness for the defence" appeared in the earlier subsection (2) of section 340, did not make the accused a witness for the defence. It only intended to state he could give evidence in his own defence. When an accused gives evidence in defence, he is not a defence witness. He is the accused giving evidence.
It is the evidence of the accused. Thus, the old subsection (2) only cleared the way by telling an accused that he could give evidence in his own defence, if he chose to, which option he could always exercise. The recently substituted subsection (1) of section 34c only makes it imperative that he now appear. In his own defence, if the charge or allegations made against him, prima facie make out a case against him. According to the recently substituted subsection (2) of section 340 of the Code, the proviso under the said subsection clearly shows that the accused can inter alia be asked questions tending to show that he is of bad B character, if he has given evidence of his good character. The very words "he has given evidence" obviously includes the situation where witnesses have been produced by him in defence earlier to the recording of his own statement. Thus, the recently substituted subsection (2) of Section 340 of the Code does not materially change the position of the accused, namely, his competence to give evidence in his own defence. Whether he can appear first, or at the end, after all his defence witnesses have been examined, or he can controvert his own witnesses, or he can prove facts which are within his special knowledge, are not controlled by the said subsection. No restriction applies to him, when giving evidence. He can controvert allegations made by his own witnesses. The words "in disproof of the charges or allegations made against him" refer to the whole prosecution case disclosed against the accused, on the basis of the prosecution evidence adduced. These words have been used to only direct the attention of the accused to see that he meets the prosecution case fully, when giving evidence, but is not intended to prevent him from dealing with the case generally, which right he always has. He has a right of proving facts which are specially within his knowledge, under section 122 of the Qanun-e-Shahadat, and which may relieve him from the offence or being his case under an exception. How can this right be denied to him, now that he is in the witness box on oath.
7. The upshot of the above discussion is that the interpretation given by the learned Special Judge to subsection (2) of section 340 of the Code is erroneous. The impugned order of the learned Special Judge deserves to be set aside.
8. For the foregoing reasons this petition is accepted and the order of the learned Special Judge dated 31-5-1987 is set aside. The petitioner has the right to make a statement on oath after the witnesses produced by him in defence evidence are examined. The petitioner should, therefore, be examined after the defence witnesses have been examined if he so desires.