' ABDUL KARIM KHAN KUNDI, J.--At the trial of the case of F.I.R. No,36, P.S. Battagram, District Mansehra, dated 29-3-1985 'Abdul Ghaffar and Bakht Munir were charged along their absconding co-accused Muhammad Yousaf for the murder of Muhammad Ayub deceased by firing at him in furtherance of their common intention under section 302/34, P.P.C. And were consequently convicted and sentenced; Abdul Ghaffar to death by hanging and a fine of Rs,10,000, out of Rs,5,000 payable as compensation to the heirs of the deceased under section 544-A, Cr.P.C. Or in default of the payment of fine to undergo five years' R.I. Further in case the death' sentence was not confirmed and Bakht Munir accused to life imprisonment and a fine of Rs,8,000 out of Rs,4,000 payable to the heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default of payment of fine to undergo four years' R.I. Further respectively. Criminal Appeal No,2 of 1987 was filed as against the conviction and sentences awarded -to the appellants; Murder Reference No,1 of 1987 was made for the confirmation of the death sentence while Criminal Revision No,6 of 1987 was filed for the enhancement of the sentence of Bakht Munir accused. It was found that both the convicts had affirmatively answered the question if they were to give evidence on oath in disproof of the charges or allegations made against them at the trial, as envisaged under section 340(2), Cr.P.C. However, thereafter Abdul Ghaffar convict recorded his statement on oath followed by his cross-examination while Bakht Munir after standing in the box made a simple statement reproduced below:-- "I own the statement of my co-accused Abdul Ghaffar and do not wish to add anything else."
' It would appear that there was not made any statement by Bakht Munir accused in the examination-in-chief in disproof of the charges or allegations made against him at the trial nor there were put questions to him, in the cross-examination nor an opportunity was given to the Public Prosecutor to cross-examine the accused.
2. In case of F.I.R. No,227, P.S. Battagram, District, .Mansehra dated 9-12-1983, Jalindar and Saadat faced trial on the charges of the murder of Khan Muhammad deceased and murderous assault on the life of Siraj P.W. By firing at them in furtherance of their common intention under section 302/307/34, P.P.C. And after the close of the prosecution case both the accused were asked the pertinent question of giving evidence on oath in disproof of the charges or allegations made against them at the trial as envisaged under section 340(2), Cr.P.C.. Which they replied that they were innocent and falsely charged but they were prepared to be examined on oath in disproof of the charges. The trial Court however, proceeded to examine Jalindar accused on oath with opportunity to the Public Prosecutor to cross-examine him but Saadat accused was not examined on oath, perhaps on account of the statement of the counsel for the accused to close his evidence.
The trial Court by his judgment and order dated 19-1-1987 proceeded to record the conviction of Jalindar accused on the charge of murder under section 302, P.P.C. And sentenced him to death and fine and compensation while Saadat accused was convicted and sentenced to imprisonment and fine on the charge of murderous assault under section 307, P.P.C. Criminal Appeal No,4 of 1987 was filed by the convicts as against their conviction and sentences; Murder Reference No,2 of 1987 was made for the confirmation of the death sentence and Criminal Revision No,2 of 1987 was filed by the complainant for the enhancement of the sentences of the convicts.
3. In both the cases a preliminary objection was raised if the trials were complete in view of the non-examination of Saadat accused on oath in disproof of the charges or allegations made against him at the trial in the presence of his readiness to record a statement on oath in case of F.I.R. No,227 and so if the adoption of the statement of co-accused by Bakht Munir'accused at the trial of case of F.I.R. No,36 shall serve the purpose of section 340(2), Cr.P.C.
4., On the point of the examination of the accused on oath under section 340(2), C,r.P.C% the earlier view of the Federal Shariat Court reported in PLD 1985 F.S.C.293 was that the statute has vested a right in the accused to give evidence on oath in disproof of the charges or allegations made against him and correspondingly it was his ddty to exercise such right by pleading before the Court that he intended to give evidence on oath and that the duty of the Court ended as soon as it put question to the accused if he intended to produce evidence in defence and that the Court was not bound to remind the accused to give evidence on oath and the non-examination of the accused in the circumstances shall not amount to any irregularity committed in the conduct of trial by the Court. However, later on in 1987 PCr.LJ 1979 the Federal Shariat Court modified its view and held that under section 340(2), Cr.P.C. a right has been given to the accused person to give evidence on oath in disproof of the charges or allegations made against him and that the provision was mandatory and was to be properly observed. It was, however, considered the duty of the Court to ask the accused whether he wanted to give evidence on oath but beyond that it was considered the discretion of the accused to avail the opportunity granted and to give a statement on oath in exercise of such right. It was observed that if the accused has rightly refused to exercise such right there was nothing in the law either to force or compel the accused to give evidence on oath.
5. On the point the Lahore High Court has been more or less consistent, except one judgment which will be discussed later on, that the provisions of section 340(2), Cr.P.C. Were mandatory and that omission to record statement of accused on oath will be an illegality and not an irregularity curable under section 537, Cr.P. C. It was also ruled that the Court has itself to record the statement of the accused under section 340(2), Cr.P.C. And not that the accused is considered under any obligation to request the Court during the trial that his statement of oath should be recorded. In the excepted judgment published in PLD 1988 Lah. 368 the learned Single Judge ruled that section 340(2), Cr.P.C. Was in fact directed to the person accused and not to the Court and accordingly the Court was not required to ask the person accused if he would give evidence on oath in disproof of the charges or allegations made against him and that the accused himself was supposed to know his obligations under section 340(2), Cr.P.C. As duty was cast on him to give evidence on oath and if he failed to give evidence on oath he cannot heard to say that his failure was due to the Court's omission to ask him if he wanted to give evidence on oath. One may not agree with the learned Judge for it is always the Court conducting a trial according to the procedure laid down under the law and further after reading sections 244, 340 and 343, Cr.P.C. Together it will look that after recording of prosecution evidence the accused has to be examined under section 342, Cr.P.C. And to be asked if he was to produce evidence in defence and also to give his statement on oath in disproof of the charges or allegations made against him at the trial.
6. Baluchistan High Court has also persistently held the view that examination of the accused on oath to give evidence in disproof of the charges or allegations made against him under section 340(2), Cr.P.C. Was obligatory and that non-compliance was illegality not irregularity to be cured under section 537, Cr.P.C. And that non-examination of accused on oath was to render the conviction and sentence illegal and as such liable to be set aside and case remanded for re-trial.
Reference to one such authority in support of the view is made in PLD 1986 Quetta 286.
7. As far our own High Court (Peshawar High Court) is concerned the subject point has received a detailed discussion in PLD 1987 Peshawar 31 with reference to sections 340(2) and 342, Cr.P.C. Read with Article 44 of the Qanun-e-Shahadat Order, 1984, the later provisions having rendered all accused persons including accomplice liable to cross-examination which had in fact necessitated corresponding amendment in section 340, Cr.P.C. In order to make it obligatory for an accused person to give evidence on oath to facilitate his cross-examination in order to fulfil the requirements. Of Article 44 of the Qanun-e-Shahadat Order. Resultantly Ordinance No,X11 of 1985 was promulgated to amend .Section 340, Cr.P.C. To provide for the examination of the accused on oath in disproof of the charges or allegations made against him at the trial in order to make room for his cross-examination. The question of the limit of cross-examination was also dealt with reference to the proviso of subsection (2) of section 340, Cr.P.C. It was ruled that where, accused was neither specifically asked if he was to give evidence on oath under section 340(2), Cr.P.C. Nor he himself volunteered to give evidence on oath in disproof of the charges or allegations made against him there would be non-compliance of mandatory provisions of section 340(2) Cr.P.C.
Read with Article 44 of the Qanun-e-Shahadat Order and conviction in such circumstances would be reversed and case sent back for re-trial from the stage of the examination of the accused. It was also ruled that the refusal of accused to give evidence on oath as envisaged under section 340(2), Cr.P.C. Would entitle the Court to draw an adverse inference against him under Article 129 of the Qanun-e-Shahadat Order. In 1988 P Cr. L J 19 a Division Bench of this Court, however, ruled that the duty of the Court is only to ask accused if he would enter upon his defence and then leave it to him to elect to appear as a witness or not and no irregularity or illegality will be committed in not recording his statement on oath if the accused was given opportunity and he declined to give statement on oath. The Court also ruled that no adverse inference could be drawn against him in case of his refusal to make a statement on oath as he might choose or decline to choose this course of action. The contention that accused was under obligation to give evidence in disproof of charges made against him in prosecution evidence was rather repelled.
8. In Sind High Court opinion was sought from a Division Been on the question "whether section 340(2), Cr.P.C. Does or does not cast a duty on a criminal Court to proceed to record a statement of accused on oath". The Division Bench vide judgment dated 12-3-1987 expressed its opinion as under:- "The evidence on oath by the accused required to be given under subsection (2) of the section 340 contained in Chapter XXV of the Code of Criminal Procedure in disproof of the charges or allegations made against him or the co-accused charged or tried together with him at the same trial is, therefore, integral part of the trial of the case. Of course, the accused has option of leading evidence in defence under Chapter XX or, as the case may be under Chapter XXII-A of the Code of Criminal Procedure but he has no option in giving evidence himself on oath as enjoined under subsection (2) of section 340 and, therefore duty is cast upon the trial Court to call upon him to give evidence on oath and unless that is done, the trial of the case is not complete. We are, therefore of the opinion that the obligation on giving evidence on oath cast on the accused under subsection (2) of section 340 of the Code of Criminal Procedure casts obligation on the trial. Court to call upon the accused to give evidence on oath and record his evidence unless he declined to do so. Accordingly, answer to the question referred for the opinion of the Division Bench is in affirmative."
' After this opinion a single Bench in PLD 1987 Kar. 507 set aside the conviction and remanded the case for re-trial since in the case the accused had not been examined on oath although there was put a question to him whether he wanted to be examined on oath to which he denied. In 1987 P Cr. L J 2302 again a Single Judge of the Sind High Court ruled, keeping in view the judgment of the Division Bench on the subject, that the examination of the accused on oath under subsection (2) of section 340, Cr.P.C. To disprove the charges against him or his co-accused is an integral part of trial of the case and the accused has no option to give evidence himself on oath and that the trial will be incomplete without such evidence and that a mere question put to accused during the course of examination under section 342, Cr.P.C. If he wanted to file a statement in writing on oath was not due compliance of section 340(2), Cr.P.C. The Court had accordingly held that the trial had vitiated and irregularity committed was not curable under section 537, Cr.P.C. In 1988 P Cr. L J 1958 again a single Judge of the Sind High Court had set aside the conviction for want of the examination of the accused on oath under section 340(2), Cr.P.C. In disproof of the charges or allegations made against him although the accused was asked the pertinent question if he wanted to examine himself on oath in disproof of the charges but he declined and the Court observed that even the refusal of the accused to examine himself on oath did not absolve the trial Court of the duty to examine him on oath in disproof of the charges or allegations made against him as mandatorily required- under section 340(2), Cr.P.C.
9. There has been lately reported a judgment in PLD 1988 Kar. 539 when the provisions of section 340(2), Cr.P.C. Were examined in the light of Article 13(b) of the Constitution of Islamic Republic of Pakistan, 1973 and it was found that during the course of the cross-examination the accused would be put questions which may incriminate him in the commission of offence and as such the accused would be rendered a witness against himself and accordingly the provisions of section 340(2), Cr:P.C. Were declared violative of the fundamental right enshrined in Article 13(b) of the Constitution. In the said judgment it was observed that the effect of Article 13(b) of the Constitution has not been considered in any of the decided cases. However, earlier in PLD 1986 Lah. 222 a single Judge of the Lahore High Court has examined the provisions of subsection (2) of section 340, Cr.P.C. With reference to Article 13(b) of the Constitution, relevant para is reproduced below:- "I do not find any merit in the contention that the provisions of subsection (2) of section 340, Cr.P.C.
Were ultra vires of Article 13(b) of the Constitution. Subsection (2) does not compel an accused person to be a witness against himself. It only makes an accused to make statement on oath in disproof of the charge/allegation against him. Even otherwise the vires of the legislation cannot be challenged collaterally or incidentally before this Court in exercise of its revisional Jurisdiction."
' In fact, as earlier stated, Ordinance No,XII of 1985 was promulgated amending section 340, Cr.P.C.
In order to bring the law vis-a-vis the examination of the accused on oath in confirmity with Article 44 of the Qanun-e-Shahadat Order, 1984 as to make room for the cross-examination of the accused. Qanun-e-Shahadat Order, 1984 was promulgated in order to revise, amend and consolidate the law of evidence so as to bring confirmity with the injunctions of Islam as laid down in the Holy Quran and Sunnah. Article 227 of the Constitution enjoins upon the State to bring all existing laws in confirmity with the injunctions of islam as laid down in the Holy Quran and Sunnah and that no law shall be enacted which is repugnant to such injunctions. Article 2A of the Constitution has made objective resolution substantive part of the Constitution and to have effect accordingly. The Supreme Court has also time and again declared the objective resolution passed by the Constituent Assembly of Pakistan on 7-3-1949 and incorporated in the first Constitution of the Islamic Republic of Pakistan, 1956 and later on repeated in all afterwards Constitutions, a very important instrument embodying the spirit and fundamental norms of the constitutional concepts of Pakistan. In Asma Jilani's case in the judgment of Mr. Justice Sajjad Ahmad Jan there are the observations "our grund norms are derived from our Islamic faith, which is not merely a religion but is a way of life. These grund norms are unchangeable and are inseparable from our polity". It was remarked "the State of Pakistan was created in perpetuity based on Islamic ideology and has to be run and governed on all the basic norms of the ideology unless the body politic of Pakistan as a whole, God forbid, is reconstituted on an un-Islamic pattern, which will, of course, mean total destruction of its original concept". In Chapter II of the Constitution "Principles of policy" have been laid down with main emphasis of Islamic way of life. That being the position a question will arise if a certain law enacted, as in the case of Qanun-e-Shahadat Order, in confirmity with the injunctions of Quran and. Sunnah can be examined on the touchstone of fundamental rights enshrined in the Constitution. Our answer will be definitely "NO". We would rather venture to suggest that fundamental rights found inconsistent with injunctions of Quran and Sunnah should be brought in complete harmony and confirmity therewith. Besides Article 13(b) of the Constitution provides for protection against self-incrimination. The examination of the accused under section 340(2), Cr.P.C.
On oath in disproof of the charges or allegations made against him at the trial cannot be partaken to compel him to be a witness against himself. In case incriminating questions are put to him in cross-examination the same can be readily denied by him and there will arise no question of compulsion obliging the accused to answer the incriminating questions in affirmative but if the accused otherwise volunteers to make confession of his guilt at any stage whether during the course of investigation under section 164, Cr.P.C. Or at the time of charge when called upon if he admits that he has committed the offence and he volunteers to admit and his admission of truth of accusation is recorded followed by his conviction as provided under sections 242 and 243, Cr.P.C.
Or he Admits his guilt during his examination under section 342, Cr.P.C. In a way in all such cases he will be a witness against himself but as long the ingredient of compulsion in all such situations as well in cross-examination of the accused during his examination under section 340(2), Cr.P.C.
Would be absent there will be no violation of Article 13(b) of the Constitution and with respect we would not adhere to the view of the learned Judges of the Sind High Court that the provisions of section 340(2), Cr.P.C. Are violative of Article 13(b) of the Constitution.
10. It thus comes to that the High Courts and the Federal Shariat Court of country, excepting a judgment of the Sind High Court since dissented, have held the view that after the closure of the prosecution case the accused shall be required to give evidence on oath in disproof of the charges or allegations made agsinst him at the trial as provided under section 340(2), Cr.P.C. And in case the accused is neither asked by the Court to examine himself on oath nor he himself volunteers to give evidence on oath the trial shall be deemed incomplete and conviction recorded in the circumstances shall be set aside and the case be remanded for retrial from the stage of the examination of the accused. A situation where the accused is prepared or volunteers to give evidence on oath within the ambit of section 340(2), Cr.P.C. And the Court still does, not proceed to record his evidence the trial shall definitely remain and continue incomplete and there cannot be based any conviction on such incomplete trial. As far the adoption of a statement of a co-accused by an accused at the trial during his examination on oath under section 340(2), Cr.P.C. Without any cross-examinption is concerned the same would simply appear a novel procedure unsupported or unwarranted by or under any law of procedure. It is rather contrary to the express provisions of Article 44 of the Qanun-e-Shahadat Order, 1984. Herein one accused in each was not examined on oath at the joint trial when under section 340(2), Cr.P.C. He was required to give evidence on oath in disproof of the charges or allegations made against him as well against any per son charged or tried together with him at the same trial and con coquently the trials being joint shall as a. Whole be deemed incomplete, not to be made basis of conviction.
11. In view of the above we would accept the appeals, set aside the convictions and sentences irrespective of the merits of the cases and remand the cases for re-trial from the stage of the examination of the accused. The Murder References are answered in negative and the Criminal Revisions for enhancement of sentences are dismissed.