1. ' SAEEDUZZAMAN SIDDIQUI, J.-- The only point urged by the learned counsel for the appellant in support of the appeal before us is that the trial of the accused was vitiated on account of non- observation of the provisions of subsection (2) of section 340, Cr.P.C. The learned counsel for the appellant as well as learned A.A.-G. Jointly contended that on the interpretation of section 340(2), Cr.P.C. There is conflict of opinion among the learned Judges of this Court and as such the case may be referred to Honourable Chief Justice for constituting a larger Bench to hear this case and resolve the alleged conflict. The learned counsel in this regard, invited our attention to the cases of Muhammad Yousuf v. The State PLD 1988 Kar. 539 and Jan Muhammad v. The State 1987 P Cr. L J 2302.
2. ' We have carefully gone through the above decisions and in our view there exists no conflict in the opinion of the learned Judges of this Court expressed in the above-cited cases. In Muhammad YousuPs case, a Division Bench of this Court consisting of Ajmal Mian, C.J. And Abdul Rasool Agha, J.
3. While considering the provision of section 340(2), Cr.P.C. In juxtaposition with Article 13(b) of the Constitution held that if an accused person makes statement on oath under section 340(2), Cr.P.C.
4. He will be subjected to cross-examination by the prosecutor and in the cross-examination, he is bound to ask him questions, which can incriminate him in the commission of the offence which will amount to compelling him to be a witness against himself which is prohibited under Article 13(b) of the Constitution. What we understand from the above observation in Muhammad Yousurs case is, that an accused person under section 340(2), Cr.P.C. Cannot be compelled to be a witness against himself in the case, as such a course will be violative of Article 13(b) of the Constitution. A careful reading of section 340(2), Cr.P.C. Will show that the law does not require the accused person to be a witness against himself in the case, though he may be cross-examined by the prosecutor when deposing on oath in disproof of the charges and allegations made against him at the trial. The above provision, which is a departure from the well-known principle of criminal jurisprudence that an accused person cannot be examined on oath in a criminal trial, in our opinion, is in the nature of an advantage to an accused in the sense that if he so elects, he can offer his evidence on oath in disproof of charges and allegations in the case. This advantage to the accused cannot be denied on any ground if he elects to examine himself. The grievance of the learned counsel for the appellant before us is, that the trial Court did not make available this opportunity to appellant as he was never asked whether or not he would like to examine himself under section 340(2), Cr.P.C. In this behalf the learned counsel referred us to the decision in the case of Jan Muhammad v. The State; which was initially heard by a learned Single Judge of this Court and upon hearing the case, the following question was referred to a Division Bench, for an authoritative answer:-- "Whether section 340(2), Cr.P.C. Does or does not cast duty upon a criminal Court to proceed to record evidence on oath, of the accused, as envisaged thereunder."
5. ' The Division Bench after hearing the case returned the answer to the above question as follows:- ".... 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 cases. Of course, the accused has option of recording 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 of 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."
6. ' We are in respectful agreement with the above observations and are further of the view that Muhammad Yousuf s case is distinguishable as no one has argued before us that section 340(2) is violate of Article 13(b) of the Constitution. The above interpretation of section 340(2), Cr.P.C. In Jan Muhammad's case, in our view does not come in conflict in any manner with Article 13(b) of the Constitution. It is contended by the learned counsel for the State that in the case before us, the accused was not asked any specific question whether he would like to be examined on oath as his own witness in accordance with provision of section 340(2), Cr.P.C. We are, therefore, of the view that the aforesaid omission on the part of the trial Court resulted in causing prejudice to the accused. We accordingly allow this appeal and remand this case with a direction that the accused may be asked specific question with regard to his willingness to examine himself as his own witness on oath under section 340(2), Cr.P.C. And if he so elects his evidence may be recorded accordingly. In case, the accused declines to give evidence on oath the matter will be reheard on the basis of the evidence already recorded in the case. The learned counsel for the appellant also made a grievance that benefit of section 382-B, Cr.P.C. Was not extended to his client by the trial Court. The appellant will be at liberty to urge this plea before the trial Court which will be decided in accordance with the law.