' Through this revision petition the order of District Court of Criminal Jurisdiction, .Bagh, dated 15-7- 1998 has been challenged whereby an application submitted by the petitioner for recording his statement on oath as defiance witness was disallowed.
2. The brief facts are that a criminal case for offences under sections 302/307/34, A.P.C., 5/15 I.P.L.
And 14 .E.H.A. (Property) is sub juice before the District Court of Criminal Jurisdiction, Bagh. The trial Court closed the evidence of the prosecution and the petitioner (accused) was examined under section 342, Cr.P.C. The petitioner was asked as to whether or not he wanted to lead evidence in his defiance. The petitioner opted to produce defense evidence but before the defiance was closed by the Court, he moved an application wherein he stated that as he was a member of minority tribe in the vicinity so nobody was ready to appear before the Court as witness in his defiance. In the aforesaid application the petitioner requested the trial Court to allow him to appear before the Court along with some documentary evidence in order to get his own statement recorded on oath as witness subject 'to cross-examination by the prosecution. The trial Court after hearing the parties, rejected the application vide its order, dated 15-7-1998. Through the above titled revision petition the aforesaid order has been challenged before this Court.
3. The learned counsel for the petitioner while challenging the impugned order contended that the trial Court fell in error while recording the aforesaid order. According to the learned counsel under section 28 of I.P.L. (Enforcement Act, 1974) the trial Court was fully competent to record the statement of petitioner accused on oath as witness but the said Court failed to appreciate the relevant law in its true perspective and, thus, committed an illegality while passing the impugned order. The learned counsel further submitted that though the amended subsection (2) of section 340, Cr.P.C. Is not applicable in Azad Kashmir but section 28 of I.P.L. By itself provides a procedure as to how the statement of an accused person after closing the prosecution evidence could be recorded.
4.The learned counsel for the complainant and learned Assistant Advocate-General while supporting the impugned order contended that amended law regarding the competency of accused person to appear as witness and get his statement recorded on oath was not adopted in Azad Kashmir. According to the learned counsel, through an amendment in subsection (2) of section 340, Cr.P.C., the competency of any person accused of any offence or against whom the proceedings were instituted in arty criminal Court was competent to appear as witness in his defence and he was permitted to record his statement on oath in disproof of the allegations levelled against him. However, in Azad Kashmir, as the aforesaid amendment was not made applicable, the same old law held the field recording to whicn only those persons against whom the proceedings were instituted under Chapters 10, 11, 12, 36 and sections 107 and 552 of Cr.P.C.
Were competent to appeal as witness and their statements could be recorded on oath in disproof of allegations leveled against them. According to the learned counsel, section 28 of I.P.L. Does not permit the Court to record the statement of accused persons as witness. .
5. I examined the record of the case and perused the relevant law.
6. To help resolve the controversy between the parties it is felt expedient to reproduce the relevant provisions of law enforced in Azad Kashmir and Pakistan. Before the amendment, section 340 (as applicable in Azad Kashmir) reads as follows:-- "340(1).--- Any person, accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.
(2) Any person against whom proceedings are instituted in any such Court under section 107 or under Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under section 552 may offer himself as a witness in such proceedings."
The amended position of law on the subject in Pakistan after 1985 is reproduced as under:-- "(340) Right of person against whom proceedings are instituted to be defended and his competency to be a witness.--- (1) Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.
(2) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, 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.
' Provided that he shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character, unless--
(i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried; or
(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character, or
(iii) he has given evidence against any other person charged with or tried for the same offence.
7. There is another provisions of law on the subject and i,e, section 7 of Prevention of Corruption Act, 1974. This section allows person accused of offence under sections 161 and 165, P.C. Or the person who is charged with under section 5(2) of Prevention of Corruption Act, 1974 to appear as witness in his defense. The relevant section is given below for convenience:-- "7. Accused person to be competent witness.--- Any person charged with an offence punishable under section 161 or section 165 of the Pakistan Penal Code or under subsection (2) of section 5 of this Act shall be a .Competent witness for the defence and may give evidence on oath in disproof of the charges 'made against him or any person charged together with him at the same trial-- ' Provided that---
(a) he shall not be called as witness except on his own request;
(b) his failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial;
(c) he shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged, or is of bad character, unless--
(i) the proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged; or
(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establish his own good character or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor of any witness for the prosecution; or
(iii) he has given evidence against any other person charged with the same offence."
8. The abovementioned section of law as a provision of a special law is being acted upon in Azad Kashmir up-til-now despite the fact that under subsection (2) of section 340, Cr.P.C. (applicable in Azad Kashmir) no person except those against whom the proceedings are instituted under the chapters and sections enumerated in the said section is allowed to appear as witness. The reasons being that special law overrides the General Law. As Criminal Procedure Code is a General Law and Prevention of Corruption Act, 1974 is a Special Law, therefore, the Courts are bound to act upon the procedure laid down in the Special Act.
9. In 1974 Islamic Penal Laws Enforcement Act, 1974 came into existence and according to section 28 of the said Act, the procedure of trial of cases covered by this Act is the same as provided in Chapter 20 of Cr.P.C. With an addition to the extent that the Court is competent to record the statement of the accused on oath and the accused person is allowed to appear as witness in his defense and his testimony is admissible in evidence against him as well. It means that the accused may appear as witness in disproof of the allegations leveled against him and his statement, if recorded, shall be on oath. The relevant provisions under section 28 of Islamic Penal Laws is reproduced here for the convenience:-- {{URDU TEXT}}
10. The objection of the learned counsel for the respondent that accused person is not permitted to appear as witness, when seen in the light of the abovementioned provisions of law, merits no consideration. If the Court is authorised to record the statement of accused on oath and if his statement is admissible in evidence, then of course, he is a competent witness in his defence. Had it been not so then the question arises as to what kind of statement is allowed to be recorded on oath. The words "on oath" and "admissible in evidence" show that the statement of the accused is to be recorded as witness and not otherwise.
11. The comparative study of the relevant provision of amended law in Pakistan is also helpful in this regard. In Pakistan a person accused of any offence or against whom the proceedings are initiated in any criminal Court of law is made competent to appear as witness and record his statement on oath. Similarly in Azad Kashmir a person accused of an offence under I.P.L. Or under Prevention of Corruption Act, 1947 or even under sections 161 and 165 of Penal Code has been made competent to appear as witness and get his statement recorded on oath through above referred enactments as Special Laws. It means that there is still a certain class of offences for which the accused cannot appear as a witness in his defense during trial of criminal cases in Azad Kashmir. The law-makers in Pakistan, feeling the difficulty have amended the General Law i,e, Criminal Procedure Code and, thus, made all the accused persons or person against whom some proceedings are initiated as competent to appear as witness in their defense. Therefore, it is held that a person accused of an offence under Islamic Penal Laws Enforcement Act,_ 1974 (applicable in Azad Kashmir) is competent to appear as witness in his defense and under law he is allowed to record his statement on oath in disproof of allegations leveled against him.
12. In the instant case, the petitioner is in jail and per his application, he is a member of minority tribe in the said village. According to his him, no one except himself is ready to appear as defense witness He requested the trial Court to allow him to appear as witness in defense along with some other documentary evidence but the said Court turned down his request.
' In the light of what has been stated above, it is in the interest of justice to allow the petitioner tbaPpear in the Court and get his statement recorded on oath in disproof of the allegations leveled against him. His statement shall of course be subject to cross-examination by the prosecution.
Therefore, by accepting the revision petition, the order, dated 15-7-1998 is set aside and the trial Court is directed to record the statement of the petitioner as witness.