MUHAMMAD USMAN Versus THE STATE
TANZIL-UR-REHMAN, CJ.-- ----These are three criminal appeals bearing Nos.294/L of 1989, 424/1, of 1990 and 427/1, of 1990 alongwith S.M.No.18/L of 1990 challenging the judgment dated 3-10-1989 passed by the Sessions Judge, Bahawalnagar, convicting the appellants under section 307, P.P.C. and sentencing each of them to ten years' R.I.with fine of Rs.5,000 each and in default to undergo further R.I. for one year each and also convicting under section 452, P.P.C. and sentencing each of them to R.I. for seven years and fine of Rs.5,000 and in default R.I. for one year each. The sentences of imprisonment were ordered to run concurrently.
2. In all, the prosecution has examined seven witnesses. Statements of the appellants were recorded under section 342 Criminal Procedure Code but they were not asked to make statement on oath under section 340(2), Cr.P.C.
3. The learned counsel for the appellants have raised a preliminary objection that failure on the part of the learned trial Judge to put a question to the appellants as to their giving statements on oath under section 340(2), Cr.P.C. has rendered the trial incomplete. It was, therefore, submitted that irrespective of the merits of the case, the conviction and sentences be set aside and the case be remanded for re-trial from the stage of the examination of the accused. Learned counsel for the State conceded to the, said objection.
4. In order to appreciate the objection, it seems beneficial to first state the legislative history of sections 340 and 342, Cr.P.C. The legislative history dates back as far as 1852. Section 3 of Act XV 1852 provided that an accused is not a competent witness for or against himself. This provision was repealed by the Evidence Act, 1872, but the protection available to the accused remained unaffected as section 204 of the Code of Criminal Procedure, 1861 provided that no oath shall be administered to the accused. Section 203 of the said Code, however, conferred discretionary power on the Magistrate to examine the accused. Thereafter, under the Code of Criminal Procedure, 1872, a provision in the form of section 250 made the general questioning of the accused to be compulsory but it was also provided therein that no oath or affirmation was to be administered to the accused. Section 5 of the Oaths Act, 1873 also prohibited the administration of oath or affirmation to the accused in a criminal proceeding.
5. Section 340 as originally appearing in the Code of Criminal Procedure, 1898 was substituted by the Code of Criminal Procedure (Amendment) Act (XVIII of 1923) as follows:--
"Section 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:"
Under subsection (2) it was optional to a person against whom proceedings were instituted to offer himself as a witness but this option or choice was restricted to the class of cases mentioned in the said subsection. Subsection (2) of section 340, Cr.P.C. was then substituted by Law Reforms Ordinance, 1972, as under:--
"Section 340: -(1) Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code m 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 be a competent witness for the defence and may 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
(a) he shall not be called as a 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 him or any person charged or tried together with him at the same trial, and
(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 for which he is being tried, or is of bad character unless-
(a) 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
(b) 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 %as given evidence of his good character, or
(c) he has given evidence against any other person charged with or tried for the same offence."
An analysis of the substituted subsection would show that the restriction of class of cases was removed and the option to an accused to give evidence on oath in disproof of charges was made unrestricted and extended to ail offences. An accused was declared a competent witness though he was not to be called as a witness except on his own request. It was further provided that failure of the accused to give evidence shall not be made subject of any comment by the prosecution or give rise to any presumption against him. He was liable to be cross-examined within the limits stated in the subsection.
6. Subsection (2) of section 340, Cr.P.C. was, again, substituted by Criminal Procedure (Amendment) Ordinance of 1985 (XII of 1985). The substituted subsection (2), as in force, reads as under:--
"Section 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 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."
The words "shall be competent witness for the defence" previously appearing in subsection (2) have been now omitted. This was, perhaps, done on the recommendation of the Council of Islamic Ideology in respect of sections 340 and 342, Cr.P.C. as contained in its 9th Report on Islamization of Laws--Criminal Procedure Code, published in September, 1983 which is reproduced as under:--
At a glance, it would appear from the above subsection that clauses (a) and (b) have been omitted. Prior to this amendment it was optional with the accused to give evidence on oath or not in disproof of the charges and allegations made against him whereas now it is required of an accused to give evidence on oath. Furthermore, clause (b) of the unamended provision specifically provided that no adverse presumption will be drawn against him for failure of his giving evidence and it will not be made subject of any comment by prosecution in this behalf. This clause (b) of subsection (2) has been omitted altogether. This omission is deliberate which cannot be said to be without significance. Now, under the amended provision of section 340(2), Cr.P.C., as in force, the Courts may draw an inference in favour of the prosecution and against the accused for his declining to 8 make a statement on oath in disproof of charges and allegations against him, as the Court deems just and proper in the circumstances of each case.
In fact, the Council of Islamic Ideology in its Draft Ordinance on Islamic Law of Evidence, 1982 had recommended Oath to accused under proposed section 63 of the said Ordinance which is reproduced as under:--
"Section 63: -Oath in cases liable to Ta'zir---The accused shall, on demand by the complainant, be given oath when no proof is available in a case liable to Ta'zir and if he refuses to take oath, he shall be liable to Ta'zir."
It appears that the Legislature deemed it proper to incorporate the above principle in the substituted section 340 (2) of the Criminal Procedure Code in 1985.
7. Now, few words about section 342, Criminal Procedure Code. Section 342, Criminal Procedure Code, 1898, before amendment in 1972, read as under:--
"342: Power to examine the us : -(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."
As against the immunity granted to the accused in the sub-continent, the provisions enforced in England by Criminal Evidence Act, 1898 provided, inter alia, that "A person charged and called as witness in pursuance of this Act 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 or been charged with any offence other than that wherewith he is then charged or is of bad character". In the sub-continent, similar provision found its way in the form of Section 7 of the Prevention of Corruption Act II of 1947 as it was provided that any person charged with any offence punishable under section 161 or section 165 of the Pakistan Penal Code or under subsection (2) of section 5 of Act II of 1947 shall be competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. It was, however, provided that accused shall not be called as a witness, except on his own request, that his failure to give evidence shall not be made subject of any comment or adverse presumption, that the accused shall not be asked or required to answer questions tending to show that he has committed or been convicted of any offence other than the offence with which he is charged. Section 342, Cr.P.C. as amended by Law Reforms Ordinance, 1972, and by Federal Laws (Revision and Declaration) Ordinance, 1981 reads as under:--
(1) For the purpose of enabling the accused to explain any circumstances appearing in evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence,
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial for, any other offences which such answers may tend to show he has committed.
(4) Except as provided by subsection (2) of section 340, oath shall not be administered to the accused.
8. It now seems pertinent to refer to the relevant provision of the Qanun-e- Shahadat order, 1984. Article 44 of the Qanun-e-Shahadat Order, 1984 provides that "all accused persons including an accomplice shall be liable to cross- examination." It. is now clear that the general rule of common law that the accused is not a competent witness was modified by the Criminal Evidence Act, 1598 in England and by Law Reforms Ordinance, 1972 in Pakistan but Ordinance XII of 1985 has again by omitting the words "shall be a competent witness for defence" reversed the position, perhaps, on the recommendation of the Council in Criminal Procedure Code, as quoted above.
9. The question is also to be looked into from Islamic point of view. At the very outset it may be stated that Section 340(2), Cr.P.C., as amended, has introduced in Pakistan a new concept of the principle of Criminal Jurisprudence.
10. According to Hanafi Fiqh when the claimant/complainant has no or insufficient evidence in support of his claim/complaint, the defendant/accused ill be asked to take oath and if he takes oath, claim/complaint against him will be dismissed and if he refuses to take oath, judgment will be given in favour of the claimant/complainant. The Holy Prophet said"
"If people were given what they claim, some will claim the properties and lives of others, but proof is on the claimant/complainant and the oath is on the person who denies" (Ibn Majah, Abu Abdullah Muhammad Ibn Ziyad. Al-Sunan. Karachi, Volume II, page 43).
While discussing oath to be demanded from the defendant/accused, Ibn Oudamah writes, "the defendant/accused will be asked to take oath in all cases relating to individual's rights. This is the opinion of Imam Shafi'i, Abu Yusuf and Muhammad al-Shaibani. Because the hadith is general for all defendants/accused:" (16n Qudamah, Al-Mughni, Beirut, Volume XII, page 127).
The word clearly indicates that the Court will ask him to take oath. Imam Shafi'i further opines that if the defendant/accused refuses to take oath, the claimant /complainant will be asked to take oath and if he takes oath, judgment will be given in his favour. (Ibn Humam, Fathal-Qadir, Sukkur, Pakistan, Vol, VI page 158).
Regarding the procedure of the oath of the defendant/accused, a Shafi'i jurist, Taqiuddin Abu Bakr Ibn Muhammad Al-Husaini, writes:
"The judge will ask the claimant/complainant to either demand oath from the defendant/accused or take back your claim/complaint against him".
(Al-Husain4 Kifayatul Akhyar, Beirut, Volume II, page 489).
Section 1742 of the Majallah al-Ahkam Al-'Adliyah states that one of the grounds of judgment is the oath or refusal from the oath, thus in case the claimant/complainant has no evidence in support of his claim/complaint, on his demand the defendant/accused will be asked to take oath.
11. The Jurists concur that oath will not be demanded in cases liable to Hadd punishment which are pure rights of Allah except in case of theft wherein oath will be demanded for the stolen property and not for the amputation of the hand of the offender. (Ibn Al-Shahnah, Lisanul Hukkam, page 235). Ibn Abideen in his well known book Radd-al-Muhtar (Volume III, page 345) also states to the same effect that the oath will not be demanded in case liable to Hadd punishment and will be demanded in all cases liable to Ta'zir.
12. As stated in Fatawa Alamgiri (Volume III, page 296) that the oath to the defendant/accused will be administered by the Court on the demand of the claimant/complainant with the following conditions:--
(i) The claim/complaint is valid because no oath will be demanded on a void claim;
(ii) the defendant/accused refuses the clam/complaint because oath will not be demanded in case he admits the right or confesses the charge;
(iii) the claim/complaint relates to the rights of Allah because oath will not be demanded in case of Hudood which are rights of Allah.
Usually the oath was to be administered by the Court on the demand of the claimant /complainant. However, in special cases the Court might administer oath without the demand of the opposite-party. But in all cases, the oath will be administered by the Court and if a defendant/accused takes oath outside the Court, it is not valid and the said oath will be repeated before the Judge so as to be validated (Majallah, section 1747).
13. By substituting the provision of section 340(2), Cr.P.C., there seems to have been made a radical departure from the age-old common law concept, which has been in vogue in this Sub-continent for over a century, that in criminal administration of justice the entire burden has been on the prosecution to prove and bring home the guilt to the accused. If the prosecution fails to produce requisite evidence, accused goes scot-free, and in case of civil liability the suit against the defendant stands dismissed. Under the Islamic Law, since every one is the best Judge of his conscience and is ultimately answerable before Allah the Almighty and according to Faith is liable to punishment in the World Hereafter for all his wrongs and misdeeds, an accused/defendant is burdened with taking an oath of denial after the prosecution/plaintiff's evidence is closed. It may be added that the oath under the Islamic Law in obedience to the precept of the Holy Prophet who said i.e. do away with Hadd punishment in presence of doubt, is not to be given by the Qazi for awarding Hadd punishment. But for offences liable to Ta'zir the Qazi shall require the accused to make statement on oath. Let it be noted that under the Islamic Law, as has come down to us through centuries, the oath was to be administered either on the demand of the plaintiff or by the Court itself. In Pakistan under the aforesaid provision of section 340(2), Cr.P.C., looking to the conditions prevailing in the society, it has been made incumbent on the Court to give oath to the accused in all situations after the prosecution evidence is over. The condition as contained in the books of Fiqh that the oath of denial shall be administered by the Qazi on his own or on the demand of the complainant, for insufficient evidence, has been done away with. It is an example of making 1jtihad in the age old doctrine of Fiqh by the Legislature in Pakistan.
14. The question, as contended by the learned counsel, that the failure of putting question to the accused by the Court to make statement on oath under section 340(2), Cr.P.C., has rendered the trial incomplete so as to remand the case for trial from the said stage, has also been examined earlier by this Court as well as several High Courts in a number of cases.
(i) In Abdul Malik v. State (PLD 1985 FSC 293) it was contended on behalf of the appellant that for non-compliance of the amended section 340, Cr.P.C., trial was vitiated. It was thus held that:--
"In any case under section 340(2), Cr.P.C., it is the right of the accused to apply to the Court that he intends to give evidence on oath. The duty of the Court ends as soon as the Court puts a question to the accused whether he intends to produce evidence in defence. The Court was not bound to remind the appellant that he has a right to give evidence on oath. The duty of Court ends as soon as the accused is asked to produce evidence in defence, if any. In spite of this opportunity having been given, if the accused does not choose to exercise his right under Section 340 (2), as amended by Ordinance XII of 1985, no irregularity shall be deemed to have been committed by the Court."
It is, however, noticeable that in this case the trial had concluded on 19-2-1985 whereas the amending Ordinance came into force on 21-2-1985. The real question, as emerged in the said case, related to retrospective effect of procedural amendment on pending proceeding.
(ii) In another case Khalid Hussain v. State (1987 PCr.LJ 1979) this Court again while considering the effect of non-examination of the accused on oath observed at page 1983 of the Report that:--
"It is thus evident that a right has been given to the accused person to give evidence on oath in disproof of the allegations made against him and there is no dispute about the fact that this provision is mandatory and is to be properly observed. But the facts of this case are quite different and distinguishable. Perusal of his statement under Section 342, Cr.P.C. reveals that specific question was put to the accused as to whether he would like to appear as a witness in his defence and depose on oath but from his reply it is evident that he thought that exercise as unnecessary. It is evident from the record that he was represented by a counsel before the trial Court and as such was fully aware of his right but in spite of the opportunity so given he found it unnecessary to give statement on oath. No doubt, it is the duty of the Court to ask the accused whether he wanted to give evidence on oath but beyond that it is the discretion of the accused to avail the opportunity granted and to give a statement in the exercise of his such right but if he flatly refuses to exercise such right there is nothing in the law either to force or compel him to give evidence on oath. The duty of the Court ends as soon as the accused is asked for that matter and if in spite of the opportunity having been extended, the accused does not choose to exercise his right under the mentioned provision of law, no irregularity or illegality shall be deemed to have been committed by the Court. A similar view was taken by a Division Bench of this Court in the case of Abdul Malik v. The State (P L D 1985 F S C 293)."
(Underlined by us).
In this case, however, specific question was put to the accused as to whether he would like to be examined on oath and that the accused had declined to do it.
(iii) In Faqir Hussain v. The State (PLD 1985 Lahore 434) the non- examination of the accused on oath nor providing him an opportunity of giving evidence on oath, 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 the case was sent back to the trial Court for retrial from the stage of examination of the accused.
(iv) In another case Mst. Sultan Zari v. The State (1986 PCr.LJ 1727) it was observed as under:--
It was next argued by the learned counsel that the trial is bad for non -compliance of section 340(2), Cr.P.C. as amended by Ordinance XII of 1985. According to subsection (2) above it is provided that an accused in criminal case who does not plead guilty, shall give evidence on oath in disproof of the charge and allegation against him. In this case, the accused was not asked by the trial Court to give evidence on oath. This argument also has no force, because it was the right of the appellant to ask the Court that she intended to give evidence on oath under the amended section 340(2), Cr.P.C. The appellant was specifically asked by the trial Court whether she intended to produce any evidence in defence. At that stage she should have asserted her right of giving evidence on oath. She was represented by a counsel, hence, she must be fully aware of her right to give evidence on oath. It was not the duty of the Court to remind the appellant that she had a right to give evidence on oath in her defence. The duty of the Court ended after it asked from the accused whether he intends to give evidence in defence. The Court had fully done its duty in this case. In reply to the relevant question the appellant simply stated that he wanted to examine evidence in defence. She nor her counsel did not state before the Court that the appellant himself intended to give evidence on oath" (underlined by us). In our view asking the accused whether he would produce evidence in defence is different from asking a specific question of his own making statement on oath.
(v) In Abdul Ghaffar and another v. The State (PLD 1989 Peshawar 51), discussing the case-law it was observed that:--
"It thus comes to that the High Courts and the Federal Shariat Court of the country, excepting a judgment of the Sindh 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 against 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."
The Court then set aside the conviction and sentences irrespective of the merits of the cases and remanded them for retrial from the stage of the examination of the accused.
(vi) In Muhammad Qasim v. State (PLD 1986 Quetta 286), it was held that by using the word `shall' under section 340(2), Cr.P.C. as amended it has been made obligatory on the Court to examine the accused on oath to give an evidence, in disproof of the charges or allegations made against him. It was thus held that "non-examination of the accused on oath under section 340(2), Cr.P.C. is not an irregularity which may be curable under section 537, Cr.P.C. as examining of accused on oath is mandatory provision of Law" (P.289). In the circumstances, the conviction and sentences of the appellant were set aside and the case was remanded for re-trial. Rizwan v. The State (PLD 1986 Lah. 222) was also referred to.
(vii) In Sher Muhammad alias Shera v. State (1989 P Cr.L J 2098) a Division Bench of Sindh High Court observed that the accused was not asked any specific question whether he would like to be examined on oath as his own witness in accordance with the provision of section 340(2), Cr.P C. It was thus held by the Court that "the aforesaid omission on the part of the trial Court resulted in causing prejudice to the accused." The appeal was thus allowed and the case was remanded with the 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. In the aforesaid judgment reference was made, perhaps, to an unreported decision in Muhammad v. State which was initially heard by a learned single Judge of the Sindh High 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."
The Division Bench after hearing the case returned the answer to the above question as follows:--
.......The evidence on oath by the accused is 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 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 not 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.
From the case-law cited above, it appears that this Court as well as several High Courts of this Country have been holding the criminal proceedings as "incomplete" if the trial Court has failed to give opportunity to the accused to give evidence on oath as required under section 340(2), Cr.P.C.
15. For the above discussion, we hold the proceedings in the trial Court as "incomplete" on the ground of the failure of the learned trial Judge to call upon I the accused to make statement on oath as provided under section 340(2), Cr.P.C. and, therefore, without going into merits of the case, we set aside the judgment impugned in the above appeals, and remand the case for re-trial from the stage of recording statement of the accused under section 342, Cr.P.C. In the circumstances Suo Motu Notice is discharged.
M.BA./579/F.S.C. Case remanded.