ABDUL HAMID and 3 others vs THE STATE
This criminal petition for leave to appeal arose from a challenge to a conviction, where the petitioners contended that their trial was vitiated because the trial court allegedly failed to provide them the option to appear as their own witnesses under Section 340(2) of the Code of Criminal Procedure 1898. The core legal question was whether the failure to re-ask an accused if they wished to testify on oath after the recording of subsequent evidence renders the trial invalid. Upon reviewing the record, the Supreme Court found that the appellants had indeed been asked about their option to testify on oath and had declined. Furthermore, the Court held that even if there were an omission to inform the accused of this right, it does not automatically vitiate the trial or necessitate a retrial unless the accused can demonstrate actual prejudice to their defense. Relying on the principle established in Ameer Khatun's case, the Court concluded that no prejudice was shown, and consequently, the leave to appeal was withdrawn and the petition dismissed.
- Does the failure of a trial court to re-ask an accused if they wish to testify on oath after the recording of additional evidence vitiate the trial?
- Is a retrial mandatory if the court omits the duty to elicit the option from the accused to testify on oath under Section 340(2) of the Code of Criminal Procedure 1898?
- Must an accused demonstrate actual prejudice to their defense to challenge a conviction based on an alleged procedural omission regarding the right to testify on oath?
- Section 340(2), Code of Criminal Procedure 1898
' MUHAMAMD RAFIQ TARAR, J.---In this case leave to appeal was granted vide order dated 4-2- 1990. The learned Judges inter alia observed: "We were not inclined to grant leave on merits as the 2 Courts below have appraised the evidence and have drawn proper conclusions therefrom. However, Mr. Q.M. Salim, learned counsel for the petitioners has contended that the petitioners were not given the option in terms of subsection (2) of section 340, Cr.P.C. To appear as their own witnesses and therefore, according to learned ASC, because of the above omission the trial of the petitioners was vitiated."
2. Mr. Q.M. Salim, counsel for the appellant has reiterated the above ground before us. The perusal of the record, however, reveals that the appellants were asked whether they wanted to make a statement on oath under section 340 (2) of the Cr.P.C. To which they replied in negaitve.
Confronted with this situation the learned counsel stated that some evidence was recorded after the said stage therefore, it was incumbent on the Court to have asked the accused again whether he wanted to make a statement on oath. The submission has no force. In Ameer Khatun's case (PLD 1991 Supreme Court 787) the Court held:- "If in any case, there has been omission to inform the accused that he had been conferred such a right, it will not make much difference because even prior to this amendment he had a right whereunder he could in writing opt to make a statement on oath. The pre-existing right already being there, with the only difference that now a duty is cast on the Court to elicit the option from the accused, m substance there is not much difference. Hence, no case of any prejudice, retrial or re-examination of the accused in such cases arises unless the facts of the case make it necessary."
The learned counsel has not been able to show that the accused were in any way prejudiced in their defence. The leave is, therefore, withdrawn and the petition is dismissed.