P L D 1991 Supreme Court 787 (PLP)

SHAFIUR RAHMAN, J .‑‑Leave to appeal was granted to examine the following questions of law of public importance arising in the appeal:‑‑ Whether amended section 340(2) of the Code of Criminal Procedure and Article 44 of the Qanun‑e‑Shahadat, 1984, have retrospective effect? Whether the conflict of authority as appearing from the case‑law cited is reconcilable? and Lastly, whether, as contended by the learned counsel for the petitioner, the laws relied upon by him have changed a basic principle of criminal jurisprudence namely, that the prosecution shall prove its case and the accused would not be burdened with the proof of his innocence in such a way that the accused would now be burdened with some responsibility to reach the truth regarding his guilt or innocence?"

2. The factual background giving rise to these law points is that on 10‑6‑1982, Mst. Pathani, the mother of the appellant was murdered. For this, the first four respondents (hereinafter referred to as the respondents) were tried. On conclusion of the prosecution evidence, these respondents made an application seeking exemption from making statement on oath as was then required by the amended subsection (2) of section 340, Cr.P.C., the amendment having been introduced on 21‑2‑1985 by Ordinance NoXII of 1985. In support of their application they relied on decision in State v.' Khan Muhammad (1986 PCr.LJ 711). The trial Court disposed of this application by an order dated 14‑1‑1986, the relevant portion of it is as hereunder:‑‑ "I have gone through this authority and it supports the learned counsel for the accused, wherein it has been held that this change in the law is not merely procedural, but affects the substantive right of the accused and thus cannot act in retrospect. I would, therefore, not compel the accused to make statement on oath, but if they choose to do so, in their defence, I would not stop them either."

3. Aggrieved, the appellant filed a criminal revision in the High Court which did not succeed. The operative part of the High Court's order was as hereunder:‑‑ "In this case, the accused/respondents are alleged to have committed offence under section 302/34/109, P.P.C., on 10‑1‑1982, in respect of which the petitioner filed a private complaint on 22‑10‑1984. On the date when the offences took place and the private complaint was lodged, neither subsection (2) of section 340 of the Code of Criminal Procedure was amended nor was Qanun‑e‑Shahadat, 1984, enacted. On the date when the offence took place and the private complaint was lodged, the accused/respondents had acquired the right under the old subsection (2) of section 340 of the Code to either appear or not to appear in their own defence. This being a right vested in the accused/respondents by virtue of the unamended section 340 of the Code, could not be taken away by the newly‑amended subsection which was enacted as late as on 21‑2‑1985. This matter has been considered in Khan Muhammad's .case 1986 P Cr.LJ 711, which I consider is the correct exposition of the law in the matter. In this view of the matter, there is no merit in this petition, which is dismissed in limine."

4. Subsequent decisions of the various High Courts show a wide divergence, at times contrariety in deciding the law points noticed in this appeal. This factor alone, and by itself justifies an authoritative pronouncement on the subject.

5. A brief historical view of the subject appears to be necessary for placing the issues raised in their correct perspective.

6. Section 3 of Act XV of 1852 (Evidence Act) recognized that an accused in a criminal case was not a competent or compellable witness to give evidence for or against himself. The provision was repealed by the Evidence Act, 1872 (Act I of 1872). In the meanwhile, sections 203 and 204 of the Criminal Procedure Code enacted in 1861 provided that no oath shall be administered to the accused and that it shall be in the discretion of the Magistrate to examine him. Criminal Procedure Code of 1872 by its section 250 made a general questioning of the accused, after the witnesses for the prosecution had been examined, compulsory and section 345 thereof provided that no oath or affirmation shall be administered to the accused person.

7. Section 5 of the Oaths Act enacted in 1873 (Act X of 1873) while enumerating persons by whom oaths or affirmations must be made, contains a reservation as hereunder:‑‑ "Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person .................... 8 section 7 of the prevention of corruption Act made accused a competent witness on his own application in respect of offences under that Act.

9. By Law Reforms Ordinance, 1972 (Ordinance XII of 1972) subsection (2) of section 340 was substituted as hereunder:‑‑ "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‑‑ (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."

10. Constitution of Pakistan, 1973 by its Article 13 provides as hereunder:‑‑ '

13. Protection against double punishment and self‑incrimination. No person‑‑ (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself."

11. In U.K. and America, this principle had the following historical background:‑‑

5. In English law, this principle of protection against self‑incrimination had a historical origin. It resulted from a feeling of revulsion against the inquisitorial methods adopted and the barbarous sentences imposed, by the Court of Star Chamber, in the exercise of its criminal jurisdiction. This came to a head in the case of ‑‑'John Lilhum 3 State Trials 1315 (A)', which brought about the abolition of the Star Chamber and the firm recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him. This principle, in course of time ,developed into its logical extensions, by way of privilege of witnesses against self‑incrimination, when called for giving oral testimony or for production of documents. A change was introduced by the Criminal Evidence Act of 1898 by making an accused a competent witness on his own behalf, if he applied for it. But so far as the oral testimony of witnesses and the production of documents are concerned, the protection against self‑incrimination continued as before. (See Phipson on Evidence, 9th Edition, pp. 215 and 474).

6. These principles, as they were before the statutory change in 1898, were carried into the American legal system and became part of its common law. (See Wigniore on Evidence, Vol. VIft, pp. 301 to 303). This was later on incorporated into their Constitution by virtue of the Fifth Amendment thereof. The language of the Fifth Amendment was considered by the American Courts as being wide enough to cover all the aspects of the principle of protection against self‑incrimination as administrated under the English common law including oral testimony of witnesses and production of documents. (See Wills on Constitutional Law, pp. 518 and 519)". See M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others AIR 1954 SC 300 at 302 and 303.

12. In our country, as a part of the process of Islamization of laws, the Council of Islamic Ideology prepared a draft Ordinance on Islamic Law of Evidence in 1982. Its sections 61 to 63, had the following provision on the subject:‑‑ "

61. Oath to the accused in case of Qatl.‑‑ (1) The accused shall, on demand by the complainant, be given oath when no proof is available in a murder case. (2) The accused shall not be subjected to Qisas if he refused to take oath in a case relating to take oath in acase relating to Qatl‑e‑Amd but shall be kept in custody till either he takes oath or pleads guilty. (3) Excepting Qatl‑e‑Arnd in cases relating to other kinds of qatl, the accused shall, if he refuses to take oath, be punished with Diyat, and may, having regard to the circumstances of the case, also be liable to Ta'zir under the law of Qisas and Diyat.

62. Oath in cases relating to Qat'‑e‑A'za.‑‑(1) The accused shall, on demand by the complainant be given oath when no proof is available in a case relating to Qat‑e‑A'Za amputation of limbs) liable to qisas, and if he refuses to take oath he shall be punished with Qisas. (2) The accused shall, on demand by the complainant be given oath when no proof is available in a case relating to Qat'‑e‑A'za amputation of limbs) not liable to Qisas, and if he refuses to take oath he shall be punished with 'ursh, and the Court may, having regard to the circumstances of the case, award him Ta'zir under the Law of Oisas and Diyat.

63. Oath in cases liable to Tazir.‑‑The accused shall, on demand by the complainant, be given oath when no proof is available in a case liable to Tazir' and if he refuses to take oath shall be liable to Ta'zir: Provided that no oath shall be given in cases where Ta'zir is imposed as a Haqq‑u‑Allah (the right of Allah)."

13. The Pakistan Bar Council in its published report on the Draft Law of Evidence Ordinance, 1982 and the Evidence Act, 1872 offered the following comments on it:‑‑ "In section 61 it has been laid down that as it has been provided that an oath can be administered to an accused person at the instance of a complainant if the case is not proved against him. The Pakistan Bar Council fails to understand that if the case is not made out against the accused why should he be made to take oath. This will lead to taking false oaths and the sanctity of oath shall be further broken. The Pakistan Bar Council feels that there appears to be no such concept of giving oath to the accused in the Holy Quran and Sunnah after the prosecution has failed to prove a case."

14. The Council of Islamic Ideology also submitted its 9th Report on Islamisation of the Code of Criminal Procedure, 1898 in September, 1983. About section 340, it commented as hereunder:‑‑ Commenting on section 245, the following observations were made by the Pakistan Bar Council:-

15. It was in this background that the Oanun‑e‑Shahadat, 1984 (10 of 1984.) was promulgated on 28‑10‑1984. Article 165 thereof made the provision that "the provisions of this Order shall have effect notwithstanding anything contained in any other law for the time being in force." Article 44 of it provides that "all accused persons, including an accomplice, shall be liable to cross‑examination".

16. By Ordinance XXVII of 1981 Federal Laws (Revision and Declaration) Ordinance, 1981, subsection (4) of section 342, Cr.P.C. was substituted to read Except as provided by subsection (2) of section 340, no oath shall be administered to the accused".

17. By Ordinance XII 'of 1985, Code of Criminal Procedure (Amendment) Ordinance, 1985 subsection (2) of section 340 of the Criminal Procedure Code, 1898 was substituted to read as hereunder:‑‑ "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."

18. Section 343 of the Criminal Procedure Code which has remained unaltered all along provides as hereunder:‑‑ "Except as provided in sections 337 and 338, no influence by means of any promise or threat or otherwise shall be used to any accused person to induce him to disclose or withhold any matter within his knowledge." Sections 337 and 338, Cr.P.C. referred to relate to tendering of pardon to accused and accomplices on certain conditions.

19. In this background of law the question as to what is the import, effect and implication of these amendments made in section 340, of the Criminal Procedure Code has on the rights of an accused facing trial has come up for consideration.

20. It is a recognized principle of interpretation of statutes that if a provision of law is presenting some difficulty in interpretation, it has to be so interpreted as to harmonize with the other provisions of the Act of which it is a part. It is only when there is a manifest and established failure to harmonize it with the other provisions that it either prevails over other provisions or yields to the other provisions. The second principle of interpretation of statutes relevant to the case, is that the provisions of any particular Act are to be so interpreted as to harmonize and to remain. consistent with the other laws having a relevance or nexus with the law sought to be interpreted. Finally, the third principle, attracted here, is that all laws in the field are to be so interpreted as to harmonize with the paramount law to which they must ordinarily conform and if they do not conform, they are struck down as ultra vires the paramount law.

21. The Criminal Procedure Code, of which section 340(2) forms a part, has two indicators of importance to the case. The first indicator is found in subsection (4) of section 342, Cr.P.C. to the effect that "except as provided by subsection (2) of section 340, no oath shall be administered to the accused". The other indicator is in the subsequent section which says "except as provided in sections 337 and 338, no influence by means of any promise or threat or otherwise shall be used to any accused person to induce him to disclose or withhold any matter within his knowledge". If an accused is mandated to make a statement on oath under section 340(2), Cr.P.C. or if he is told that if he does not make that statement the inference will be drawn against him, he will come under a pressure which will violate requirements of section 343, Cr.P.C. Therefore, the interpretation of section 340(2), Cr.P.C. has to be that it has no compulsive effect on the accused. All that the Court can do is to ask him whether he will like to make a statement on oath. It is his option and without prejudice to his case to make a statement or not to make a statement on oath. No adverse inference can be drawn if he does not opt to make a statement.

22. This interpretation finds further support from the Qanun‑e‑Shahadat, 1984 referred to. Article 44 of it makes the accused liable to cross‑examination and that liability arises only when an examination‑in‑chief of the accused takes place and in no other case. Article 133 of the same Order/Law provides "witnesses shall be first examined‑in‑chief, then (if the adverse party so desires) cross‑examined, then (if the party calling him so desires) re‑examined". This liability to cross‑examine under Article 44 will arise only when the examination in‑chid takes place, and that too at the option of the party seeking cross examination. In case the accused opts not to give a statement on oath in examination‑in‑chief, there cannot arise independently of such examination‑in chief a question of his cross‑examination.

23. Finally, the Constitution provides that an accused shall not be compelled to make a statement on oath and this is guaranteed to him by way of a Fundamental Right. Any law providing otherwise would be ultra vires, any interpretation of the law contravening it cannot be allowed to stand. Consistency with the paramount law, therefore, demands that subsection (2) of section 340 should be interpreted as only conferring a duty or a power on the Court to inform the accused that he has a right under the law to make a statement on oath and it is his option with no risk attaching it to either make that statement or not to make that statement.

24. In that view of the matter and it being a right of the accused, the Court may in a given case omit to inform it and it will depend upon the facts of each case whether such omission has resulted in prejudice to the accused or miscarriage of justice. This being the right conferred on the accused, not affecting the substantive proceedings‑in the matter, will be treated as procedural and shall apply also to all pending cases. 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 out 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, in 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.

25. A question may arise with regard to the nature and extent of the option of the accused under subsection (2) of section 340 of the Criminal Procedure Code. In the case in hand it does not. An answer to it is found in the following commentary in American Jurisprudence (21‑A Am Jur. 2d‑S 710) at page 129:‑‑ "A defendant who chooses to testify waives his privilege against compulsory self‑incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. His voluntary offer of testimony upon any fact is a waiver as.to all other relevant facts because of the necessary connection between them all. The waiver by the accused is not partial. Having once cast aside the cloak of immunity, he may not resume it at will whenever cross‑examination may be inconvenient or embarrassing."

26. In the circumstances, and for the foregoing reasons, the questions of law are answered as hereunder:‑‑ (i) The amendments are procedural, so it will apply to all pending proceedings; (ii) the view that on the strength of these provisions the accused can be compelled to make a statement on oath or that on his failure to do so he can be sent to prison or that adverse inference can be drawn against him is not correct; and (iii) the prevailing criminal jurisprudential standards have not been unsettled by these amendments.

27. The appeal is, therefore, dismissed. M.BA./A‑855/S Appeal dismissed.