1992 P Cr (PLP)

(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."

4. This Ordinance was published in Gazette of Pakistan, Extraordinary, Part 1, which came into force on 21‑2‑1985. Admittedly the statement of appellant Muhammad Usman under section 342, Cr.P.C. in Criminal Jail Appeal No.17 of 1985 was recorded on 24‑2‑1985 and the statement of appellant Sardoo alias Sardar Khan, under section 342, Cr.P.C. was recorded on 31‑10‑1985, after the enforcement of the above Ordinance. There is also no dispute about the fact that they were not asked any question in terms of subsection (2) of section 340, Cr.P.C.

5. The plea which has now been raised by Mr. Muhammad Daud Balouch, learned counsel for appellant, though not raised in memorandum of appeals can be considered as it goes to the very root of the case.

6. The effect of non‑compliance of this provision of law was examined in Muhammad Qasim v. The State, reported in P L D 1986 Quetta 286, and it was held that the omission to ask the question about examination of accused on oath being a mandatory provision of law, its non‑compliance was not curable under section 537, Cr.P.C.

7. This view was followed in Muhammad Saeed alias Pulla v. The State reported in P L D 1987 Pcsh. 31, and it was held:‑‑ "In cases when the accused is neither specifically asked if he was to give evidence on oath in disproof of the charges or allegations made against him in the prosecution evidence nor he himself volunteers to give evidence on oath in disproof of the charges and the conviction in a case proceeds in the absence of accused's statement on oath, the same shall amount to a material irregularity rather illegality on the part of the trial Court for non‑compliance of the mandatory provisions of law contained in section 340(2), Cr.P.C. read with Article 44 of the Qanun‑e‑Shahadat and accordingly the conviction will be reversed and case sent back for retrial from the stage of the examination of the accused."

8. This view was confirmed in the case of Jan Muhammad v. The State reported in 1987 P Cr. L J 2302, which was heard by Ally Madad Shah, J. (as he then was), who referred the point in issue to a Division Bench, which was answered in the following words:‑‑ "The evidence on oath by the accused required to be given under subsection (2) of 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 leading 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."

9. A contrary view was, however, taken by a Division Bench of this Court in the case of Muhammad Yousuf Zai v. The State reported in P L D 1988 Kar. 539, wherein it was observed that the provision of section 340(2), Cr.P.C. being inconsistent with Article 13(2) of the Constitution of Islamic Republic of Pakistan, 1973, the fact that the accused was not called upon by the Court to make statement on oath in terms of section 340(2), Cr.P.C. was of no consequence.

10. Both the above cases were examined by another Division Bench of this Court in the case of Sher Muhammad alias Shera v. The State reported in 1989 P Cr. L J 2098 and it was held:‑‑ "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 violative 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."

11. It will not be out of place to mention here that a similar provision, viz., section 7 of the Prevention of Corruption Act, 1947, already exited, whereby an accused person shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him.

12. In the case of Allah Yar v. The State 1989 S C M R 1910, the Shariat Appellate Bench of the Supreme Court observed that it was mandatory for the trial Court to ask from the accused as to whether he wants to make statement on oath as envisaged by section 340(2), Cr.P.C. and failure to do so, would amount to an illegality. The petition for leave was, however, refused in that case mainly on the ground that no prejudice was caused to accused.

13. The question of prejudice for non‑compliance of the above provision of law was examined in the case of Faqir Hussain v. The State reported in P L D 1985 Lah. 434 and it was held:‑‑ "It was during the trial of the instant case that section 340, Cr.P.C. was amended and more particularly provisos A and B to old section 340, Cr.P.C. were deleted. Resultantly valuable right to give evidence in disproof of allegations had accrued to him and failure to give evidence on oath could also be made the subject of any comment by the prosecution before the trial as well as the appellate Court which also can draw adverse inference/presumption against the accused. The new law also interferes with the existing rights of the accused that he could refuse to appear as a witness; that he could not be called as a witness by the Court; that failure to give evidence could not be made the subject of any comment by the prosecution and that the Courts could not draw any adverse presumption or inference against him. That being the position, I am of the view that the trial Court should have provided opportunity to the appellant to give evidence on oath. Had he given evidence in disproof of the allegations, the possibility that the result might have been otherwise cannot be excluded. Since the appellate Court has not provided any opportunity to the accused to give evidence on oath in disproof of allegations against him, therefore, the appellate Court i.e. this Court cannot properly appreciate the case and evidence on record. Neither this Court can allow the prosecution to comment on the failure of the appellant to appear as a witness nor can it draw any adverse inference against him.

14. It is now established that provisions of subsection (2) of section 340, Cr.P.C. are mandatory, which must be followed in order that the proceedings to which it relates may be valid. If a mandatory provision is not strictly complied with, it will vitiate the trial. It may be noted that the provision which is mandatory must be obeyed in letter and spirit. The prejudice in such a situation is on the face of the record.

15. Without going into the merits of both the cases, I would set aside the conviction of appellant Muhammad Usman (Criminal Jail Appeal No.17 of 1985) passed by learned Sessions Judge, Shikarpur on 14‑3‑1985 and the conviction of appellant Sardoo alias Sardar Khan in Criminal Appeal No.5 of 1986 passed by 1st Additional Sessions Judge, Jacobabad on 12‑2‑1986, and remand the cases for retrial from the stage the abovementioned illegality was committed. The appellants who are on bail are directed to appear before the respective Courts on 16‑4‑1990 at 8‑00 a.m. They are allowed to continue on bail till the disposal of their cases by the trial Court. Both these appeals are allowed in the above terms.

16. By a short order, dated 26‑3‑1990, 1 had allowed these appeals in the above terms and these are reasons for the said short orders. N.H.Q./M‑1473/K Cases remanded.