1999 P Cr (PLP)

(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 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 defence. 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 defence 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 levelled 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:‑‑

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 defence 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 defence. 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 defence and under law he is allowed to record his statement on oath in disproof of allegations levelled 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 him, no one except himself is ready to appear as defence witness. He requested the trial Court to allow him to appear as witness in his defence alongwith 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 to appear in the Court and get his statement recorded on oath in disproof of the allegations levelled 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. H.B.T./49/Sh.C.(AJ&K) ??????????? Order accordingly.