PLD 1988 Lahore 368 (PLP)

18. On the person of Nazir Ahmad (the time of his examination is 2‑30 a.m.), the Doctor found the following injuries:‑ (1) Wound on the back of left side of scalp 2 x x scalp deep. (2) Contused swelling around the left eye and on the left upper and lower limbs, 2 x 2 . (3)Swelling on the left cheek 2 x 2 . (4) Contused wound on the left cheek below outer part of left eye 1 x 1/8 skin deep. (5) Contused swelling on the left shoulder blade 10 x 10 on the back. (6) Abrasion on the top of left shoulder x 1/8 . (7) Abrasion on the back of left shoulder blade 1/3 x 1/6 . Injuries Nos.1 to 5 were kept under observation and X‑Rays of skull and chest were advised. All the injuries were caused with blunt weapon. Injuries Nos.6 and 7 were simple. All the injuries had been caused within 12 hours of the examination, Exh.P.Z/1 is the carbon copy of the medico‑legal report of his injuries.

19. Rashid Ahmad P.W. (who was examined at 2‑45 a.m.) was to have the following injuries on his person:‑ (1) Contused wound on the back of left ear 1 x subcutaneous deep. (2) Gun shot wound on the back of left shoulder x depth not probed wound bleeding. (3) Swelling of the left shoulder joint 10 x 10 . (4) Abrasion on the back of left shoulder 2 x 1/8 x subcutaneous deep. (5) Contused wound on the inner side of left palm x 1/8 x subsutaneous deep. (6) Gun shot wound x depth not probed on the inner side of right leg 2 above the inner malleous. (7) Contused wound on the back of left index finger 1/3 x 1/8 x skin deep. Injuries Nos.2, 3 and 6 were gun shot wounds; the rest were caused with blunt weapon. Injuries Nos.1, 2, 3, 6 and 7 were kept under observation; the other two were declared simple. Exh.P.Y/1 is the carbon copy of the medico‑legal report of his injuries.

20. Mst. Shamim Akhtar was found to have the following injuries on her person:‑ (1) A gun shot wound in front of the left thigh in the upper part x 1 edges of the wound black in colour. (2) A gun shot wound on the inner side of the left thigh in its middle x , edges black in colour and burnt. (3) Wound on the back of the left side in its upper part x . (4) Swelling on the left thigh 12 x 12 . All the injuries were gun shots wounds. They were kept under observation; X‑Ray of thigh was advised. Exh.P.GG is the carbon copy of the medico‑legal report of her injuries.

21. Dr. ZuIfiqar Ali Burq (P.W.15) also examined two of the appellants, namely, Abdul Hamid and Sadiq at 12‑45 and 1‑00 p.m. on 29‑1‑1970 respectively. On the person of Abdul Hamid were found the following injuries:‑ (1) Incised wound on the inner side of the left fore‑arm 1 above the left wrist below 1 x x subcutaneous deep. (2) Incised wound on the front of the left side of the chest 1 x x bone deep. (3) Multiple contusions on the right side of the chest 13 x 7 (4) Abrasion on the left cheek 1 x 4 . Injuries Nos.1 and 2 were kept under observation while injuries Nos. I and 2 were caused by a sharp‑edged weapon, injuries Nos.3 and 4 were caused by blunt weapon. Exh.P.EE is the medico‑legal report of his injuries. 22 .Sadiq, appellant was found to have only one injury on his person, namely, contusion on the right and left buttock measuring 7 x 7 and 8 x 5 . The injury was simple and had been caused Within 24 hours, Exh.P.FF is the medico‑legal report of his injury.

23. It may be mentioned here that the case was investigated into besides Muhummad Sadiq A.S.I. (P.W.12), by an Inspector, a D.S.P., an Additional S.P. and the S.S.P. Multan. They all found Amir Bakhsh, Ashiq Muhammad and Muhammad Hafeez accused persons innocent of the offence. They were not arrested during the course of investigation. Dissatisfied with this result, Muhammad Bakhsh P.W. instituted a complaint on 27‑4‑1970 against the above named three persons, namely, Amir Bakhsh, Muhammad Hafeez and Ashiq Muhammad and one Dost Muhammad. According to the complaint, the appellants and the above named accused persons had all participated in the commission of the crime and were responsible for causing injuries to Mastan Shah, Syed Muhammad Hussain Shah, Muhammad Bakhsh and Syed Fida Hussain Shah in the Dera of Syed Muhammad Hussain Shah P.W. and in the Haveli of Muhammad Bakhsh P.W. and for causing injuries to Maqsood Ahmad, Muhammad Akram, Nazir Ahmad, Rashid Ahmad, Mst. Shamim Akhtar and Mst. Ulfat Bibi in the house of Rashid Ahmad P.W. wriue the challan case was committed to the Court of Session on 7‑7‑1971, the complaint was sent up to the Court of Session on 30‑4‑1974. Thereafter, a controversy arose whether the complaint case should be tried first or both the challan case and the complaint case should be tried together. On 8‑5‑1976, on the application of the accused persons, the learned additional Sessions Judge, Multan, who was the seized of the cases, directed that the complaint case would be taken up first for trial. Later, on the application of Muhammad Bakhsh, private complainant, the learned Additional Sessions Judge recalled his previous order and directed that both the challan case and the complaint case should be taken up and disposed of together in a joint trial. Against this order of the learned Additional Sessions Judge, the appellants approached this Court by means of a revision petition and by this Court s order dated 22‑10‑1976, the learned Additional Sessions Judge was directed to taken up the complaint Case first in accordance with the principles laid down in Nur Elahi etc. V. The State (P L D 1966 S C 708). Against this Court s order dated 22‑10‑1976, Syed Muhammad Hussain Shah P_W . approached the Supreme Court but his appeal was dismissed by the Supreme Court s Judgment dated 6‑2‑1980 see Syed Muhammad Hussain Shah v‑. Abdul Hamid etc. 1981 S C M R

361. All this exercise was, however, rendered futile, when on 29‑11‑1980, counsel for Muhammad Bakhsh, private complainant, made an application before the learned Additional Sessions Judge withdrawing the complaint and the learned Additional Sessions Judge by his order of the same date dismissed the complaint as withdrawn.

24. Before me, learned counsel for the appellants took exception to the order of the learned Additional Sessions Judge dated 29‑11‑1980 dismissing the complaint as withdrawn; according to him, the private complainant was not competent to withdraw the complaint and the learned Additional Sessions judge was wrong in law in dismissing it as withdrawn. According to the appellants counsel the endeavour of the complainant party throughout had been that both the complaint case and the challan case should be jointly tried; in that attempt they had failed upto the Supreme Court but by withdrawing the complaint they succeeded in having all the accused persons, namely, the appellants and the accused persons in the private complaint to be jointly tried, for, after the withdrawal and dismissal of the complaint by the learned Additional Sessions Judge s order dated 29‑11‑1980, when the trial commenced and the statements of two P.Ws. namely, Ghulam Sarwar Paiwari (P.W.1), Liaqat Hussain A.S.I. (P.W.2) and the statement of Syed Muhammad Hussain Shah (P.W.3) had partly been recorded, the learned Additional session Judge. who was then seized of the case, summoned three of the accused persons in the complaint, namely, Amir Bakhsh, Abdul Hafeez and Ashiq Muhammad to stand their trial alongwith the appellant and thus the complainant party succeeded in having Amir bakhsh, Abdul Hafeez and Ashiq Muhammad accused persons jointly tried with the appellants. In other words, so went the argument, the complainant party succeeded in achieving indirectly what they could not achieve directly, for, if the complaint had not been withdrawn, the complaint , case would have been separately tried in accordance with the Supreme Court judgment dated 6‑2‑1980. Whatever the merits of this contention, the matter, in my view, must be taken to be concluded by this Court s judgment dated 28‑1‑1981, in the revision petition of Abdul Hamid, appellant, brought against, the learned Additional Session judge s order dated 29‑11‑1980. It was held that the removal of the complaint case from the scene does nut prejudicially affect the petitioner (Abdul Hamid) . This, if I may say so with respect, applies equally to the remaining appellants

25. The prosecution case mainly rested upon the testimony of Muhammad Hussain Shah (P.W.1). Nazar Hussain (P.W.2), Munammad Bakhsh .(P.W.3), Rashid Ahmad (P.W,.4), and Muhammad Akran (P.W.5). Nazar Hussain and Muhammad Bakhsh were shias Nazar Hussain P.W s wife was sister of Muhammad Hussain Shah P.W. They deposed to that part of the incident, which occurred at the Dera of Muhammad Hussain Shah P.W., in the shop of Munammad Nawaz goldsmith and in the Havaili of Muhammad Bakhsh P.W. Rashid Ahmad and Muhammad Akram P.Ws. testified to the second part of the incident, which occurred in the house of Rashid Ahmad P.W. It is interesting to note that while Rashid Ahmad was an Ahmadi, Muhammad Akram was a Sunni. Both lived in the same Havaili and though they were closely related to each other Rashid Ahmad was a maternal uncle of Muhammad Akram P.W. yet Muhammad Akram had not participated in the Namaz‑e‑Janazah of Maqsood Ahmad deceased.

26. Besides the above‑mentioned five eye‑witnesses and Zulfiqar Ali Burq and Muhammad Sadiq A.S.I., the prosecution examined eight other witnesses at the trial.

27. Ghulam Sarwar Girdawar (P.W.6) had prepared the site‑plans Exhs.P.C, P.C/1 and PC/2 at the instance of the police and on the pointing out of the witnesses.

28. Allah Diwaya (P.W.7) had joined investigation. In his presence, Muhammad Bakhsh P.W. had produced before the police blood‑stained broken butt of gun P.1 and crime empty P.2 before the Investigating Officer. They were sealed into parcels vide memo. Exh.P.B. In his presence also, blood‑stained earth was taken into possession from the palce of the murder of Mastan Shah deceased vide memo. Exh. P.D.; Blood stained earth was taken into possession from the shop of Muhammad Nawaz Zamar vide memo. Exh.P.E. and blood‑stained earth was taken into possession from the place, where Maqsood Ahmad was killed vide memo. Exh.P.F. They were made into separate parcels. Rashid Ahmad P.W. had produced three pellets and four wads before the Investigating Officer and he had taken them into possession vide memo. Exh.P.G. On 31‑1‑1970, Sadiq, appellant, led to the house of his brother, Abdul Hameed, appellant, and produced blood‑stained hatchet P.3, it was made into a parcel vide memo. Exh.P.H. Allah Diwaya P.W. had also identified the dead body of Mastan Shah at the time of post‑mortem examination.

29. Liaqat Hussain A. S. 1. (P. W. 8) had received the parcels relating to this case from Muhammad Sadiq A.S.I. on 31‑1‑1970 and had kept them intact till 10‑2‑1970 when he gave them to Sher Din Constable for being delivered at the office of the Chemical Examiner and the Forensic Science Laboratory, Lahore.

30. Shabbir Ahmad D.S.P. (P.W.9) was attached as Inspector to Police Station, Shujabad, in February 1970. On 6‑2‑1970, Jafar, appellant, appeared before him and he arrested him.

31. Sharif A.S. 1. (P. W. 10) had arrested Muhammad Hanif, appellant, who was employed in the Pakistan Army, from Lahore Cantonment, on 12‑3‑1970. Muhammad Hanif, appellant, produced before him .12 bore single barrel gun from the Armoury of the Unit and he took it into possession vide memo. Exh.P.J. He said that the butt of the gun was broken and had been mended.

32. Habibullah Constable (P.W.11) escorted the dead bodies from the place of incident to the mortuary.

33. Asghar Ali, Carpenter (P.W.13) stated that some 12 years before 29‑4‑1984 (that being the date of his statement) a person approached him and asked him to repair the butt of his gun, he expressed his inability to do so. The butt of gun P.1 was shown to him. He said that that was not the butt which was brought to him for repair.

34. Zia‑ud‑Din Zubairi, Record Keeper (P.W.14), deposed to a telegram P.4.

35. Liaqat Ali Constable was examined as a court‑witness. His statement concerned the service of summons upon Muhammad Maroof sepoy and lqbal Ahmad Naik in Army.

36. In addition to the above‑mentioned oral evidence, there were tendered in evidence the report of the Chemical Examiner Exh.P.JJ and the report of the Director Forensic Science Laboratory Exh.PKK. The former shows that the earth and the hatchet were stained with human blood and the latter shows that empty P.2 was found to have been fired from the gun recovered from Muhammad Hanif, appellant.

37. Evidence of the prosecution witnesses was concluded on 15‑11‑1984; statement of Liaqat Ali C.W. was recorded on 3‑12‑1984 and the statement under section 342, of the Cr. P.C. of Abdul Hameed, appellant, was recorded on 17‑1‑1985 and those of Muhammad Sadiq, Jafar, Muhammad Hanif, Amir Bakhsh, Hafeez and Ashiq Hussain were recorded un 19‑1‑1986. The appellants and the acquitted accused persons denied having had anything to do with the commission of the crime. Abdul Hameed, appellant, stated that there had been a fight after speeches had been delivered on Khatam‑e‑Nabuwat in a meeting summoned by Amir Bakhsh, Hafeez and Ashiq accused persons and Dost Muhammad. Ahmadis and Shias, he added, had attacked the house of the acquitted accused persons and Dost Muhammad and it was in the ensuing fight that Maqbood and Mastan Shah had lost their lives and others sustained injuries. He further stated that he was present in Primary School Mauza Khaki Punjani at the time of occurrence and his brothers and cousin Jafar were also away from the village. As they were poor persons and the complainant party were rich and influential persons, they had been implicated due to the religious rivalry. the actual accused were the persons, who were accused in the private complaint instituted by Muhammad Bakhsh P.W.11 As to the injuries found on his person, he said that the police had subjected them to beating and it was thus, that he and Sadiq had received injuries. Muhammad Bakhsh P.W., the private complainant, later, compromised with the actual culprits after getting heavy amount but we are still facing the agony of trial in spite of the fact that we are innocent in this case .

38. Sadiq, Jafar and Muhammad Hanif adopted the statement of Abdul Hameed, appellant.

39. The appellants and their co-accused were asked if they wanted to make a statement on oath; all refused to do so.

40. Only Jafar, appellant, led defence evidence consisting of the testimony of Master Ashiq Muhammad D.W.1 and Muhammad Yousaf D.W.2. Master Ashiq Muhammad was Head Master of Government Primary School, Mauza Khaki Punjani. He was asked to produce the record of his school but he could not because the record had been destroyed. Muhammac Yousaf D.W. was a labourer resident of Kundan Kasai Tehsil Kabirwaia. He stated that Jafar, appellant, was a student in Madrissa Jamia Muhammadia in Kundan Kasai in the year 1969. Jafar. appellant s mother approached him and told him that Jafar had been falsely implicated in this case. He alongwith Shah Muhammad Sukhaira and Muhammad Siddique produced Jaffar, appellant, before the Tehsildar saying that Jafar was innocent; that he was not present at the time of the incident; and that he was present in Madrissa Jamia Muhammmadia at that time. Learned counsel for the appellants did not think it worth his while to refer to this defence evidence and in my view rightly for it was hardly of any assistance to Jafar, appellant s case. Muhammad Yousaf D.W. was a labourer by profession; he was not shown to have anything to do with the Madrissa where Jafar, appellant, was stated to be a student at the time of the incident and nobody from that Madrissa was produced to testify to the fact of his presence in the Madrissa when the incident took place.

41. It should be mentioned here that after the statements under section 342, of the Cr.P.C. had been recorded, an application was made by Abdul Hameed, appellant, for Muhammad Hussain Shah P. W.1, Nazar Hussain (P.W.2), Muhammad Bakhsh (P.W.3), Muhammad Akram (P. W.5) and Rashid Ahmad (P. W.4) to be recalld for cross‑examination. This application was allowed by the learned trial Judge s order dated 27‑1‑1985 and the above‑mentioned P.Ws. were summoned for further cross‑examination; except Rashid Ahmad P.W. whom Abdul Hameed, appellant, chose not to further cross‑examine, the P.Ws. so recalled were further cross‑examined on 9‑2‑1985. The learned Additional Sessions Judge heard the arguments on 24‑3‑1985 and the judgment convicting and sentencing the appellants was pronounced on 30‑3‑1985.

42. Two arguments, one concerning the alleged violation of section 342, Cr.P.C. and the other concerning the alleged violation of section 340, subsection (2) of the Cr. P.C. , were raised before me. As regards section 342, it was said that it was necessary after the re‑cross examination of Muhammad Hussain Shah, Nazar Hussain, Muhammad Bakhsh and Muhammad Akram P.Ws. on 9‑2‑1985 to re‑examine the appellants under section 342, of the Cr.P.C. Section 342, of the Cr.P.C. empowers the Court to put such questions to an accused person as the Court considers necessary at any stage of any inquiry or trial without previously warning the accused; it further enacts that the Court 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 . Here, this requirement of law was duly complied with, for the appellants were so examined under section 342, of the Cr.P.C., after the witnesses for the prosecution had been examined and before the appellants had been called on for their defence. However, that may be, even if there was any irregularity, section 537, of the Cr.P.C., forbids the Court to reverse or alter a finding recorded by the trial Judge, unless the irregularity in the mode of trial complained of has in fact occasioned a failure of justice. Learned counsel did not so much as allude to any failure of justice which might have been occasioned. in truth, no injustice appears to have been occasioned, for, before the appellants had been called on for their defence all the prosecution evidence had been concluded and it was on the application of Abdul Hameed, appellant, himself that the witnesses were recalled to enable him to further cross‑examine them. No new incriminating fact had been brought against the appellants as a result of the re‑cross‑examination of the P.Ws. on 9‑2‑1985. 1 can, therefore, see no substance in the argument that section 342, of the Cr.P.C. was violated or if it had been violated any failure of justice was occasioned.

43. Regarding section 340, subsection (2) of the Cr.P.C., the argument is that this section had come into force on 21‑2‑1985, that is before the arguments in this case were heard and before the judgment convicting and sentencing the appellants was pronounced, that the provisions of section 340, subsection (2) are mandatory and failure of the Court to examine the appellants as their own witnesses has vitiated the trial. There are two answers to this contention. The first is that all the appellants had been asked in their statements under section 342, Cr.P.C., which were recorded on 17‑1‑1985 if they wanted to make statements on oath and their reply was in the negative. The second is that the case had been concluded before section 340, subsection (2), as amended, came into force. In this connection the learned Assistant Advocate‑ General referred to Naib Subedar Muhammad Ayoub v. Muhammad Nawaz and 2 others 1987 SCMR 370; in that case the accused were examined on 17‑2‑1985 and the arguments were also concluded on that date; the judgment was reserved and was pronounced on 2‑3‑1985. It was held that the case having concluded before the introduction of the Provision relied upon by the learned counsel for the respondents such as examination was not necessary and the omission is not of any consequence . Here, the arguments were no doubt heard after the coming into force of the amended section 340, subsection (2) of the Cr.P.C. but as the prosecution evidence had been concluded and the statements under section. 342, of the Cr.P.C. of the appellants had been recorded and defence evidence had also concluded long before the coming into force of the amended section 340, subsection (2), that is 21‑2‑1985, the case had in my view, concluded and the fact that the arguments were heard and the judgment was pronounced after that date does not affect that position, This view receives support from Abdul Malik ,v. State P L D 1985 F S C 293, 297.

44. Section 340, subsection (2) of the Cr.P.C. provides: 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. There is no question trial the section is couched in mandatory language. This is made clearer by a comparison of its provisions as it stands now, with its unamended provisions. Before its amendment, all that this subsection did was to say that an accused person shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations made against him . Thus, the law was amended to substitute shall for may . The contrast is so pointed that there should be no doubt that the alteration in the language was deliberate and the intention was to leave no manner of doubt about the mandatory nature of the provision.

45. The question however, is whether it is mandatory for the court to examine an accused person as a witness or to ask him if he would give evidence on oath in disproof of the charges or allegations made against him or it is mandatory for the person accused to give such evidence on oath. Learned counsel for the appellants contended that it is for the Court to record a statement on oath of the accused and not for the accused to request the Court to record his evidence on oath and that the failure of the Court to record his statement or ask him if he would give evidence on oath is an illegality not curable under section 537 of the Cr.P.C.

46. The question has been considered in a number of cases.

47. In Faqir Hussain v. The State P L D 1985 Lah. 434, the amended section 340, subsection (2) of the Cr.P.C. was considered in the light of the unamended section 340, subsection, (2) and section 342, of the Cr.P. C. and Articles 144 and 129 of the Qanun‑e‑Shahadat, 1984, and sections 178 and 179 of the Pakistan Penal Code and it was held that if on the conclusion of the prosecution evidence there are circumstances appearing in evidence against the accused the trial Court shall specifically ask him whether. he would give evidence on oath in disproof of the charge against him. In case, he desires to give evidence, the trial Court shall record his examination ‑in ‑chief and give opportunity to the prosecution to cross‑examination. In case, he declines to give evidence on oath, the prosecution may comment upon his failure to do so and the Court may also draw presumption/inference against him in cast, the Court thinks that the examination Of the accused on oath in disproof of the charge against him is necessary for the Just decision of the case or the Court otherwise desires to examine him on oath, the Court would be quite competent to call him as a witness and in that case the accused is legally bound to appear in the witness‑box, give evidence on oath and answer permissible questions which may be put to him by the Court or the prosecution. The recording of the statement of accused on oath has been made a part of the procedure of the trial Court. The omission to record such statement would be an illegality and not an irregularity curable under section 537, Cr.P.C. It is not for the accused to request the Court during the trial that his statement! should be recorded. It is for the Court itself to record the statement of accused under this provision of law. Learned counsel also cited Jan Muhammad v. The State 1987 P Cr.LJ 2302, which was based upon a Division Bench case and Muhammad Saeed v. The State P L D 1987 Peshawar

31. In Jan Muhammad s case, the view taken by the Division Bench was reproduced, as follows: ‑ The evidence on oath by the accused 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 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. In the Peshawar case also, it was held that if the accused is not asked specifically whether he would give evidence on oath, it would amount to an illegality.

48. Two cases decided by the Federal Shariat Court were also cited at the bar; they are Abdul Malik v. The State P L D 1985 F.S.C. 293 and Khalid Hussain alias Khalid Pervaiz v. The State 1987 P Cr.L J 1979. In Abdul Malik s case, It was held: From the very language of the above section it would appear that right has been given to an accused person to give evidence on oath in disproof of the charges or allegations made against him. It was thus, the duty of the accused to exercise this right by pleading before the Court that he intends to give evidence on oath. The appellant was represented by a counsel before the trial Court. Therefore, it is expected that the appellant was fully aware of this right . 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. The duty of the 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. In another case. viz. Mst. Sultan Zari v . The State, 1986 P Cr. L J 1723 it was argued that the trial was bad because the accused was not asked by the Court to give evidence on oath under section 340, subsection (2) of the Cr.P.C. It was held‑ 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), The appellant was specifically asked by the trial Court whether she intended to produce any evidence in defence, At that stage she should I 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 she 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 she wanted to examine evidence in defence, She or her counsel did not state before the Court that the ,appellant herself intended to give evidence on oath. In Khalid Hussain s case however, a somewhat different view appears to have been taken. It is as follows:‑ 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 refused 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.

49. The true approach to the interpretation of section 340, subsection (2) of the Cr.P.C., I venture to think, and I do so with great respect, is to consider it in the context of the Code of Criminal Procedure as a whole and in its immediate context that is to say in the context of section 342 of the Cr.P.C. The scheme of the Code is that whenever the intention is to require the Court to ask the accused person, if he would do a certain thing, and the provision is mandatory, the Code so directs the Court in mandatory language. For instance, section 242 of the Cr.P.C. provides that when the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged ; section 265‑E provides that the charge shall be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make! and section 265‑F, subsection (4), provides that when the examination of the witnesses for the prosecution and the examination, if any, of the accused are concluded, h the accused shall be asked whether he means to adduce evidence. Then section 3420) enacts that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court shall for the purpose of 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. It will be noticed that the provisions of section 340, subsection (2) of the Cr.P.C. are in marked contrast with the provisions of section 342, of the Cr.P.C. Both the provisions provide for the examination of the accused but whereas section 340, subsection (2) of the Cr.P.C. is directed to the person accused, section 342 of the Cr.P.C. is directed to the Court. It seems to me, therefore, that considered in the context of the Code as a whole and section 342. in particular, section 340, subsection (2), was not intended to require the Court to ask the person accused if he would give evidence on oath in disproof of the charges or allegations against him. Indeed, in so far as this subsection entitles the person accused give evidence on oath in disproof of the charges against him it creates a right in his ravour. But in so far as it directs the person accused to give evidence on oath, if there are charges or allegations to answer, and the Court is entitled to raise an adverse inference against the person accused if he fails to do so, the subsection also creates an obligation that the person accused should give evidence on oath, for if he doe not, he runs the risk of an adverse inference being raised against him. Gone are, therefore, the days when a person accused could be content with a general denial of the crime alleged and when the plea of not guilty was equivalent to saying, let the prosecution prove its case , and having said so much could take refuge in silence. Now. he must give evidence on oath in disproof of the charges or allegations made against him, and if he does not, he should be prepared for an adverse presumption to be raised against him. 50. 1 am, therefore, of the view that if section 340, subsection, (2) of the Cr.P.C. was applicable to this case, the appellants were presumed to know of their obligation under it and as the duty to give evidence on oath was cast upon them and they failed to give evidence on oath, they cannot be heard to say that their failure was due to the Court s omission to ask them if they wanted to give, evidence on oath.

51. Returning to the facts of the case, there is no doubt that this unfortunate incident was the result of sectarian differences between the complainant party and the accused persons. Those differences had taken an ugly turn some 8 or 10 days before the present incident when one Qaaim Din had made an inflammatory speech in a meeting in the village in which speech he made some derogatory remarks about Shias and Ahmadis. While the appellants are Sunnis, Mastan Shah deceased, Muhammad Hussain Shah, Muhammad Bakhsh, Nazar Hussain Shah P.Ws. and Syed Fida Hussain Shah were Shias and Maqsood Ahmad deceased, Rashid Ahmad and Nazir Ahmad P.Ws. were Ahmadis. It is in evidence that Mastan Shah deceased was a Shia leader; he was also their Imam Masjid. After Qaaim Din had addressed the meeting, 8 or 10 days before this incident, Abdul Hameed, appellant, had tried to attack Syed Muhammad Hussain Shah P.W. but was given beating by the latter and Malik Allah Wasaya Khaki. As has been noticed above, four persons were injured in the first part of the incident, which occurred in the house of Muhammad Hussain Shah P.W. , in the shop of Muhammad Nawaz goldsmith and in the Havaili of Muhammad Bakhsh P.W. , namely, Mastan Shah deceased, Muhammad Hussain Shah, Muhammad Bakhsh P.Ws. and Fida Hussain Shah and six persons, namely, Maqsood Ahmad deceased, Rashid Ahmad, Muhammad Akram P.Ws, Nazir Ahmad, Mst. Ulfat Bibi and Mst. Shamim Akhtar were injured in the second part of the incident, which took place in the house of Rashid Ahmad P.W. Of the injured persons, who survived the incident, Fida Hussain Shah, one of the injured of the first part of the incident and Nazir Ahmad one of the injured of the second part of the incident had died by the time the case reached the stage of evidence; Muhammad Hussain Shah, Muhammad Bakhsh injured persons and Nazir Hussain Shah gave the eye‑witness account of the first part of the incident and Rashid Ahmad and Muhammad Akram P.Ws. gave the eye‑witness account of the second part thereof. Mst. Ulfat Bibi and Mst. Shamim Akhtar injured persons were not called as witnesses.

52. Muhammad Hussain Shah claimed to have eye‑witnessed the entire first part of the incident. Nazar Hussain Shah P.W.2 was attracted by the alarm coming from the house of Fida Hussain Shah P.W. Re stated that he rushed to the entrance of his Havaili and closed the door from inside. He saw Mastan Shah. deceased in the street in front of the Havaili of Muhammad Bakhsh P.W. and asked him‑what was going on. In the meantime, Muhammad Hussain Shah P.W. appeared on the scene with a head injury. He told Mastan Shah to take shelter in the Havaili of Muhammad Bakhsh P.W. In the meantime however, all the accused persons Abdul Hameed, Muhammad Hanif armed with guns, Sadiq, Jafar, Amir Bakhsh and Hafeez with hatchets and Ashiq Hussain with a stick appeared on the scene. Muhammad Hanif, appellant, fired at Mastan Shah and he fell dead. Amir Bakhsh accused gave him a hatchet blow. Muhammad Bakhsh P.W. came out of his house; on seeing him, Amir Bakhsh accused told his co‑accused that he was a big Shia. Thereupon, Muhammad Bakhsh P.W. tried to enter into a room and to close the door but Abdul Hameed, appellant, pushed the door and fired at him. Muhammad Bakhsh P.W. caught the barrel of his gun. Then all the accused persons armed with hatchets gave him hatchet blows with the wrong sides of their hatchets. Muhammad Bakhsh P.W. was sitting in his Havaili when he heard the gun reports. Haji Pir Bakhsh had gone running to him to warn him that the appellants and their co‑accused were on their way to attack them. Mastan Shah deceased and Muhammad Hussain Shah P.W., the latter in a injured condition, also entered his Havaili. Soon thereafter the appellants and their co‑accused appeared carrying their weapons. Muhammad Hanif, appellant, fired a shot at Mastan Shah who died, Amir Bakhsh then hit Inui with the wrong side of his hatchet. Or being told by Amir Bakhsh accused that Muhammad BaKhsli was a big Shia leader, Abdul Hameed, appellant, fired at him when he had entered his residential Kotha and was about to chain the door on the inside. He was hit on the right fore‑arm. He held the barrel of the gun and pushed Abdul Hameed, appellant, back. In the process the butt of the gun was broken. Then he was caused injuries by Sadiq, Jaffar, Amir Bakhsh and Abdul Hafeez accused persons with the wrong sides of their hatchets, The appellants and their co‑accused then left the spot leaving behind an empty cartridge and the broken butt of the gun He produced them before the police vice memo. Exh.P.B.

53. Muhammad Bakhsh admitted having filed a complaint after the police had found Amir Bakhsh, Hafeez and Ashiq Hussain accused persons innocent of the offence; in that complaint, he had named one Dost Muhammad also an accused. He had withdrawn that complaint because the said accused were declared innocent by the police .

54. The substance of the testimony of Rashid Ahmad P.W. has been given above. It is significant to note that though his brother Nazir Ahmad P.W. was injured in his presence, yet he did not mentiuk, his injuries probably because he had died during the trial. Muhammad Akram P.W. was a sister s son of Rashid. Ahmad p.W. He stated that he was sitting in his house with Rashid Ahmad and Nazir Ahmad P.Ws. , when the appellants, Hanif and Abdul Hameed, armed with guns, and Sadiq and Jafar armed with hatchets entered shouting He went out of his house and was fired at by Muhammad Hanif appellant. He took shelter behind a wall. Maqsood Ahmad, Mst. Ulfat Bibi and, Mst. Shamim Akhtar then came out of the house and they were injured by the shots fired by Abdul Hameed, appellant. He added that before him, the appellants had already injured Rashid Ahmad and Nazir Ahmad P.Ws., and Jafar and Sadiq, appellants, had given hatchet blows to Nazir Ahmad P.W. thereafter they left raising slogans.

55. The learned trial Judge disbelieved Muhammad Hussain Shah, Nazar Hussain Shah and Muhammad Bakhsh P.ws. as regards Amir Bakhsh.. Muhammad Hafiz and Ashiq Hussaiii accused persons. As regards the appellants, the learned trial Judge observed that not only had they been named in the F.I.R. but all the eye‑witness had fully implicated them at the trial. Their testimony, according to him, received corroboration from the medical evidence. The learned trial Judge was also of the opinion that the incident was the result of sectarian differences between the parties and thus, the motive of the occurrence was also there . Regarding the apparent discrepancy in the F.I.R and the statement at the trial about the name of Hanif, appellant, the learned trial Judge observed that seven P.Ws. are unanimous that he was the actual culprit in the case. Specific role has also been attributed to him in the occurrence .

56. Learned counsel for the appellants argued that Muhammad Hussain Shah, Nazar Hussain Shah and Muhammad Bakhsh P.Ws. were unworthy of credit; that their testimony was inconsistent with the medical evidence and in any case admittedly, the parties were inimical towards each other on account of their sectarian differences and, therefore, the Testimony of none of the. witnesses deserved to be accepted without corroboration.

57. The learned trial Judge had found Amir Bakhsh, Hafeez and Ashiq Hussain innocent of the offence and if I may say, so for good reasons. An additional fact which goes to show that their participation in the crime was extremely doubtful was that Rashid Ahmad and Muhammad Akram P.Ws. had not named them as culprits. It appears that if they had participated in the first part of the incident, and had been moved in perpetrating the offence by sectarian feelings as the appellants had been, then they would not have stopped short and stayed back after having caused injuries to Mastan Shah, Muhammad Hussain Shah, Muhammad Bakhsh and Syed Fida Hussain Shah, for there is nothing to show that they bore a special grudge against Shias and had nothing against the Ahmadis. The inference, therefore, is that Muhammad Hussain Shah, Nazar Hussain Shah and Muhammad Bakhsh P.Ws. had tried to falsely implicate at least three innocent persons. Not only that but in the complaint filed by Muhammad Bakhsh P.W. one Dost Muhammad was also named as an accused and was ascribed a specific role. The object of Muhammad Bakhsh P.W. in filing the private complaint against the acquitted accused persons and Dost Muhammad obviously was to have them tried and convicted for the murder of Mastan Shah and Maqsood Ahmad and for injuriezs to others. As has been noticed above, Muhammad Bakhsh P.W. was so serious in persisting with the complaint that the matter was taken upto the Supreme Court for the determination of the question whether the complaint case and the challan case should be tried jointly or separately. But when it was finally decided that the complaint case should be taken up first, and the trial of the case was in sight Muhammad Bakhsh withdrew the complaint. According to him, he ha~ filed the complaint because the police had wrongly treated Amir Bakhsh, Hafeez and Ashiq Hussain innocent of the offence. But when asked why he had withdrawn the complaint, he again came out with the answer that he had withdrawn it because the police had found them innocent. As to Dost Muhammad, an accused in the complaint, Muhammad Hussain Shah, Nazar Hussain Shah and Muhammad Bakhsh P.Ws. had all stated in the proceedings in the complaint case that he was one of the culprits and had played a specific role. But in the witness‑box, they did not think it necessary to name Dost Muhammad as culprit at all. Confronted with his previous statement, Muhammad Hussain Shah P.W. confessed that Dost Muhammad was not my accused and that ‑it is correct that I made false statement in the Court on account of filing of the complaint on behalf of Muhammad Bakhsh. Nazar Hussain Shah and Muhammad Bakhsh P.W, adopted the convenient course, namely that they did not remember if they had named Dost Muhammad as one of the accused persons in the complaint case, Thus, besides a clear attempt at falsely implicating three innocent persons, these P.Ws. had also tried to rope in one Dost Muhammad, to the extent of his implication, Muhammad Hussain Shah was a self confessed liar. Muhammad Hussain Shah P.W. also admitted that the parentage etc. of the accused persons had been incorporated in the F.I.R. after inquiries. There should, therefore, be no doubt that all these facts seriously affected the creditworthiness of Muhammad Hussain Shah, Nazar Hussain Shah and Muhammad Bakhsh P.Ws. and their testimony does make a demand on one s credulity. Had it, therefore, been a case in which the Court were invited to act, upon the testimony of these witnesses only, it would have been justified in looking for some corroboration. But fortunately, there is the testimony of Rashid Ahmad and Muhammad Akram P.Ws. , which was straightforward and consistent in all its details. Rashid Ahmad P.W. was an Ahmadi at the time of the incident but he had ceased to be an Ahmadi by the time his statement was recorded. In any case, there was no reason whatever for not believing the testimony of Muhammad Akram P.W. He was a Sunni; so much so that though he was a sister s son of Rashid Ahmad and Nazir Ahmad P.Ws. and Maqsood Ahmad deceased was his first cousin, yet he had not participated in his Janazah prayer. The testimony of Rashid Ahmad and Muhammad Akram P.Ws. should in my view, leave no manner of doubt as to the participation of the appellants in the crime; their testimony also furnishes corroboration, to the testimony of Muhammad Hussain Shah, Nazar Hussain Shah and Muhammad Bakhsh P.Ws. as to the participation of the appellants in, the commission of the crime. In view of the testimony of Rashid Ahmad and Muhammad Akram P.Ws. nothing, in my view, turns upon Haneef, appellant, having been described as Muhammad Shaft Fauji in the F.I.R, The alleged inconsistency between ocular account and medical evidence was in the testimony of these three P.Ws. in relation to the roles of the acquitted accused persons, and has, therefore, no effect upon the guilt of the appellants.

58. For these reasons, I am of the view that the appellants were rightly convicted and sentenced for the murder of Mastan Shah, Maqsood Ahmad deceased persons and for murderous assault upon Muhammad Bakhsh, Syed Fida Hussain Shah, Muhammad Hussain Shah, Muhammad Akram, Nazir Ahmad and Rashid Ahmad. As regards the conviction and sentence for injuries to Mst. Shamim Akhtar P.W., as she had not appeared into the witness‑box. I do not think that the learned trial Judge was justified in recording conviction for her injuries. The conviction and sentence to that extent are Set aside. With this modification, the appeal is dismissed. M.B.A./A-309/L Order accordingly.