1988 PLP r (PCRLJ)

NAZIR AHMAD BHATTI, J.--Saeedullah alias Bacha appellant herein has been convicted under section 302, P.P.C. by the learned Additional Sessions Judge Swabi by judgment dated 5-12-1985 and sentenced to death and also to pay a fine of Rs.5,000 or in default to further undergo S.I. for two years and the fine if recovered had to be paid to the heirs of the deceased as compensation. By this appeal the aforesaid appellant has challenged his conviction and sentence. The learned trial Judge has also forwarded Murder Reference No.15 of 1985. The complainant has also filed a Criminal Revision Petition No.98 of 1985 for enhancement of the sentence of fine. The present judgment in the Criminal Appeal. No.146 of 1985 will also dispose of the murder reference and the criminal revision.

2. PW.6 complainant Tilawat Khan, his brother Tajamul Khan, his step-uncle Shamsher Wali and appellant were proceeding towards the tubewell for taking bath on 25-6-1984 at noon time. When they reached near the house of Dr. Ihsan on the road to Kunda-Ambar they were being followed by the appellant who fired a shot at his brother Tajammul from behind with which the brother was injured and fell down and expired after few moments. The complainant reached his brother and in the meantime the appellant fled away. There was no previous enmity between the parties except that a few days earlier an oral altercation had taken place between the deceased and the appellant but the same was patched up subsequently. Tilawat Khan met Fatehmand Gul Khan A.S.I. and reported the matter to him who recorded the same which was subsequently incorporated in F.I.R. No.311 of Police Station Lahore at 1400 hours. The appellant was arrested on the same day and pistol of .22 bore, Ex.P.2, alleged to be the weapon of offence, was recovered on the same day from a room of the house of the appellant at the pointation of the appellant. The Investigating Officer also recovered on the same date from the spot one empty of 22 bore, EX.P.1. Both the said pistol and the empty were sent to the Arms Expert whose report disclose that the said empty was fired from the aforesaid pistol. The appellant also made a confession on 28-6-1984. The appellant was sent up for trial before the Additional Sessions Judge Swabi where he was charged under section 302, P.P.C. to which he pleaded not guilty and claimed trial. The state produced nine witnesses in proof of the prosecution case out of whom PW.6 Tilawat Khan complainant is the only eye-witness of the occurrence. Although one more eye-witness Shamsher Wali is mentioned in the F.I.R. but he was not produced as a witness at the trial. The learned trial Judge disbelieved the testimony of PW.6 Tilawat Khan complainant but recorded conviction on the other evidence available on the record. We have perused testimony of PW.Tilawat Khan and we find that he has made a very material improvement in the prosecution case inasmuch as in the F.I.R. he had stated that there was only one shot fired at his brother by the appellant but in his testimony he stated that the appellant had fired two shots at his deceased brother with which he was hit on his head. This he had apparently done to bring the ocular story in accordance with the medical evidence, because PW.1 Dr. Asfand Yar Khan had found two wounds on the head of the deceased. It was only the appellant who had fired shots and no one else was firing at that time and if Tilawat Khan was present there at the time of occurrence he could have very easily counted the shots fired by the appellant. However, in the F.I.R. he categorically disclosed that the appellant had fired only one shot but in his testimony at trial he stated that two shots were fired by the appellant. In cross-examination he also admitted that they had never gone to the tubewell in question before the day of occurrence. He also admitted that he and his step-uncle were standing and the deceased and the appellant had met them and they had invited them to go for bath. Moveover, the occurrence took place at noon time and the report was made at 1400 hours which would show that there was some delay in making the report. It is also highly improbable that the murder could have taken place in the presence of two witnesses. All these circumstances would show that PW.6 Tilawat Khan was not present at the spot at the time of occurrence. He was not only a chance witness but also being closely related to the deceased his testimony was not free of doubt. We are, therefore, of the opinion that the learned trial Judge was right in discarding the testimony of this witness.

3. The other evidence against the appellant consisted of his confession and recovery of alleged crime pistol of 22 bore and the matching of the empty with the pistol. In so far as the confession is concerned, it may be stated that it was recorded four days after the arrest of the appellant. The weapon of offence was alleged to have been recovered on the same day when the appellant was arrested and he had himself led the police party inside his house and had pointed out the same and it was recovered from under the floor of a room of the house. This would show that the appellant had virtually confessed his guilt on the same day when he was arrested after having committed the offence but it is very strange that his confession was recorded after four days. The Investigating Officer has not furnished any explanation for this inordinate delay in producing the appellant before the Court for recording his confession. When the appellant had allegedly pointed out the place where he had buried the weapon of offence it is not understood as what was the hitch in not recording his confession on the very same day because recovery of the weapon of offence could not be made without the help of the appellant. Even otherwise the confession does not seem to us to be voluntarily made because to a question by the Magistrate, who recorded the confession, the appellant had informed him that he was beaten by the police. The Magistrate also did not ask from the appellant as to why he was making the confession. Moreover, the appellant was of tender age at the time of making the confession and he could not correctly comprehend the implications of making a confession and as such he should have been given opportunity to seek legal advice or advice of his older relatives: The confession also does not find any support from the prosecution evidence. The appellant has not admitted the presence of any eye-witnesses. The purposes of going together has also not been clarified. Not only that the confession does not find any support from the prosecution evidence but is also contradicted in material facts. According to the confession only one shot was fired whereas there were two injuries on the person of the deceased. The motive disclosed in the confession is not the same as disclosed in the F.I.R. The cumulative effect of all the aforesaid circumstances is that the confession is neither voluntary nor true nor is supported by the other circumstances of the case. On top of that the appellant also retracted from it in his statement under section 342, Cr.P.C. Taking into consideration all these circumstances we would exclude confession from consideration.

4. The other circumstance is the alleged recovery of pistol which is alleged to be the weapon of offence. According to the prosecution case this pistol was recovered on the same day and at the instance of the appellant. He led the police party to his house and pointed to a place in a room where he had buried it and the Investigating Officer recovered it. The Investigating Officer prepared Ex.PE, recovery memo regarding the recovery of pistol. Razi Khan and Sardar Ali are witnesses of the recovery memo. Appearing as PW.7 Sardar Ali stated that in his presence the appellant had led the police party to his house where from inside the Kotha of his house the pistol was recovered which was burried under the ground. In cross-examination this witness has further stated that the pistol had been recovered from the frontal Kotha in the house of the accused in the light of torch. It has come on record that there was electricity in the house from which the pistol was alleged to have been recovered. There are two plans of the house of the appellant from where the pistol is alleged to have been recovered. One is Ex.PE/1 which was prepared by the Investigating Officer at the time of the alleged recovery of the pistol. According to this site plan there are two rooms in the house of the accused and both the rooms are on the north and south of the house and the pistol was allegedly recovered from inside the room on the north. There is another site plan EX.DW.1/1 which was prepared by the Patwari on the direction of the learned trial Judge. According to this plan there are two rooms in the house of the appellant one on the north and the other on the west adjacent to the first room. The different plans of the house from where the weapon of offence was allegedly recovered would create a strong doubt in the circumstances of recovery of the weapon of offence. There was electric light in the house but no explanation has been furnished as why the pistol was recovered in torch light PW.7 Sardar Ali has further admitted that there was darkness in the Kotha from where the pistol was recovered. If there was electric light in the house then it is beyond comprehension as why there was darkness at the place from where the pistol was recovered. There is yet another circumstance which makes the recovery of the pistol further doubtful. The house from where the pistol was allegedly recovered is not exclusively owned by the appellant. It belongs to his father and his parents and his brother have free access thereto. In such a situation it cannot be stated that the pistol actually belonged to the appellant. In so far as the alleged empty recovered from the spot and the pistol is concerned, it has come in evidence that the Investigating Officer had recovered the pistol on the very day of occurrence and had sent the same to the Arms Expert on the same day but the report of the Arms Expert discloses that this pistol was received by him by hand on 15-7-1984. It was recovered on 25-6-1984 and received by the Arms Expert on 15-7-1984 which would show that it was D received by him 21 days after its recovery. The Investigating Officer states that he had sent it by post whereas the report of the Arms Expert shows that it was received by hand. A strong suspicion has arisen in our mind that the pistol was not sent to the Arms Expert immediately after its recovery but it was lying with the Investigating Officer for many days. As such we cannot rule out the possibility that the pistol was planted in this case to make out a case against the appellant. Initially it was a case of ocular testimony but at trial it came out to be a case of circumstantial evidence only but we have noted that circumstantial evidence in this case was also not natural but it was fabricated. We are very clear in our mind that the pistol was planted by the prosecution in this case in order to prove its case against the appellant.

5. The learned counsel for the State had also raised a preliminary objection that the appellant was not examined as a witness under the provisions of subsection (2) of section 340, Cr.P.C. and his contention was that it was an illegality which had vitiated the trial and he urged that the case be remanded to the trial Court for affording an opportunity to the appellant to appear as a witness. We have given very serious thought to this contention of the learned counsel for the appellant. The provisions of subsection(2) of section 340, Cr.P.C. have been the subject-matter of many cases before different High Courts. The first reported case in this respect is that of Abdul Malik v. The State P L D 1985 FSC 293 and the learned Division Bench of the Federal Shariat Court were of the following opinion:

"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 spite of this he did not make any statement before the Court that he intends to give evidence on oath. Neither the appellant nor his counsel made any application to the Court for exercising the right under subsection (2) of section

340. The appellant was given full opportunity to produce the defence. While recording his statement under section 342, Cr.P.C. a specific question was put to him whether he would give evidence to which he replied in the affirmative and did examine one witness in defence namely Muhammad Ashraf (D.W.1). Thereafter, he gave statement that he closed his evidence. It may be stated that by the time his evidence was closed, amendment in section 340, Cr.P.C. had not come into force. The trial had concluded on 19-2-1985, whereas the amending Ordinance came into force on 21-2-1985. Hence for this reason also non-compliance with the amended section 340, Cr.P.C. cannot be urged in support of the plea that the trial was vitiated on account of any irregularity. 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 evidence on oath. The duty of 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." However, in the case of Faqir Hussain v. The State P L D 1985 Lah. 434 our learned brother Muhammad Munir Khan, J. of Lahore High Court had held that the trial court neither examined accused on oath nor provided him any opportunity of giving evidence on oath, it was a legal infirmity in trial and non-compliance of section 340(2), Cr.P.C. would tantamount to an illegality not curable under section 537, Cr.P.C. The learned Judge set aside the conviction and sentence of the accused and sent the case back to trial Court for retrial from stage of examination of accused under section 342, Cr.P.C. In the case of Rizwan v. The State P L D 1986 Lah. 222 our learned brother Qurban Sadiq Ikram, J. of the Lahore High Court held that section 340(2), Cr.P.C. being an unjust provision of law, is detrimental to interest of accused and not a beneficial legislation. In the case of Muhammad Qasim v. The State P L D 1986 Quetta 286 our learned brother Mir Hazar Khan Khoso, J. of the Baluchistan High Court held that examination of accused on oath to give evidence in disproof of charges or allegations made against him was obligatory for Court and non-examination was not an irregularity curable under section 537, Cr.P.C. and was an illegality and required retrial. In the case of Sultan Zari v. The State 1986 P Cr. L J 1723, the learned Judges of the Federal Shariat Court were of the opinion that it was the right of the accused to ask the Court that he intended to give evidence on oath under the amended section 340(2), Cr.P.C. and it was not the duty of the Court to remind the appellant that he had a right to give evidence on oath in his defence and the duty of the court ended after it asked from the accused whether he intended to give evidence in defence. In the case of Muhammad Saeed alias Pulla v. The State P L D 1987 Pesh. 31 our learned brother Abdul Karim Khan Kundi, J. had discussed the implications of subsection (2) of section 340, Cr.P.C. at great length and he was of the opinion that:

"The accused is under obligation to give evidence only in disproof of the charges or allegations made against him in the prosecution evidence. Prosecution has to bring home charge to the accused on the strength of its own evidence and the accused is only required to give evidence on oath in disproof thereof. The adverse presumption /inference against the accused can only be used in corroboration of the prosecution evidence and not to prove the guilt of the accused by itself." In the case of Khalid Hussain alias Khalid Pervaiz v. The State 1987 P Cr. L J 1979 learned Division Bench of the Federal Shariat Court was of the opinion that:

"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 refuses 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."

6. It is a cardinal principle of criminal law that every accused is presumed to be innocent unless proved guilty. It is the duty of the prosecution to prove the guilt of an accused person beyond any reasonable doubt and when this duty is successfully discharged by the prosecution, only then the accused will be called upon to enter upon his defence. As such the offence has to be proved against the accused independent of any evidence from his side and he has to enter upon his defence. Viewed in this context it would be very clear that the provisions of subsection (2) of section 340, Cr.P.C. are that the accused, if he does not plead guilty, is required to give evidence on oath in disproof of the charges or allegations made against him. The words used in this section are very clear. The accused is required to give evidence in disproof of the charges of allegations made against him. The accused cannot be compelled to be a witness against himself. It is only when evidence has been produced against him that he would be called upon to give evidence in disproof of the charges or allegations made against him. The accused cannot be arraigned as a prosecution witness. We are, therefore, of the considered opinion that the duty of Court is only to ask the accused if he would enter upon his defence and then leave it to him to elect to appear as a witness or not and there would be no irregularity or illegality if such course of action is adopted by the Court and the accused declines to give statement on oath.

7. From the examination of the appellant under section 342, Cr.P.C. we find that the learned trial Judge had asked the appellant, when he was making a statement under section 342, Cr.P.C., would he produce defence and he had replied in the affirmative. Thereafter the appellant had produced three defence witnesses but he did not offer himself to appear as a witness on oath. If the appellant so wanted he could have recorded his statement on oath under section 340(2), Cr.P.C. It shall thus appear that the appellant was given ample opportunity by the learned trial Judge to make a statement on oath but he did not choose to do so. In the circumstances no illegality or irregularity has been committed by the learned trial Judge in not recording the statement of the appellant on oath. We would, therefore, agree with the findings on this point recorded in different judgments by the learned Judges of the Federal Shariat Court that no adverse inference can be drawn against the accused if he refuses to make statement on oath and the only duty of the Court is to apprise him to make him aware of his right to record his statement on oath in disproof of the charges or allegations made against him and he may either make such a statement or may refuse to make it. Having arrived at this conclusion we are in respectful disagreement with our learned brother Abdul Karim Khan Kundi, J. that the accused is under obligation to give evidence only in disproof of the charges or allegations made against him in the prosecution evidence. We are of the considered opinion that he may choose or decline to choose this course of action, and he is not under obligation.

8. As the prosecution failed to prove the guilt of the accused we would accept this appeal, set aside the conviction and sentence of the appellant and would acquit him. The murder reference is answered in the negative. Since we have accepted the appeal of the appellant the revision petition is dismissed. He shall be set at liberty forthwith if not required in any other case. M.Y.H./567/P Appeal accepted.