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Criminal Revision No. 150 of 1985, decided on 15th April, 1986.

---S. 364‑Examination of accused how recorded.

Section 364, Cr. P. C. provides firstly, that the whole examination of the accused shall be recorded in full in the language in which he is examined or if that is not practicable, in the language of the Court or in English, secondly, that such record shall be shown or read to him (accused), thirdly, that it shall be signed by the accused and the Magistrate and such Magistrate shall certify in his own hand that the examination was taken in his presence and hearing and that the record contained full and true account of the statement ; and finally, that if the examination is not recorded by Magistrate himself, he shall be bound to make memorandum thereof.

---S. 364‑Mere omission to append a certificate required under S. 364, Cr. P. C. would not mean that it had occasioned any failure of justice or that it had prejudiced accused in his defence on merits‑Question whether omission in procedure of a trial had occasioned a failure of justice, being a question of fact, must be determined before any finding about nature of irregularity could be given.

Faqir Hussain v. The State P L D 1985 Lah. 434 ; State v. Khan Muhammad 1986 P Cr. L J 711 and Mst. Amir Khatoon v. Faiz Ahmad and others Criminal Revision No. 18 of 1986 ref.

Muhammad Inayat v. The State 1.985 P Cr. L 1 469 ; Munshi v. The State 1985 P Cr. L 1 1677 ; Abdul Ghafoor v. The State 1985 P Cr. L J 877 ; Muhammad Rafiq v. The State 1985 P Cr. L J 1985 and Speed Ahmad Khan v. The State 1985 P Cr. L J 2489 distinguished.

‑‑ Omission to append a certificate under S. 364, Cr. P. C. cannot affect merits of case if it has not injured accused as to his defence on merits or has not occasioned a failure of justice.

Hazrat Jamal v. The State P L D 1958 S C 383 and Rehmat Ali v. The State 1986 S C M R 446 ref.

‑--Ss. 364, 439 & 537‑Magistrate signed statements of accused -Statements were also signed by accused‑Signature of accused proved the fact that examination of accused was recorded by Magistrate in his presence and hearing and that said examination was full and true account of statements by accused‑Trial was trot held in a mode prohibited by law but was held in accordance with prescribed procedure‑Absence/omission of certificate required under S. 364, Cr. P C.‑No misreading of evidence by Courts below pointed out No prejudice or failure of justice was shown to have been caused to accused due to absence/omission of such certificate Absence or omission of certificate under S. 364, Cr. P. C., held, was an irregularity curable under S. 537, Cr. P. C.‑High Court, in its revisional jurisdiction, would not interfere unless there had been in fact a failure of justice or accused was prejudiced in his defence on merits.

Hazrat Jamal v. The State P L D 1958 S C 383 and Rehmat Ali v. The State 1986 S C M R 446 ref.

‑ Plea of‑Accused was known to eye‑witnesses who had no enmity to falsely implicate accused‑Such witnesses had no other enemy‑ Nothing was available to show that accused was substituted for some other assailant‑‑Plea of alibi an afterthought seemed to have been fabricated by accused who was arrested after some days of occurrence and was not inspiring confidence‑Such plea, held, was rightly rejected in circumstances.

‑‑ S. 340(2) [as substituted by Code of Criminal Procedure (Amend ment) Ordinance (XII of 1985)]‑Provision of S. 340(2), Cr. P. C. (as introduced by Ordinance 1985), being an unjust provision of law, is detrimental to interest of accused and not a beneficial legislation‑Reasons illustrated.

If the accused declines to give evidence on oath in disproof of the charges or allegation made against him or if he refuses to answer a question put to him in cross‑examination, he can be subjected to prosecution under sections 178 and 179 of P. P. C. However, the amendment made by Ordinance XII of 1985 did not give valuable right to the accuses to give evidence in disproof of allegation against him. The option gives to the accused by Law Reforms Ordinance, 1972 was a substantive right which was taken away by a procedural provision brought by the amending Ordinance of 1985 to the detriment of accused. The refusal by. al accused to make statement on oath under section 340(2), Cr. P. C. or hi refusal to answer any question to cross‑examination can make him liable to punishment under sections 178, 179, P. P. C. He can be punished for purgery under section 193, P. P. C. He can be cross‑examined like an3 other witness to any extent as provided by Articles 44, 132 and 133 o1 Qanun‑e‑Shahadat. The only limit to cross‑examination is provided it three clauses of proviso of subsection (2). As such subsection (2) o1 section 340, Cr. P. C. to say the least, is unjust provision of law. Secondly, the accepted principle of law according to English as well as Islamic jurisprudence is that it is for the prosecution to prove its case against the accused in a criminal trial and he is never asked to rebut the charge on oath. Presumption is attached to his innocence. The accused is not required to prove his innocence in Court. He has only to show that the prosecution has failed to prove its case against him beyond reasonable doubt. The burden of proof in criminal trial lies on the prosecution under Articles 117, 118, 119, 120 of Qanun‑e‑Shahadat (sections 101 to 104, Evidence Act). The accused is burdened of proving the existence of circumstances only if he pleads general or special exceptions or provisos contained in the Pakistan Penal Code or in any law defining the offence. One can visualize some cases in which the statement of accused on oath during a criminal trial may be considered necessary as for example cases under sections 107, 133, 144, 145, 488, 552, Cr. P. C. or cases under section 379/411, P. P. C. if the accused claims the stolen property or cases under sections 420, 467, 478, 506, P. P. C. or in cases where be pleads general or special exceptions. But even in such like cases it should be his option to give or not to give evidence on oath. Therefore, the provision of subsection (2).of ,section 340, Cr. P. C., as introduced by Ordinance XII of 1985 is detrimental to the interest of accused and not a beneficial legislation.

Faqir Hussain v. The State P L D 1985 Lah. 434 ref.

‑‑ S. 340 (2) fns substituted by Code of Criminal Procedure (Amend ment) Ordinance (XII of 1985)]‑Provisions of S. 340 (2) (as introduced by Ordinance, 1985) being detrimental to the interest of accused, held, could not be given retrospective effect‑Reasons detailed‑[Interpretation of statutes].

The option/choice of the accused to give statement on oath in rebuttal to the prosecution evidence given in the Law Reforms Ordinance was a vested and substantive right which could not be taken away by procedural provisions enforced by amending Ordinance (XII of 1985). The provisions of subsection (2) of section 340, Cr. P. C. as amended by Ordinance XII of 19b5, though a procedural law but being detrimental to the interest of the accused could not be given retrospective effect. These provisions were not beneficial legislation. Subsection (2) does not prescribe limits of cross -examination on merits of the case during the trial. The limits of cross examination given in the proviso of this subsection do not protect an accused from the mischief of lengthy cross‑examination to which he can be subjected if he appears to make statement on oath as an accused. Article 44 read with Articles 132 and 133 of Qanun‑e‑Shahadat permits unlimited cross‑examination of an accused, Article 165 of Qanun‑e‑Shahadat provides that the Order called Qanun‑e‑Shahadat shall have effect not withstanding anything contained in any other law for the time being in force. As such the limited limits provided in the proviso of subsection (2) of section 340, Cr. P. C. which was a later legislation will have no effect. and the .accused, therefore, would be subjected to lengthy cross -examination which may prejudice his defence. There is another contradic tion in the two legislations. The Law Reforms Ordinance gave protection to the accused that his failure to give evidence shall not be made subject of any comment nor would it give rise to any presumption against him. This provision of law was deleted by the amending Ordinance XII of 1985. This means that his failure to give evidence on oath could give rise to presumption against him under Article 129, Qanun‑e‑Shahadat (section 114, Evidence Act). This was in conflict with the provisions of section 163, Qanun‑e‑Shahadat which provides for decision of a case on the basis of oath but it was specifically stated that "nothing in this Article applies to law relating to the Enforcement of Hudood or other criminal cases. An accused of a criminal charge is not required to prove his innocence. He can also not be called upon to disprove the charges or allegations made against him. He is only to show that the prosecution has failed to prove its case against him beyond reasonable doubt. The provisions of section 340 (2), Cr. P. C. as amended by Ordinance XII of 1985 could not be given retrospective effect. In the amendment introduced by Law Reforms Ordinance the accused was given option to be or not to be a witness in his own defence.

State v. Khan Muhammad 1986 P Cr. L 1 711 ; Adnan Afzal v. Captain Sher Afzal P L D 1969 S C 187 ; Mst. Amir Khatoon v. Faiz Ahmad etc. Criminal Revision No. 18 of 1986 and Abdul Malik v. The State P L D 1985 F S C 293 ref.

‑ Ss. 342 (4) & 340 (2) read with Qanun‑e‑Shahadat Order (10 of 1984), Art. 44‑No contradiction/conflict, held, existed between the two provisions of Cr. P. C.

--‑ Art. 13 (b)‑Criminal Procedure Code (V of 1898), S. 340 (2) Provisions of S. 340 (2), Cr. P. C., held; were not ultra vires of , Art. 13 (b), Constitution of Pakistan (1973).‑[Vires of legislation].

‑‑ S. 439‑Revisional jurisdiction of High Court‑Vires of a legisla tion, held, could not be challenged collaterally or incidentally before High Court in exercise of its revisional jurisdiction.‑[Vires of legisla tion‑Revision (criminal)].

‑‑ S. 340(2) [as substituted by Code of Criminal Procedure (Amend ment) Ordinance (XII of 1985)] & S. 537‑Provisions of S. 340(2), Cr. P. C. are mandatory‑Omission to record statement of accused on oath would be an illegality and not an irregularity curable under S. 537, Cr. P. C. ‑Accused is not bound to request Court during trial that his statement should be recorded‑Court itself has to record statement of accused under S. 340(2), Cr. P. C.

‑‑ S. 439‑Question as to administering oath to witnesses on Holy Qur'an or special oath according to local custom‑Question raised though not directly or indirectly involved in case, but being of public importance was examined by High Court in detail at request of all counsel appearing in case.

---Vol. IV, Chap. 12‑Oaths Act (X of 1873), Ss. 5 & 7‑Courts, held, were not permitted to administer oath to a witness in any trial or case on Holy Qur'an or special oath according to customs of the area‑Witnesses are required to be administered oath in the form of oath and affirmation prescribed by High Court Rules and Orders.

Both, the Code of Criminal Procedure and Qanun‑e‑Shahadat do not prescribe any form of oath and affirmation to be administered to witnesses during the trial or hearing of a case. The oath to a witness is administered under sections 5 and 7 of Oaths Act, 1873. The form of the oath is prescribed in Chapter 12 of Volume IV of High Court Rules and Orders. The Courts are, therefore, not permitted to administer oath to a witness in any trial or case on Holy Qur'an or special oath according to customs of the Illaqa. The witnesses are required to be administered oath in the form of oath and affirmation prescribed by the High Court Rules and Orders.

‑‑ S. 382‑B ‑Penal Code (XLV of 1860), S. 307‑Accused inflicted sharp‑edged weapon injuries on person of victim, injury on abdomen and two injuries on chest were found dangerous to life‑Injured person remained in hospital for two months‑Trial Court awarded sentence to accused after taking into consideration his detention in custody during trial of case‑Benefit of S. 382‑B, Cr. P. C. declined to accused in circumstances.

Ch. Mahboob Ahmad for Petitioner.

Tasaddaq Hussain Jillani, A. A.‑G. for the State.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Muhammad Bashir Khan, ‑Sahibzada Farooq Ali Khan. and Asif Saeed Khosa : Amicus curiae.

Dates of hearing : 26th February: 11th March and 15th April, 1986

Facts necessary for this judgment are given in brief below :‑

On 21‑4‑1984, Muhammad Rafiq complainant and his brother Muhammad Shafiq injured P. W. Were proceeding to their house. At about 9‑30 a.m., when they reached near the garden of Bakhshinda Pehalwan, all of a sudden, Rizwan accused armed with knife came there and inflicted blows on the chest and abdomen of Shafiq P. W. who fell down. Rizwan accused gave more injuries on the arm of ShaFq. The alarm attracted Fareed and Khadim Hussain P. Ws. (both not examined) who witnessed the occurrence. The accused ran away from the spot along with his knife. The injured Muhammad Shafiq was taken to Civil Hos pital, Multan, where he was examined and treated. He was in precari ous condition and, therefore, referred to Nishtar College Hospital for treatment. The complainant arranged blood for Shafiq and then pro ceeded towards police station to lodge the report. He met Inspector Mureed Hussain P. W. 6 at Kutchery Chowk at about 7‑00 p.m. and made statement Exh. P. D. on the basis of which the present case was registered at 7‑10 p,m. on 21‑4 1984, vide F. I. R. Exh. P.D./1 at P. S. Sadar, Multan.

The motive was stated to be that some time before the present occur rence, Muhammad Ramzan father of Rizwan accused who was Chairman Islah Committee, had asked Khalil, father of Rafiq complainant to vacate three feet wide strip near his house. He did not oblige which caused annoyance to Rizwan accused.

The accused was challaned after completion of investigation.

2. The prosecution in support of its case examined six witnesses in all. Muhammad Rafiq complainant P. W. 4 supported his injured brother Muhammad Shafiq P. W. 5. The recovery of blood‑stained knife P. 3 vide memo. Exh. P. C., on 3‑5‑1984 was witnessed by Javaid Iqbal P. W. 2. The medical evidence was furnished by Dr. Ziaud Din P. W. 1 who during medico‑legal examination of Shafiq P. W. on 21‑4‑1984, had noted nine sharp‑edged weapon injuries on his person. Injuries 1 to 3 were on abdomen ; injury No. 8 was on knee ; injuries 4 and 5 were on chest ; and rest of injuries were on right arm. These injuries were of about within one hour duration. Injury No. 3 on abdomen and injuries 4 and 5 on chest were found dangerous to life. The case was investigated by Inspector Mureed Hussain P. W. 6. The prosecution closed its evidence on 28‑1‑85.

The trial Magistrate on 9‑3‑1985, examined Dr. Muhammad Iqbal C. W. 1 who had operated upon Shafiq P. W. He produced in evidence the operation notes and case history as Exh. C. W. 1/I and Exh. C. W. 1/2. On the same day, Rizwan accused was examined under section 342, Cr. P. C. He denied the charge. He denied recovery of knife P. 3. He pleaded that at the alleged time of occurrence, he was present in his class in the Technical Institute.

On 8‑4‑1985, the accused examined Mr. Khaleel Khalid D. W. 1, a teacher in the Institute, who stated that Rizwan accused on 21‑4‑1984, remained present in his class throughout the timings of the Institute. He. produced attendance register Exh. D. W. VA. It indicates that Rizwan accused in April, 1984 was absent from his class from 1 to 7, 17, 23, 24, 26, 29 and 30.On other working days of the month including 21‑4‑1984, he was marked present. He also produced application Exh. D. W. 1/B‑I dated 9‑5‑1984, on behalf of Rizwan accused for getting a certifi cate of his attendance in his class on the day of occurrence. The reqi1ired certificate is Exh. D. W. 1/B‑2. The said certificate contains a note Exh. D. W. l/B‑3 by the Principal of the Institute to the effect that this certificate was not valid for Court. The Investigating Officer also had on 27‑5‑1984, made similar application marked, in Court as "A/1" which was returned with the remarks that the report of the teacher was not valid for Court. Haji Ali Muhammad 1 W. 2 on 16‑4‑1985, stated in Court that at about 9‑00/10‑00 a.m., he had reached the place of occurrence where Muhammad Shafiq P. W. told him that someone had injured him. The accused on that very day closed his defence.

3. The learned trial Magistrate ride judgment dated 29‑4‑1985 con victed Rizwan accused under section 307, P. P. C. and sentenced him to suffer four years' R. I. plus fine of Rs. 5,000 or in default one year R. I. It was ordered that half of the fine, if recovered, will be paid as compensa tion to Shafiq P. W.

The learned Sessions Judge, Multan, vide impugned judgment dated 30‑6‑1985, dismissed the appeal of Rizwan convict and maintained bib con viction and sentence. It was held by the lower appellate Court that motive was somewhat weak but as set up amply proved ; that it was a daylight occurrence and as such, there was no chance of mistaken identity ; that the complainant and the injured P. W. fully supported the prosecution case ; that recovery of knife P. 3 also corroborates the ocular account of this case ; and that the delay in lodging of F. I. R., it any, stood fully explained. He disbelieved the plea of alibi set up by the accused and dismissed his appeal as stated above. Hence this revision.

4. Ch. Mahboob Ahmad, Advocate, appearing on behalf of Rizwan petitioner, in support of this petition contended‑

(i) that the examination of Rizwan accused after framing of charge and under section 342, Cr. P. C. was not recorded in accordance with the provisions laid down in section 364, Cr. P. C. which fact vitiates trial ;

(ii) that the learned lower appellate Court did not at all consider the defence plea of alibi and as such, the appellate judgment cannot be sustained ; and

(iii) that the trial Court by ignoring mandatory provisions of subsec tion (2) of section 340, Cr. P. C. did not record statement of Rizwan accused on oath which fact vitiates the trial. Reliance was placed on a Single Bench judgment of this Court reported as Faqir Hussain v. The State P L D 1985 Lah. 434.

The learned counsel for the petitioner was not able to point out any misreading of evidence by any of the Courts below nor did he raise any other point.

Mr. Tasaddaq Hussain Jillani, Assistant Advocate‑General and Sardar Muhammad Latif Khan Khosa, Advocate, appearing for the complainant vehemently controverted the contentions on behalf of the petitioner. They placed reliance on the judgment reported as State v. Khan Muhammad (1986 P Cr. L J 711) and an unreported judgment of this Court dated 25‑1‑1986 in Mst. Amir Khatoon v. Faiz Ahmad and others (Criminal Revision No. 18 of 1986) in support of their submissions.

This petition involved intricate questions of law. I, therefore, request ed Mr. Muhammad Bashir Khan, Sahibzada Farooq Ali Khan and Mr. Asif Saeed Khosa, Advocates to assist this Court as amicus curiae.

I have gone through the record of chi's case and have also heard all the learned counsel at some length.

5. The first contention on behalf of the petitioner relates to section 364, Cr. P. C. which provides firstly, that the whole examination of the accused shall be recorded in full in the language in which he is examined or if that is not practicable, in the language of the Court or in English, secondly, that such record shall be shown or read to him (accused) ; thirdly, that it shall be signed by the accused and the Magistrate and such Magistrate shall certify in his own hand that the examination was taken in his presence and hearing and that the record contained full and true account of the statement ; and finally, that if the examination is not recorded by Magistrate himself, he shall be bound to make memorandum thereof. I have gone through the examination of Rizwan accused immediately after the charge and again under section 342, Cr. P. C. These statements were written in the hand of Magistrate. They contain complete answers to various questions put to the accused by Court and these are signed by the Magistrate as well as by Rizwan accused. The precise objection on behalf of the petitioner was that "these statements do rot contain certificates that these were recorded in the presence and hearing of the Magistrate or that the record contained full and true account of the statements". The learned counsel, besides the judgment in the case of Faqir Hussain also placed reliance on Muhammad Inayat v The state (1985 P Cr. L J 469), Munshi v. The State (1985 P Cr. L J 1677), Abdul Ghafoor v. The State (1985 P Cr. L. J 877), Muhammad Rafiq v. The State (1985 P Cr L J 1985), and Saeed Ahmad Khan v. The State (1985 P Cr. L J 2489).

I have considered the contention on behalf of the petitioner and have also gone through the cited judgments.

In the case of Muhammad Inayat, the examination of accused was found defective firstly, it had no date. secondly, it had not been written by the Magistrate in his own hand; thirdly, the question regarding recovery of crime weapon was not put to the accused; and finally, it did not contain the required certificate. There were other irregularities noted in the "dictation" and "signing of the judgment by the trial Court". The case of Muhammad Inayat bristled with irregularities which occasioned a failure of justice. In the case in hand, the only objection was regarding absence of the required certificate. The judgment in the case of Muhammad Inayat was, therefore, not attracted to the facts of this case.

In the case of Munshi, the conviction had been recorded under section 354, P. P. C. while in the case of Abdul Ghafoor, Muhammad Rafiq and Saeed Ahmad Khan, the accused were convicted for corruption in their respective cases by Special Judge Anti‑Corruption. In the cases of Munshi and 4bdulGhafoor, no certificate at all had been appended while in the cases of Muhammad Rufio and liaeed Ahmad Khan, the required certificates under section 364, Cr. P. C. had been given though these certificates were not in the hand of the Magistrate but only a stamp had been used. These four cases were, therefore, remanded for re‑trial according to law. I have gone through these four judgments. These do not disclose other details of examination of the accused, In all these judgments, it was held by a learned Judge in Chamoer that "to my mind, omission is illegality and not curable irregularity". The question whether the absence of certificate required under section 364, Cr. P. C. had to fact prejudiced the defence of the accused or had occasioned a failure of justice, was not considered in these judgments nor any finding to that effect was given by the learned Judge. I, therefore, very respectfully find myself unable to agree with the learned Judge in Chamber. The question whether omission in procedure of a trial had occasioned a failure of justice is a question of fact which must be determined before any finding about the nature of the irregularity can be given. Mere omission to append a certificate required B under section 364, Cr. P. G. would not mean that it had occasioned any failure of justice or that it had prejudiced the accused in his defence on merits. In Hazrat Jamal v. The State (PLD1958SC383), the trial Court had failed to keep memo, of the statement of the accused. It was held by their Lordships of the Supreme Court that even if such irregularity was com mitted, it would again b; curable in so far as the accused's statement is concerned provided the error bad not injured accused as to his defence on merits. In an another judgment reported as Rehmat Ali v. The State (1986SCMR446), the accused was not supplied copies of statements under section 161, Cr. P. C. It was held by their Lordships that "no finding, sentence or order is to be reversed or altered unless an omission or irregularity has occasioned a failure of justice". Although both, in Hazrat Jamal and Rehmat Ali's cases, the question of certificate under section 364, Cr. P. C. was not involved but it was clearly held by their Lordships that such omission cannot affect the merits of the case if it has not injured the c accused as to his defence on merits or has not occasioned a failure of justice.

In the instant case, the Magistrate had signed both the statements of the accused. These statement; were also signed by Rizwan accused. The signatures of the accused are proof of the fact that the examination of the accused was recorded by the Magistrate in his presence and hearing an that the said examination was full and true account of the statements mad by the accused. The trial was not held in a mode prohibited by law. It was held in accordance with the prescribed procedure. The absence omission of the required certificate under section 364, Cr. P. C. was only an irregularity curable under section 537, Cr. P. C. I pointedly asked the learned counsel for the petitioner about any prejudice that might have been caused to the accused due to the absence of this certificate. He was not able to show, in any manner, that the absence of certificate had occasioned a failure of justice which, as held above, is a question of fact. This Court will not interfere unless there has been in fact a failure of justice or the accused was prejudiced in his defence on merits. The firs contention on behalf of the petitioner is accordingly repelled.

6. The second contention on behalf of the petitioner was that the lower appellate Court did not at all consider the defence plea of alibi. I have gone through the impugned judgment. The learned Sessions Judge considered and rejected the plea of alibi set up by the accused. The contention on behalf of the petitioner is without any substance. I have myself examined this plea which, to my mind, is an afterthought and seems to have been fabricated by the accused who was arrested after some days of the occurrence. The Institute where Rizwan accused was a student was not at much distance from the place of occurrence. The Principal of the Institute recorded a note Exh. D. W. 1/B‑3 that the said certificate was not valid for Court. This means that the Institute itself was not prepared to rely on its own record. The presence in class is marked only once. Although Mr. Khalid Khaleel D. W. I stated that the accused remained in the Institute throughout the working time but this statement cannot be relied upon because it was not possible for this) witness to remain present with the accused throughout the school time. On an overall assessment of the evidence of this witness, I find that it does not inspire confidence. The defence plea was rightly rejected by the Courts below. The occurrence took place during day time. The accused was known to the two eye‑witnesses who had no enmity to falsely implicate Rizwan accused in this case. They had no other enemy. There is nothing to show that the present petitioner was substituted for some other assailant.

7. The third and the last contention of the learned counsel for the petitioner was that the mandatory provisions of subsection (2) of section 340, Cr. P. C. were not complied with by the trial Court.

I have considered the contention and have also heard at great length learned counsel appealing in this case.

Section 340, Cr. P. C. was substituted by the Code of Criminal Procedure (Amendment) Act (XVIII of 1923) as follows :‑

Section 340.‑(1) Any person accused of an offence before a criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

(2) Any person against whom proceedings are instituted in any such Court under section 107, or under Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under section 552, may offer himself as a witness in such proceedings."

A study of this section would show that subsection (2) gave an option to a person against whom proceedings under sections 107, 133, 144, 145, 488 or under section 552. Cr. P. C. are instituted to offer himself as witness in such proceedings. Firstly, it was the choice of the person against whom the proceedings were instituted and secondly, the option was restricted to class of cases mentioned in subsection (2).

Subsection (2) of section 340, Cr. P. C. was then substituted by Law Reforms Ordinance, 1972 which is as follows :‑

"Section 340.‑(l) Any person accused of an offence before a criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

(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 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‑

(a) 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

(b) 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

(c) he has given evidence against any other person charged with or tried for the same offence.'

An analysis of subsection (2) which only is relevant for the purposes of this discussion would show that the restriction of class of cases was removed by this amendment. Secondly, the option to an accused person to give evidence on oath in disproof of charges was extended to all offences. Thirdly, it was provided that he shall not be called as a witness except on his own request and his failure to give evidence shall no be made subject of any comment by the prosecution or give rise to any presumption against him. He was made subject to cross‑examine within the limits stated in this subsection.

Subsection (2) of section 340, Cr. P. C. was again substituted by Code of Criminal Procedure (Amendment) Ordinance XII of 1985 dated 21‑2‑1985 which is as follows :‑.

"340 (1) ..

(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 trade 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."

An examination of these provisions, would show firstly, that the words "shall be a competent witness for the defence" were omitted. Secondly, the option/choice of the accused to be or not to be a witness was taken away. Thirdly, it was made compulsory for him to give evidence on oath in disproof of the charges or allegations made against him. Fourthly, the provisions that "his failure to give evidence shall not be made the subject of any comment or given rise to any presumption" were deleted and finally, he was made subject to cross‑examination with the limits provided in paras. (i) to (iii) of the proviso to this subsection.

8. It was contended by Ch. Mahboob Ali mad, Advocate on behalf of the petitioner that the amendment made b) Ordinance No. XII of 1985 dated tl‑2‑1985 was not only procedural but also beneficial to the accused and as such is to be given retrospective effect. He placed reliance on the judgment of Faqir Hussain v. The State (P L D 1985 Lah. 434), Mr. Tasadaq Hussain Jillani, Assistant Advocate‑General and Mr. Muhammad Latif Khan Khosa, Advocate for the complainant controverted the contention on behalf of the petitioner and relied on the judgment in State v. Khan Muhammad. The learned Assistant Advocate‑General argued that the omission to record the statement of Rjzwan under section 340 (2), Cr, P. C. did not cause prejudice to his defence on merits and was merely an irregularity curable under section 537, Cr. P. C. He further stated that Rizwan accused was put a question during his statement under section 342, Cr. P. C. as to whether he wished to produce any evidence in defence. He examined two defence witnesses and could have asked the Court to record his statement. This was not done by him and as such he cannot agitate this point in revision before this Court. The learned counsel for the complainant con tended that subsection (2) of section 34U, Cr. P. C. was ultra vires of Articles 8 and 13 (h) of the Constitution of Islamic Republic of Pakistan. It was, therefore, argued by him that the amendment in the Code of Criminal Procedure being ultra vires of the Constitution could not be given effect and as such the absence of the statement of accused under section 340 (2), Cr. P. C. would have no effect on merits of this case.

Sahibzada Farooq Ali Khan, Advocate contended that the provisions of subsection (2) of section 340, Cr. P. C. were inconsistent with the provisions of Articles 44, 163 and 165 of Qanun‑e‑Shabadat. This order was enforced on 26‑10‑1984 whereas the amending Ordinance XII of 1985 was enforced on 21‑2‑1985 and as such the amending Ordinance will have no effect as against the Qanun‑e‑Shahadat. Secondly, it was argued by the learned counsel that the provisions of section 340 (2), Cr. P. C. was detrimental to the interest of the accused and as such could not be given retrospective effect. He contended that the judgment in Faqir Hussain's case was not attracted to the question being considered by this Court. He pointed out that if the accused is to examine himself on oath during the trial he will be exposed to cross‑examination subject to limits provided in subsection (2) which was against the principles of criminal justice administered by the Courts in Pakistan.

Mr. Muhammad Bashir Khan, Advocate argued that the provisions of subsection (2) of section 340, Cr. P. C. read with Article 44 of Qanun‑e‑Shahadat was contrary to subsection (4) of section 342, Cr. P. C. Secondly, that looking from the practical point of view, in a case of more than one accused. if one accused in a trial makes statement under section 340 (2), Cr. P. C. on oath in presence of his co‑accused, the statement of his co‑accused would become meaningless and if at the time of the recording of the statement of one accused, the other accused are sent out of the Court room then the proceedings being taken in the absence of the accused would become illegal. Thirdly, in the opinion of learned counsel the provisions of section 340 (2), Cr. P. C. being purely procedural in nature must be given effect retrospectively. Finally, the learned counsel stated that though the question is not involved in the case in hand but still the recent amendments have created much confusion in the mind of trial Courts who are administering oath and are asking the witnesses to take special oath on Holy Qur'an or oath according to the customs prevalent in the area. The learned counsel, therefore, argued that form of oath to be administered to witness in Court during trial should be prescribed to avoid confusion.

Mr. Asir Saeed Khan Khosa, Advocate argued that this Court in exercise of revisional jurisdiction cannot strike down or hold that the amending Ordinances No. XII of 1985 was ultra vires of Articles 8 and 13 (b) of the Constitution. He argued that vires of any legislation cannot be challenged collaterally or incidentally. It has to be attacked in an exclusive proceedings directed in that behalf in a constitutional petition. Secondly, in his view the provisions of section 340 (2), Cr. P. C. were not ultra vires of Article 13 (b) of the Constitution because these provisions did not compel an accused to be a witness against himself. He is only required to make statement on oath to rebut the prosecution evidence against him. He argued that the provisions of section 340 (2), Cr. P. C. were inconsistent with various provisions of Qanun‑e‑Shahadat and that these provisions were not beneficial to the accused.

9. All the learned counsel appearing in this petition were heard at great length. I have examined various provisions of law referred to by the learned counsel and have also examined various judgments cited at the Bar.

In the case of Faqir Hussain it was held by a learned Judge of this Court that subsection (2) of section 340, Cr. P. C gave valuable right to an accused to give evidence in disproof of allegation against him and that failure to give evidence on oath could also be made the subject of any comment by the prosecution and that an adverse inference/presumption could also be drawn against him. It was held by the learned Judge that if the accused refused to take oath/affirmation or give evidence or answer questions he will render himself liable to prosecution and punishment under sections 178 and 179, P. P. C. as the case may be. I agree with the conclusion in Faqir Bus sin's case that if the accused declines to give evidence on oath in disproof of the charges or allegation made against him or if he refuses to answer a question put to him in cross‑examination, he can be subjected to prosecution under sections 178 and 179 of . P. C. However, with great respect I find myself unable to agree with the conclusion that the amendment made by Ordinance XII of 1985 gave valuable right to the accused to give evidence in disproof of allegation against him, In my view the option given to the accused by Law Reforms Ordinance, 1972 was a substantive right which was taken away by a procedural provision brought by the amending Ordinance of 1985 to the detriment of accused. The refusal by an accused to make statement on oath under section 340 (2), Cr. P. C. or his refusal to answer any question in cross‑examination can make him liable to‑ punishment under sections 178, 179, P. P. C. He can be punished for purgery under section 193., P. P. C. He can be cross‑examined like any other witness to any extent as provided by Articles 44, 132 and 133 of Qunun‑e‑Shahadat. The only limit to cross‑examination is provided in three clauses of proviso of subsection (2). As such subsection (2) of section 340, Cr P.C .to say the least, is unjust provision of law. Secondly, the accepted principle of law according; to English as well as Islamic jurisprudence is that it is for the prosecution to prove its case against the accused to a criminal trial and he is never asked to rebut the charge on oath. Presumption is attached to his innocence. The accused is not required to prove his innocence in Court. He has only to show that the prosecution has failed to prove its case against him beyond reasonable doubt. The burden o proof in criminal trial lies on the prosecution under Articles 117, 118, 119, 130 of Qanun‑e‑Shahadat (sections 101 to 104, Evidence Act). The accused is burdened of proving the existence of circumstances only if he pleads: general or special exceptions or provisos contained to the Pakistan Penal Code or tit any law defining the offence. One can visualize some cases in which the statement of accused on oath during a criminal trial may be considered necessary as for example cases under sections 107, 133, 144, 145. 488, 552 Cr. P. C. or cases under section 379/411, P. P. C. if the accused clams the stolen property or cases under sections 420, 467, 478, 506, P. P. C. or to cases where he pleads general or special exceptions. But even in such like cases it should be his option to give or not to give evidence on oath. In my view, therefore, the provision of subsection (2) of section 340, Cr. P. C. as introduced by Ordinance XII of 1985 is detrimental to the interest of accused and not a beneficial legislation. It was held in Adnan Afzal v. Captain Sher Afzal (P L D 1969 S C 187) "if in this process any existing rights are affected or the giving of retroactive operation caused inconvenience or injustice then the Court will not even in the case of a procedural statute. favour an interpretation giving retrospective effect to the statute. On the other hand if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statute retroactively". In the judgment Stare v. Khan Muhammad and in an unreported judgment Mst. Amir Khataon v. Faiz Ahmad etc. (Criminal Revision No. 18 of 1986, decided on 25‑1‑1986) it was held that the option/choice of the accused to give statement on oath in rebuttal to the prosecution evidence given in the Law Reforms Ordinance was a vested and substantive right which could not be taken away by procedural provisions enforced by amending Ordinance XII of 1985. I agree with the conclusion in these two judgments. The provisions of subsection (2) of section 340, Cr. P. C. as amended by Ordinance XII of 1985, though a procedural law but being detrimental to the interest of the accused could not be given retrospective effect. These provision were not beneficial legislation. Subsection (2) does not prescribe limits of cross‑examination on merits of the case during the trial The limits of cross‑examination given in the proviso of this subsection do not protect an accused from the mischief of lengthy cross‑examination to which he can be subjected if he appears to make statement on oath as an accused. Article 44 read with Articles 132 and 133 of Qanun‑e-Shahadat permit unlimited cross‑examination of an accused. Article 165 of Qanun‑e- Shahadat provides that the Order called Qanun‑e‑Shahadat shall have effect notwithstanding anything contained in any other law for the time being in force. As such the limited limits provided in the proviso of subsection (2) of section 340, Cr. P. C. which was a later legislation will have no effect and the accused, therefore would he subjected to lengthy cross‑examination which may prejudice his defence. There is another contradiction in the two legislations. The Law Reforms Ordinance gave protection to the accused that his failure to give evidence shall not be made subject of any comment nor would it give rise to any presumption against him. This provision of law was deleted by the amending Ordi nance XII of 1985. This means that his failure to give evidence on oath could give rise to presumption against him under Article t29, Qanun‑e- Shahadat (section 114, Evidence Act). This was in conflict with the provisions of section 163, Qanun‑e‑Shahadat which provides for decision of a case on the basis of oath but it was specifically stated that nothing in this Article applies to laws relating to the Enforcement of Hadood or other criminal cases". As held above an accused of a criminal charge is not required to prove his innocence. He can also not be called upon to disprove the charges or allegations made against him. He is only to show that the prosecution has failed to prove its case against him beyond reasonable doubt. In my humble view the provisions of section 340(2), Cr. P. C. as amended by Ordinance XII of 1985 could not be given retrospective effect. In the amendment introduced by Law Reforms Ordinance the accused was given option to be or not to be a witness in his own defence. The occurrence in this case took place before the amendment of 1985. The trial against Rizwan petitioner was to be held according to the Code of Criminal Procedure as amended by the Law Reforms Ordinance which gave an option to the accused to be or not to be a witness in his own defence. The accused, if so desired could have appeared as witness to make statement on oath during the trial. It was not necessary for the Court to ask him a specific question if he wished to appear in his own defence or not. This view is supported by the judgment in Abdul Malik v. The State (PLD1985FSC293).

I am note prepared to agree with the contention that there was at conflict between subsection (4) of section 342, Cr. P. C. and subsection (2) section 340, Cr. P. C. read with Article 44 of Qanun‑e‑Shahadat. Subsection (4) of section 342. Cr. P. C. lays down that except as provided by subsection (2) of section 340, no oath shall be administered to the accused. There is, therefore, no contradiction/conflict between the two provisions.

I do not find any merit in the contention that the provisions of sub section (2) of section 340, Cr. P. C. were ultra wires of Article 13(b) of the Constitution. Subsection (2) does not compel' an accused person to be a witness against himself. It only make; an accused to make statement on oath in disproof of the charge /allegation against him. Even otherwise the vires of the legislation cannot be challenged collaterally or incidentally before this Court in exercise of its revisional jurisdiction.

The argument that even if the statement of ‑accused is not recorded on oath under the amended section 340(2), Cr. P. C. then also it only is an irregularity curable under section 537, Cr. P. C. is without any merit. The provisions of subsection (2) of section 340, Cr. P. C. as amended by Ordinance XI1 of 1985 are mandatory provisions of law. The recording of K the statement of accused on oath has been made a part of the procedure of the trial. 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.

10. It was pointed out by all the learned counsel appearing in this petition and also other members of the Bar present in Court during hearing of this case that the Courts are these days administering oath to witnesses on Holy Qur'an or special oaths according to local customs when they appear to give evidence during trial/hearing of a case. It was pointed out that each Court administered oath according to its own choice and L whims. This question is not directly or indirectly involved in the case in hand. However, the point raised being of public importance was examined by me in detail at the request of all the learned counsel appearing in this case and other members of the Bar present in Court.

Both, the Code of Criminal Procedure and Qanun‑e‑Shahadat do not prescribe any form of oath and affirmation to be administered to witnesses during the trial or hearing of a case. The oath to a witness is administered under sections 5 and 7 of Oaths Act, 1873. The form of the oath is prescribed in Chapter 12 of Volume IV of High Court Rules and Orders. The Courts are, therefore, not permitted to administer oath to a witness in any trial or case on Holy Qur'an or special oath according to customs of the Illaqa. The witnesses are required to be administered oath in the form of oath and affirmation prescribed by the High Court Rules and Orders.

In view of the above discussion I find no merit in the third and last contention on behalf of the petitioner.

11. It was submitted by the learned counsel for the petitioner that the petitioner should be allowed benefit of section 382‑B, Cr. P. C. The learned trial Magistrate in his judgment dated 29‑4‑1985 awarded sentence to the accused after taking into consideration his detention in custody during trial of the case. Rizwan petitioner inflicted 9 sharp‑edged weapon injuries on the person of Shafique P. W One injury on abdomen and two injuries on chest were found dangerous to life. Shafique injured remained in hospital for about two months. As such I am not inclined to allow benefit of section 382‑B. Cr. P. C. to the petitioner.

12. As a result of the above discussion this petition is dismissed.

In the end my thanks are due to the three learned counsel who appeared as amicus curiae and addressed arguments of high order. I am also thankful to the learned Assistant Advocate‑General and the learned counsel for the parties for their valuable assistance.

M. B. A. Order accordingly.

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