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Criminal Petition for Special Leave to Appeal No. 39 of 1986, decided on 9th February, 1986.

(From the judgment of the Lahore High Court, Lahore, dated 25‑1‑1986 in Criminal Revision No. 18 of 1986).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), Ss.340 & 342‑ Qanun‑e‑Shahadat Order (10 of 1984), Art. 44‑‑Leave to appeal granted to consider inter alia questions of general public importance: (i) that whether amended S.340(2), Cr.P.C. and Art. 44 of Qanun‑e‑Shahadat Order, 1984 have retrospective effect, (ii) that whether conflict of authority as appearing from case law cited is reconcilable and (iii) that whether laws relied upon by petitioner have changed a basic principle of criminal jurisprudence namely, that prosecution shall prove its case arc' accused would not be burdened with proof of his innocence in such a way that accused would now be burdened with some responsibility to reach truth regarding his guilt or innocence.

Faqir Hussain v. The State P L D 1985 Lah. 434; The State v. Maulvi Muhammad Jamil and others P L D 1965 S C 681; The State v. Khan Muhammad N L R 1985 Criminal Lah. 710 and Abdul Malik v. The State P L D 1985 F S C 293 ref.

Syed Abul Aasim Jaffari, Advocate‑on‑Record for Petitioner.

M. Zubair, Assistant Advocate‑General Punjab for Respondent No.5.

Date of hearing: 9th February, 1986.

Leave to appeal has been sought from judgment, dated 25‑1‑1986 of the Lahore High Court, whereby a criminal revision filed by the petitioner (a complainant in a murder case), was dismissed.

According to the learned counsel for the petitioner the accused respondent when examined under section 342, Cr.P.C. were not administered oath as required by amended subsection (2) of section 340, Cr.P.C. Therefore, the trial of the accused‑respondent suffered from a serious legal infirmity which needed to be corrected now when the trial has not yet been concluded.

Section 340, Cr.P.C. is reproduced below in original form as also in the form it attained after the amendment made therein by Code of Criminal Procedure (Amendment) Ordinance (XII of 1985), dated 21st February, 1985:

Unamended/original Amended

340. (1) Any person accused of 340. (1) Any person accused of

an offence before a Criminal an offence before a Criminal

Court, or against whom Court, or against whom

proceedings are instituted proceedings are instituted

under this Code in any such under this Code in any such

Court, may of right be Court, may of right be

defended by a pleader. defended by a pleader.

(2) Any person accused of an (2) Any person accused of an

offence before a criminal offence before a Criminal

Court against whom proceed‑ Court or against whom

ings are instituted under this proceedings are instituted

Code in any such Court shall under this Code in any such

be a competent witness for Court shall, if he does not

the defence and may give plead guilty, give evidence

evidence on oath in disproof on oath in disproof of the

of the charges or allegations charges or allegations made

made against him or any against him or any person

person charged or tried charged or tried together

together with him at the same with him at the same trial:

trial

Provided that‑‑ Provided that he shall not

(2) he shall not be called as a be asked, and, if asked,

witness except on his own shall not be required to

request; answer, any question

tending to show that he has

(b) his failure to give evidence committed or been convicted

shall not be made the subject of any offence other than

of any comment by the the offence with which he

prosecution or give rise to is charged or for which he

any presumption against him is being tried, or is of bad

or any person charged or character, unless‑

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 (i) the proof that hehas

committed or been convicted committed or been convicted

of such offence is admissible of such offence is admissible

in evidence to show that he in evidence to show that he

is guilty of the offence with is guilty of the offence with

which he is charged or for which he is charged or for

which he is being tried, or which he is being tried; or

(b) he has personally or by his (ii) he has personally or by his

pleader asked questions of pleader asked questions of

any witness for the any witness for the

prosecution with a view to prosecution with a view to

establishing his own good establishing his own good

character, or has given character, or has given

evidence of his good evidence of his good

character, or character; or

(c) he has given evidence against (iii) he has given evidence

any other person charged against any other person

with or tried for the same charged with or tried for

offence.' the same offence."

It is admitted from both sides that the trial commenced before the afore‑quoted amendment. Not only this the accused were also examined by the Court prior to the amendment Learned counsel for the petitioner has also relied on Article 44 of the Qanun‑e‑Shahadat Order, 1984 (No. 10 of 1984) enacted on 28th of October, 1984, which is reproduced below: ‑

"4. All accused persons including an accomplice, shall be liable to cross‑examination."

It is admitted position that the trial of the respondents commenced and their examination took place prior to the enactment of the Qanun‑e‑Shahadat. Learned counsel in support of his contention that both the amended laws will apply to the present case contended that they being of procedural nature shall have retrospective effect. He has raised on Faoir Hussain v. The State P L D 1985 Lah. 434 and The State v. Maulvi Muhammad Jamil and others P L D 1965 S C 681.

Learned Assistant Advocate‑General, on the other hand, contended that the questions of vested rights being involved in the application or otherwise of the amended laws they will not have retrospective effects. He has relied on The State v. Khan Muhammad N L R 1985 Criminal Lah. 710 and Abdul Malik v . The State P L D 1985 F S C 293.

After hearing both the learned counsel at some length we consider that the following questions amongst other related questions, would require examination:

Whether amended section 340(2) of the Code of Criminal Procedure and Article 44 of the Qanun‑e‑Shahadat Order, 1984, have retrospective effect

Whether the conflict of authority as appearing from the case law cited is reconcilable and

Lastly, whether, as contended by the learned counsel for the petitioner, the laws relied upon by him have changed a basic principle of criminal jurisprudence namely, that the prosecution shall prove its case and the accused would not be burdened with the proof of his innocence in such a way that the accused would now be burdened with some responsibility to reach the truth regarding his guilt or innocence.

The questions are of general public importance. We accordingly grant leave to appeal.

The request for the stay of the proceedings before the trial Court is refused.

The appeal shall be prepared on the present record with liberty to the parties to file additional documents, if necessary.

Keeping in view, the nature of the questions involved we deem it fit to request the Hon'ble Chief Justice to constitute a larger Bench to hear the appeal arising out of this case at a very early date so as to avoid accumulation of cases involving same points of law.

M.I. Leave granted.

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