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Criminal Miscellaneous No. 7 of 1984 decided on 12th June, 1985.
‑‑‑S. 340 [as amended by Code of Criminal Procedure (Amendment) Ordinance XII of 1985)]‑‑Statement of accused under S. 340, Cr.P.C., applicability of‑‑Right and option of accused to appear as a witness in his own defence, under unamended S. 340 of Cr. P.C., held, substantive and invoilable‑‑Provisions of S. 340, Cr.P.C. as emerged after amendment by amending Ordinance of 1985, held further, would not be considered retrospective nor to be made applicable to pending cases.
Nazir Ahmad Ghazi, Public Prosecutor for the State.
Kh. Muhammad Farooq for Respondent.
The accused made a statement on 7‑5‑1985 that he did not want to produce any defence. From that I take ii that even in exercise of option available to him under section 340, Cr.P.C., as it stood prior to its amendment in 1985, he did not want to appear as a witness in his own defence.
2. The question involved, therefore, was whether under section 340, Cr.P.C., as amended by Code of Criminal Procedure (Amendment) Ordinance, 1985, the accused should be compelled by this Court to appear as a witness in his own defence in disproof of charges or allegations made against him in the challan.
3. I heard arguments on 22‑5‑1958 on the question from Kh. Muhammad Farooq, learned counsel for the accused and Malik Muhammad Qayyum, learned D.A.G. and Mr. Nazir Ahmad Ghazi, Public Prosecutor on behalf of the State.
4. The learned defence counsel Khawaja Muhammad Farooq submitted that the amended section 340, Cr.P.C., was not applicable to the pending cases as the option to appear or not in one's own defence constituted a right which stood vested in the accused person by virtue of unamended section 340, Cr.P.C. and this right could not be taken away by the new amended section which came in force in 1985.
5. The learned D.A.G., and the Special Prosecutor conceded the correctness of this proposition and stated that under the new section 340, Cr.P.C., this Court could not compel the accused person to appear as a witness in this case to make a statement in his own defence.
6. I have considered the point in question. It is true that the procedural statute or a procedural provision in a statute like 340, Cr.P.C. operates with retrospective effect but it is also now well established that when such a statute or a provision touches a substantive right, it cannot be considered to be retrospective and is not made applicable to pending cases. In section 340, Cr.P.C., before the said amendment of 1985, the accused had the option to appear or not as a witness in his own defence and he could not be compelled by the Court to appear in person in disproof of allegations levelled against him. The right to appear in one's own defence at his own discretion was very valuable right conceded to an accused person in section 340, Cr.P.C., as it stood before its amendment in 1985. The accused is the best person to know whether he should appear as a witness in his own defence or not. If he found that on appearing in the Court as a witness, he would be able to disprove the charge against him, he could appear as such. But if he felt that by appearing in the Court as' a witness in his own defence he would make the noose around his neck, narrower, he could refuse to appear in his defence without any adverse inference being drawn against him. This right of choice, this right of exercising option whether 'he should appear in his own defence or not which vested as right in the accused previously was a substantive right. This substantive right of choice has now been taken away by the new provision which was ushered in by virtue of the said Amendment Ordinance of 1985. Therefore the new provision as it has emerged after amendment of section 340, Cr.P.C., in 1985 cannot be considered to be retrospective in operation and would not apply to the present pending case. I, therefore, would not compel the accused to come in the witness‑box to appear as a witness in his own defence to disprove the charges levelled against him and would, therefore, proceed to the next step in this case and fix it for arguments now.
7. To come up now on 18‑6‑1985.
S. G. D. Order accordingly.
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