S B L R 2007 FSC 4

[Federal Shariat Court]

Present: Haziqul Khairi, CJ.

Haji---Appellant

versus

The State---Respondent.

Criminal Appeal No. 20-K of 2006. decided on 17th August, 2006.
A) Criminal Procedure Code, 1898. Section 340(2)---where accused person is willing to examine himself on oath under section 340(2) then it is the duty of trial Court to record his statement or give explanation as to why his evidence will not be recorded.[P-6]A.

Mr. Salahuddin Panhwar Advocate for the Appellant.

Mr. Arshad. H. Lodhi, Advocate A.A.G. Sindh for The State.

JUDGMENT

HAZIQUL KHAIRI, CJ:- The appellant is aggrieved and dissatisfied with the judgment dated 13.3.2006 passed by learned District & Sessions Judge Mirpurkhas in Sessions Case No.21/2004 in which the appellant has been convicted to suffer R.I. for the (10) years.

2. Mr. Salahuddin Panhwar counsel for the appellant vehemently urges that although the appellant had replied in his statement under section 342 Cr.P.C. that he was willing to examine himself on oath under section 340(2), Cr.P.C. but his evidence was not recorded nor any explanation was given by the learned Judge as to why his evidence will not be recorded, which by itdelf, is sufficient to vitiate the whole proceedings.

3. In his judgment the learned Sessions Judge Mirpurkhas has stated that the accused has not examined himself on oath to disprove the prosecution case. Mr. Arshad. H.Lodhi, A.A.G for the State has gone through the record of the Trial Court including the Diary of the Court and confirms that at no other place the record shows that the appellant had declined to examine himself on oath to disprove the prosecution case and as undertaken by him in his statement under section 340(2), Cr.P.C. It will be advantageous to reproduce here section 340 (2). Cr.P.C. as under:

“[340(2). Any person accused of an offence before a Criminal Court of 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;

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

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 for which he is being tried; or
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
he has given evidence, against any other person charged with or tried for the same offence].”

4. The appellant admittedly pleaded not guilty and having said so it gives him impassable right to give evidence on oath in disproof of the charges or allegations made against him---, and cast upon the Court a duty to seek clarification from him for retracting his earlier stand as it shall be in constitution of section 340 (2), Cr.P.C. The record however shows that the appellant had produced defence witnesses but not himself. In these circumstance the learned trial Judge should have farmed the question and recorded the retracted statement of appellant in writing before the commencement of his defence. I, therefore, remand the case to the learned Sessions Judge Mirpurkhas with direction to examine the appellant on oath if he so desires and if not to record in writing his refusal to do so. Ample opportunity be given to the counsel for the appellant to re-argue his case in the light of the additional evidence if any recorded by the Court.

5. The learned trial Court if further directed to give his judgment within 60 days hereof.

The appeal is accordingly disposed of.

Order accordingly.