Summary: (a) Criminal Procedure Code (V of 1898)- -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. (b) Criminal Procedure Code (V of 1898)- -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. 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. (c) Criminal trial- - 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. (d) Criminal Procedure Code (V of 1898)- -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. (e) Alibi- - 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. (f) Criminal Procedure Code (V of 1898)- - S. 340(2) [as substituted by Code of Criminal Procedure (Amendment) 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. (g) Criminal Procedure Code (V of 1898)- - S. 340 (2) fns substituted by Code of Criminal Procedure (Amendment) 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 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 be 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 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. (h) Criminal Procedure Code (V of 1898)- - 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. (i) Constitution of Pakistan (1973)- - 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]. (j) Criminal Procedure Code (V of 1898)- - S. 439-Revisional jurisdiction of High Court-Vires of a legislation, held, could not be challenged collaterally or incidentally before High Court in exercise of its revisional jurisdiction.-[Vires of legislation-Revision (criminal)]. (k) Criminal Procedure Code (V of 1898)- - S. 340(2) [as substituted by Code of Criminal Procedure (Amendment) 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. (l) Criminal Procedure Code (V of 1898)- - 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. (m) High Court (Lahore) Rules and Orders- -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. (n) Criminal Procedure Code (V of 1898)- - 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. Tasaddaq Hussain Jillani, A. A.-G. for the State. Dates of hearing: 26th February: 11th March and 15th April, 1986