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Petitioner: ARSHAD MEHMOOD VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Saleem Akhter, Ajmal Mian, Syed Sajjad Ali Shah Title: ARSHAD MEHMOOD vs THE STATE Case No.: Criminal Appeal No, 238 of 1987 Date of Judgment:1988-10-10 Reported As: 1989 P Cr. L J 574 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SAJJAD ALI SHAH, J.-- This appeal is directed against the judgment dated 12-12-1987 of learned Presiding Officer, Special Court (Offences in Banks) Karachi, whereby appellant named above, has been convicted for offence under section 471, P.P.C. And sentenced to R.I. For 12 months and fine of Rs,24,000 or in default R.I. For 6 months. By the same impugned judgment in the same proceedings appellant has been acquitted of offences under sections 380, 420 and 468, P.P.C. ' Briefly stated the relevant facts giving rise to this appeal are that appellant worked as messenger in Allied Bank, Keamari Branch, Karachi. It is the case of the prosecution that appellant obtained cheque book of Account No, SB-273, issued five forged cheques and withdrew total amount of Rs, 11,950 from 1-11-1984 to 6-1-1985. Account-holder Mr. Muhammad Mahmood Ahmed had died on 28-1-1984 when fraud was detected. All staff members were interrogated and appellant confessed having withdrawn the amount mentioned above by issuing cheques forging the signatures of deceased account-holder. Appellant repaid to the bank Rs,11,952 which were misappropriated. Manager of the bank branch lodged complaint at the police station, after which investigation was commenced and relevant documents were collected. ' In the trial Court prosecution examined 9 witnesses in support of its case. P.W.1 is Razauddin Ahmed, Manager of the branch, who is complainant in the case. He has stated the facts and produced documents Exhs.2/A to Exh.2/L. P.W.2 Nusrat Ali, Accountant deposed that he had issued cheque book, which was taken away by Noor Muhammad P.W.3 Abdul Hamid is gunman in whose presence appellant confessed his guilt. P.W. 4 Amir Hyder Rizvi partly investigated the case and collected some documents.P.W.5 Maqsood Ahmed is son of deceased account-holder and testified that his father died on 28-1-1984 and after obtaining succession certificate from the Court
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he approached the Manager of the branch who informed him that money had already been withdrawn and there was no money left in the account. PW.6 is Jahanzeb, Cashier in whose presence appellant admitted misappropriation and gave it in writing P.W.7 is Muhammad Nawaz who has presented challan in the Court. P.W.8 is Allah Dita Baloach who partly investigated the case and arrested the appellant. P.W.9 Ali Anwer Chandio also partly investigated the case. ' In the trial Court in his statement under section 342, Cr.P.C. Appellant denied prosecution's allegations including reimbursement to the bank of the amount misappropriated and confession. ' Regional Manager, City Zone of Allied Bank was examined as Court-witness. He stated about the facts of the case and in his presence appellant gave confession in writing. Appellant examined Razauddin as D.W.1, who produced peon book of Keamari Branch. Appellant examined his mother Mst. Sharifan Bibi as D.W.2 who deposed that bank people compelled her son to give confession in writing and no money was taken from her house by her son for reimbursement to the bank. ' We have heard at length Mr. Dewan Bashir Ahmed, Advocate for appellant and Mr. Hazratji for State. It was submitted on behalf of the appellant that P.W.5 Maqsood Ahmed son of deceased account-holder stated in his evidence that he had made an application with request to close the account of his father for the reason that he had expired and that application was not brought on the record from which an adverse inference can be drawn that some other officer was involved and the appellant was made scapegoat. Contention is untenable for the reason that Maqsood Ahmed was cross-examined on behalf of the appellant and no such question was put to him as to what were the contents of that application and whether any other officer was involved. No such plea has been taken by the appellant in his 342, Cr.P.C. Statement or in his defence. It was then contended on behalf of the appellant that no evidence was produced by the prosecution to show how appellant was identified as culprit. In this regard record shows that P.W.1 Razauddin Ahmed stated that after Maqsood Ahmed approached him he checked the record and found the cheques having been encashed and then he made enquiries into the matter, suspected appellant after having examined writing of application for issuance of cheque book Exh.2/D. Appellant made confession in writing in presence of several witnesses. P.W.3 Abdul Hamid Gunman also deposed that appellant made confession in writing Exh.2/I in his presence. He also stated that appellant went home and brought money which he paid to the bank for the amount misappropriated by him. Similar statement is made by P.W.6 Jahan Zeb, Accountant. Then there is statement of Akhtar Ali Khan, Regional Manager who rushed to the spot and conducted inquiry in which appellant admitted his guilt and reimbursed the amount misappropriated by him. There is nothing adverse in the cross-examination of these witnesses to show that they were motivated to implicate appellant falsely. In their evidence there appears no animus against appellant nor it is alleged. ' It was next argued on behalf of the appellant that confession in writing of the appellant is not a statement recorded under section 164, Cr.P.C. But is a statement recorded before person of authority as such as contemplated under Article 37 of Qanun-e-Shahadat, it can be disbelieved on the ground of inducement, threat or promise. In support of the proposition reference was made to two reported cases, which are distinguishable and do not apply to the facts of this case. In Pehlwan and others v. State PLD 1975 Kar. 84 it was held that extra-judicial confession was evidence of weakest kind and the Courts always insist upon knowing precise words of confession. In the evidence witness could not say which of four appellants told him that they had committed murder of Ismail. In the case of Muhammad Aslam and others v. State 1983 P Cr. L J 844, it was held that extra-judicial confession of accused being in direct conflict with extra-judicial confession of co- accused was liable to be excluded. In the instant case confession was made before C.W. No,1 Akhter Ali Khan who is Regional Manager of the Bank. According to his evidence, he suspected appellant and during questioning in presence of several witnesses appellant admitted his guilt when his handwriting in the application Exh.2/D for issue of cheque book was shown to him. In this
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context evidence of PW.1 Razauddin Ahmed, who is Manager of the branch, is that when he examined the writing on Exh.2/D, he came to the conclusion that it was writing of appellant Arshad Mahmood with which he was familiar. This witness produced two other applications in the handwriting of appellant Exh.2/H and Exh.2/H-1. After making comparative study of handwriting in these applications he sent for the appellant who admitted his guilt of having made application Exh.2/D with forged signature of account- holder and then obtaining the cheque book and encashing five cheques, in consequence of which he had withdrawn the amounts. Evidence of Akhter Ali Khan and Razauddin Ahmed is consistent that appellant admitted his guilt in presence of several witnesses, gave confession in writing and reimbursed the amount. C.W.1 Akhter All Khan stated in his evidence that they had not given any threat, inducement or promise to the appellant but he had told the appellant that if he refunded the amount it was possible that the same could be taken into consideration for dealing with him leniently. This was done after appellant already wrote out his confession. C.W.1 Akhter All Khan was not cross-examined on the point that assurance made above was given to the appellant before he wrote out the confession. Similarly Razauddin Ahmed was Manager of the branch and the appellant was working directly under him and his statement is similar to that of C.W.1 Akhter All Khan but no such question was put to Razauddin with regard to the promise. Razauddin has stated in the cross-examination that no threat, inducement or promise was given to the appellant and he had voluntarily given confession Exh.2/I. In his statement under section 342, Cr.P.C. When question was put to him with regard to his written confession Exh.2/I, appellant in answer admitted having signed the said confession but stated that same was written by him under duress. He did not say anything about promise made to him. Appellant was asked further in his 342, Cr.P.C. Statement to say anything or add anything to what had already been stated by him, he did not do so and examined his mother Sharifan Bibi. She stated that she was asked by her son to come to the bank and when she came there saw some people sitting there asking her son to write confession and he wrote the confession. Thereafter people in the bank told her to go away and she went away. In the cross-examination she stated that she was employed in Clifton and went there in the morning at 8-00 a.m. And returned at 2-00 p.m., while her son worked in the bank in Keamari. From the appraisal of evidence we are satisfied that the case against the appellant stands proved. Appellant is a messenger in the branch of the bank and none from other Officers and persons working in the same branch and for that matter even Akhter Ali Khan has any motive for falsely implicating the appellant. Appellant also has not suggested any enmity to these witnesses in their cross-examination. Appellant has admitted his guilt in writing and he has reimbursed amount misappropriated by him. Appellant has not stated any plausible reason in his 342, Cr.P.C. Statement or in his defence plea for his false involvement in the case. ' It was submitted on behalf of the appellant that statement of appellant was not recorded in the trial Court on oath as contemplated under section 340(2), Cr.P.C. It was further argued that as per provision of law mentioned above it was mandatory for the trial Court to have recorded statement on oath of accused in the trial Court and the non-compliance would amount to illegality which cannot be cured under section 537, Cr.P.C. At this stage it would be pertinent to point out that prior to the latest amendment, section 340(2), Cr.P.C. Contemplated that any person accused of an offence shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations made against him. One prerequisite in the proviso was that he shall not be called as a witness except on his own request. Intention was very clear that it was mandatory for the Court to ask question to the accused whether he wanted to give evidence on oath in his defence and at the same time it was optional for the accused whether to give evidence or not. If he refused to give evidence or declined, then there was no compulsion on him. Then amendment came on 21-2-1985 by which section 340(2), Cr.P.C. Was substituted by Code of Criminal Procedure
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(Amendment) Ordinance XII of 1985. Now after amendment section 340(2), Cr.P.C. Contemplates that an accused person shall, if he does not plead guilty, give evidence on oath in disproof of charges or allegations made against him. Prerequisite in the proviso as was available before amendment to the effect that accused shall not be called as a witness except on his own request is omitted and is conspicuous by its absence after amendment. It is contended that now after amendment in section 340(2), Cr.P.C. It is mandatory for the Court to examine the accused on oath and mandatory for the accused to be so examined without any option available to him to wriggle out of it. Question now arises as to what will be the consequence, if the trial Court has not examined accused on oath. On this point there is conflict in the case-law as to what will happen if there is noncompliance of section 340(2), Cr.P.C. As it now stands. It would be worthwhile to mention here that Article 13(b) of the Constitution of the Islamic Republic of Pakistan provides that no person shall, when accused of an offence, be compelled to be a witness against himself. Now we examine the case-law on this point in view of legal position. ' In the case of Muhammad Siddique and another v. State PLD 1983 FSC 173 section 340(2), Cr.P.C. Came under consideration vis-a-vis Article 13 of the Constitution and it was held that accused was a competent witness for defence but option lay with him to depose on oath as a witness or not. This was so decided for the reason that section 340(2), Cr.P.C. Provided option to the accused and the latest amendment came subsequently in that provision in 1985. With regard to the Article 13 of the Constitution it was observed by the Federal Shariat Court that it was well-recognized principle of Islamic Criminal Jurisprudence that no one can be compelled to be a witness against himself and in that particular case under consideration before the Federal Shari at Court the question of compulsion did not arise because accused in that case had himself requested in writing to be allowed to appear as his own witness in his defence and the trial Court had turned down his request. It was further observed that in such circumstances Article 13 of the Constitution would not come in the way as accused wanted to exercise the right which was conferred upon him under section 340(2), Cr.P.C. ' In the case of Mst. Sultan Zari v. State 1986 P Cr. L J 1723 Federal Shariat Court held in the judgment dated 6-6-1985 that the duty of the Court ended if question is put specifically whether accused wanted to produce evidence in defence and the accused did not say that he or she intended to give evidence on oath then the accused failed to assert the right to be examined on oath. Article 13 of the Constitution is not noticed in this judgment. ' In the case of Abdul Malik v. State PLD 1985 FSC 293, which was decided on 9th June 1985, Federal Shariat Court held that it was the duty of the accused to exercise this right by pleading before the Court that he intended to give evidence on oath. At the time of recording his statement under section 342, Cr.P.C. a specific question was put to him whether he would give evidence which was sufficient compliance. It was pointed out in the said judgment that latest amendment in section 340(2), Cr.P.C. Came into force on 21-2-1985 and trial had concluded on 19-2-1985 and in any case accused did not ask and apply to the Court that he intended to give evidence on oath. In spite of the opportunity if the accused does not choose to exercise his right under section 340(2), Cr.P.C. As amended by Ordinance XII of 1985, no irregularity shall be deemed to have been committed by the Court. In the said judgment there is no mention about Article 13 of the Constitution, may be for the reason that such question was not raised. ' In the case of Rizwan v. State PLD 1986 Lah. 222, Qurban Sadiq Ikram, J. Has made a detailed analysis of section 340(2), Cr.P.C. Before and after amendment of 1985 and has considered the question whether amendment would apply with retrospective effect or not. At page 231 of the report in paragraph 7 the third and the last contention is mentioned which is to the effect that mandatory provisions of subsection (2) of section 340, Cr.P.C. Were not complied with by the trial
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Court. Learned Judge has discussed this point in sufficient detail with case-law and at page 236 of the report concluded as under:- "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. State PLD 1985 FSC 293." So far Article 13 of the Constitution is concerned it was also held in the above-mentioned Lahore judgment that section 340(2), Cr.P.C. Was not ultra vires of Article 13(b) of the Constitution of Pakistan for the reason that subsection (2) of section 340, Cr.P.C. Does not compel the accused person to be a witness against himself but only makes an accused person to make statement on oath in disproof of charges or allegations against him. ' In the case of Mst. Ameer Khatoon v. Faiz Muhammad and others 1986 SCMR 1182, Supreme Court of Pakistan vide order dated 9th February, 1986 has granted leave to appeal for consideration of the following questions:- "(i) That whether amended section 340(2), Cr.P.C. And Article 44 of the Qanun-e-Shahadat Order, 1984, have retrospective effect? (ii) That whether the conflict of authority as appearing from the case law cited is reconcilable? And (iii) That whether laws relied upon by the petitioner 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 accused now be burdened with some responsibility to reach the truth regarding his guilt or innocence." ' In the case of Saeedullah alias Bacha v. State 1938 P Cr. L J 19, it is held by Division Bench of Peshawar High Court vide judgment dated 27-10-1987 that duty of the Court was only to ask the accused if he would enter upon his defence and then leave it to him to elect to appear as a witness or not and no irregularity or illegality would be committed if the trial Judge did not record statement on oath if accused was given an opportunity and he declines to give statement on oath. There is also abundant case-law in favour of proposition that after amendment of 1985, under section 340(2), Cr.P.C., it is mandatory for the Court to record statement of accused on oath in dispr000f of charges or allegations made against him and non-compliance is not an irregularity curable under section 537, Cr.P.C. Reference can be made to the case of Muhammad Qasim v. State PLD 1986 Quetta 286. In Jan Muhammad v. State 1987 P Cr. L J 2302, it is held that such omission is an illegality not curable under section 537, Cr.P.C. Apart from these reported cases mentioned above there are unreported cases of our own High Court, which support the view that after amendment of 1985, under section 340(2), Cr.P.C. it is mandatory for the Court to record statement of accused on oath and non-compliance thereof would amount to the illegality which is not curable under section 537, Cr.P.C. Reference can be made to the judgments in the cases of Jan Muhammad v. State (Cr. Appeal No, 86 of 1985), in which the Division Bench to which the question was referred by learned single Judge answered the question in affirmative consistent with proposition stated above. The other judgment dated 28-1-1988 in the case of Noor Muhammad v. State in Criminal Appeal No, 214 of 1987 is delivered by Division Bench of this Court, supporting the same view. Having considered the case-law reported as well as unreported in support of both the views on the point at issue as stated above, I endorse the view taken by Qurban Sadiq Ikram, J. In the Lahore
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case of Rizwan v. State PLD 1986 Lah. 222, which is to the effect that amendment of 1985 to section 340(2), Cr.P.C. Would not apply with retrospective effect and in such case it was not necessary for the Court to ask a specific question if accused wished to appear in his own defence or not. My reasons for this view are as under:-- 1. That section 340(2), Cr.P.C. As it now stands is not in conflict with Article 13(b) of the Constitution for the reason that the section 340(2), Cr.P.C. Does not contemplate and intend accused to be a witness against himself. On the other hand facility is given to the accused to appear as a witness for himself. In the said provision there is no element of compulsion that accused must depose against himself. If accused wants to confess his guilt, he could always do so under section 164, Cr.P.C. Or he could make admission in his statement under section 342, Cr.P.C. Regardless of amendment of 1985. Even now after the amendment if statement of accused is recorded on oath he could deny the prosecution allegation. ' There is apparent and noticeable difference in section 340(2), Cr.P.C. Before amendment of 1985 and after. Before amendment the said provisin contemplated that accused shall be a competent witness for his defence and it was optional for him to exercise that right or not. After amendment the position has become different for the reason that now it is mandatory for the Court to record statement of accused on oath and it is further mandatory for the accused to have such statement recorded on oath. The option previously available is no more available now. In such circumstances provision before the amendment was indisputably beneficial to the accused and created a right of valuable option in his favour; of which he is deprived after the amendment. It is held in the case of Adnan Afzal v. Captain Sher Afzal by the Supreme Court of Pakistan PLD 1969 SC 187 that amendment would not operate retrospectively if it touches the right in existence at the time of passing of legislation. In the instant case cheques were encased and amounts were misappropriated from 1-11-1984 to 6-1-1985 and amendment to Section 340(2) Cr. P C came into force on 21-2-1985 as such this case would be governed by the provision before the amendment. Since it was optional for the accused at the relevant time to have his statement recorded on oath, no prejudice is caused to him if no such question was put to him specifically by the trial Court for the reason that he was asked in his 342, Cr.P.C. Statement, whether he wished to add anything to what he had already stated and whether he wished to lead any defence. Appellant in this case examined his mother as defence witness and did not say that he wanted to examine himself on oath. In the circumstances there is substantial compliance because amendment would not be applicable with retrospective effect in the instant case. 3. I am also of the view that amendment to Section 340(2) Cr. P C which has come into force on 21- 2-1985 would apply with full force to all the cases in which incidents have taken place after 21-2- 1985. The language used in the said provision after amendment makes it distinctly and abundantly clear that the intention is to make it mandatory for the trial Court to record evidence on oath of accused and at the same time it is mandatory for the accused also to have his statement so recorded on oath. Accused has no option but has to make statement on oath and it is upto him to say whatever he likes in that statement. If he wants to , he can defend himself on oath or in the other case he may simply say that he wants to adopt the statement as is given by him in 342, Cr.P.C. Statement. In the said provision word "shall" is used in such a way that no other meaning can be assigned to it except that the legislature has intended that it is mandatory for the trial Court to record the statement of accused on oath invariably in each case and also at the same time it is mandatory for the accused to have his statement on oath so recorded. Non-compliance with this mandatory provision is not curable under section 537, Cr.P.C. 4. Now the question arises as to when, where and how question is to be put by the trial Court to the accused with regard to his statement on oath. Sections 340 and 342, Cr.P.C. Are contained in Chapter XXIII of Criminal Procedure Code and statement under section 342, Cr.P.C. Is normally
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recorded after whole, prosecution case is brought on the record and then opportunity is given to the accused to explain circumstances and evidence against him in the prosecution case. That is the proper stage when accused could express his willingness to examine witnesses in defence. It is the duty of the prosecution to prove its case against the accused beyond any doubt and this burden remains unshifted on the prosecution regardless of the amendment under discussion. In my opinion that is the proper stage and after recording statement under section 342, Cr.P.C. At the end of that statement, the trial Court can administer oath to…
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