PLJ 2023 Cr.C. 195 (DB)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Power to examine accused--Principle--“Express provision and specific prohibition--The section has two parts; first part authorizes Court to ask questions at any stage of inquiry or trial without warning accused and second part relates to questioning accused generally after close of prosecution evidence--Though in stricto senso no express provision is available for recording of statement more than once in second part of Section 342, Cr.P.C., yet first part authorizes to ask as many questions at any time as Court desires and wish of Court is obviously regulated not by whims but by principle that any piece of evidence appearing against accused needs his reply or clarification before it is used against him, and it is base line principle of natural justice borrowed from maxim “Audi Alterum Partem”, no one should be condemned unheard.
[Pp. 197 & 198] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Power to examine accused--Object of S. 342--Accused in his statement u/S. 342, Cr.P.C. cannot be used against him for recording any observation making part of main platform which is set to erect a guilt-edifice against him--Appellate Courts usually remand case on deficiency of questions put to accused in his statement u/S. 342 Cr. P.C. on principle that trial Court before relying upon any evidence should have sought explanation of accused about it, which indirectly a message that if any evidence is skipped or lost sight of putting to accused but is essential to be relied upon, trial Court before proceeding further must put some additional questions in this respect which is in line with first part of Section 342, Cr.P.C. authorizing Court to ask question at any stage of proceedings without warning him. [P. 198] B
PLD 1952 FC 63, PLD 1956 FC 1423.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Control of Narcotic Substances Act, 1997 (XXV of 1997),
S. 9(c)--Conviction and sentence--Challenge to--Power to examine accused--The allegation of filling lacune is usually attributed to litigating parties on whose applications Court sometimes misread situation but it cannot be levelled against Court which always looks for doing complete justice and in this respect is authorized to use its inquisitorial pocket in an adversarial system like in our system enumerated in Section 94, 265-F, 540, 539-B of Cr.P.C. and Article 158 & 161 of Qanun-e-Shahadat Order, 1984--So is case of power under first part of Section 342, Cr.P.C.--Trial Court is authorized to dilate upon all pieces of evidence for a reply of accused to be considered later in order to appreciate evidence of prosecution, yet recording of statement u/S. 342, Cr.P.C. afresh in this case is not desirable rather Court can put additional questions encompassing evidence appearing against him and is intended to be used by Court for recording any observation relating to guilt or otherwise of accused and this arrangement is in consonance with spirit of first part of Section 342, Cr.P.C--Petition in hand is dismissed having no merits; trial Court shall put additional questions to accused as per available evidence and shall treat it part of statement earlier recorded u/S. 342, Cr.P.C. for realizing any point of determination in final judgment--Petition dismissed. [Pp. 199 & 200] C & D
PLD 2020 SC 523.
Peerzada Niaz Mustafa Qureshi, Advocate for Appellant.
Malik Muddasir Ali, Deputy Prosecutor General for Respondents.
Date of hearing: 4.10.2022.
PLJ 2023 Cr.C. 195 (DB)
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ.
TAUHEED ABBAS--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 719 of 2017, heard on 4.10.2022.
Judgment
Muhammad Amjad Rafiq, J.--Through this Criminal Appeal, Tauheed Abbas (accused/appellant) has assailed the order dated 13.06.2017 passed in a trial of case FIR No. 22 dated 18.01.2016 registered under Section 9-C of The Control of Narcotic Substances Act, 1997 at Police Station Chowk Azam, District Layyah whereby the learned trial Court has deemed it appropriate to re-record his detailed statement under Section 342, Cr.P.C. on the ground that earlier statement was not recorded properly by the Predecessor of the Court.
2. Heard. Record perused.
3. The hunch of appellant’s counsel roles over the impugned order categorizing it as in defiance to law ever set through judicial precedents and lacking a light of express provision in this respect. Learned counsel was reminded of the power of Court to examine the accused at any stage even without warning him to seek his explanation against a circumstance so appeared in the evidence; it was responded that such stage is before questioning the accused generally after the close of prosecution case and in this case that stage has been passed. He further demonstrated that even statement could be recorded only once, not in repetition to feed the desire of Court, because in such eventuality it would be an effort in lacunae filling.
4. Contention was attended with circumspection on serious note under the principle of “Express Provision and Specific Prohibition”. Therefore, before proceeding further it would be appropriate to reproduce Section 342 Cr. P.C., which is as follows:
342. Power to examine the accused: (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court-may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence;
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by sub-section (2) of Section 340, no oath shall be administered to the accused.
The section has two parts; first part authorizes the Court to ask questions at any stage of inquiry or trial without warning the accused and second part relates to questioning the accused generally after close of prosecution evidence. Though in stricto senso no express provision is available for recording of statement more than once in second part of the Section 342, Cr.P.C., yet first part authorizes to ask as many questions at any time as the Court desires and wish of the Court is obviously regulated not by whims but by the principle that any piece of evidence appearing against accused needs his reply or clarification before it is used against him, and it is the base line principle of natural justice borrowed from the maxim “Audi Alterum Partem”, no one should be condemned unheard.
5. It is trite that evidence not put to the accused in his statement u/S. 342, Cr.P.C. cannot be used against him for recording any observation making part of main platform which is set to erect a guilt-edifice against him. Appellate Courts usually remand the case on the deficiency of questions put to accused in his statement u/S. 342 Cr. P.C. on the principle that trial Court before relying upon any evidence should have sought explanation of accused about it, which indirectly a message that if any evidence is skipped or lost sight of putting to the accused but is essential to be relied upon, the trial Court before proceeding further must put some additional questions in this respect which is in line with first part of Section 342, Cr.P.C. authorizing the Court to ask question at any stage of the proceedings without warning him.
6. The spirit and object of Section 342, Cr.P.C. has well been explained in a case reported as “Aminul Hoque versus Crown” (PLD 1952 Federal Court 63) as follows:
It is not sufficient to put a general question to the accused whether he has anything to say about the charges levelled against him. When a point arises in the evidence against the accused which the Court considers vital, it is the duty of the Judge to call the attention of the accused to the point, and to ask for an explanation. The whole object of enacting Section 342 of the Cr. P. C. is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give.
Further
It is true that Section 342 was not intended for the purposes of cross-examining the accused or for filling up gaps in the case for the prosecution. But it is no less serious an error to go to the opposite extreme and,” by excess of restraint, to defeat the primary object of the section which is to assist the accused in explaining the circumstances which are relied upon by the prosecution as establishing the case against him.
Honourable Superior Court has regretted the practice of subordinate Court for not adhering to the Section 342, Cr.P.C. in its true spirit; a case reported as “Muhammad Yakub versus The Crown” (PLD 1956 Federal Court 143) is cited in this respect wherein Court has expressed reservations in following words:
“Before we conclude, we must express our regret at the perfunctory manner in which accused persons are being questioned by the presiding officers of original Courts in this Province under Section 342 of the Criminal P. C. The law on this point has been explained in several decisions of this Court which are either not being studied by the subordinate judiciary or, what is more serious, are being ignored in this particular case”
7. The allegation of filling lacune is usually attributed to the litigating parties on whose applications Court sometimes misread the situation but it cannot be levelled against the Court which always looks for doing complete justice and in this respect is authorized to use its inquisitorial pocket in an adversarial system like in our system enumerated in Section 94, 265-F, 540, 539-B of Cr.P.C. and Article 158 & 161 of Qanun-e-Shahadat Order, 1984. So is the case of power under first part of Section 342, Cr.P.C.
8. In the recent judgment of Hon’ble Superior Court passed in a case reported as “Raza and another versus The State and 2 others” (PLD 2020 Supreme Court 523) importance of statement under Section 342, Cr.P.C. has been highlighted in the following terms:
39. It is important to underline that the statement of the accused under Section 342, Cr.P.C. is not evidence, it is only the stand or version of the accused by way of an explanation when incriminating material against him is brought to his notice. The statement is not made on oath, and cannot be tested by cross-examination, and is made under the protection of immunity of the maker of the statement from punishment for making false statement. Such statement cannot be placed on the same footing as statements made by witness in Court on oath, which are tested by cross-examination. Such statement thus does not strictly constitute evidence, but in view of the presumption of innocence in favour of the accused, the statement may provide valuable material to the Courts for appraising the prosecution evidence in arriving at its findings. The version given in such statement if found by the Court to be reasonable and in accord with the probabilities of the established facts: and circumstances, the same may be accepted by the Court even without requiring defence evidence, unless the version is falsified by the prosecution evidence.
9. In the light of above discussion, we conclude that the trial Court is authorized to dilate upon all pieces of evidence for a reply of accused to be considered later in order to appreciate the evidence of prosecution, yet recording of statement u/S. 342, Cr.P.C. afresh in this case is not desirable rather Court can put additional questions encompassing the evidence appearing against him and is intended to be used by the Court for recording any observation relating to guilt or otherwise of the accused and this arrangement is in consonance with the spirit of first part of Section 342, Cr.P.C. Therefore, petition in hand is dismissed having no merits; however, learned trial Court shall put additional questions to the accused as per available evidence and shall treat it part of statement earlier recorded u/S. 342, Cr.P.C. for realizing any point of determination in the final judgment.
(A.A.K.) Petition dismissed
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