2022 PCrLJ 591
Leading evidence by the accused to dislodge a proved fact is matter of procedure; mere stating a fact in a statement under section 342 Cr. P.C does not fulfill that requirement. Ours’ is the adversarial system which provides equal opportunity to both the parties to prosecute or defend pursuant to fundamental right of fair trial and due process guaranteed through the Constitution of Islamic Republic of Pakistan. Barring some situations, scheme of criminal procedure usually requires “he who alleges or levels the allegation of commission of offence would lead the evidence first”. In a sessions trial, leading of evidence is regulated under section 265-F of Cr. P.C.
It sets a pattern of order of recording of deposition. This section says that at first occasion court shall hear the complainant and then take all such evidence as may be produced in support of the prosecution; for that purpose, court shall require the prosecutor or the complainant to name the persons likely to be acquainted with the facts of the case and to be able to give evidence, and then evidence of witnesses shall follow. Similarly, when the evidence of prosecution and the examination of accused are concluded, accused shall be asked whether he means to adduce evidence, and if he opts to adduce evidence, then as per above section, there are two methods to adduce evidence by the accused which are as follows;
i. he would put in any written statement, or
ii. adduce evidence.
The use of word “written statement” is meaningful in the sense that evidence of prosecution against the accused has been adduced on oath; therefore, he must defy the allegation in the same way i.e., on oath. Statement oral or written does require that it should be made on oath to transform it into admissible format. As a corollary to written statement on oath, light and guidance can also be taken with reference to written statement defined in C.P.C., it is being part of pleadings as mentioned under Order VI Rule 1 of Code of Civil Procedure, 1908 (CPC) which is required in a suit and it carries certain legal requisites that it must have verification (on oath or solemn affirmation) at the bottom that the contents of such and such paragraphs are based on his personal knowledge or from information received, as required under Order VI Rule 15 of CPC.
If the accused does not want to appear as his own witness but put on any written statement, then it must be in that format as highlighted above, so as to help the court to consider the facts based on oath as probable if it wishes to summon any material witness as DW or CW, or call for any document, indicated in said written statement, which is necessary for the just decision of a case. As per provisions of above section written statement of accused shall be filed with the record. It can be used as an evidence.
If the accused means to adduce evidence, the court shall call on the accused to enter on his defence and produce his evidence. “Entering on to defence” means accused shall appear as his own witness as required under section 340 (2) of Cr. P.C for recording of his statement and then face the cross examination as required under Article 44 of Qanun-e-Shahadat Order, 1984; thereafter, he shall produce the witnesses in support of his evidence in the same fashion as it was done by the complainant in first episode of trial. The accused has also been provided facility of calling his witnesses through the court process once he entered on his defence. Witness is usually called to support a stance raised by a party; if party is not examined first, there is no meaning for appearance of a witness.
It is now optional for the accused to appear as his own witness and he cannot be compelled; yet if he does not appear as a witness, he can go for an alternate by filing a written statement to avoid any cross examination, yet in this way he would be in a position to produce his witnesses in support of averments of written statement. This observation is further elaborated in the terms that Evidence has been defined by Article 2(c) of Qanun-e-Shahadat Order, 1984
All such statements shall be made on oath as required by section 5 of Oath Act, 1873; therefore, when these statements are made an oath, it is called that witnesses have been testified. Such testified statements become deposition and are regarded as testimony of witnesses of either party. The word “testimony” has been derived from a Latin word “Testis”, its fragments “Te” stands for “Tri” or third and “Stis” means “stance” or “stand”; so “testis” means “third stand/stance”. Usually both the parties bring on record their respective stances which could only be verified or defied with a third stand/stance and that third stance is in the form of witness to the parties. All that shows that a witness in support of party would only be called if the party first raises a stance through approved legal procedures. The intent and purpose of legislature to balance the opportunities for adducing evidence by both the parties is reflected from the above section which in fact saves the fundamental right of fair trial; it must be followed by all subordinate courts conducting trials under Chapter XXII-A of Cr.P.C.
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