Скачать или смотреть Section 342 Cr.PC.Power of court to examine the accused .

Criminal Appeal No. 572 of 2009 (Muhammad Qasim v. The State another)
Lahore High Court directed the Sessions Judges and Special Courts in the province to ensure that the statements of the accused under Section 342 Cr.P.C. In all criminal trials be recorded by the Presiding Officers of the trial Courts themselves.

Generally, the Presiding Officers of the trial Courts do not record the statement of accused under Section 342 CrP.C. themselves and do not examine them personally. A questionnaire is prepared by the public prosecutor are the complainant's counsel which is handed over to the defence counsel who drafts its reply on behalf of the accused and the same is then placed on the file. This practice is contrary to letter and spirit, of the Code. This examination is a matter entirely between the accused and the Court and the legal advisers do not come in or count in it at all. The Court should thus put them aside, have the accused brought before it face to face and hear him from his own mouth.Summarise key principles of law discussed in this judgment, regarding article 121, QSO and section 342, Cr.P.C.

i. The burden, in a criminal case, to prove the guilt of the accused is always on the prosecution. Therefore, the court, in the first instance, is to discuss and assess the prosecution evidence, in order to arrive at the conclusion as to whether or not the prosecution has succeeded in proving the charge against the accused on the basis of its evidence.

ii. In a case where the accused has not taken any specific plea (e.g. self defence, grave and sudden provocation etc.) or has not produced any evidence in his defence, the court should decide the question of success or failure of the prosecution in proving the charge against the accused on the basis of the prosecution evidence alone.

iii. In a case where the accused has taken a specific plea or has produced evidence in his defence, the court should appraise the prosecution case and the defense version in juxtaposition, in order to arrive at a just conclusion. Even in such situation the burden remains on the prosecution to prove the necessary ingredients of the offence charged against the accused, and it does not shift upon the accused merely by taking a defence plea or producing evidence in his defence.

iv. The burden shifts upon the accused under Article 121 of the QSO to prove his defense plea, only when a prima facie case is made out against him by the prosecution on the basis of its evidence. If the prosecution fails to prove its case against the accused, the question of shifting of burden on the accused does not arise.

v. The primary purpose of section 342 Cr.P.C. is to enable the accused to know and to explain and respond to the evidence brought against him by the prosecution. A direct dialogue is established between the Court and the accused by putting every important incriminating piece of evidence to the accused and granting him an opportunity to answer and explain.

vi. If the prosecution fails to prove its case against the accused, the court can take into consideration the statement of the accused under section 342 Cr.P.C. whether in favour of or against the accused; but it must take into consideration that statement in its entirety and cannot select and place reliance on the inculpatory part of the statement only.

vii. In the last mentioned circumstance, the facts narrated by the accused in his statement under section 342 Cr.P.C. are to be accepted without requiring their proof. The court, however, should examine the said facts in order to give due effect to them under the law. The object of such examination is to determine whether or not the facts narrated by the accused constitute an offence under the law or fit into any exception of the offence provided under the law.

viii. An admission or confession made in statement under section 342 Cr.P.C., which is improbable or unbelievable, or is not consistent with the overall facts and circumstances of a case do not have any probative value and thus it cannot be relied upon by the court for reaching a conclusion.

Criminal Appeal No.154-L of 2013, and Criminal Petition No.366-L of 2013.
Ali Ahmad , Imtiaz Ahmad Versus The State & another