STATEMENT OF ACCUSED

UNDER SECTION 342 AND 340 (2) CR. PC

 BASE OF EXAMINATION OF
ACCUSED

 Section342 Cr. P.C is based upon the

principle enshrined in maxim “audi
alteram portem’” THAT no one
should be condemned unheard.
 DIVISION OF SECTION 342
Cr.P.C INTO TWO PARTS
 Under the first part the court may put such
questions to the accused which may be
deemed appropriate in arriving at a just
conclusion.

 Under the second part examination of the

accused is a must because the purpose is to
point out salient points appealing in evidence
against him, and ask for an explanation.
 CONTINUED…
 Under first part, the Court can put such
questions to accused which can be deemed
appropriate and power thereunder is without
any clog of time and stage.
 Under the second part, examination of
accused, which as, of necessity, has to be made
on close of prosecution evidence, is a must
because object is to point out salient points
appearing in evidence against him and ask for
his explanation.
ADMINISTRATION OF OATH

 Subsection(4) of S.342 Cr.P.C does

not require oath to be administered
while recording statement under this
section.
 OMISSION IN RECORDING OF
STATEMENT U/S 342 Cr.P.C
 In some cases though it has been held that an
error or omission which falls within the
category of “curable irregularities” within the
purview of section 537, Cr. P.C, does not
necessarily vitiate the trial, yet, in certain cases
where the accused is not questioned at all, or
his attention is not an important piece of
evidence which implicates him is not invited,
the omission so made would be fatal. [2004
 PRE-REQUISITE OF
CONVICTION

 Any piece of evidence which is

not put to the accused in his
examination u/s 342 Cr.P.C,
cannot be considered against him
for conviction.
 STATUS OF THE STATEMENT
RECORDED U/S 342 CR.P.C
 Statement of accused recorded u/s
342 Cr.P.C, was neither a confession
nor it equated with the confession,
rather , it was a plea, which may be
taken by accused in his defence to
explain the evidence produced
OBTAINING OF SIGNATURE/TUHMB
IMPRESSION

 It is the requirement of Law that

statement of accused recorded u/s 342,
Cr.P.C, should be got signed/thumb
marked by the accused. This mandatory
provisions of S.364 if not complied with
amounts to an illegality and not
irregularity curable u/s. 537, Cr.P.C.
 JOINT EXAMINATION OF
ACCUSED

 Recording of joint examination of

several accused u/s 342, Cr.P.C, is
illegal and vitiates the whole trial.
 AGE OF ACCUSED

 At the time of recording of statement u/s

342, Cr.P.C it is mandatory to record the
age of accused. While determining age of
accused preference to be given to the age
mentioned at the time of recording of
statement u/s 342 Cr.P.C in addition to
other relevant factors.
 CONSTRUCTION OF
STATEMENT
 Statement of an accused has to be
read in its entirety and is to be
accepted or rejected as a whole. It is
not permissible to accept the
inculpatory part to corroborate the
prosecution evidence and reject
exculpatory portion.
 DUTY OF THE
COURT/DEFENCE COUNSEL

 Under section 342, Cr. P.C a duty

was cast upon Trial Court to put
questions to accused persons on
incriminating facts coming in
evidence.
 POWER OF THE COURT TO
PUT QUESTION
 Court is empowered to put such
questions to an accused person as the
Court considers necessary at any
stage of any inquiry or trial without
previously warning the accused.
INCRIMINATING EVIDENCE

 Law requires that every part of

incriminative evidence,
circumstance, fact, weapon of crime,
motive plea of self defence etc.
sought to be used against him, should
be put to the accused u/s 342 Cr.P.C
for having his explanation.
 INCRIMINATE
MEANING
 To involve in an accusation

 To implicate

 To charge with responsibility for all o
r part of an undesirable situation

 Harmful effect
 CONTINUED…
The following held to be incriminative evidence:
 Dying declaration

 Statement of Accused
 Wajtakkar

 Intoxicants
 Abscondence
 Reply at the instance of accused
 CONTINUED…
 Recovery of Weapon.
 License of fire arm.
 Pro-note
 Confession.
 Extra judicial confession
 Smuggled goods.
 Trap case.
 Circumstantial evidence.
PUTTING INTERROGATORIES
OF COUNSEL

 Puttinginterrogatories to counsel u/s

342 Cr.P.C is not warranted.
DENIAL TO AFFORD OPPORTUNITY
TO THE ACCUSED

 Accused gave an affirmative answer

as he wanted to produce evidence in
defence. Denial of this opportunity
would amount to denial of fair trial.
It being not a mere irregularity but
and illegality not curable under
S.537, Cr.P.C.
WITNESSES OF TENDER AGE

 Where the witnesses are of a tender

age, it is the requirement of Law that
the Court should satisfy itself about
their competence. Trial Court not
putting any question to satisfy itself
about competence of the witnesses,
the conviction held illegal.
 MOTIVE

 Evidenceof motive and extra judicial

confession not put to accused, such
evidence cannot be used against
accused.[1984 P.Cr.L.J. 2069]
 SECTION 342 READ WITH
S.540 Cr.P.C
 The Court has ample powers u/s,
540, /Cr.P.C to summon any person
as a witness at any stage of the trial.
Where documentary evidence is
produced by accused during
examination, Court can call witness
STATEMENT UNDER SECTION 342 CR.PC
(High Court Rules & Orders Volume III
Chapter 13)

“Power to examine an accused is not merely

a formality but a mandate to enable him to
explain any circumstance appearing against
him in evidence”
1) Entire incriminating evidence should
be put to accused (Munir Ahmad @
Munni V. The State 2001-SCMR-56)

2) Incriminating evidence includes even

the reports and case property to be
used against him
3) Offering to produce defence evidence

4) Offering to appear under section

about 340 (2)
5) Not offered. Not curable.

(Mahboob Ahmad V. The State 1996 MLD 180,

Abdul Sattar & others V. The State 2002
PCRLJ 51)
CERTIFICATE AS REQUIRED
BY SECTION 364 CR.PC

It is certified that statement of accused has

been recorded in his presence and it
contains full and true account made by
accused.

Not Curable
 STATEMENT U/S 340 (2) CR.P.C
(SCOPE AND APPLICATION)
 Previously the code of criminal procedure
(Amendment) Act (XVIII of 1923) conferred
an option on accused person to offer himself as
a witness in certain class of cases mentioned in
S.340(2) Cr.P.C. Subsequently the said section
was substituted by Law Reforms Ordinance,
1972, and the restriction of class of cases was
wided out and scope of option was enlarged to
all delicts.
 STATEMENT OF ACCUSED ON
OATH-WHETHER COMPULSORY

 Provisionsof S. 340(2) Cr.P.C have

not compulsive effect on the accused
and no adverse inference can be
drawn if accused does not opt to
make a statement.
 OPTION OF ACCUSED
 The accused couldn’t be called as a
witness except on his own request
and his failure to give evidence
would not raise any adverse
presumption nor be made subject of
any comment by prosecution against
him.
 NATURE AND EXTENT OF
OPTION OF THE ACCUSED
 Accused should not be asked
questions which are incriminatory in
nature. Such a practice is in breach of
protection given to him u/s 340(2)
Cr.P.C.
 CHOICE OF THE ACCUSED
NOT TO BE TAKEN AWAY
 The option/choice of the accused to
give statement on oath in rebuttal to
the prosecution evidence given in the
Law Reforms Ordinance was vested
and substantive right.
 PROVISION OF S.340(2) NOT
VIOLATIVE OF ARTICLE 13(B) OF
THE CONSTITUTION

This provision is in the nature of an

advantage which provides an opportunity to
accused person to disprove allegations
against him. Furthermore, the accused to be
a witness against himself hence, no
violation of Article 13(b) of the
constitution.
 CONSTRUCTION

 Section 340 Cr.P.C, must

undoubtedly be construed liberally
in favour of accused and must be
read alongwith the High Court
Rules and Orders, Vol. III,
Chap.24,Rr.1 & 2.
 STATEMENT UNDER
SECTION 340 (2) CR.PC

Is it discretion of accused to appear or

not in disproof of allegations against
him?
 STATEMENT UNDER
SECTION 340 (2) CR.PC
Any person accused of an offence before
a Criminal Court or against whom
proceedings are instituted under this
Code in any such Court shall, if he does
not plead guilty, give evidence on oath in
disproof of the charges or allegations
made against him or any person charged
or tried together with him at the same
trial
CHANGING/CLARIFICATION
STAGE

Mst. Kareem Khatun vs. Faiz Ahmad & others

PLD-1991-SC-787
 PLD-1991-SC-787

 The Constitution provides that an

accused shall not be compelled to
make a statement on oath.

 This is guaranteed to him by way of a

fundamental right.

 Any law providing otherwise would be

ultra vires
 PLD-1991-SC-787
 Law, therefore, demands that sub section (2)
of section 340 should be interpreted as only
conferring a duty on the Court to inform the
accused that he has a right under the law to
make a statement on oath and it is his option
with no risk attaching it to make that or not
to make that statement
Differences Between 342 and
340 (2)
 DIFFERENCE
Sr
No
342 340 (2)
At any stage but
Generally after After examination of
1 prosecution witnesses accused
are examined
2 Duty of Court Discretion of accused

Option to be given to
3 No previous warning
accused
 DIFFERENCE

S.
342 340 (2)
No

4 No oath Oath

No cross examination Right of cross examination

5 by adverse party to other side

Non examination not Opportunity not given. Not

6
curable curable
 DIFFERENCE
S.
342 340 (2)
No
Question answers
7 Narrative form
form
Signatures of accused
8 required (1991 Pcrlj- No signature necessary
617)

Examination in a In a manner of recording of

9
manner u/s 364 Cr. PC evidence
 DIFFERENCE
Sr.
342 340 (2)
No

Certificate as required No certificate except

10
by S. 364 Cr. PC RO&AC

Signatures of accused
11 required (1991 Pcrlj- No signature necessary
617)

Examination in a In a manner of recording of

12
manner u/s 364 Cr. PC evidence