Running head: PRIVILAGE AGAINST SELF INCRIMINATION 1

PRIVILAGE AGAINST SELF INCRIMINATION 2

Table of Contents

List of Tables
Abstract…………………………...……………………………………………………….3
1. Introduction………………………………………………………………………………..4
2. History……………………………..………………………………………………………5
3. Recognition of theiprinciple in other legal systemsiof world and its application there…...6

3.1. Recognition in otherilegal systems of world

3.2. Application in otherilegal systems of world

3.3. Cases
4. IslamiciLaw………………………………………………………………………………..7
4.1. Case
5. Constitutionaliright………………………………………………………………………..8
5.1. Article 13.
5.2. Cases
6. Recognition iniPakistan’s criminal law…………………………………………………...9
6.1. Section 161. Examinationiof witnesses by police:
6.2. Section 342. Power toiexamine the accused:
6.3. Cases
7. Scope ofiarticle 15 of Qanoon e Shahadatiorder and nemo tenetur se ipsum…………10
7.1. Article 15.
7.2. Scope.
7.3. Nemoitenetur se ipsum
7.4. Cases
8. Article 15 isicontrary to article 13 of Constitution………………………………………11
9. Statement ofiaccomplice is granted protectioniunder article 15…………………………12
9.1. Accomplice
9.2. Protection granted toiaccomplice under Article 15
10. Crossicomparison………………………………………………………………………...14
11. Conclusion…………………………………………………………………………….…15
12. References………………………………………………………………………………..16
PRIVILAGE AGAINST SELF INCRIMINATION 3

ABSTRACT
The Latin brocard nemoitenetur se ipsumiaccusareimeaning 'no man is bound to accuse himself'

grants the right to silence toiany person in case criminal proceeding is initiated against him.. The

privilegeiagainst self-incrimination was theioutcome of the legaliand constitutionalivstruggles of

the seventeenthicentury. The principle isirecognized in various legal systems all around the

world even iniPakistan. This right isirecognized in Pakistan by constitutioniand Criminal

Procedure andieven by Islam.

PRIVILAGE AGAINST SELF INCRIMINATION 4

PRIVILAGEiAGAINST SELF INCRIMINATION

1. INTRODUCTION

The principleibrocard nemoitenetur se ipsum accusare meaning 'noiman is boundito

accuse himself', guaranteesito an accusediperson the rightinot to be compelledito be a

witness againstihimself; this rightiis also knownias the right of silence, andihas itsiorigin

in theiprivilege againstiself-incrimination.

2. HISTORY

Neither theireasons norithe history behindithe right to silenceiare entirely clear. TheiLatin

brocard nemoitenetur se ipsum accusare ('no man isibound to accuseihimself') becameia

rallying cryifor religious andipolitical dissidentsiwho were prosecutediin the Star

Chamberiand High Commissioniof 16th-centuryiEngland.

The privilegeiagainst self-incriminationiwas the outcomeiof the legal andiconstitutional

struggles of theiseventeenth century. 'TheiCourts of Star Chamber and HighiCommission

developed theipractice of the ecclesiasticalicourts in utilizing aisystem of compulsory

Interrogation of suspectsiunder oath. Victims of High Commissioniand Star Chamber

proceedings invoked theicommon law right ofisilence in refusing to answeriquestions or

take theioath, objecting that compulsoryiinterrogation proceduresishould not be

employed withoutiformal accusationior presentment. In 1641, Parliamentiabolished both

the oath procedureiand the High Commission and StariChamber Courts. Inithe period

following theiRestoration, the courts extended the privilegeiof not answering

incriminatingiquestions to witnessesigenerally. The privilegeiwas well established and

regarded asibeing of the nature of airight by the beginning ofithe eighteenth century.
PRIVILAGE AGAINST SELF INCRIMINATION 5

3. RECOGNITION OFiTHE PRINCIPLE IN OTHER LEGALiSYSTEMS OF

WORLD AND ITS APPLICATION THERE

Under the principlesiof “nemo tenetur prodere seipsum” no one is obliged to incriminate

himself. It is forbiddeniand punishable to compel the defendant or any other person that

participates in criminaliproceedings, to impose a confessionior any other statement by

torture, force, threat oriunder the influence of drugs or otherisimilar measures. The

application of theiprivilege against self-incrimination doesinot restrict only to non-

answering a specificiquestion but also in his non-compellingito plead guilty.

3.1. Recognition iniother legal systems of world

The principle isirecognized in various legalisystems all aroundithe world. Inispecific,

“No one is boundito accuse himself” in

 InternationaliCovenant on Civil andiPolitical Rights (hereinafter: ICCPR) in

Article 14, containsithis privilege.

 Statute of theiTribunal for ex-Yugoslavia (art. 21, sub art. 4 (g))

 Statute of theiInternational Tribunalifor Rwanda (art. 20, subart.4 (g)).

 AmericaniConvention on Human Rights (hereinafter: ACHR) provides the

sameitext (art.8, sub art. 2, (g))

 TheiFifth Amendment to the U. S.iConstitution

 CanadianiCharter for Rights andiFreedoms (in art. 11, (c)

 The Constitutioniof India (in its Part III: Fundamental Rights/ Right to

Freedom:

 TheiConstitution of Pakistan (in Part II: FundamentaliRights and Principlesiof

Policy,
PRIVILAGE AGAINST SELF INCRIMINATION 6

 TheiConstitution of the Republic ofiSouth Africa providesidisposition on self-

incrimination in its Chapter 2

 The Lawion Criminal Procedure of the Republiciof Macedonia

 Code ofiCriminal Procedure of the Republic ofiAlbania

 Code ofiCriminal Procedure ofithe Republic ofiKosovo

3.2. Applicationiin other legal systems of world

The twoidifferent but diverging paths along whichithese rights evolved and

operateiin Anglo-American jurisprudence (one throughirights expressed in an

entrenchediconstitution, the other in Acts of Parliamentispecifying rights or

protections aticommon law) can beiseen today iniCommonwealth nations like

Australia andiNew Zealand, whereipolice officersiare still required at common

law to issueiwarnings and inform arrested personsithat they do not have to answer

any questionsibut that whateverithey do say (or do) canibe used in court as

evidence. Theipolice must also determine whether theiarrested persons understand

these rights. Anyifailure to do so can jeopardize aicriminal prosecution.

The right to silenceiand against self-discriminationihas been held to be a

constituent part ofiArticle 6 of the EuropeaniConvention for the Protection of

Human Rights andiFundamental Freedomsi1950 (set out in schedule 1 of the

(English) HumaniRights Act 1998). EuropeaniCourt does not treat the right

againstiself-discrimination, like the one guaranteediby Article 13(b) of the

Constitution, asian absolute right and it cannotitherefore be said "that an accused's

decision to remainisilent throughout criminaliproceedings should necessarily have

no implicationsiwhen the trial court seeks toievaluate the evidence against him."
PRIVILAGE AGAINST SELF INCRIMINATION 7

In the view of theiEuropean Court, it isiobvious that theiimmunity provided by

right toisilence "cannot and should not prevent that theiaccused's silence, in

situationsiwhich clearly call forian explanation fromihim, be taken into account in

assessingithe persuasiveness ofithe evidence adducediby the prosecution."

3.3. Cases

Funke v. France

IniFunke v. France, the EuropeaniCourt of Human Rights heldithat the concept of

fairitrial in article 6(1) of theiEuropean Convention on HumaniRights (“the

Convention”) grants to personsifacing a criminal charge theiright to silence and

theiright againstiself-incrimination. It further held thatithe “special features” of

customs andiexchange control law could not trumpithese two rights.

4. ISLAMIC LAW

To these generaliobservations may be added the fact that byiArticle 2 of the Constitution,

"Islam shall beithe state religion of Pakistan". ObjectivesiResolution is the will of the

people ofiPakistan to establish aniorder wherein, amongiothers, "shall be guaranteed

fundamentalirights ". What theiConstitution makers did, therefore, by embodyingivarious

fundamentalirights includingiprotection against self-incrimination was to give effectito

the will ofithe people ofiPakistan. We must, therefore, start with a presumption thatithe

fundamentalirights contained in Part II Chapter I of theiConstitution are consistentiwith

the Injunctionsiof Islam as contained in the Holy Quran and Sunnah of the Holy Prophet

(PBUH). Now, there are ainumber ofiprovisions in the Holy Quran on the dutyito give

evidence.
PRIVILAGE AGAINST SELF INCRIMINATION 8

O you who have believed, be persistently standing firm in justice, witnesses for Allah,

even if it be against yourselves or parents and relatives. Whether one is rich or poor,

Allah is more worthy of both. So follow not [personal] inclination, lest you not be just.

And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with

what you do, Acquainted. (Quran 4:135)

A defendanticannot be compelled to giveia confession, andihas the right to remain silent.

A coercediconfession, or confession takeniunder force is not admissible.A confession,

onceigiven, can be withdrawn even after theisentence hasibeen passed or duringiits

execution. A valid confession cannot be giveniby a personiwho does not haveifull

possessioniof his faculties. For hadd crimes, the general ruleiis that an accusedican

confess toithe offense, but he must offer the confession theisame number of times as the

number ofiwitnesses which wouldiotherwise be needed toiconvict him absent a

confession. Shari'ah considers aniaccused innocent untiliproven guilty.

The strict riequirements for acceptanceiof confessions istem from the concept that there is

a higherijustice than the justice in theicourts. If theidefendant is truly guilty, but his guilt

may notibe fairly proven in court, theidefendant willistill have to answer to God. The

hiddenitruth is considered to be a matteribetween theiindividual and his Creator.

Case

PLD 1983 FSC 173

Statement oficonfessional nature made by an accusediwhile in police custody cannot be

used against him for any purpose. Likewiseiconfessional statements madeiby accused, by

inducement, threatior promise is irrelevantiin a criminal proceeding. Under section (2) of

S. 340, Cr.P.C. the accused hasibeen made aicompetent witnessifor the defense.
PRIVILAGE AGAINST SELF INCRIMINATION 9

However, option liesiwith him to depose on oath as aiwitness or notiand his competence

as a witness is differentifrom compellability. In othersiwords he mayibe a competent

witness for the defenseibut cannot be compelled to appear as such byithe Court or any

party. Article 13 of theiConstitution which inter aliaiprovides that noiperson shall when

accused of an offenseibe compelled to be witnessiagainst himself.

Even otherwise it isiwell-recognized principle ofiIslamic criminal jurisprudenceithat no

one can be compelledito be witness againstihimself.

5. CONSTITUTIONAL RIGHT

The principle of “nemoitenetur prodere seipsum” is wellienshrined in the constitution of

Islamic Republiciof Pakistan in Article 13(b) as listedibelow

5.1. Article 13. Protection against double punishmentiand self-incrimination

No person-

(a) Shallibe prosecuted oripunished for the same offence moreithan once; or

(b) Shall, wheniaccused ofian offence, be compelled to be aiwitness against

himself

The mostiobvious effect of clause (b) of thisiArticle is that theidefendant in a

criminal trialicannot be required to take theiwitness stand. Itiis improper for

opposingicounsel to call attention to failureiof a defendant toitake the stand in his

own defense, and a federalistatute must state that theidefendant's failure to testify

creates no presumptioniagainst him. If he does takeithe stand, then he lays himself

open to cross-examinationiwhich may bring outievidence damaging to his cause.

(308 US 287)
PRIVILAGE AGAINST SELF INCRIMINATION 10

“An accused personiis entitled to refuseito answer questionsiput to him." Heidoes

not render himselfiliable to punishmentiby refusing to answeriquestion (AIR 1941

Lah 178]

Accused personican refuse to answer only those questionsiwhich are

incriminatory. Whereia witness oridefendant has voluntarilyianswered some

questions, he may notirefuse to answer related questions onithe ground of self-

incrimination.(340 US 367)

The protectioniagainst self-incrimination puts limitsinot only on the use of a

defendant'siwords, but also on the useior his booksior papers. Forcing a person to

turn Overiincriminating written materials is in effectirequiring him to testify

againstihimself, in violation of thisiArticle(116 US 616)

5.2. Cases

ShahidiAnsari & 4 others v. Chairman, NationaliAccountability Bureau

(NAB), Islamabadiand 2 others (PLJ  2015  Karachi High Court   84)

In this caseiNAB compelled the petitionersito supply the informationiregarding

Cargo Logistics (Pvt.) Limited, BilaliLogistics (Pvt) under the power conferred on

them underisection 161 of criminaliprocedure code, (v of 1898) .It wasiheld that,

one cannotibe compelledito answer a question whichican expose him toicriminal

charge andithat one cannot be forcedito be a witness which is so evidentifrom

Section 161 of Cr.P.C. and Art. 13(2) ofiConstitution

PRIVILAGE AGAINST SELF INCRIMINATION 11

GhulamiHussain Baloch andianother v. Chairman, NationaliAccountability

Bureau (NAB), Islamabad and 2 others (PLD 2007 Karachi 469)

Under art. 13iprotection has been given to theiaccused of an offence that he will

not be compelledito be a witness againstihimself. It is also againstithe natural

justice andiprinciples of criminal law toicompel a person to giveievidence against

himself inithe offence instituted againstihim and then base theicharge on such

evidence. During theiinterrogation, the accused can refuse toianswer only those

questions whichiare incriminatory, but he isirequired to answeriall other

questions. The protectioniagainst self-incriminationiis available to accusedinot

only in respect of hisiwords, but also on the use ofidocuments, books, papers.

6. RECOGNITION IN PAKISTAN’S CRIMINAL LAW

The principleiof nemo tenetur prodere seipium is also applicableiin Pakistan’s criminal

law.

6.1. Section 161. Examination ofiwitnesses by police:

(1) Any police-officer makingian investigation under this Chapter mayiexamine

orally any person supposedito be acquainted withithe facts and circumstances of

the case.

(2) Such personishall be bound toianswer all- questions relating toisuch case put

to him byisuch officer, otherithan questions theianswers toiwhich would have a

tendencyito expose him to aicriminal chargeior to a penalty or forfeiture.

PRIVILAGE AGAINST SELF INCRIMINATION 12

ThoughiArticle 161(2) requires a person, includingian accused person, to answer

truly alliquestions (relating to the case underiinvestigation) put to him by the

investigatingipolice officer that section, the answers to which would tend to

expose him/her toicriminal charge. The accused personimay remain silentior may

refuse to answeriwhen confrontediwith incriminating questions.

6.2. Section 342. Powerito examine theiaccused:

(2) The accusedishall not render himselfiliable to punishment byirefusing to

answer suchiquestions, or by giving falseianswers to them; but theiCourt may

draw suchiinference from such refusalior answers as it thinksijust.

Provisioniof S. 340(2), Cr.P.C. isiin the nature of an advantageiwhich provides an

opportunityito accused person toidisprove allegations againstihim. Accused

cannot beicompelled to be witnessiagainst himself under S. 340(2), Cr.P.C.iand as

such theiprovisions are not as violativeiof Art. 13(b) of theiConstitution.' But

protectioniagainst self-incriminationiwould be violated ifiaccused is compelled

underisection 340 (2) Cr.P.C. to makeistatement on oathiwith threat of being sent

toiprison or adverse inference beingidram against him inicase of his failure to

makeistatement on oath.

6.3. Cases

HusnainiRiaz v. State (PLJ  2017  Cr.C   612)

It wasiheld that it is well settled principleiof law by now thatino incriminating

material canibe used against accused, unlessiit is specifically put to himiduring his

statement underisection 342 of "Cr.P.C."--purposeibehind this principleiis that

accused must beiaware of all material evidenceiwhich is to be usediagainst him

PRIVILAGE AGAINST SELF INCRIMINATION 13

 ZulifqariAli v. State( PLJ  2016  Cr.C   77)

it is cordialiprinciple of law thatiprosecution has to stand oniits own legs and

weaknessesiof defence cannot beimade basis for recordingiconviction in any

manner andiconviction can only beirecorded on basis ofiprosecution evidenceiand

if court hasicome to conclusion, statement under sectioni342, cr.p.c. cannot be

made basisifor recordingiconviction in anyveventuality

AIR 1960 All. 623

Article 15, that isithe right against self-incriminationidoes not apply to

aistatement made by a personiduring an investigationiunder S. 161, Cr.P.C.

A person who isiinterrogated under sectioni161, Cr.P.C. by a policeiofficer

making aniinvestigation is not a witness. Theiword "witness" used in Art. 15 does

not refer toiany interrogatee examined by aipolice officer under section 161,

Cr.P.C. it refers only to a person who entersithe witness-box and isisworn as a

witness

7. SCOPE OF ARTICLEi15 OF QANOON E SHAHADATiORDER ANDiNEMO

TENETURiSE IPSUM

7.1. Articlei15.

Witness not excusedifrom answering oniground that answer will criminate:

A witnessishall not be excused fromianswering any Question asito any matter

relevant to the matter in issueiin any suit oriin any civil oricriminal proceedings,

upon theiground that theianswer to such question willicriminate, or may tend

directly oriindirectly to criminate, such witness, orithat it will expose, or tend

PRIVILAGE AGAINST SELF INCRIMINATION 14

directlyior indirectly to expose, suchiwitness to a penaltyior forfeiture of any

kind: Provided thatino such answer, which a witness shallibe compelled to give

shall subject him toiany arrest or prosecution, or be provediagainst him in any

criminaliproceeding, except a prosecution for giving falseievidence by such

answer.4

7.2. Scope.

The protectionioffered by proviso to Art. 15 doesinot cover any andievery answer

given by aiwitness during the course of his trial. Aiwitness has noiprivilege

beyond theiimmunity conferred by Art. 15 but eveniif he has any, thatiprivilege

cannot beiclaimed and allowed before he takes hisistand, and beforeithe question,

whetheriincriminatory or otherwise, is considerediby the Court in theilight of

surroundingicircumstances. It has to be rememberedithat the privilegeiis in the

nature of aiprohibition against involuntaryisubjection to questions. Theiemphasis

is on compulsoryidisclosure of guilt by aniaccused in a criminal matteriand the

right does notiextend to a proceeding whichidoes not involve punishmentifor the

commissioniof a crime.(AIR 1962 Punj. 101)

The Articleidoes not deal with all criminatory questions which mayibe addressed

to a witness, butionly with questionsirelevant to the matter-in-issue. Itimay be

implied from theilimitation in the Articlei that a witness should beiexcused from

answering questionsitending to criminateias to matters which areiirrelevant (3

Mad 271(FB).
PRIVILAGE AGAINST SELF INCRIMINATION 15

Under thisiArticle a witness isinot excused from answeringiany question relevant

to theimatter-in-issue on theiground that answer to suchiquestion may criminate

him oriexpose him to a penaltyior forfeiture.

7.3. The principle of nemo tenetur prodere seipsum

At CommoniLaw the principle nemoitenetur prodere seipsum wasiapplicable, so

that a witnessiwas entitled to claimiprivilege in respect of anyievidence which

might lead toihim being exposed toithe risk of either a criminaliconviction, the

imposition ofia penalty or liabilityito forfeiture. The privilegeiwas based on the

policy ofiencouraging persons toicome forward with evidenceiin Courts of justice,

by protectingithem, as far asipossible, from injury or needlessiannoyance, in

consequenceiof so doing.

The CommoniLaw privilege isialtogether abolished byiArticle 15. But there is a

safeguard forithe witness to theieffect that it would notibe used against

himiexcept a prosecutionifor giving falseievidence by suchianswer.

7.4. Cases

PLD 1979 Kar. 125

It was heldithat, if a statement is madeivoluntarily without compulsioniby court, it

could beiused as evidence.

AIR 1926 Lah. 385

Theiproviso to Art. 15 does not conferiany special privilege onithe person

examined. The provisoiapplies only to answersigiven to particulariquestion. It

PRIVILAGE AGAINST SELF INCRIMINATION 16

doesinot confer aigeneral immunity on a personiwho is examinedieven after his

protest. A generaliobjection is not sufficient

8. ARTICLEi15 IS CONTRARY TO ARTICLE 13 OFiCONSTITUTION

In view of theiimperative language of art. 15iof the Qanoon e Shahadat Order a witness

cannot refuse toianswer a question which isirelevant to the matter underienquiry in which

he is called as aiwitness even on the pain ofiself-incrimination. In the pastiin the

countries governed byiAnglo-Saxon jurisprudence; theiwitness was privilegediboth from

answering questions andiproducing documents the tendencyiof which was (to) exposeithe

witness to criminalicharge, penalty oriforfeiture (see Spokes v. Grosvenor Hotel,

1897) 2 QB 124). This privilege wasifounded upon the maxim nemoitenetur seipsum

prodere meaning, no one is bound toicriminate himself and to placeihimself in peril. Over

a period, as Wigmore puts it, the privilegeiindirectly and ultimatelyiworks for good - for

the goodiof the innocent accusediand of the community at large, butidirectly and

concretelyiit works for ill for theiprotection of the guilty and theiconsequent derangement

of civic orderiand therefore, thereiought to be an end of judicialicant towards crime. The

result is that theiprivilege is withdrawn asiclearly transpires fromithe language of art. 15

of the Qanoon eiShahadat Order and theiproviso only affordsiqualified privilege

inasmuch as anyisuch answer which aiwitness shall be compelled to giveiunder the main

part ofiarticle 15 shall not subject himito any arrest or prosecution, or beiproved against

him iniany criminal proceeding exceptia prosecution for giving false evidenceiby such

answer.
PRIVILAGE AGAINST SELF INCRIMINATION 17

So, the articlei15 of Qanoon e Shahadat isiagainst article 13(b) ofiConstitution as later

follows theiprinciple of nemo teneturiseipsum prodere whereas, theiCommon Law

privilege isialtogether abolished byiArticle 15. But there is a safeguardifor the witness to

the effectithat it would not be usediagainst him except a prosecution forigiving false

evidenceiby such answer.

9. STATEMENT OFiACCOMPLICE IS GRANTEDiPROTECTION UNDER

ARTICLE 15

9.1. Accomplice

An accomplice is aiguilty associate in crime oripartner who is conscious

participator in crimeiabout which he is requiredito give evidence.

9.2. Protection granted to accomplice under Article 15

Articlei15 affords sufficient protection to aniaccused to give evidenceiagainst his

co-accused if compelled to do so and thereforeihe cannot be excusedifrom

appearingiin the witness box.(AIR 1924 Lah 247)

An accused who had beenijointly charged withianother but whose caseihas been

separatedibefore the trial commenced, so thatihe could be examined asiwitness in

the case ofithe other accused, cannot beidenied the benefit of the provisoito

Article 15. Heiis as much a witness asiany other, because he is not aniaccused

person in thaticase within the meaningiof S. 342, Criminal ProcedureiCode. When

an oath couldibe administered to suchia person, naturally the incidentsiof Art. 15

will also attachithemselves to such aiperson as witness. In other wordsian

accomplice, ificompelled to answeriincriminating questions by theiCourt, cannot

be prosecutedifor those answers andican claim protection underiArt. 15 though he

PRIVILAGE AGAINST SELF INCRIMINATION 18

may beiprosecuted on the strengthiof any other evidence available.(AIR 1935

Bom. 186)

Howeveriin Islam the testimony ofiaccomplice is not admissible in Haddiand

Qisasicases. It is only admissible iniTazir cases onicorroboration.

10. CROSS COMPARISON

The historicalisetting of the privilegeiagainst self-incrimination asiguaranteed by Article

13, paragraph (b), was noticed in ArnieiKhatoon v. Faiz Ahmediwhere the question was

whether sectioni340, sub section (2), ofithe Code of CriminaliProcedure 1898 had

changedithe basic principle of criminalijurisprudence namelyithat the prosecution must

prove itsicase and the accused would notibe burdened with theiproof of his innocence.

Articlei165 of Qanoon-e-Shahadat Orderi1984 provides that "the provisionsiof this Order

shallihave effect notwithstanding anythingicontained in any other law for theitime being

in force." Article 44 ofithe Order providesithat all accusedipersons, includingian

accomplice, shall beiliable to cross-examination."

The question that fellifor determination in AmeeriKhatoon V. Faiz Ahmediprecisely was

what were theiimport, effect andiimplication of section 340 of the Code ofiCriminal

Procedure onithe right of an accused as guaranteed by Article 13, paragraph (b), of the

Constitution. Shafi-ur-Rahman, J, wention to hold: "The CriminaliProcedure Code of

whichisection 340(2) forms a part, hasitwo indicators ofiimportance to the case. Theifirst

indicatoriis found inisubsection (2) of section 342, Cr.P.C. toithe effect that "exceptias

providediby subsection (2) of sectioni340 no oath shall be administeredito the accused.

The otheriindicator is in theisubsequent section which says 'exceptias provided in

PRIVILAGE AGAINST SELF INCRIMINATION 19

sectionsi337 and 338, no influenceiby means of any promise orithreat or otherwise shall

be usedito any accused person toiinduce him to disclose oriwithhold any matter within

his knowledge'. If an accused isimandated to make a statemention oath under section

340(2) Cr.P.C. oriif he is told that ifihe does not make that statementithe inference will be

drawn againstihim, he will come under aipressure which will violateirequirements of

section 343 Cr.P.C. Therefore, the interpretationiof section 340(2), Cr.P.C. hasito be that

it has no compulsiveieffect on the accused. Allithat the court can do is to ask himiwhether

he will like to makeia statement or not to makeia statement on oath. No adverseiinference

can be drawn if heidoes not opt toimake a statement.

Consistencyiwith the paramountilaw, therefore, demandsithat subsection (2) of section

340 shouldibe interpreted as onlyiconferring a duty or a powerion the Court to inform the

accused thatihe has a right underithe law to make a statemention oath and it is his option

with no riskiattaching to eitherimake that statement or not toimake that statement.

The viewitaken in Amir Khatoon v. Faiz Ahmed may, it isisubmitted with respect, have

to be reconsiderediand modified in a future case inithe light of Al-Quran, 4:135, and the

following cases ofihigh authority, which include oneidecided by the Privy Council and

the casesidecided by the EuropeaniCourt.

CONCLUSION
PRIVILAGE AGAINST SELF INCRIMINATION 20

REFERENCES

.PLD 1962 Lsh. 271.

AIR 1934 Si. 114

36 Cr.L.J. 78

AIR 1929 Mad. 236 T

PLD 1979 Kar. 125 (DB)

AIR 1965 All. 597

A1R 1953 SC 293

AIR 1%0 All. 606 (DB).

AIR 1939 Rang. 371

AIR 1934 Sind 114+AIR 1926 Bom.

PLD 1962 Lah. 271.

AIR 1960 All. 606

AIR 1962 M.P. 241

AIR 1926 Lah. 385

27 Cr.L.J. 1383.

AIR 1965 All. 597.

AIR 1914 Sind 115

PRIVILAGE AGAINST SELF INCRIMINATION 21

AIR 1962 M.P. 241 (DB).

PLD 1990 Pesh. 100

AIR 1962 Punj. 101

PLD 1993 Lah. 509.

S. AIR 1926 Born. 141