Right of Accused to Testify and be Represented

When we talk about the right of the accused in a criminal trial, two fundamental and inalienable rights which come to mind are the right to receive proper representation and the right to testify. The corresponding legal provisions covering these rights include the folllowing:

  • Articles 10 and 13 of the Constitution of Pakistan 1973;
  • Articles 15, 16 and 37 of the Qanun-e-Shahadat Order 1984; and
  • Sections 338 to 343 of the Code of Criminal Procedure 1898.

A proper understanding and appreciation of such rights is impossible without tracing the history and development of these rights.

The history and development of our law is entwined with the history of common law and the history of common law tell us that, for three centuries i.e. between the sixteenth and nineteenth century, the accused was neither allowed to testify nor permitted to engage a lawyer to represent him or her, even if he or she desired to do so.

A statute was passed in 1695 to permit the accused to be represented by a lawyer only if he or she had been charged with treason.[1] The accused received the same right for other charges in 1836.[2] However, in the same period, the accused was not allowed to call any other person as a witness on his or her behalf. This only got approved at the end of the seventeenth century when a statute put a compulsory process in place regarding sworn witnesses for the defense.[3]

Although the accused was allowed as a witness, the rules of ‘interested witness’ were applied. It was believed that the fear of being found guilty would cause the accused to not disclose the truth, so whenever the prosecution wished to call one or more jointly-charged accused as witnesses against the others, it was imperative for the prosecution to discharge such witnesses through an entry of nolle prosequi or dismissal of charges against the (witnessing) accused.[4] In this regard, Blackstone stated the following:[5]

All witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous or such as are interested in the event of the cause.

Meanwhile, Lord Denman’s Act, the Evidence Act of 1843, abolished the incompetence of interested witnesses in civil litigation. Civil parties were permitted to testify in 1851 and spouses in 1853. It was proposed that objections could be made to the ‘credit’ of the witness and not the ‘competency’ of the witness. A similar trend had been gaining recognition in criminal litigation. Sir James Stephen expressed his views in the following words:[6]

I am convinced by such experience that questioning [the accused], or the power of giving evidence, is a positive assistance, and a highly important one, to innocent men, and I do not see why in the case of the guilty there need be any hardship about it. It must be remembered that most persons accused of crime are poor, stupid, and helpless. They are often defended by solicitors who confine their exertions to getting a copy of the depositions and endorsing it with the name of some counsel to whom they pay a very small fee, so that even when prisoners are defended by counsel the defense is often extremely imperfect, and consists rather of what occurs at the moment to the solicitor and counsel than of what the man himself would say if he knew how to say it.

The present shape of the provisions in Pakistan containing protection and recognition of the right of the accused to testify and be represented through counsel came in the form of the Code of Criminal Procedure (Act V of 1898). In codifying these provisions, the historical experience of common law has played a great role to provide a cautious solution by allowing the accused to tell his or her side of the story, not under oath, not as a witness, but in the form of an address to the court based on the law and the evidence.[7] Furthermore, in case the accused is unable to afford the fees of counsel, the court is under an obligation to provide him or her the counsel of his or her choice at the state’s expense, in cases involving major penalties.[8] If the accused is a minor, or a rape victim, his or her right to representation is protected under special laws.[9]

The competency of the accused to be a witness has been recognized under Article 16 of the Qanun-e-Shahadat Order 1984 read with Section 337 of the 1898 Code, when an accused deposes against a co-accused as a prosecution witness.

Section 340 of the 1898 Code recognizes the right of the accused as a defense witness. The language of this section and its corresponding provision i.e. Article 15 of the 1984 Order (section 132 of the Evidence Act 1872) suggests that utmost care has been taken to uphold the historically recognized principle of self-incrimination. While this principle has exceptions in the form of a confession under Article 37 of the 1984 Order, the confession must be voluntary and without any inducement or threat. It must not be in conflict with Article 13 (b) of the Constitution (protection against double punishment and self-incrimination).[10]

Such examination of the accused as a witness is to be conducted by the court and not by the prosecution. This examination should be in the nature of seeking an explanation of circumstances regarding the allegation and evidence put forth by the prosecution. However, it should not be inquisitorial in nature so as to change the entire nature of proceedings from accusatory to inquisitorial. An accused-witness may refuse to answer and in case any accused refuses to answer, inference should not be drawn against him or her.[11] The accused has the right to depose on oath but in case he or she refuses to take oath, inference may not be drawn against him or her.[12] The accused may not be punished or tried for deposing falsely while recording his or her statement as an accused.

To sum up, the law currently operating in the country recognizes the right of an accused to be represented by counsel of his or her choice. In case the accused is unable to afford counsel fees, the state has to provide him or her with a lawyer of his or her choice at the state’s expense. The court is under an obligation to protect and maintain such rights of the accused. The accused is a competent witness as an approver for the prosecution and as a defense witness when he himself or herself is under trial. He or she has also been given protection from self-incrimination if he or she does not volunteer to confess and in case the accused confesses, the confession must be without force, coercion, undue inducement, or threat.


References

[1] The Treason Act, 1695
[2] The Trials for Felony Act, 1836
[3] Popper, History and Development of Accused’s Right to Testify
[4] Best, Evidence, The Accused as Witness, S.622-A
[5] Blackstone, Commentaries 369
[6] Stephen, History Of The Criminal Law Of England 350, 440
[7] Syed Waris Khan Vs the state (2018 MLD 422)
[8] Sadam Hussain Vs State (2018 MLD 1025)
[9] The Juvenile Justice System Act, 2018 & Anti Rape Act, 2021
[10] Muhammad Asghar Vs State (PLD 2018 Lahore 28)
[11] Saeed Ahmed Vs State (2015 SCMR 710)
[12] Rashid Ahmed Vs State (2001 SCMR 41)

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Sana Abbas Dashti

Author: Sana Abbas Dashti

The writer is currently serving as Civil Judge and Judicial Magistrate, Karachi East.

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