Mumtaz petitioner is aggrieved of order dated 14.12.2005 passed by learned Additional Sessions Judge at Peshawar when his application under Section 265-K Cr.P.C. was dismissed.
Petitioner is accused of murder charge in case FIR No. 207 dated 23.8.1986 of Police Station Mattani.
2. After the occurrence but because petitioner could not be arrested nor he surrendered, therefore, to preserve the evidence of the witnesses, the statements of complainant Shah Khan and an eye- witness Haji Iqbal were recorded on 4.3.1987 by a Magistrate.
3. By the time the petitioner surrendered, the two witnesses named above, were dead and therefore could not be produced by the prosecution, their statements recorded under Section 512 Cr.P.C. were the only evidence.
4. Since the statements of Shah Khan and Haji Iqbal were recorded by a Magistrate, it was the contention of petitioner that because of an embargo contained in Section 190 (2) Cr.P.C, the Magistrate who is not competent to try an offence shall without recording any evidence, sent the case to the Court of sessions for trial.
5. Only one legal question has been raised, agitated and argued i.e. in view of Section 190 (2) Cr.P.C. statements of the two eyewitnesses recorded by the Magistrate who was not competent to record it, were inadmissible in evidence. Relevant sub-section of Section 190 Cr.P.C. is reproduced for convenience.
"190 (1)
(a)..................
(b)
(c)
(2) A Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial."
With .advantage it would be proper to reproduce relevant provisions of Section 512 Cr.P.C. as well which contains:-- "512. Record of evidence in absence of accused.--(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or send for trial to the Court of Session or High Court such person for the offence, complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions Any such deposition may, on the arrest of such person. be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence of his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) Record of evidence which offender unknown.--If it appears that on offence punishable with death or imprisonment for life has' been committed by some person or persons unknown, the High Court may direct that any Magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence. if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan''.
6. The contention raised by learned counsel for the petitioner on plain reading of the two section i.e. Section 190(2) and Section 512(1) Cr.P.C., may appear to be inconsistent and self-contradictory but when seen in the light of the scheme of the Criminal Procedure Code the two sections are independently applicable.
7. Under Section 512 Cr.P.C. the Court competent to try or send for trial to the Court of Session or the High Court, can record statements of witnesses in absence of the accused if it is-proved that the accused has absconded. This power is concurrently vested in the Courts mentioned above.
'Whereas under Section 190(2) Cr.P.C. there is an embargo on a Magistrate not to record any evidence if the case is not triable by him.
8. This Court is to go by the scheme of Criminal Procedure Code where different provisions are appearing under different chapters, some dealing with investigation, some dealing with trial and some dealing with the appeals, revisions etc.
9. Under SectiOn 61 of the Code where any person accused of an offence is arrested without a warrant, he cannot be detained by the police in their custody beyond period of 24 hours and that within 24 hours the police officer is bound to produce the arrested person before a Magistrate under Section 167 of the Code.
'Section 167 of the Code deals with eventuality when within 24 hours of the arrest of an accused person, investigation could not be completed. It envisages that where investigation could not be completed within 24 hours then the officer incharge of the Police Station or the Police Officer making investigation shall forthwith transmit the accused to the nearest Magistrate whether such Magistrate has or has no -jurisdiction to try the case and then such Magistrate from time to time can authorize the detention of the accused in custody of the police but not beyond maximum period of 15 days and where such Magistrate has no jurisdiction to try the case or send the case for trial and he considers that further detention si unnecessary he will send the accused to Magistrate having such jurisdiction.
10.Next would be the stage where investigation is complete, the police officer incharge of the Police Station is required to forward to the Magistrate, empowered to take cognizance of the offence, police report, a report in the form prescribed by the Provincial Government (commonly known as challan).
11. While forwarding the report, the police officer is required to send all informations including the names of the persons acquainted with the circumstances of the case and stating whether accused when arrested has been forwarded or has been released on bonds.
Therefore, after compliance of Section 61, Section 167 and Section 173 ofthe Code the next stage follows is taking of cognizance.
12.Now coming to Section 190 of the Code. Heading of the section is "Cognizance of offences by Magistrates". Under its sub-section (2) a Magistrate not competent to try an offence is debarred in recording evidence in a case which is exclusively triable by a Court of Session.
13.When Section 61 and Section 167 of the Code are read together then the stage of filing of challan would come under Section 173 Cr.P.C. Challan is filed when investigation is complete.
The taxing of cognizance under Section 190 of the Code would be required when trial is to commence and trial commences when accused is forwarded thereto. It pre-supposes that at the time when challan is filed for taking cognizance by the Magistrate, not only investigation is complete but also the accused is forwarded, meaning thereby that the accused. is present before the Court. It is, therefore, that where an accused person is present before the Court of a Magistrate and he is an accused for an offence exclusively triable by a Court of Session, there, the Magistrate cannot record evidence but would send the case and the accused for trial to the Court of Session.
14.Section 512 Cr.P.C. appears under Chapter XLI of the Code which pertains to "special rules of evidence". This chapter comprises of four section in all and it refers to certain exemptions and exceptions.
'Under Section 510 Cr.P.C. reports by certain examiners including Fire Arm Expert, Serologist and Finger Print Expert have been made admissible without expert being examined.
Next is an exception which is under Section 512 Cr.P.C. where statements of witnesses can be recorded in absence of the accused, provided it is proved that the accused person has absconded.
14.Section 512 Cr.P.C. is meant for preservation evidence for eventuality where statutory protection is gived to deposition it such witnesses who may not, be alive at the time when accused appear for trial or they have become incapable of giving evidence or their attendance cannot be procured without an amount of delay, expense or inconvenience. Section 512 Cr.P.C. has no nexus with taking of cognizance but it proceeds on its independent existence.
15.As explained in preceding paras that bar on the Magistrate not to record any evidence would apply only if while taking cogniza'nce of the case of an offence which is not triable by him and that the accused is before him, he shall send the case to the Sessions Judge for trial whereas Section 512 Cr.P.C. are special provisions for preservation of evidence where an accused person cannot be given premium of his' abscondence and evidence of the witnesses is preserved which can be used against him in a later stage, in an inquiry or trial when he surrenders and the witnesses whose deposition has been recorded under this section are either dead or have become incapable of giving evidence etc. 16.Petitioner herein is aggrieved or order where his petition under Section 265-K Cr.P.C. was dismissed and where statements of the two PWs named in the preceding paras, recorded under Section 512 Cr.P.C. by a Magistrate has been transferred to the trial file.
17. 'But on analysis of the law it is held that bar as contained under Section 190 (2) Cr.P.C. on a Magistrate is limited to the extent that if accused is forwarded to him with challan, he will not record any evidence if the, case is exclusively triable by the Court of Sessions. Whereas Section 512 Cr.P.C. is a stage when Magistrate has not taken cognizance and that accused is also not before him but to preserve the evidence the trial Courts or Court competent to send for trial have been empowered to record the statements which statements can be taken in evidence at a later stage when the accused surrenders or is arrested and the witnesses whose statements were recorded were either dead or have become incapable of giving evidence etc. The transfer of statements recorded by a Magistrate under Section 512 Cr.P.C. would, therefore, be legal evidence. Hence this petition is devoid of force and is accordingly dismissed..