' ANWAR ZAHEER JAMALI, J.---This criminal appeal, with the leave of the Court, preferred by convict Arbab Tasleem, is directed against the judgment dated 13-1-2009, passed by a Division Bench of Peshawar High Court, in Criminal Appeal No,838 of 2005. In the said criminal appeal, the appellant had challenged the judgment dated 30-11-2005, in Sessions Case No, 112-A/SC, passed by the trial Court of Additional Sessions Judge Peshawar, whereby the trial Court, having found the appellant guilty for the commission of offences, punishable under sections 302(b), 324 and 34, P.P.C. Has awarded him following sentences:-- ' convicted under section 302(b)/34, P.P.C. And sentenced to undergo rigorous imprisonment for life with a fine of Rs,Two lac, as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Convicted under section 324/34, P.P.C. For attempting to commit murder of complainant Jehanzeb and injuring truck driver and passerby Noor Muhammad Khalid respectively and sentenced to undergo imprisonment for ten years' R.I. And to pay a fine of Rs, Fifty thousand or in default further undergo six months' S.I. In addition to it to pay Arsh and Daman for the injuries inflicted on the body of the two injured persons and the deceased. Both the sentences were ordered to run concurrently, with benefit of section 382-B, Cr.P.C.
2. As per prosecution story, relevant facts of the case are that on 2-3-1997 at 1920 hours, Arbab Jehanzeb, in an injured condition made report in LRH Peshawar that at 1705 hours, when he along with his brother Arbab Alamzeb (now deceased), Rehmatullah and Shakeel were present at the Bus Stand Charasadda in connection with repairing work of the jeep, appellant (Arbab Tasleem) and his brother Khizar Hayat (absconding accused), came there and asked his brother Arbab Alamzeb, as to why he had parked the jeep at the place, and directed him to remove it. When brother of the complainant was boarding the jeep, in the meantime appellant and his brother, the two nominated accused in the crime, armed with klashnikovs, fired at them. As a result, brother of the complainant, who was hit with the fire shots of Khizar Hayat died, while the complainant sustained injury on his left leg with the fire of the appellant. Noor Muhammad, a truck driver, and Khalid, a passerby also received injuries with the fire shots of the accused. The motive of this incident was stated to be a dispute between the two rival parties over some landed property.
3. After the fulfilment of required formalities, and completion of investigation, appellant and his brother (now absconding) were sent up for trial, where on 13-3-1998, they were charged with the commission of offence, punishable under sections 302, 324 & 34, P.P.C. To which they pleaded not guilty, and claimed to be tried.
4. During the trial of the case the prosecution had examined thirteen witnesses and produced the relevant record of investigation, containing the memos of recovery of blood-stained clothes, vehicle, blood collected from the place of occurrence, vehicle registration documents, jeep photographs, empties, site plan etc. To prove the case of the prosecution. The eye-witness of the incident, complainant Arbab Jehanzeb, whose examination-in-chief was recorded before the trial Court on 18-12-2003, could not be cross-examined as before that he was murdered, while coming to Court for evidence. Such intimation was conveyed to the trial Court on 20-1-2009, and F.I.R. No,62 was lodged at Police Station Fakirabad on 20-1-2004 by his brother Arbab Shujat Ali Khan. After closing of prosecution evidence, section 342, Cr.P.C. Statement of the appellant was recorded on 11- 7-2005. He, however, did not opt to examine himself under section 340(2) or to adduce any other evidence in his defence.
5. On conclusion of the trial, after hearing the parties' counsel, the trial Court of learned Additional Sessions Judge Cantt., Peshawar, passed judgment in the case, thereby taking into consideration the evidence brought on record by the prosecution, and relevant legal aspects of the case, he found the appellant guilty for the commission of offence, punishable under section 302, 324 & 34, P.P.C. And awarded him the sentence, as already reproduced above.
6. Aggrieved by the judgment of trial Court, the appellant preferred Criminal Appeal No,838 of 2005, before the Peshawar High Court Peshawar, while Criminal Revisional No,200 of 2005, was also filed on behalf of the State, for seeking enhancement in the sentences awarded to the appellant.
7. The learned Division Bench of the Peshawar High Court hearing the criminal appeal and criminal revision, not only examined in detail the whole record of Sessions Case No,112-A/SC, but also exhaustively discussed the implications of the fact that P.W.11 could not be cross-examined by the defence counsel, as he was by then murdered, thus, as to what was the legal position of his examination-in-chief recorded in the case, being only eye-witness of the incident and passed the impugned judgment against the appellant, thereby maintaining his conviction and sentence awarded by the trial Court.
8. Leave granting order of this Court dated 23-2-2009, also reveals that leave has been granted in this appeal only to examine whether the conviction of the appellant under section 302, P.P.C. On the basis of mere examination-in-chief of P.W. Arbab Jehanzeb, who was not cross-examined by the accused, could have been treated by the Court as statement under section 512, Cr.P.C. Because at the time of recording of such statement, the appellant Arbab Tasleem was neither absent nor absconding.
9. Sardar Muhammad Ishaq Khan, learned Senior Advocate Supreme Court, representing the appellant before us, has advanced his arguments mainly on this legal issue and in support of his submissions, he has cited the following cases from Indian jurisdiction:---
(i) Maharaja of Kalhapur v. Sundaram Ayyar (AIR 1925 Madras 497)
(ii) Mangal Sen v. Emperor AIR 1929 Lahore 840(2)
(iii) Ahmad Ali v. Joti Prasad AIR 1949 Allahabad 188
10. Dilating upon the facts of the case in this regard, learned counsel could not controvert that .After framing of charge in the Sessions Case on 13-3-1998, one of the injured eye-witnesses of the crime Arbab Jehanzeb appeared in Court for getting his evidence recorded on several dates of hearing, but on each date the appellant/his counsel successfully avoided to proceed with the case. Learned counsel, however, submitted that on 18-12-2003, when examination-in-chief of P.W.11 Arbab Jehanzeb was recorded in open Court, the appellant was present in Court, and his counsel had also appeared in Court, but later on, he had withdrawn his vakalatnama. Further explanation in this regard is that since the examination-in-chief of P.W.11 Arbab Jehanzeb was recorded in the absence of counsel for the appellant, therefore, under protest, he refused to cross-examine him and withdrew his vakalatnama. Learned counsel did not dispute that even after 18-12-2003, three more opportunities were afforded by the trial Court to the appellant and his counsel to cross- examine this witness, but again the appellant avoided/failed to avail this opportunity, and ultimately on 20-1-2004, P.W.11 Arbab Jehanzeb, while coming to attend the Court proceedings, was murdered and in that case also present appellant is one of the nominated accused for this crime.
Precisely, the submission of the learned counsel is that come what may, unless P.W.11 was subjected to cross-examine on the basis of his examination-in-chief recorded before the trial Court, irrespective of the conduct of the appellant, such piece of evidence has no evidentiary value, therefore, it was not be taken into consideration, looked into, relied upon or made basis for awarding conviction to the appellant. He, however, could not cite any specific provision of Qanun- e-Shahadat, 1984 any other law in force or precedent of this Court in support of such submission. In the same context, he further submitted that due to the murder of P.W.11 on 20-1-2004, and nomination of the appellant as one of the accused in the said crime, with the allegation of causing his murder, no adverse inference could be drawn against him at this stage, as such Sessions Case is still in progress.
11. Conversely, Mr. Tasleem Hussain, learned Advocate-on-Record, representing the State in this case, after making a brief reference to the chequerred history of the proceedings before the trial Court, particularly, about the conduct of the appellant and his brother throughout such proceedings, submitted that in case the evidence of P.W.11 in the form of his examination-in-chief is ignored or discarded in the manner, as suggested by the learned counsel for the appellant, it will amount to giving premium to the appellant and his brother of their own wrongs and misdeeds. He further contended that in the system of criminal dispensation of justice it is a well-recognized legal principle that there is no universal rule of application, which can be followed or made applicable in each case as a rule of thumb. Learned counsel submitted that when the whole history of the proceedings in the Sessions Case is minutely examined, it is evident that it was none else, but the appellant, who, knowing well the importance of the testimony of P.W.11 in the case, made sure his elimination before he could be subjected to cross-examination by his counsel, and in such circumstances, under no canon of moral or legal ethic the appellant can be allowed to avail benefit of his own wrong. In case such precedent is laid down, it will lead to a very dangerous situation in the times to come.
12. We have carefully considered the submission of the learned counsel made before us, and minutely perused the whole case record, including the original R&Ps of Sessions Case No,112-A/SC, which clearly goes to show that in case the evidence of P.W.11 Arbab Jehanzeb in the form of his examination-in-chief is taken into consideration, keeping in view the peculiar facts and circumstances of the case, the prosecution has succeeded to prove the guilt of appellant in the commission of offence under sections 302, 324, and 34, P.P.C, beyond any shadow of doubt. In this regard, not only learned Divisional Bench of the Peshawar High Court, in its impugned judgment dated 13-1-2009, has examined in minute details all the factual and legal aspects of the case, but also the trial Court, after exhaustively examining and discussing the whole evidence adduced before it by the prosecution, and on sound principles of appreciation of evidence, recorded its conclusion against the appellant that he was guilty and liable to conviction and sentence under sedtion 302(b), 324 and 34, P.P.C, as awarded by it, and maintained by the learned Division Bench of the High Court.
13. Having discussed so, now the only moot point for consideration before us is as to what could be legal value of the evidence of P.W.11 in the form of his examination-in-chief, when he had died an unnatural death, before he could be subjected to cross-examination by the appellant. Before we proceed to examine this important legal aspect of the matter, it will be advantageous to refer three cases from the Indian jurisdiction, cited by Sardar Muhammad Ishaq khan, learned Senior Advocate Supreme Court. In the case of Maharaja of Kolhapur (supra), relating to civil dispute as regards inheritance it was held that there was nothing in the Evidence Act, which renders such evidence inadmissible. The correct rule is that the evidence is admissible, but the weight to be attached to such evidence would depend upon the circumstances of each case. In some cases the Court may act upon it, but if there is other evidence on record then its probative value may be very small and may even be disregarded. In the case of Mangal Sen (supra), wherein conviction was awarded to the appellant under section 477-A IPC, and he was sentenced to a term of seven years' rigorous imprisonment, the legal point as regards the evidence of the witness, not cross- examined, was considered, and referring to section 33 of the Evidence Act 1872, it was held that evidence of witness not cross-examined, is admissible but weight is to be touched on its attending circumstances, looking to the facts of each case. In the case of Ahmad Ali (supra), again referring to section 33 of the Evidence Act 1872, it was held that if a witness after recording his evidence in examination-in-chief has died before cross-examination, his evidence does not become inadmissible.
14. Before revering to the moot controversy, here a brief reference to Articles 46, 47 & 131 of Qanun- e-Shahadat, 1984, corresponding to sections 32, 33 & 136 of the repealed Evidence Act, 1872, will be useful, which reads as under:- "46. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. Is relevant.---Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:--
(1) When it relates to cause of death.---When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the case of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) Or is made in course of business.---When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker.---When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose or would have exposed him to a criminal prosecution or to suit for damages.
(4) Or gives opinion as to public right or customs or matters of general interest.--When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of the existence, or which if it existed, he would have been likely to be aware and when such statement was made before any controversy as to such right, custom or matter has arisen.
(5) Or relates to existence of relationship.---When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs.---When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction in Article 26, paragraph(a).---When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Article 26, paragraph(a).
(8). Or is made by several persons and expresses feelings relevant to matter in question.---When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.---Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceedings, the truth of the facts which it states, when the witness is deed or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:--- Provided that:--- ' the proceeding was between the same parties or their representatives-in-interest; ' the adverse party in the first proceedings had the right and opportunity to cross-examine; ' the questions in issue were substantially the same in the first as in the second proceeding.
' Explanation.---A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the Article..
131. Judge to decide as to admissibility of evidence.---(1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant and not otherwise.
(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the trial Court is satisfied with such undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
' A plain reading of Article 46 would show that it illustrates the situations where statements having relevancy to the controversy, made in some earlier proceedings, subject to fulfilment of certain conditions, can be considered relevant and admissible piece of evidence. Particularly, sub-Article
(1) shows that when the evidence or statement of a person, who is dead, as in the instant case, relates to the cause of his death or as to any of the circumstances of the transaction, which resulted in his death, than deviating from the normal course, such statement becomes relevant and gains evidentiary value because of the special circumstances that the person, who made such statement was no more alive/available. Similarly, Article 47 visualize relevancy and significance to the evidence of a witness in a judicial proceeding or before any person authorized by law to take evidence, when the said witness is dead or cannot be found or is incapable of giving evidence, subject to the conditions, provided in the proviso to the said Article, that the proceedings were between the same parties or their representative-in-interest, which for the purpose of criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the said Article; when the adverse party in the first proceedings had the right and opportunity to cross-examine; the questions in issue were substantially the same in the first as in the second proceeding. Article 131 of the Qanun-e-Shahadat, 1984 leaves at the discretion of the Judge to decide admissibility of any evidence and for this purpose gives wide powers to him subject to the language of this Article. Moreso, as there is no provision in the Qanune-Shandat Order which specifically makes such piece of evidence inadmissible.
15. Coming to the facts of the present case, to judge the conduct of the appellant before the trial Court reference, to the order sheets of more than ten dates of hearing, particularly, the detailed order dated 20-12-2003, is pertinent to show that how in a well-calculated manner the appellant avoided recording of evidence of P.W. Jehanzeb, and other P.Ws. To weaken the case of prosecution. Additionally, the appellant also repeatedly moved transfer applications, bail applications, applications for his acquittal and other miscellaneous applications, during the pendency of the Sessions Case to gain maximum possible time for avoiding the material evidence of prosecution to be brought on record. In this context we are constrained to observed that the trial Court had also given too much latitude to the appellant, and his counsel, which enabled them to finally raise the legal plea, which is now subject-matter of discussion before us. We may observe here that the Sessions Court, headed by a Senior Judicial Officer, should not have found itself helpless in such situations, and succumbed to such pressure tactics, which facilitated the evil design and ulterior motive of the accused. Indeed, at this stage, when the other Sessions case about the murder of P.W.11 Arbab Jehanzeb is to be decided on its own merits, no adverse inference can be drawn against the present appellant or any other nominated accused in the said crime, but here a reference to the application of helpless P.W.11 Arbab Jehanzeb dated 17-1-2004, (moved just three days before his murder) will not be out of place, wherein he has categorically stated his fear of murder at the hands of accused party before completion of his evidence in the pending Sessions case about the murder of his brother Arbab Alamzeb.
16. After careful analysis of the legal and factual position, involved in this case, we cannot resist, but to say that the evidence of P.W.11, in the form of examination-in-chief, was an admissible piece of evidence, which could be legally taken into consideration by the Court in the peculiar facts and circumstances, but with extra care and caution, which has already been taken by the two Courts below, as in this case such evidence of P.W.1 is fully corroborated from the medical evidence and other surrounding circumstances of the case.
17. To put it bluntly, the manner in which the proceedings before the Sessions Court were delayed, due to the conduct, acts of omissions of the appellant or otherwise, the Trial Court cannot be absolved of its lethargy, inaction or to some extent, negligence, which ended in the incident dated 20-1-2004 of the murder of P.W 11 on the date of hearing I . e . 20-1-2004.
18. Indeed, legally and technically examination-in-chief of P.W.11, recorded on 18-12-2003, may not be termed as a statement under section 512, Cr.P.C. In the strict sense, nor Appellate Court in its impugned judgment had held so, but the fact remains that in the peculiar facts and circumstances of the case, the manner in which proceedings in the Sessions case were delayed; the star eye-witnesses of the incident were repeatedly required to appear in Court for their evidence, the circumstances under which examination-in-chief of P.W.11 was recorded before the Trial Court on 18-12-2003; the conduct of the appellant and his counsel in Court on 18-12-2003; non-availing of the opportunity of cross-examination even thereafter for a period of over one month and three dates of hearing, are the material facts which could not be to give benefit of such delay in the proceedings of Sessions Case to the appellant. There is hardly any need to observe that law is a living organ and it is the duty of the Court to adopt a realistic and pragmatic approach for its application, looking to the peculiar facts and circumstances of each case. In the instant case, as discussed above in detailed, it cannot be said that the evidence of P.W.11 in the form of his examination-in-chief is liable to be rejected to simple proposition that he was not subject to cross-examination, but it is case where in a deliberate and calculated manner the appellant himself avoided to avail such an opportunity. To put it differently, a distinction drawn between the two situations, one where opportunity to cross-examination was not given or denied to a party, and second where it was given but deliberately or otherwise not availed of. Instant case, undoubtedly, falls under the second category, where ample opportunity was given but not availed by the appellant. We have, therefore, no reason to disbelieve or disagree with the observation of the trial Court that appellant's side deliberately avoided to cross-examine deceased P.W.
Jehanzeb. Even the trial Court, to a greater extent, cannot be blamed in not engaging a State counsel on behalf of the appellant in the matters, as on one hand at one stage of proceedings such request was made by the appellant to the Court, which was kept on hollow hopes nor the Court was given such impression to enable it to undertake such exercise to avoid further delay in the cross-examination of P.W.11. Seemingly, the trial Court exercised restraint in appointing State counsel on behalf of the appellant as it might have given the appellant yet another cause of grievance to challenge it before the higher forum, and in this manner to further delay the conclusion of the trial.
19. Learned counsel for the appellant appearing before us could not controvert at all that upon taking into consideration the evidence of P.W.11, the only eye-witness of the incident examined by the trial Court, the prosecution succeeded to prove its case beyond reasonable doubt against the appellant and, thus, the concurrent findings of the two forums below against the appellant regarding his conviction and sentence are unexceptionable.
20. Upshot of above discussion is that we hold that in the given peculiar facts and circumstances, reliance placed by two Courts below upon the testimony of P.W.11 was fully justified, so also the conviction and sentence awarded to the appellant, and therefore, this appeal is devoid of merit.
The same is accordingly dismissed.
(Sd)
' Anwar Zaheer Jamali, J ' I agree with the findings on with reasons, but also add my note.
(Sd.)
' Tariq Parvez, J ' TARIQ PARVEZ, J.--I have the benefit and privilege to go through a very well reasoned detailed judgment authored by my learned brother, Honourable Mr. Justice Anwar Zaheer Jamali. I am in absolute agreement with the conclusion drawn by my brother Judge who has taken great pain to dilate upon a difficult legal question which has arisen out of this case.
2. His Lordship has concluded that statement of P.W.11 Arbab Jehanzeb recorded in his examination-in-chief is admissible in evidence. While concluding so, it has been held that it was never the fault of the prosecution/complainant nor non-examination of the witness can be attributable to the learned trial Judge because the said witness could not be cross-examined but wholly because the defence by its own conduct failed to avail the right of cross-examination.
3. His Lordship has given the date and the adjourned dates on which despite the fact that P.W. Arab Jehanzeb was present and was available for cross-examination but was not cross-examined.
4. His Lordship has referred to Articles 46, 47 and 131 of the Qanoon-e-Shahadat Order, 1984 (hereinafter referred to as "Order".
5. I, in my own humble view, would like to add what my learned brother has recorded in his judgment in further support of the conclusion arrived at.
6. The scheme of examination of a witness is given in Article 132 of the Order. The examination of a witness starts with examination-inchief followed by cross-examination by the adverse party and further followed by re-examination of the witness but only in case some ambiguity appears in the examination-in-chief. This leads us to conclude that statement of a witness given in Court is divisible into three stages i,e, examination-in-chief, cross-examination and re-examination, if any.
7. In addition to Articles 46, 47 and 131, I intend to take help from the Articles of the Order and they are Articles 18 and 21 of the Order. These Articles are reproduced as under:-- "18. Evidence may be given of facts in issues and relevant facts. Evidence may be given in any suit or proceedings of existence or non-existence of every fact in issue and of such other facts as or hereinafter declared to be relevant, and of no others."
"21. Motive, preparation and previous or subsequent conduct.--
(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
(2) The conduct of any party or of any agent to any party, to any suit or proceeding, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto and the conduct of any person an offence against whom is the subject of proceeding, is relevant if such conduct influences or is -influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto."
8. Article 18 makes it permissible for giving evidence in any suit or proceedings of existence or non- existence of every fact which is in issue. Article 21 of the Order makes relevant the motive, preparation and previous or subsequent conduct as relevant facts.
9. Tested on the touchstone of the two Articles mentioned above, examination-in-chief made by P.W.11 Arbab Jehanzeb wherein he has given the details of the occurrence regarding murder of the deceased brother, by charging the accused nominated therein and by giving the motive for the crime, his statement is in respect of relevant facts and also in respect of facts in issue.
10. In a murder case, the issue is if "A" has killed B and why? Where the statement-in-chief contains the names of the deceased, persons charged for his killing and motive for killing the deceased, will qualify the requirements of Articles 18 and 21 of the Order.
11. As a general rule of evidence only such statement is legal and admissible which is given during the course of judicial proceedings and is on oath and is taken by a person authorized under the law to take down the evidence and that it is made in the presence of the adverse party, giving the right to the adverse party to cross-examine the statement of such deponent.
12. To the above general rule of evidence there are two exceptions where a statement made by a witness without being cross-examined and made at the back of the accused person are made admissible. These two exceptions are; one covered under Article 46 of the Order when a person makes a statement as to the cause of his death and the second exception is under section 512, Cr.P.C. Where an accused person absconds, law makes it permissible under section 512, Cr.P.C. To preserve the evidence, therefore, during the abscondence of an accused person statement of the witnesses are recorded with a view that if at the trial of the absconding accused such witness is either dead or has become incapable of giving evidence or his presence cannot be acquired without unnecessary delay, his statement previously recorded at the back of the accused can be taken into evidence.
13. On the analogy of section 512, Cr.P.C. Where but for the fault on the part of defence a witness though available but was not cross-examined, his statement recorded in-chief would be legal and admissible in evidence.
14. However, question for determination before the Court would be that as to what would be the evidentiary value of such statement which is recorded and only to the extent of examination-in- chief but is not subjected to cross-examination.
15. Since to cross-examine a witness, is the right of the adverse party but if the adverse party fails by its own conduct, it cannot agitate IL that any prejudice is caused to it.
16. I am, therefore, of the view that statement of P.W.11 Arbab Jehanzeb recorded by the trial Court was admissible in evidence and it did not suffer from any legal flaw. However, its evidentiary value cannot be equated with such statement which has been subjected to cross-examination.
Therefore, for giving weight to the statement of such witness, it has to be seen whether such statement intrinsically rings true and whether or not same is supported by circumstantial evidence.
If such statement is supported by independent evidence in the shape of any circumstances or corroboration from any source, it will be good piece of evidence.
17. The above are my reasons which are in addition to the reasons recorded by my learned brother to hold that statement of P.W.11 Arbab Jehanzeb has been rightly taken as valid piece of evidence.