' ABDUL AZIZ KUNDI, J.--- Impugned herein is the order dated 10-11-2009 passed by Additional Sessions Judge-III Swabi in Sessions Case No,1/SC of 2009, pertaining to F.I.R. No,1174 dated 14-12- 2000. Police Station, Swabi, who refused to transfer the statements of two eye witnesses Siddique Akbar and Hussain Akbar sons of Mir Akbar recorded in proceedings under section 512 Cr.P.C.
Against accused-respondent Said Qadeem to the file of trial against accused-respondent.
2. Facts precisely stated are that Said Qadeem, the sole accused of case F.I.R. No,1174 dated 14-12- 2000 under sections 302/324, P.P.C. Of Police Station, Swabi, went into hiding and thus vide Case No,25/SC of 2001, he was proceeded against under section 512 Cr.P.C. And evidence recorded in his absence. He remained fugitive from law for a long period of about eight years and could be arrested on 31-10-2008, where after his trial commenced before Additional Sessions Judge-III Swabi. During the course of trial, two eye-witnesses, namely, Siddique Akbar and Hussain Akbar sons of Mir Akbar did not respond to the repeated process issued by the Court, rather they were reported to have gone to UAE for earning their livelihood. Accordingly, on 27-10-2009, an application for transfer of the statements of the said two witnesses recorded in proceedings under section 512 Cr.P.C. To the trial file was moved. The application was resisted by accused-respondent and ultimately trial Judge vide his order dated 10-11-2009 declined to accede to the said request and rejected the application. The learned Judge proceeded to hold as under:--- "Section 512 of the Cr.P.C. Envisages that such evidence recorded in the absence of the accused may be used against him after his arrest if the deponent is either dead or incapable of giving evidence or his evidence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable. In the present circumstances, given the fact that both the witnesses are very much alive and have not been reported to have any physical disability from speech etc., their mere presence outside the country and that too in UAE, cannot in my view invoke the section 512(i), Cr.P.C. Into play. The latest technology and nonstop air traffic between the two countries i.e, Pakistan and the UAE, is an open secret and their presence can easily be procured by the complainant party if they so sincerely desire. Hence, the application filed by the prosecution is hereby turned down and are directed to positively ensure the production of the witnesses aforementioned so as to decide the trial within the stipulated period as laid down by the National Judicial Policy, 2009. As far as the application filed by the accused is concerned, it is premature and hence turned down. Both applications disposed of accordingly. Prosecution is directed to ensure production of all the official and private witnesses on 18-11-2009. Copy of this order sheet be sent to the D.P.P Swabi as well as the S.P.
Investigation for information and compliance."
3. Being aggrieved, Naseer Khan son of deceased Sher Nawab has assailed the said order through the instant Revision Petition.
4. Arguments heard. Record perused.
5. Mr. Khawaja Muhammad Khan Gara, Advocate, learned counsel for the petitioner argued that the two witnesses named above are admittedly aboard, earning their livelihood in UAE and their attendance cannot be procured without an amount of delay, expense or inconvenience and that it is not within the means of the complainant to compel the said persons to abandon their jobs abroad; that it is an admitted fact that those who go to Middle East countries for earning their livelihood cannot come back before expiry of 2/3 years, else they lose their visas and work permits; that the impugned order of the learned Judge of the trial Court is violative of and against the spirit of section 512, Cr.P.C. Which is an exception to the general rule that evidence should be recorded in the presence of the accused; that the impugned order tantamount to defeat the very object of section 512, Cr.P.C., which was introduced by legislature to cater for situation like the present one and those detailed in the section by itself. Lastly, it was argued that the impugned order is a deliberate violation of section 512, Cr.P.C. Learned counsel also placed reliance on the cases of Mawas Khan v. The State and another reported as PLD 2004 SC 330 and Mumtaz v. Moin and another 2006 PCr.L.J. 1436 in support of his submissions.
6. As against that Messrs Sahibzada Asadullah and Muhammad Javaid Yousafzai, Advocate representing the accused respondent supported the impugned order of the trial Court and pressed into service the reasoning adopted by trial Court and reproduced hereinabove. Reliance was placed on an unreported judgment dated 27-7-2007, passed by this Court in Criminal Revision No,91 of 2007. They accordingly contended that the two witnesses could easily come from U.A.E. For deposing in the instant case before trial Court.
7. Mr. Naveed Akhtar, learned Additional Advocate-General was, however, frank enough to support the petition and stated that through the impugned order, learned trial Judge has rendered the provisions of section 512, Cr.P.C. Redundant, which are aimed to preserve evidence for such like situation. He accordingly submitted that let the said statements be brought on the file of trial against the accused-respondent.
8. True, that an accused has an inalienable right to cross-examine the witnesses deposing against him but section 512, Cr.P.C. Is an exception to the said rule catering for special situations enumerated therein. For the sake of ready reference section 512(1), Cr.P.C. Is reproduced hereunder:--- "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 or his attendance cannot be procured without any amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable."
9. From the bare reading of the above, it is clear that the words "or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable." are not without any purpose.
10. Section 512, Cr.P.C. Is aimed to preserve evidence for eventualities detailed therein and the instant is one amongst the said eventualities.
11. This Court has in the case of Mumtaz, 2006 PCr.LJ 1436 exhaustively dealt with the' provisions of section 512, Cr.P.C. And held:--- "Section 512, Cr.P.C. Is meant for preservation of evidence for eventuality where statutory protection is given to deposition of 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."
12. The other judgment relied upon by the learned counsel for the petitioner and reported as PLD 2004 SC 330 is not fully applicable to the facts of the present case, as in that case the witnesses had been examined in previous trial.
13. The unreported judgment relied upon by learned counsel for accused-respondent is not fully attracted to the facts of the present case and also proceeds against the provisions of section 512, Cr.P.C.
14. Admittedly, the two witnesses Siddique Akbar and Hussain Akbar are in U.A.E. For earning their livelihood. There is nothing on record that they are in any manner related to the deceased or for that matter to the present petitioner. It is also an undisputed and commonly known fact that those Pakistanis who labour in Middle East Countries and earn their livelihood can hardly afford to visit their country as per their own wishes. Their employers neither permit them, nor can they afford the same financially and thus those who opt to act as per their own wishes, normally lose their visas and work permits.
15. Instant was a case, which is fully covered by section 512, Cr.P.C. And thus the learned Judge of the trial Court while declining the request of the prosecution has erred both in law and facts.
' Consequently, this Criminal Revision Petition is allowed, the impugned order dated 10-11-2009, passed by Additional Sessions Judge-III, Swabi is set aside and while allowing the application dated 27-1-2009, moved by prosecution, it is ordered that the statements of Siddique Akbar and Hussain Akbar sons of Mir Akbar recorded in proceedings under section 512, Cr.P.C. Be transferred to the file of trial against the accused-respondent No,1 in accordance with law.