' ATTAULLAH KHAN, J.---Through this Criminal Revision No,23 of 2009, the petitioner has challenged order dated 8-6-2009 passed by learned Additional Sessions Judge-III, Bannu whereby he dismissed two applications while the 3rd was left pending.
2. Arguments of learned counsel for the parties heard and record perused, in the light of which my discussion is as under.
3. Brief facts of the case are that during pendency of the case against Razaullah petitioner, three applications were submitted by the petitioner. One containing a prayer not to transfer the statement recorded under section 512, Cr.P.C. To the file of present caw The second for summoning of one Sattar Khan, the then PSI in the Court of Magistrate concerned and the 3rd one for requisitioning of the record of another case F.I.R. No,481 dated 28-7-1991.
4. Learned counsel for the petitioner argued that as far as the first application is concerned, it pertains to the statement recorded under section 512, Cr.P.C. By the Magistrate. According to him special provision is given in section 5-A of the Suppression of Terrorist Activities Act, 1975 regarding the absent accused. Therefore, the proceedings under section 512, Cr.P.C. Conducted by Magistrate is illegal and cannot be transferred. Regarding second application for summoning of one Sattar Khan, the then PSI, he submitted that a statement was recorded under section 512, Cr.P.C. By Magistrate in the presence of Sattar Khan PS.-I. But the said P.W. In the trial Court has stated that he has given no such statement. Therefore, according to him in order to clear this situation summoning of said Sattar Khan is necessary. In regard to the 3rd application for requisitioning of record of case F.I.R. No,481 dated 28-7-1991, the learned counsel submitted that this record is necessary regarding certain parcel which were not produced in the Court at the relevant time and were not related to that case. According to learned counsel the said application was kept pending and not decided while the record is very much necessary.
5. I would first discuss, the application filed by the petitioner in the trial Court for not transferring the proceeding recorded under section 512, Cr.P.C. By Magistrate to the file of the trial Court, which was rejected.
6. The stand of counsel for the petitioner is that the special Court was competent to deal with the schedule offence with the exclusion of other Court, in view of section 4-A of the STA, 1975 and the contents of section 512, Cr.P.C. The other side refuted the contention and submitted the order is well reasoned. In order to resolve the controversy, perusal of both the above sections is necessary.
7. I have gone through the provisions of both the laws, i,e, S.T.A., 1975 and Cr.P.C. I would like to reproduce section 512, Cr.P.C. As below:-- "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 given evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
Now I would refer to section 5-A(4)(a) of Suppression of Terrorist Activities Act, 1975 which reads as follows:-- "An accused person may be tried in his absence, if Special Court, after such inquiry as it deems fit, is stated that:
(a) Such absence is deliberate and brought about with a view to impeding the course of justice; or Provided that, in a case referred to in clause (a), the accused person shall not be tried unless a proclamation in accordance with the provisions of section 87 of the Code has been published in respect of him, which proceedings shall be completed by the Special Court within seven days, and until the proclamation has been published in at least three national daily newspapers out of which two shall be in the Urdu language."
8. The plain reading of the above two sections create two propositions. One emerges from section 512, Cr.P.C. And the second from section 5(A)STA. The first proposition as arising out of section 512, Cr.P.C. Is that "the Court competent t try the offence" may in the absence of the accused, examine the witness. The words used are, "the Court competent to try". In the case in hand the trial Court wanted to transfer the evidence recorded under section 512, Cr.P.C. By the Magistrate. The Magistrate is not competent to try a schedule offence under STA. It is only the Special Court Judge, appointed and established under section 3 of STA. So, on this count also, in view of the provision of section 512, Cr.P.C. Itself the evidence recorded under section 512, Cr.P.C. By the Magistrate (not competent to try) cannot be transferred to the file of the trial Court.
9. The second aspect is that in section 5-A(4) of STA a mechanism is provided when an accused is absent. It is provided that if the Special Court after such inquiry as it deems fit, is satisfied, it may try the accused person in absentia, Another provision is given in the same section, that if proclamation under section 87, Cr.P.C. Is not complied with, the Special Court would not try the accused in absentia. Now it is clear that, impliedly, the provision of section 512, Cr.P.C. Has been substituted under section 5-A, STA. The Special Court has to issue proclamation under section 87, Cr.P.C. To be published in the National daily newspapers and thereafter, the trial would commence against an absent accused. A similar provision is also given in section 19(10) of Anti-Terrorism Act of 1997. So the evidence recorded by the Magistrate under section 512, Cr.P.C. In a case relating to schedule offence is not admissible firstly because he was not competent to try the case pending before the trial Court (Special Court) and secondly a special provision in this regard is given in the STA itself.
10. I am of the opinion, keeping in view the above discussion, that the trial Court wrongly disallowed the first application.
11. Now coming to the second application which was also dismissed, it pertains to the examining of one Sattar Khan the then PSI attached to the Court of Magistrate. According to the learned counsel for the petitioner, the need for summoning this witness was felt when P.W.6 namely Mahboob Ali deposed in the trial Court that he has not given any statement in any Court except which was given by him in this Court. He further disclosed that a statement if any, is not his statement but would have been recorded by State counsel Sattar. So in view of the statement of P,W.6 in the trial Court, it is necessary to call the said Sattar Exh.PSI and to examine him in order to confirm whether P.W.6 had recorded his statement or not. In my opinion the examination of Sattar is very much necessary and in the interest of justice. So the rejection of second application is not warranted by law and the findings are liable to be reversed.
12. The 3rd application remained pending by the trial Court is regarding requisitioning of record of case No,481 dated 28-7-1991 under section 3/4 P.O. In the said case there is a dispute over parcels and also the stand of accused is that it is not related to the present case because the materials pertains to some other criminal case. In my opinion the record of case F.I.R. No,481 dated 28-7-1991 has important bearing on the case of the parties and if it is requisitioned by the trial Court, it would clear the legal position and also would not prejudice the opposite party. So the 3rd application which remained undecided needs to be disposed of by the trial Court.
13. The upshot of my above discussion is that the revision petition is accepted in terms that the proceedings under section 512, Cr.P.C. With regard to the statement of P. Ws. Cannot be taken into consideration and transferred to the file of the present case, the record of F.I.R. No,481 dated 28-7- 1991 be requisitioned and Sattar Khan the then PSI be summoned and examined.