' MUHAMMAD HASHIM KHAN KAKAR, J.---These appeals are presented against the judgment dated 7th March, 2009, passed by the Special Judge, Antiterrorism Court, Mekran at Turbat, whereby appellants Khalil Ahmed, Muhammad Ali alias Heera and Mumtaz Brohi were convicted and sentenced in the following manner:- Accused Muhammad Ali alias Heera and Mumtaz Brohi: under section 365-A of the P. P. C. Read with section 7(e) of the' Anti-terrorism Act, 1997 to suffer life imprisonment and forfeiture of their all movable and immovable property in favour of the State, with the benefit of section 382-B of the Cr.P.0 Accused Khalil Ahmed;-- under section 109 of the P.P.C. To suffer life imprisonment and forfeiture of his all movable and immovable property in favour of the State, with the benefit of section 382-B, of the Cr.P.C."
2. Brief facts of the case are that on 26th March, 2006, a case vide F.I.R. No,16 of 2006 was registered at police station Gwadar on the report of complainant Mir Rashid, under section 365 read with section 34 of the P.P.C., wherein he alleged that on 19th March, 2006 at about 2-00 p.m., his brother Zahid along with one Hafiz proceeded from Gwadar to Karachi, in his Corolla car, bearing Registration No,AHI-858, however, it has come to his knowledge that they could npt reach Karachi, at which he and others started search and lodged a complaint at police station, Gwadar on 21st March, 2006. It was further alleged by the complainant that he received a satellite phone call and talked to his brother Zahid, who told him that they had been abducted by some unknown accused persons, however, they are save. Next morning i,e, 23rd March, 2006 at about 11-00 a.m., he received another call from his brother from the same satellite mobile that the abductors are demanding an amount of Rs,5 Crores as ransom. The complainant also alleged that, thereafter, one of the abductors talked with him and demanded to arrange the payment of ransom within a period of three days and that in case of failure, they would sell the abductees to another party and since he is a poor person, therefore, he told the abductors that he could not arrange the demanded amount. Thereafter, they abductors used to call him for the purpose, thus, the aforesaid case was registered.
3. After registration of the F.I.R., investigation of the case was carried out by P.W.10 Abdul Sattar, IP/SHQ, who arrested co-accused Tabish on 18th April, 2006, got recorded his confessional statement under section 164 of the Cr.P.C. Through Judicial Magistrate concerned, who also involved accused Muhammad Ali alias Heera in the instant case, thus, accused Muhammad Ali alias Heera was arrested by Turbat police, whose custody was handed over to him. The accused persons were interrogated and during course whereof, accused Khalil, who happens to be the nephew of accused Muhammad Ali alias Heera, was also arrested and whose confessional statement was also got recorded through Judicial Magistrate concerned. He also recovered satellite phone mobile and other articles used in the commission of the offence on the disclosure of accused persons and after completion of the investigation, incomplete challan Exh.P/10-A was prepared against accused persons Tabish, Khalil Ahmed and Muhammad Ali.
4. Subsequently, the investigation of the case was transferred from Gwadar Police Station to Pasni police station on the ground of jurisdiction. On 25th September, 2006, abductee Zahid came to police. Station and recorded his statement before P. W.12 Ahmed Ali, SHO/IO, at which another incomplete challan was prepared. Thereafter, on 9th June, 2007, abductee Hafeez-ur-Rehman also came to police station, whose statement was recorded and another incomplete challan was prepared.
5. After recovery of the abductees, further investigation of the case was commenced by P.W.11 Muhammad Arif, SI/SHO, who carried out investigation from accused Mumtaz Brohi in the premises of district jail, arrested in another case and on completion of the investigation, he prepared incomplete challan Exh.P/11-A to his extent.
6. On the stated allegation, a formal charge was framed and read over to the appellants, to which they did not plead guilty and claimed trial, whereas the charge was presumed to be denied by the absconding accused persons. At the trial, the prosecution examined as many as 12 witnesses.
Thereafter, the appellants were examined under section 342 of the Cr.P.C., wherein they once again denied the prosecution's accusation, however, they did not opt to record their statements on oath as envisaged under section 340(2) of the Cr.P.C., nor produced any witness in their defence. On conclusion of the trial, the appellants were convicted and sentenced, as mentioned and detailed above.
7. We have heard learned counsel for the parties and also perused the entire evidence with their valuable assistance.
8. At the very outset, we have noted that initially challan of the case was submitted before the Anti- Terrorism Court against the accused Muhammad Ali, Khalil and Tabish and some of the material prosecution witnesses were examined. However, after arrest of convict/appellant Mumtaz Brohi, P.
Ws. Abdul Rasheed, Muhammad Ilyas, Shaukat Abbas and Zahid Kareem were recalled and appellant Mumtaz Brohi was allowed to cross-examine them on the basis of their examinationin- chief, which they had already recorded in the first round of trial against co-accused.
9. It is basic principle of administration of criminal justice that the examination of the witnesses must be carried out in presence of accused or his pleader, as provided under section 353 of the Cr.P.C., which speaks as under:-- "353. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXIIN shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader."
10. A bare perusal of the above provisions of law clearly demonstrates that the evidence of the witness has to be recorded in presence of accused and mere cross-examination in the presence of accused is not sufficient. An anxiety of speedy disposal of case should not be allowed to surpass safe administration of justice, because the rule enacted in the aforesaid section is imperative and recording of evidence in derogation of this mandatory rule of law vitiate the trial.
11. So far as the contention of learned PG regarding the powers of the Court under section 512 of the Cr.P.C. And Article 47 of the Qanune-Shahadat, Order 1984 is concerned, before dilating upon the contention, for better understanding, it would be advantageous to reproduce both the provisions herein below, which speak as under:- "512. Record of evidence in absence of accused.---(I) 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 an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) Record of evidence when offender unknown.---If it appears that an offence punishable with death or [imprisonment for life] has been committed by some person 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 deposition 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."
"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 proceeding, the truth of the facts which it states, when the witness is dead 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 proceeding had the right and opportunity to cross-examine; the question in issue were substantially the same in the first as in the second proceeding."
12. Both the provisions clearly demonstrate that the trial Court is empowered to believe the evidence of a witness recorded in the absence of accused provided on the arrest of accused such witness is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay or expense. In the instant case, the aforesaid witnesses were produced and appellant Mumtaz Brohi was allowed to cross-examine them on the basis of their examination-in- chief, which they had already recorded in first round of the trial, which is flagrant violation of the rule enacted under section 353 of the Cr.P.C. If law provides a particular thing to be done in a particular manner, then it should be done in that manner. After arrest of the appellant, the prosecution witnesses must be examined again in his presence. The procedure adopted by the trial Court is illegal and the conviction and sentence awarded to the appellants on the basis of such evidence is not sustainable by holding this view, we are fortified from the judgment of "Sher Muhammad alias Shera v. The State" reported in 1997 PCr.LJ 259.
13. Besides the aforesaid illegality committed by the trial Court, the conviction awarded to the appellants is also not sustainable for the reason that the trial Court, while passing the conviction judgment, had also made reliance upon the list of updated call details geographical location issued by Fort Info Technology FZC, Dubai UAE, which was never exhibited before the trial Court and the same has caused serious prejudice to the appellants.
For the aforesaid reasons, we are inclined to partly allow these appeals, set aside the impugned judgment dated 7th March, 2009, passed G by the Special Judge, Anti-terrorism Court, Mekran at Turbat and remand the case to the trial Court for re-examining the aforesaid witnesses. Both the parties are also at liberty to lead additional evidence, if so desire.