' SALAHUDDIN PANHWAR, J.--- By this common judgment, I would like to dispose of two Cr. Appeals Nos.144 and 145 of 2011, arise out of one judgment.
2. Appellant Miran alias Mir Muhammad has filed both appeals one through Jail and another through counsel against the impugned judgment dated 5-11-2011 passed by the learned Ist Additional Sessions Judge, Sukkur, whereby the appellant was convicted and sentenced for imprisonment for life with fine of Rs,100,000 in case of default to undergo R.I. For six months more and fine be recovered and paid to the legal heirs as compensation under section 544-A, Cr.P.C.
3. Succinctly, the facts of, the prosecution case, as disclosed in the F.I.R. Lodged by the complainant Manthar Ali, are that father of complainant (deceased) Ghulam Rasool had agricultural land near village Abad; accused Meeran and Rasool Bux used to demand the land from Ghulam Rasool that he should sell the land to them, on his refusal they were annoyed with him and issued threats that they would murder him. On the day of incident viz. 3-5-2003 at about 1900 hours complainant with his father deceased Ghulam Rasool, uncle Ghulam Nabi and Pir Bux was present at his house, located at village Abad, suddenly accused Amir Bux armed with K.K, Meeran with K.K, Rasool Bux with K.K, Sajjan with K.K and Muhammad with K.K entered in his house and accused Amir Bux instigated others to kill him. At the instigation of accused Amir Bux, accused Meeran fired from his K.K over deceased Ghulam Rasool who after sustaining injury fell down while accused Sajjan fired from his K.K upon complainant which hit on his left leg'and he also fell down, thereafter, the accused persons made aerial firing and escaped. Complainant and the witnesses noticed that Ghualm Rasool had sustained injuries on left side of his chest and blood was oozing and he succumbed the injuries.. Complainant along with witnesses brought the dead body of his father Ghulam Rasool at Civil Hospital, Sukkur for post mortem and leaving the dead body at the hospital, lodged F.I.R.
4. Record further reveals that, pursuant to the F.I.R. .Accused Muhammad, Rasool Bux and Sajjan were tried by the trial Court and they are acquitted by Judgment dated 8-7-2009. After their acquittal present appellant/accused was arrested, trial was commenced; consequently appellant was convicted and sentenced.
5. Learned counsel for the appellant/accused has contended that the impugned judgment is contrary to the law and complete departure of the procedural and substantial law, the trial Court while conducting the trial and convicting the appellant has committed an illegality as five witnesses were not examined in presence of the appellant/accused but their earlier statements recorded, were relied upon while convicting the appellant, such course adopted by the trial Court is illegal and not curable under section 537, Cr.P.C., therefore he prays that the case may be remanded back.
6. Conversely the learned State counsel has not controverted this fact and conceded to the extent that case may be remanded back for fresh trial.
7. Heard the learned counsel for the respective parties 'on the issue which gives rise to the below legal proposition:-- Whether earlier evidence, recorded in trial other accused persons, can be used against the absconding accused persons?
' The above legal proposition can further be parted in two parts i.e, recording of evidence in absentia and its legal value in using the same against the accused persons.
8. To respond the first part of the proposition it will be conducive to reproduce the relevant provisions, dealing with manner of recording of the evidence during trial, and that under what circumstances evidence can be recorded in absence of accused. Section 353, Cr.P.C:-- "353. Evidence to be taken in presence of accused: Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, ',all and XXIIA] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader".
The reading of the above provision leaves nothing ambiguous that legislatures, in their wisdom, have made it mandatory by using the word "Shall" that all evidence should be recorded in the presence of the accused or when his personal attendance is dispensed with and accused is represented through pleader. The logic behind this could be nothing but to ensure providing a full and fair opportunity to the accused while eliminating all chances of a subsequent plea(s) of accused being prejudiced. This would stand, well with meaning of fair trial as provided by Article 10-A of the Constitution.
9. I am conscious that the legislatures have provided an exception to this mandatory provision by enacting the provision of section 512, Cr.P.C. And Article 46 of. Qanun-e-Shahadat Order 1984, while keeping in view certain natural facts and elements. The provision of section 512, Cr.P.C., the exception, being material, is reproduced hereunder:-- ' Section 512 Cr.P.C:-- "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 Coon 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, expenses or inconvenience which, under the circumstances of the case, would be unreasonable"
A bare perusal of above provision shows that this exception is available in matter(s) where the accused is absconder, and the purpose of recording of depositions under section 512, Cr.P.C. Is that same could be used against the absconder accused on his arrest or as per sub-clause (2) thereof, against the person or persons, who may subsequently be accused of the offence. This seems to be with an intent to preserve the deposition keeping in view the chances of deponent being dead or incapable of giving evidence at such time. However, such evidence(s) cannot be of such weight as recorded in presence of the accused person(s) whereby the accused is provided a fair opportunity to cross-examine the deponent to test the veracity of deponent and Article 46 of Qanun-e- Shahadat Order also makes it clear that procedure for recording evidence and its evidentiary value is available in the statute with certain conditions on these legal grounds authoritative view can be found from ease-law reported as Hidayatullah and others v. The State (2000 YLR FSC 2330), it is held as under:- "A bare perusal of above provision would show that depositions recorded under section 512, Cr. P.
C. Can only be used against the absconder accused on their arrest or as per sub-clause (2) thereof, against the person or persons, who may subsequently be accused of the offence, provided the deponent is dead or is incapable of giving evidence" further it is held:- ' Needles to point out that the procedure provided for under section 512(2), Cr. P. C. Apply only to cases of great gravity and can be put in force only under order of High Court, expense or inconvenience in obtaining the presence of deponent is not sufficient ground for accepting the deposition against the person subsequently accused".
' In another case of Arbab Tasleem versus The State reported in PLD 2010 SC 642, it is held that:-- As a general rule of evidence only such statement is legal and admissible which is given during the course of judicial proceeding on oath and it is taken by a person authorized under the law to take down the evidence and it is made in. The presence of the adverse party, giving, him right to cross-examine deponent. There are two exceptions to the said general rule, where a statement made admissible one exception is covered under Art.46, Q.S., when a person makes a statement as to the cause of his death and the second exception is under section 512, Cr.P.C. When an accused absconds and law makes it permissible to preserve the evidence of witness with a view that if at his trial any such witness is either dead'or incapable of giving evidence or his presence cannot be acquired without unnecessary delay, his statement previously recorded at the back of accused can be taken into evidence. Further it is held that "evidence recorded will be legal/admissible, 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 be circumstantial evidence through any source. If such witness is supported by independent evidence in shape of any circumstances or corroboration from any source, it will be good piece of evidence."
Reverting to the second part of the- proposition that whether such evidence recorded in -absentia can be used against the absconding accused on his arrest I- am of the view that if earlier recorded evidence, is allowed to be used against the absconding accused on his arrest without providing him an opportunity to cross-examine the witness this may result in a departure from the word of fair trial on which the Criminal Administration of justice rests unless the Court or the prosecution justifies the exceptional circumstances which compelled them to depart from such mandatory requirement of the law. Therefore, on subsequent arrest of an absconding accused the prosecution and Court, at first instance, should make all efforts to secure evidence in presence of the accused as the same is established principle through precedents. In the case of Atta Muhammad and 3 others v. The State reported in 1999 PCr.LJ 1140, it is held as under:- --"the purpose and the intent of recording the evidence of all prosecution witnesses afresh and that of statement under sections 342 and 340, Cr.P.C. And defence witness if any, would be that the accused appellant should know as to what was the evidence against him and as to in which manner he will have to answer the same and prepare ,his defence,,having not done so the very purpose of dispensation of criminal justice would fail".
' In another case of The State v. Ali Zaman reported in 1981 PCr.LJ 194, it is held as under:-- "that basic principle of administration of criminal justice is that examination of witnesses must be carried out in presence of accused or his pleader or attorney and if the same is not done, conviction on such evidence would be illegal."
' In case of Mahmood Ahmed v. The State reported in PLD 1983 Lahore 612, it is held as under:-- "accused was absconding on the day when statement of witnesses were recorded, on joining proceedings by accused, such witnesses were never summoned again for recording evidence and for cross-examination . The trial held was thus conducted in violation of section".
After going through the case-law ratio (authoritative proposition of law) of the Judgments is that trial Court should record evidence in presence of accused, earlier evidence recorded cannot be used against absconding accused except in exceptional circumstances, it is also a settled principle by Hon'ble Supreme Court in case of Arbab Tasleem (supra) that previously recorded evidence can be taken into consideration 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 is to be seen whether such statement intrinsically rings true and whether or not supported by circumstances through any sources.
10. Having responded to above proposition of law now I revert to facts, involved in the matter, to see whether the learned trial Court was justified in adopting the earlier evidence which was recorded in absence of the accused.
11. I find it proper to refer the relevant paras of judgment. Of trial Court which are as under:--- "To substantiate its case, prosecution examined P.W,.1 Peeral at Exh.6, P.W.2 complainant Manthar Ali at Exh.7 and P.W.3. Haji Khan at Exh.8. The learned DDPP for the State filed statement while adopting the same evidence of P.Ws. Namely HC Mashooq Ali, PC Ghulam Ali, Dr.Javed Iqbal, ASI Javed Ali and Inspector Javed Alam and closed prosecution side vide statement at Exh.9".
(underlining is mine for emphasis).
' It is also noticed that learned trial Court has relied upon the evidence of Inspector Javed, the I.O.
Of the case and other witnesses, who were not examined in presence of the appellant, while convicting the appellant/accused.
12. The perusal of the judgment, impugned, shows that in the instant case evidence of five witnesses was not recorded in presence of accused, same was adopted by prosecution and the trial Judge has admitted such copies in evidence against appellant and convicted him for life imprisonment but the learned trial Judge has not given the reasons/legal justification for resorting to such exceptional procedure which, otherwise, is not within spirit of Safe Administration of law.
Thus in absence of explaining/giving reason for resorting to such exceptional procedure the trial Judge has committed illegality while accepting the evidence of five P.Ws., who were not examined in presence of accused, as there is no law for .Adoption of evidence. Thus this was not permissible to the prosecution to adopt the evidence recorded earlier except in certain conditions provided under the law, moreover there is no justification and explanation that under what circumstances said P.Ws. Were not examined in this case, thus the impugned judgment is, not sustainable under the law, such practice is completely departure from the procedural law, therefore it is against the norms and logic of established maxim. A Communi Observantia non est recedendum (a thing is to be done in particular manner it has to be done in that manner, if it is not done so will be unwarranted under the law). In such circumstances it would meet the ends of justice to remand the case. Accordingly, impugned judgment dated 5-11-2011 is hereby set aside, case is remanded back to the trial Court for its decision afresh in accordance with law within period of three months with direction to re-examine above referred P. Ws. Thereafter appellant may also be re-examined under section 342, Cr.P.C. The appellant shall be permitted to lead evidence in their defence with regard thereto or to get recorded their statement within the purview of section 340(2), Cr.P.C., if they chose to do so.
13. Above are the reasons of a. Short order dated 13-8-2012 whereby the impugned judgment dated 5-11-2011 passed by the learned Ist Additional Sessions Judge, Sukkur, was set aside and the case was remanded back to the trial Court with directions to examine remaining five witnesses and decide the matter within three months.