' SHAH JEHAN AKHUNDZADA, J.--This Criminal Revision Petition under section 439 read with section 435, Cr. P. C. Has been filed by the petitioner Sohail for the following relief:-- "It is, therefore, humbly prayed that on acceptance of this revision petition the impugned order dated 6.7.2013 of Kohat may kindly be set aside and the petitioner may graciously be acquitted from the charges levelled against him."
' Brief facts of the case are that Muhammad Asif Khan, Complainant/respondent No, 2 herein in an injured condition made report on :27.9.2010 in the Emergency Room of Liaqat Memorial Hospital, Kohat to the effect that there was a dispute between the present petitioner and the brothers of Muhammad Asir Khan over a drain. At about, 1930 hours the Complainant went to the house of the petitioner in order to make explanation for the quarrel and knocked the door of his house. The petitioner and his brother Jamil came out duly armed with pistols and while asking,him as to why he has come there. Jamil, accused gave him blow of the pistol butt with which he was injured on his head. On hearing the noise, his brothers Kamran and Imran also rushed to the spot and the present petitioner and his brother Jamil started firing at them as a result of which Kamran brother of Muhammad Asif Khan, respondent No, 1 herein, was also got injured and died on the spot while Imran sustained injuries too. To this effect, case FIR No,' 736 was registered on 27.9.2010 against Sohail, petitioner and his brother Jamil under sections 302/324/34, PPC. The accused after the commission of the offence went into hiding, thus after completing proceedings under sections 204 and 87, Cr.P.C., challan under section 512, Cr.P.C. Was submitted in the Court of learned Illaqa Magistrate under section 190(2), Cr.P.C. Who sent it to the Court of learned Sessions Judge, Kohat who entrusted the case to the learned Addl. Sessions Judge-III, Kohat for disposal. After recording the statement of ten prosecution witnesses including Muhammad Asif Khan complainant/respondent NO. 2 and the eye-witness Imran, the learned Addl. Sessions Judge-III, Kohat vide his order dated 29.4.2011 declared the petitioner and his brother as proclaimed offenders and non-bailable perpetual warrants of arrest were ordered to be issued against them.
3. 'Subsequently, vide FIR No 658, dated 22.9.2012 one Muhammad Javed brother of the present petitioner charged Asif Khan and Shakir for the murder of three minor kids of the present petitioner and in that case the accused-respondent herein are also absconding. After the murder of his three minor kids, the petitioner surrendered himself before the Court by filing bail before arrest application which was later on dismissed on 7.11.2012 by the learned Sessions Judge, Kohat and he was arrested in the case. Formal charge against the petitioner was framed by the learned Addl.
Sessions Judge-III, Kohat on 15.1.2013 to which he pleaded not guilty and claimed trial. During trial, statement of eleven P. Ws. Were. Recorded. Thereafter, the petitioner submitted an application under section 265-K, Cr.P.C. For his acquittal on the ground that since the complainant Muhammad Asif Khan and his brother Imran are absconding in case FIR No, 658, dated 22.9.2012 under section 302/324/34, PPC registered at Police Station Cantt. The learned Trial Judge passed the following order on 6.7.2012:- "Thus, in the circumstances discussed above, I am not inclined to acquit the accused facing trial by exercising the powers conferred upon this Court under section 265-K, Cr.P.C. At the same time the accused cannot be kept behind the bars and to wait the appearance of the PWs. Thus, the case is adjourned sine die. The prosecution may apply for reopening of the case file as and when their PWs are available for recording of their statements. The accused cannot be kept in jail for an indefinite period and he is directed to be released on bail provided he furnishes, bail bonds in the sum of Rs, 200,000/- with two sureties each in the like amount to the satisfaction of Maga Magistrate Kohat.
Case property shall remain intact".
' The above order was challenged by the petitioner before this Court having being aggrieved from it.
4. I have heard the learned counsel for the petitioner as well as learned DAG for the State and have also gone through record of the case.
5. From the perusal of record, it transpires that Sohail (petitioner) alongwith his brother Jamil (still absconder) were charged by Asif Khan then injured (respondent No, 2), for the murder of his brother Kamran deceased vide FIR No, 736, dated 27.9.2010 under section 302/324/34, PPC registered at Police Station City Kohat. After the commission of offence, the petitioner and his brother Jamil went into hiding and evaded their arrest as such proceedings under sections 204 and 87, Cr.,P.C. Were carried out against them and then challan under section 512, Cr.P.C. Was submitted before Illaqa Magistrate who sent it to the learned Sessions Judge on account having no jurisdiction with him to try this case on 8.2.2011 who entrusted it to the Trial Court for disposal. The learned Trial Judge after recording the statements of the prosecution witnesses including Asif Khan complainant and his brother Imran, vide his order dated 29,4.2011 declared the petitioner and his brother Jamil as proclaimed offenders and perpetual non-bailable warrants of arrest were ordered to be issued against them. During the trial of this case, almost all material statements of the prosecution witnesses were recorded and only the statement of Asif Khan complainant and his brother Imran were left because as per statement of DFC they have been declared absconders in case FIR No, 658, dated 22.9.2012 and were not in attendance despite repeated notices. No doubt, the petitioner was in custody during the trial. But without recording the ,statements Asif Khan complainant and his brother Imran who are material witnesses in the case, the learned Trial Judge could not pass any justifiable order in this case without recording their statements. Record further shows that the aforesaid PWs had appeared in the proceedings against the petitioner under section 512, Cr.P.C. And at that time, the petitioner had gone into hiding and still his brother is absconding. The statements of the above two witnesses recorded during the proceedings under section 512, Cr.P.C. Could be transferred to the file of this Court suo mow or the learned P: P. Or A.P.P.
As the case may be could apply and then he could transfer those statements of the aforesaid witnesses to the file of judicial proceedings of this case on the request of learned PP/APP, rather they were duty bound to apply and request for transfer those statements on the judicial file before the Trial Court under Article 47 of Qanun-e-Shahadat Order, 1984 read with section 512, Cr.P.C. The provision - of the said section is reproduced in the following paragraph for ready reference:-- "47. Relevancy of certain evidence for proving in subsequent proceeding, the truth of facts therein stated. ---Evidence given by a witness in 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 witnesses 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:----"
' I also want to reproduce the provision of section 512, Cr.P.C. For ready reference which is as under:- - "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 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 or persons 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 depositions 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."
6. But it is regrettable to note that such-like proceedings were not carried out either by the learned Trial Judge or by the PP/APP, therefore, the learned. Trial Judge did not accept the application of the petitioner under section 265-K, Cr.P.C. Rather he released him on bail after adjourning the case sine die. Feeling aggrieved from such order, the petitioner himself come to this come for acceptance of his application under section 265-K, Cr.P..C., and for his acquittal. In my view it was right decision of the learned Trial Judge to dismiss the application of the petitioner under section 265-K, Cr.P.C. But adjourning the case sine die inspite of the statements of the aforesaid witnesses available on judicial file where proceedings under section 512 Cr.P.C. Were carried out was wrong and illegal because the statements of the material witnesses namely, Asif Khan and Imran were recorded under proceeding under section 512, Cr.P.C. But he had not followed the provision of the said Article 47 of Qanun-e-Shahadat Order, 1984 and 512, Cr.P.C. Which were mandatory in nature.
Since statements of both those witnesses for which this case has been adjourned sine-die are available on the judicial file of proceedings under section 512, Cr.P.C., therefore, the release of the petitioner an bail and adjourning the case sine-die is totally illegal. There is no provision in the Criminal Procedure Code to adjourn the criminal case sine die but the Trial Court has to observe and follow the provisions of section 265, Cr.P.C. Therefore, I direct the learned PP/APP to make request to the Trial Court concerned to transfer the statements of the two material witnesses, namely, Asif Khan and Imran recorded in the proceedings under section. 512, Cr.P.C. To the judicial file of this case and then close the case of prosecution because all the material witnesses have been examined except the statements of Asif Khan and Imran on account of which the case was adjourned sine die.
7. In this view of the matter, the impugned order dated 6.7.2013 if the learned Addl. Sessions Judge- III, Kohat regarding the adjournment of the case sine die as well as the release of the petitioner on bail is illegal and, not in accordance with the relevant provision of law. The case is, therefore, sent back to the Trial Court to decide it in accordance with the above observations strictly on merits within a fortnight after receipt of the case file. Since the petitioner was in custody at the time of passing the impugned order, therefore, his bail is also cancelled. He is present in Court and is ordered to be taken into custody and sent to judicial lock-up where he be treated as under-trial prisoner. Office is directed to send the case file forthwith to the Trial Court concerned.
' With the above observations, this Criminal revision is partly allowed.
Revision .