ASSADULLAH KHAN CHAMMKANI, J.- My this common judgment shall dispose of the instant criminal revision petition as well as connected Cr.R. 02-P/2015, titled, "Allah Yar etc Vs Faiz ur Rehman etc", as both are the outcome of one and the same order/judgment dated 03.12.2014, passed by learned Additional Sessions Judge Shabqadar, Charsadda, in case FIR No.449 dated 30.10.2009, registered under sections 302/324/34 PPC at Police Station Batgram, whereby request of the petitioner/PW Yousaf Ali qua transposition of statement of complainant Faiz ur Rehman, recorded during proceedings under section 512 Cr.P.C., to the trial of the respondents/accused, and application of the accused/respondents (petitioners herein in connected Cr.R. No.02-P/2015), under section 265-K Cr.P.C. for their acquittal have been turned down.
2. Learned counsel for the petitioner argued that respondents are facing trial in the cited case for charge of murder and attempt to commit murder; that S.512 Cr.P.C. provide three eventualities for preservation and transfer of statement of a witness recorded during abscondance of accused, one of which is that where the attendance of a witness could not be procured without an amount of delay expense or inconvenience; that same is the position in the instant case as complainant Faiz ur Rehman, due to his involvement in some criminal case, his attendance could not be procure without an amount of delay, therefore, his statement recorded during proceedings under section 512 Cr.P.C., being a valid and substantive piece of evidence within the meaning of S.512 Cr.P.C. read with Article 47 of the Qanun-e-Shahadat Order, 1984, be transposed to the trial of respondents/accused; that the learned Trial Court, has rightly dismissed the application of the respondents-accused under section 265-K Cr.P.C., but erred in law by refusing the request of the petitioner to transfer the statement of complainant to the trial of the accused, thus, sought partial reversal of the impugned order. He placed reliance on PLD 2010 Supreme Court 642, 2006 PCrLJ (Peshawar) 1436; PLD 2010 Peshawar 19; 2013 PCrLJ (Peshawar), 282.
3. Conversely, learned counsel for the respondents accused contended that there is no probability of the accused being convicted of any offence on the basis of evidence available on record, therefore, the learned Trial Court ought to have acquitted them of the charge by invoking the provisions of S.265-K Cr.P.C. He contended that petitioner cannot take benefit of the provisions of S.512 Cr.P.C., which has been meant for special circumstances i.e. when the witness 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; that complainant of the case is neither dead nor incapable of giving evidence and his attendance can be procured if he appears before the trial Court, but he is intentional avoiding law in a criminal case, which does not mean that his attendance cannot be procured without any amount of delay; that no efforts to procure his attendance has been made by the learned Trial court under the Procedural Law; that complainant being well aware of the proceedings ought to surrender before the law and record his statement; that transposition of his statement in such like circumstances, would amount to extend him premium of abscondance; that S.512 Cr.P.C. has never been structured for such like circumstances; that the learned Trial Court in light of the peculiar facts and circumstances of the case, has rightly turned down the request of the petitioner. He sought partial reversal of impugned order to the extent of dismissal of application of the respondents under section 265-K Cr.P.C. and requested for acquittal of the accused/respondents.
4. Learned AAG while supporting the impugned order of the learned Trial Court, sought dismissal of both the petitions.
5. I have heard the arguments and perused the record carefully.
6. It appears from the record that respondents accused Allah Yar etc have been charged by complainant Faiz ur Rehman for committing murder of his cousin Hasan Jan and attempting at his life as well as life of PW/petitioner Yousaf Ali. After registration of the case, the respondents- accused went into hiding, as such were proceeded against under section 512 Cr.P.C., during which course, prosecution evidence was recorded. Later on, respondents-accused were arrested and supplementary challan was submitted against them before the learned Trial Court, wherein some seven witnesses of the prosecution have been examined, so far. During pendency of the Trial, complainant Faiz ur Rehman went into hiding due because of involvement in a criminal case, therefore, application for transfer of his statement to the trail of the respondents/accused was submitted by petitioner Yousaf Ali, who besides the complainant is also an eyewitness of the incident.
7. Admittedly, S.512 Cr.P.C. provide three eventualities for preservation and transfer of statement of witnesses, during abscondance of accused, one of which is where the attendance of prosecution witness could not be procured without an amount of delay, expense or inconvenience.
Complainant of the instant case is neither dead nor incapable of giving evidence but he due to his involvement in a criminal case, went into hiding. Petitioner Yousaf Ali, who besides the complainant is pose himself to be an eyewitness of the incident is contesting the proceedings, so he being relative of the complainant, would definitely have contact with him, but intentionally is avoiding law and justice. In such eventualities, transfer of his statement recorded under section 512 Cr.P.C. would amount to extend premium to a person avoiding law and justice. Rather, the proper course for the complainant would be to surrender before the law and to record his statement. Besides, the learned Trial Court has not made any serious efforts for procuring the attendance of complainant Faiz ur Rehman, as provided under the Procedural law by issuing summons, warrant and proclamation under section 87 Cr.P.C. S.512 Cr.P.C. has been never meant for such like situation rather the same has been structure for special circumstances, enumerated therein. The facts and circumstances of the case, titled, "Arab Tasleem Vs the State" (PLD 2010 Supreme Court 642) relied upon by the learned counsel for the petitioner are different from the present one. In the case supra, eyewitnesses had been examined in presence of the accused and his counsel, but they could not be cross-examined by the accused/defence and the witnesses were later on, killed, therefore, it was held by the apex court that evidence of eyewitnesses in the form of examination-in-chief could not be rejected on the simple proposition that they were not subjected to cross-examination, as the accused had himself avoided in a deliberate and calculated manner to avail such an opportunity. It was further held that distinction had to be drawn between the two situations, where opportunity to cross-examination was not given or denied to a party, and second where it was given but deliberately or otherwise not availed of; present case undoubtedly fell under the second category. Held, that accused side had deliberately avoided to cross-examine the eyewitnesses who had been killed. Resultantly, the examination-in-chief of the witnesses was considered and taken into consideration. Similarly, in case titled, "Amjid Ali and another Vs the State and another"
2013 PCrLJ (Peshawar) 282, application for transfer of statement of complainant, recorded during proceedings under section 512 Cr.P.C. was allowed, but situation in the case (supra) was also altogether different from the case in hand. In the above case, statement of complainant recorded and cross-examined twice in earlier trail of co-accused, has been held to have rightly been transferred by the learned Trial Court in a subsequent trail of newly arrested co-accused. In case titled, "Naseer Khan Vs Said Qadeem and another" PLD 2010, Peshawar 19, the situation was quite different from the case in hand. In that case, the witnesses whose statements had been transferred, were not absconding in any criminal case, but had proceeded abroad. The facts and circumstances of the case titled, "Mumtaz Vs Moin and another" (2006 PCrLJ (Peshawar) 1436) are also different from the instant case. In case (supra), statement of witnesses recorded during proceedings under section 512 Cr.P.C. had been transferred to the trail of accused arrested subsequently, as who were dead. In that case, recording of evidence of the witnesses by the learned Magistrate under section 512 Cr.P.C. had been seriously questioned due to lack of power of the Magistrate to do so, but the same were held to be in accordance with law by this court by observing that S.512 Cr.P.C. was a stage when Magistrate had not taken cognizance and that accused was also not before him, but he was only to preserve evidence, therefore, the Trial Courts or court competent to send for trail had been held empowered to record statements under section 512 Cr.P.C, which could be taken in evidence at a later stage.
8. In view of the above, the authorities referred and relied upon by the learned counsel for the petitioner, being different from the facts and circumstances of the case in hand, would not advance the petitioner's case. The learned Trial Court keeping in view the peculiar facts and circumstances of the case in juxtaposition with the law on the subject, has rightly refused transfer of statement complainant Faiz ur Rehman, recorded during proceedings under section 512 Cr.P.C. to the instant trial, to which no exception can be taken.
9. As regard application under section 265-K Cr.P.C.
On the face of FIR, respondents/accused are directly charged for committing murder Hasan Jan and attempting at the lives of complainant and PW Yousaf Ali. It appears from the record that some of the prosecution evidence including Medical Officer, have been recorded, so far, while the remaining prosecution evidence including PW Yousaf Ali, posing himself to be the eyewitness of the incident, is yet to be recorded. In view of serious allegation of committing murder and attempt to commit murder, against the petitioner as well as material collected during investigation, in light whereof challan has been submitted him, it would be appropriate and in the interest of justice to provide an opportunity to the prosecution for leading its entire evidence. No doubt, accused has a legal right to file application under section 265-K Cr.P.C., but that would not hold the hands of the Court to proceed with the trial, because usually a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under section 342 Cr.P.C. and under section 340 (2) Cr.P.C. , if so desired and hearing the arguments of both the parties. The court cannot deprive prosecution of opportunity to produce evidence under the garb of this section. Provision of section 265-K Cr.P.C. can only be invoked in cases wherein no probability of convicting the accused exists. As stated earlier, in the instant case, in support of the allegations, some of the prosecution evidence has been recorded while the remaining is yet to be concluded, therefore, in the circumstances, the learned Trial Court, was justified by rejecting the application of the accused.
10. For what has been discussed above, the impugned order of the learned Trial Court dated 03.12.2014, being well reasoned and based on proper application of law on the subject, does not warrant any interference by this Court. However, on the face of record, the learned Trial Court has not made serious efforts under the Procedural law to procure the attendance of PW Faiz ur Rehman, therefore, the learned Trial Court is directed for expeditious conclusion of the trial as early as possible, but not later than two months, on receipt of the record. The learned Trial Court shall adopt all coercive methods under the procedural law for procuring the attendance of the PWs including the complainant. In case of failure, the prosecution has in its hand PW Yousaf Ali, posing himself to be the eyewitness of the incident, so the learned Trial Court may proceed on the available evidence including the testimony of PW Yousaf Ali, as the criminal cases are decided on the basis of quality of evidence and not quantity.
Resultantly, both the petitions being without any substance, stands dismissed.