IKRAMULLAH KHAN, J.---Through the instant appeal the appellant has challenged the impugned judgment dated 11.4.2000 rendered by the learned Sessions Judge/Special Judge Dir Lower at Camp Court Samar Bagh whereby the appellant was convicted for life imprisonment till death.
2. In essence, the appellant and other co-accused were charged for murder of Muhammad Saeed Khan in case FIR No, 86 dated 13.6.1997 under sections 302/337-F/34, P.P.C. registered at Police Station Samar Bagh.
3. Both the accused opted to abscond and thereafter completion of investigation the local police sent report in view of section 173, Cr.P.C. in absence of the accused in view of section 512, Cr.P.C. to the learned Sessions Judge, Dir. The evidence against the appellant and his co-accused under section 512, Cr.P.C. was preserved and they were declared as proclaimed offenders. Later on co- accused Muhammad Rahim Shah Jan was arrested and the local police submitted supplementary report against him. The complainant effected compromise with the co-accused and he was acquitted whereas the trial Court convicted the appellant on the basis of evidence recorded in absentia in view of section 512, Cr.P.C. and sentenced him to suffer life imprisonment till death.
Being aggrieved by the impugned judgment dated 11.4.2000, the appellant has filed the instant appeal.
4. Learned counsel for the appellant contended that the impugned judgment is against law and facts on record; that no accused can be punished in absentia in view of the provisions contained in section 512, Cr.P.C. Further contended that the maximum punishment inflicted upon the appellant shall not be more than 25 years but the learned trial Court awarded punishment of imprisonment for life till death in sheer violation of law. The learned counsel further contended that the appellant was convicted and sentenced without the required trial and no opportunity of cross-examination was given to him.
5. On the other hand, learned counsel for the complainant could not legally defend the impugned judgment, however, he contended that the appellant be tried in accordance with law. The learned A.A.G. adopted the arguments of learned counsel for the respondent/complainant.
6. We have heard learned counsel for the parties and have gone through the record.
7. The record reveals that the challan (report under section 173, Cr.P.C.) against the appellant was submitted to the learned trial Court, in view of section 512, Cr.P.C. on account of absconsion of the appellant at that time. The learned trial Court thereafter recording evidence in regard to absconsion of the appellant declared him as proclaimed offender vide his order dated 17.3.1998 and prosecution was asked to lead its evidence. At the conclusion of ex parte evidence at the trial, the appellant was found guilty and sentenced to imprisonment for life till death accordingly.
8. As the appellant was not before the Court and he was an absconder, therefore, could not file an appeal against his 'conviction within the prescribed period of limitation. Later on the appellant was arrested and as he was a convict, was sent to prison to suffer the sentence of life till death awarded to him by the impugned judgment. The record is very much clear that the learned trial Court had neither framed charge against the appellant nor had recorded his statement as he was not before the learned trial Court.
9. As the appellant was fugitive of law, therefore, normal trial could not be conducted but in view of the provisions contained in section 512, Cr.P.C. only the evidence of prosecution witnesses was possible to preserve. It would not be out of contest to reproduce provisions of 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 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".
10. The bare reading of provisions contained in section 512(1), Cr.P.C. envisage that the evidence of prosecution witnesses recorded against an accused on account of his absconsion, in absentia, only would be used in evidence against him on his arrest, during course of trial for the offence with which he is charged if the deponent was dead, incapable of giving evidence, or his attendance was not possible to be procured without an amount of delay, expense or inconvenience but, the provisions cited herein above contained in section 512, Cr.P.C. has conferred no jurisdiction on a Court to convict and sentence an accused in absentia. The paramount consideration and object of section 512, Cr.P.C. is to preserve the evidence and to exclude the possibility of loss of evidence at the trial, when the accused is arrested and prosecution witnesses' were not available. It is the fundamental constitutional and legal right of accused to have fair trial and to afford him opportunities to defend himself for the charges leveled against him. The provisions contained in Article 9 read with Article 10 of the Constitution of Pakistan, 1973 has guaranteed life and liberty of every person, and no person shall be deprived either of his life or liberty save in accordance with law. As the appellant has been arrested thereafter insertion of new Article 10-A of the Constitution of Pakistan, 1973 which confers right upon an accused to have fair trial. In so far as the mode of trial envisaged thereunder section 265-A, Cr.P.C., the formal charge shall be framed against an accused apart from affording him opportunity to defend himself at the trial as well as to explain him all the evidence adduced against him in view of section 342, Cr.P.C. while it is legal right of an accused either to appear as a witness on his own behalf in view of section 340(2), Cr.P.C. m; to produce evidence in his defense. In this regard we fortify ourselves by the judgment of the apex Court titled "Muhammad Arif v. The State 2008 SCM R 829".
11.It is also an admitted principle of law that imprisonment for life means 25 years as envisaged thereunder section 57 of Pakistan Penal Code, 1860 which reads as: "57. Fractions of terms of punishment.---In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty-five years".
' So the sentence awarded to the appellant is against the mandatory provision of law as cited herein above and no person shall be sentenced to imprisonment till death except in cases where an accused is convicted under Offences Against Property (Enforcement of Hudood) Ordinance, 1979 wherein section 2(e) prescribes that imprisonment for life means imprisonment till death but an accused person sentenced under the Pakistan Penal Code, 1860 to imprisonment for life shall not be kept in jail till death.
12. In view of the reasons given herein above, as the appellant has not been afforded a fair trial and has been condemned unheard without giving him opportunity to cross examine the witnesses who had deposed against him which is a sheer violation not only of law but also of Articles 9, 10 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973, therefore, this appeal is partially allowed, the impugned judgment, conviction and sentence of the appellant is set aside and the case is remanded to the learned trial Court for retrial of the appellant in accordance with law.