ASIF SAEED KHAN KHOSA, J.
Criminal Miscellaneous Application No. 47-P of 2015 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main petition. Disposed of.
Criminal Petition No. 47-P of 2015
2. The petitioner happens to be the son of the person murdered in this criminal case whereas respondent No. 1 is one of the accused persons facing the trial. At some stage of this case respond ent No. 1 had been declared a Proclaimed Offender and in his absence statements of some prosecution witnes ses had been recorded by the learned trial court under section 512, Cr.P.C. After respondent No. 1's arrest the said respondent wanted an opportunity to cross-examine the witnesses whose statements had earlier been recorded under section 512, Cr.P.C. but that request of respondent No. 1 was declined by the learned trial court and ultimately respondent No. 1 was convicted and sentenced inter alia on the charge of murder and was sentenced to imprisonment for life.
Respondent No. 1 preferred Criminal Appeal No. 858-P of 2010 before the Peshawar High Court, Peshawar assailing his convictions and sentences recorded by the learned trial court and through the impugned judgment dated 03.03.2015 a learned Division Bench of the said Court accepted the respondent's appeal, set aside the convictions and sentences recorded by the learned trial court and remanded the case to the learned trial court with a direction to proceed with the trial afresh from the stage of recording of statements of the prosecution witnesses and to afford an opportunity to respondent No. 1 to cross-examine the said prosecution witnesses. The said judgment passed by the High Court has been assailed by the petitioner before this Court through the present petition.
3. We have heard very lengthy arguments of the learned counsel for the petitioner who has assailed the impugned judgment from diverse angles. It is not denied that some proceedings had been taken against respondent No. 1 for serving him with the process of the learned trial court and an order had indeed been passed declaring the said respondent as Proclaimed Offender but with reference to the record the High Court had found that the proceedings undertaken before declaring respondent No. 1 as Proclaimed Offender fell short of some legal requirements. Even some factual aspects of the case and the statement of the process server had been 'doubted by the High Court and it had formed an opinion that the proceedings undertaken before declaring respondent No.1 as Proclaimed Offender appeared to be bogus and sham. The High Court had, thus, concluded that if the proceedings undertaken against respondent No. 1 for the purposes of declaring him a Proclaimed Offender were against the law then the further proceedings carried out by the learned trial court under section 512, Cr.P.C. and recording of statements of some prosecution witnesses in such proceedings were denuded of legal validity . With reference to section 512, Cr.P.C. Ind Articles 46 and 47 of the Qanun-e-Shahadat Order , 1984 the High Court had observed that the evidence, of prosecution witnesses recorded under section 512, Cr.P.C. may not always be treated as substitute for normal evidence. It was in this backdrop that the High Court had deemed it appropr iate and in the interest of justice to remand the case of respondent No. 1 to the learned trial court primarily for affording him an opportunity to cross- examine the prosecution witnesses whose statements had earlier been recorded under section 512, Cr.P.C. We have confronted the learned counsel for the petitioner with the law declared by this Court in the case of Mr. Yahya Bakhtiar , Advocate v. The State through the Secretary , Ministry of Interi or, Government of Pakistan, Islamabad (PLD 1983 SC 291) and by the Lahore High Court, Lahore in the case of Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others (PLD 1986 Lahore 256) wherein it had categorically been held that an un-cross-examined statement of a witness does not qualify as evidence for the purposes of recording a conviction in a criminal case but the learned counsel for the petitioner has insisted that the evidence becoming available on the record through proceedings under section 512, Cr.P.C. is an exception to the rule and an un-cross-examined statement of a prosecution witness record ed under section 512, Cr.P.C. can be relied upon by a trial court as valid piece of evidence and, if believed, the same can lead to recording of a convic tion. Be that as it may the fact remains that before the trial in the present criminal case had come to a close and before a stage was reached when the learned trial court could consider the evidentiary value of the un-cross-examined statements of the prosecution witnesses recorded under section 512, Cr.P.C. respondent No. 1, had been arrested and he was brought before the learned trial court to face his trial. This, therefore, was a case where before conclusion of his trial respondent No. 1 had appeared before the learned trial court and he wanted an opportunity to cross-examine the above mentioned prosecution witnesses which opportunity was denied to him by the learned trial court. After introduction of Article 10A in the Constitution of the Islamic Republic of Pakistan, 1973 fair trial has become a fundamental right and now in all situations wherein an apparent injustice may appear to be imminent a trial court is to resolve such issues in the light of the cherished principles of fairness, particularly when no serious prejudice is likely to be caused to the opposite party . The learned counsel for the petitioner has maintained before us that the prosecution witnesses who had got their statements recorded under section 512, Cr.P.C. are presently working out of the country and, thus, the complainant party is in no position to produce them before the learned trial court again. We have, however , remained unable to subscribe to this submission of the learned counsel for the petitioner because the case in hand is a State case and it is not the responsibility of the complainant party to produce witnesses before the trial court. In such a case it is the responsibility of the State to produce its witnesses before the trial court and if the State fails to do that then it is for the court itself to use all permissible methods for procuring attendance of such witnesses even if it has to resort to some coercive measures. In this backdrop we have found the impugned judgment passed by the High Court to be quite just and fair in the circumstances of the case and the jurisdiction of this Court being discretiona ry in nature we have not felt persuaded to interfere with the impugned judgment passed' by the High Court. This petition is, therefore, dismissed and leave to appeal refused.