By means of instant criminal revision petition under Sections 439 Cr.P.C., the legality and propriety of the order dated 30.01.2020 passed by learned trial Court/Addl. Sessions Judge, Hafizabad has been brought under challenge, whereby the petitioner 's request for transposing the earlier recorde d evidence under Section 512 Cr.P.C., of the complainant, Hassan Murtaza was turned down while to the extent of Masood Ahmad Bhatti, the draftsman (since dead), it has been partially allowed.
2. Briefly the relevant facts for the decision of instant criminal revision petition are that as a result of Qatl-e-amd of one Tahir Murtaza, allegedly committed by respondents No.2 & 3 alongwith their three accomplices, the FIR was lodged on the complaint of Hassan Murtaza. Record further reveals that initially the police submitted a report u/s 512 Cr.P.C., on 15.07.2008 against the accused. Respondent No.3 Ali Raza was formally arrested on 31.03.2010.
On commencement of trial of the case, due to non-availability of Hassan Murtaza complainant because of the alleged danger to his life coupled with other circumstances beyond his control, consequently , learned trial court on 02.11.2013 ordered that the file of the case be consigned to the record room. After arrest of some of the accused, on the application of the complainant, the case file was ordered to be resurrected on 27.10.2014. The accused accordingly were summoned to face trial and the case was fixed for recording of evidence. The complainant Hassan Raza had been appearing before the trial court so that his evidence might be recorded but as a result of intentional concealment of accused/respondent Ali Raza , he was declared proclaimed offender vide order dated 09.05.2015 and evidence of Hassan Murtaza complainant was recorded on 20.05.2015 by learned trial court as PW-14 during the trial of co-accused, who allegedly abetted the crime. The proceedings of trial of co-accused had terminated during abscondence of respondent Ali Raza . At present, respondents No.2 & 3, after their arrest, are facing the trial. The record further evinces that since 31.03.2018, the complainant has been living abroad and as such he is not available for evidence. The present petitioner , who is mother of the deceased, through an application, which she moved before the trial court prayed that Masood Ahmad Bhatti, the Draftsman had since died and the complainant apprehending danger to his life at the hands of the accused party being abroad are not available, therefore, the statements which they had got recorded under Section 512 Cr.P.C., may be transposed to the record of present trial being a legal, valid and substantive piece of evidence. Learned trial court while accepting application to the extent of above-named draftsman (since dead), has dismissed the same to the extent of Hassan Murtaza Complainant, hence this criminal revision petition.
3. Learned counsel for the petitioner while relying upon case reported as Arbab Tasleem v. the State (PLD 2010 Supreme Court 642) contends that because of their willful concealment, since the respondents were declared P.Os, consequently the statements of the PWs were recorded under Section 512 Cr.P.C., and that in view of long standing bloody enmity inter-se the parties, apprehending serious danger to his life at the hands of the accused, the complainant had gone abroad, his return for recording of his evidence would not be safe and will cause undue delay also, by transposing his previously recorded deposition to the record of the instant trial would serve the purpose behind procurement of his attendance thus has prayed for acceptance of instant petition by setting aside the impugned order .
4. Conversely , learned counsel for the respondents while referring to Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as 'the Constitution') contends that unless evidence of the complainant is recorded while affording the accused a fair opportunity to cross-examine the PW, their right of fair- trial shall be infringed. Further contends that since the complainant, a star witness of the prosecution is living abroad at present, for enabling him to get his statement recorded while allowing the accused to cross-examine him to avoid any possible prejudice to their cause, the accused are ready to bear expenses of his boarding and lodging out of their pockets even. He while replying arguments of the learned counsel for the petitioner regarding the apprehension of danger to the life of the complainant states that learned trial court has ample powers to issue direction to the law enforcement agencie s to ensure the protection to his life. Lastly states that evidence of the prosecution witness can even be recorded through video-link and the impugned order being unexceptional, therefore, he has prayed for dismissal of the instant criminal revision petition.
5. Arguments heard. Record perused.
6. In order to appreciate the above noted rival contentions of the learned counsel representing their respective parties, one of the relevant provisions of law , is being reproduced hereunder:-
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.
The above provision makes it evident that there being no immediate prospects of arrest of an accused, on fulfilment of legal requirements, proving his abscondence, the court competent to try or send for trial to the court of Sessions or High Court may in absence of such persons, examine the witnesses, for the offences complained of if produced by the prosecution and record their depositions. It further says that on the arrest of such absconding accused, the deposition recorded, as aforesaid, may be given in evidence against him, in the inquiry or trial for the offence with which he is charged. However , such deposition can only be given in evidence in certain exceptional circumstances, where the attendance of the witnesses, whose evidence has alrea dy been recorded under Section 512 Cr.P.C., cannot be procured without any unreasonable amount of delay , expenses or inconvenience. The question of reasonableness of otherwise of the delay , expenses or inconvenience can only be determined by the court in the given facts and circumstances of every individual case before it. It seems that the provision ibid is enabling in its nature, for catering to certain exceptional circumstances and situations. It enables the court to preserve evidence for its use in certain circumstances against the absconding accused especially when on its own part the prosecution is not at fault and to safeguard the interest of a party giving evidence against some possible unscrupulous endeavor of the adversaries. The provision fully takes care of the situation tending to place a party for none of its fault in an awkward and unreasonable situation to its disadvantage.
7. Before treading further , it may be expedient to examine some relevant provisions of Qanun-e-Shahadat Order (P.O No. X) 1984 for advancing further on the subject under discussion to a point to draw a logical conclusion in the facts and circumstances of the case.
"46. Cases in which statement of relevant fact by person who is dead or cann ot be found, etc., is relevant: Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot, be found, or, who has become incapable of giving evidence , or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death:
(2) Or is made in course of business
(3) Or against interest of maker
(4) Or gives opinion as to public right or customs, or matters of general interest .......
(5) Or relates to existence of relationship
(6) Or is made in will or deed relating to family affairs
(7) Or in document relating to transaction mentioned in Article 26, paragraph (a)
(8) Or is made by several persons and expresses feelings relevant to matter in question:
47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated: Evidence given by a witness in a 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 witness 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 Provided that-- the proceeding was between the same parties or their representatives-in-interest; the adverse party in the first proceeding had the right and opportunity to cross-examine ; the questions in issue were substantially the same in the first as in the second proceeding.
131. Judge to decide as to admissibility of evidence: (1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant, and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant and not otherwise. (2) If the fact proposed, to be proved is one of Which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. (3) if the relevancy of one alleged fact depends upon an other alleged fact being first proved, the Judge may in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact."
After considering the above Articles of Qanoon-e-Shahadat Ordre in conjunctio n with each other , the Hon'ble Supreme Court of Pakistan in the case reported as Arbab Tasleem vs. The State (PLD 2010 S.C 642), relied upon by learned counsel for the petitioner , has held as under:- "A plain reading of Article 46 would show that it illustrates the situations where statements having relevancy to the controversy , made in some earlier proceedings, subject to fulfilment of certain conditions, can be considered relevant and admissible piece of evidence. Particularly , sub-Article (1) shows that when the evidence or statement of a person, who is dead, as in the instan t case, relates to the cause of his death or as to any of the circumstances of the transaction, which resulted in his death, than deviating from the normal course, such statement becomes relevant and gains evidentiary value because of the special circumstances that the person, who made such statement was no more alive/available. Similarly , Article 47 visualize relevancy and significance to the evidence of a witness in a judicial proceeding or before any person authorized by law to take evidence, when the said witness is dead or cannot be found or is incapable of giving evidence, subject to the conditions, provided in the proviso to the said Article, that the proceedings were between the same parties or their representative-in-interest, which for the purpose of criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the said Article; when the adverse party in the first proceedin gs had the right and opportunity to cross-examine; the questions in issue were substantially the same in the first as in the second proceeding.
Article 131 of the Qanun-e-Shahadat, 1984 leaves at the discretion of the Judge to decide admissibility of any evidence and for this purpose gives wide powers to him subject to the language of this Article. Moreso, as there is no provision in the Qanun-e-Shahdat Order which specifically makes such piece of evidence inadmissible."
After above discussion, yet I feel it necessary to have a glance over the provision of Article 10-A [Inserted by the Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010) of the Constitution of Islamic Republic of Pakistan, 1973, which in its verbatim, reads as under:- "10-A. Right to fair trial.---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
Through the insertion of afore-quoted Article in Part-II of Chapter-I--Fundamental Rights, the Constitution in fact has enhanced the status and attributes of 'due process of law clause' as it is commonly known in different jurisdictions of the world, besides recognizing the importance of fair trial, which now under our constitutional dispensation, has been granted the status of a fundamental right of a person seeking determination of his civil rights or obligations or facing any criminal charge. The Constitution itself now guarantees the enforceability of this right for its enjoyment through a legal process by the courts which are the defende rs and custodians of such rights of the citizenry . The status of the Constitution viz-a-viz other laws, being fully established now, needs no amplification through spoken or written words. In order to ensure the avoidance to any breach to this fundamental right, an accused facing the criminal charge, in my opinion, demands a nicely drawn balance between the exceptional situations pointed out above and the mandatory rule embodied in the following provision of law i.e. Section 353 Cr .P.C which is reproduced as follows:- "353. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXIIA] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader ."
Sequel to the discussion made so far, with reference to the above-referred statutory provisions, it can irresistibly be concluded that it is a mandatory rule that all evidence taken under Chapter XX (The trial of ... cases by Magistrate)
XXII (Summary Trials) & XXII-A (Trials before High Courts and Courts of Sessions) shall be taken in the presence of the accused, except where his personal attendance is dispensed with, it shall be taken in presence of his pleader . The evidence recorded in violation of this rule vitiates the proceedings and such illegality even cannot be cured under Section 537 Cr.P.C. The mandatory command contained in the afore -quoted Section, using the word 'shall' as compared to the word 'may' in Section 512 Cr.P.C., is sufficient to highlight the importance of recording of evidence in presence of the accused. Resorting to referred above exceptional circumstances for giving previously recorded deposition in evidence under Section 512 Cr.P.C is only subject to the discretion of the Court after considering the circumstances of the case. The recording of examination-in-chief of a witness also includes cross- examination, conducted either personally or through a counsel/pleader of his own choice by the accused. Needless to reiterate that the accused is inherently deemed innocent unless found guilty by the court of competent jurisdiction. On the basis of proved abscondence itself no accused can be held guilty as it is not a substitute to the incriminating evidence. The abscondence of an accused is merely taken as additional circumstance leading to the guilt of an accused provided the charge against him is proved otherwise, through unimpeachable incriminating evidence beyond a shadow of reasonable doubt. Inherent presumption of innocence remains attached to the accused irrespective of severity of charge unless proven guilty . Adopting due course of law, the compliance with the mandatory provision of Section 353 Cr.P.C., laying a general rule for recording of evidence either in presence of the accused or in case his presence is dispen sed with, in presence of his pleader , is duly covered by Article 10-A of the Constitution guaranteeing fair trial as a fundamental right of the accused. The provision of Section 512 Cr.P.C., duly galvanized with Articles 46 & 47 of the Qanun-e-Shahadat Order , 1984 envisages besides enabling the court to weigh the circumstances judicially before resorting to the exceptions for using any deposition recorded during the abscondence of an accused as evidence against him. The court while conducting a trial must explore the possibilities for adhering to the general rule of recording of evidence. The facts of the instant case, when considered in the light of above discussion made on legal planks, it surfaced that when the accused-respondents were initially facing the trial, due to non-availability of the complainant, learned trial court on 02.10.2013, ordered that the file be consigned to the record room. Later on, the file was got resurrected by the complainant vide order dated 27.10.2014, the evidence of the complainant was recorded as PW-14, during the abscondence of the respondents, therefore, it is observed that both the parties remained busy in playing hide and seek with each other and with the process of court also. The complainant is currently residing out of the country and it has been stated that due to pitched enmity inter-se the parties, his coming to the country for recording of evidence may not be safe and even otherwise, it will cause delay and he will have to bear expenses unreas onably . Learned counsel for the respondents has shown his willingness to pay the expenses of boarding and lodging of the said witness, which shall be determined by the learned trail court, out of their pockets for coming to country for evidence. The learned trial courts have ample power to direct the relevant authorities to ensure the safety of the person of the complainant on his arrival to the country . It is the fundamental right of every citizen to have an access to justice. The learned trial courts can also consider the possibility of recording of evidence of the PWs by resorting to modern devices. I feel it appropriate to observe here that the trial courts have been vested with vast powers for exercising it while taking into their judicial consideration the effects which the revolution in information technology has been brought about, bestowing the countries with a status of an individual unit while maintaining their political sovereignty which is a gift product of the modern state system. The learned counsel has not been able to point out any impropriety or illegality in the impugned order showing that the learned trial Court has either failed in exercise of its jurisdiction or has exceeded to the limits prescribed by the law while passing the impugned order to the prejudice of either of the parties, therefore, this petition is dismissed.