ABDUL HAMEED BALOCH, J. Through the instant petition the petitioner prayed as under: "It is accordingly respectfully prayed that the record of the learned trial court may kindly be called for and after examining the 'same, the order dated 16th February 2021 passed by the learned Additional Sessions Judge, Duki may kindly be set-aside and the application filed by the complainant through State under Article 47 of the Qanun-e-Shahadat Order, 1984 may graciously be rejected, in the interest of justice."
2 Heard. perused the record with the assistance of the learned counsel for the parties. The perusal of record reveals that the complainant Sher Muhammad lodged an FIR No.61 of 2014, under sections 302, 147, 148, 148, 149, P.P.C. with PS Duki against the petitioner and co-accused persons. Initially the co-accused Alam Khan and Azim Khan were arrested and after completion of investigation the challan was submitted before the learned Additional Sessions Judge, Duki (trial Court). The trial court recorded the statements of witnesses including Muhammad Tahir as PW-3 and Saifullah as PW-6. On 13.06.2016 the trial court acquitted both the co-accused while accepting the application under section 265-K, Cr.P.C. The record further reflects that the co-accused Dad Khan was also arrested and after full dressed trial, he was also acquitted of the charge. Subsequently the petitioner was arrested and statement of the witnesses were recorded. Meanwhile the complainant through State filed an application under Article 47 of the Qanun-e-Shahadat Order 1984 for transposition of statement of witness namely Saifullah because of his death. The trial court accepted the application of the complainant vide order dated 16th February, 2021 (impugned order), relevant para of the order reads as under: "07. So, for what has been discussed above, I am of the considered view that the proceeding under section 512, Cr.P.C. has been initiated against the accused and he was declared proclaimed offender statement of Late witness Saifullah is recorded in proceeding 512, Cr.P.C. which is admissible under section 512(1), Cr.P.C. against the accused application under Article 47 is accepted and statement of late witness be made part and parcel of the case and read as evidence at the time of final judgment."
3. Before dilating upon the application, it would be appropriate to reproduce section 353, Cr.P.C. as under:
353. Evidence to be taken in presence of accused: Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXII-A shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.
4. As per above referred section the evidence should be taken in the presence of accused, if the presence of accused is dispensed with by the competent court, then the statement of witness should be recorded in the presence of his pleader, where the trial court recorded the statement of witnesses in absence of accused, on arrest of accused the court should record the statement of witnesses de novo, provided that such witness was alive, if the witnesses was/were found dead, incapable of giving evidence or his attendance cannot be procured without delay or expense then evidence of such witness can be considered. Section 512, Cr.P.C. deals with the statement recorded in absence of accused, which reads 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 witnesses 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.
5. It would be relevant to reproduce Article 47 of the Qanun-e-Shahadat Order 1984 as under:
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 parry, 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 representatives-in-interest: the adverse party in the first proceeding had the right opportunity to cross-examine; the questions in issue were substantially the same in the first as in the second proceeding."
6. The object of section 512, Cr.P.C. is to exclude the possibility of lost of evidence or preserve the statement recorded during abscondence of accused. On perusal of above referred section and Article 47 of Qanun-e-Shahadat Order, 1984 the court is empowered to believe the evidence of a witness if it has been recorded in absence of accused, provided that on arrest of accused, the witness has died or incapable to give evidence or his attendance cannot be procured without an amount of delay. Under above both referred provisions the protection is given to the deposition of such witnesses who are not alive or incapable to give evidence or their attendance cannot be procured without an amount of delay. From the perusal of record the case falls within the eventualities mentioned in section 512, Cr.P.C. as the referred PW has died. In this regard reliance is placed on the case of Muhammad Saddique v. State 2018 SCMR 71, whereby it has been held as under:
8. The law on the point is very much clear and settled. When an accused is absconding, the trial Court has to issue proclamation and attachment under sections 87/88, Cr.P.C. When the absconsion is established and proved on the record, then the trial Court can proceed with the matter under section 512, Cr.P.C. and record the evidence of all the witnesses which later on can be used against the accused in the circumstances provided in section 512(1), Cr.P.C. But it was not the case where proceedings under. section 512, Cr.P.C. were to be initiated and completed against the appellant rather the appellant was tried in absentia by the Special Court under the Act of 1975 as provided under section 5-A(4) of the said Act. The basic difference between the two is that in the former case, only evidence in absentia is recorded under section 512(1), Cr.P.C. which can be used against the accused in the circumstances as provided in section 512(1), Cr.P.C. but the Court cannot record conviction after recording evidence in absentia under section 512, Cr.P.C. whereas in the latter case, it is full fledge trial of the accused in absentia under section 5-A(4) of the Act of 1975 and the Court under Special Law is empowered to record conviction of the person in absentia as was done in the earlier trial of the appellant. While coming back to the facts and circumstances of the case, the High Court in earlier Jail Appeal after arrest of the appellant had set aside the conviction so recorded in absentia and sent back the case to the trial Court for fresh regular trial. Here in this situation the prosecution again was duly bound to lead entire evidence to prove its case beyond any shadow of doubt against the appellant. Prosecution has again produced available evidence but has not bothered to look after the ocular account earlier furnished by the injured eye-witness Jumma Khan who according to report met a natural death before initiation of the trial de novo. Such an evidence was necessary to prove the charge against the appellant. The law also caters for such like situation that when a witness meets a natural death or other circumstances as provided in Article 47 of the Qanun-e-Shahadat Order, 1984 before recording of his statement before the Court, then in that case the evidence of such person earlier recorded in any judicial proceedings or before any person authorized under the law to record the same becomes relevant for the purpose, of proving those facts but it should be between the same parties or their representatives and that person is cross-examined during that process.
7. The contention of petitioner that under section 353, Cr.P.C. the statement of witness should be recorded in presence of accused has no force. Sections 353, 512, Cr.P.C. and Article 47 of the Qanun-e-Shahadat Order, 1984 are to be read conjointly not in isolation. Section 512, Cr.P.C. empowers the court to record the statements of witnesses in absentia while Article 47 of the Qanun-e-Shahadat Order, 1984 deals with the relevance of evidence recorded in judicial proceeding.
In view of above circumstances, the petitioner failed to point out any illegality in the impugned order dated 16.02.2021, passed by the trial court, as such the same is dismissed.
The earlier interim order dated 09.04.2021, passed in C.M.A. No.90/2021, is hereby recalled.