' The appellant herein has been convicted by the judgment passed on 24-1-1988 by the 1st Additional Sessions Judge, Karachi (East) in Sessions Case No,1790 of 1985 under section 302, Pakistan Penal Code and sentenced to suffer imprisonment for life and also to pay fine of Rs,15,000 and in default in payment of fine to further undergo rigorous imprisonment for one year. He has filed this appeal from jail impugning that judgment.
2. The appellant is charged of having murdered one Nawab Ali on 7-4-1966. One Yousuf Ali, the brother of deceased Nawab Ali, who owned and managed an educational institution under the name and style of London Academy situated at Lobo Street, Soldier Bazar, Karachi had lodged the report of that incident. The complainant alleged that on 7-4-1966 he alongwith his brothers Nawab Ali and Aftab Ali and a boy named Akhtar Ali went to the London Academy at about 10-00 p.m., for an unscheduled inspection visit of the institution. A hostel was attached to that institution. Hashim, Chowkidar of the Academy informed them that Aziz, the cook had fractured his leg and was lying in the kitchen. On hearing this all of them rushed to the kitchen where another cook by name Khan was also present. All of a sudden two persons entered the kitchen from the adjoining room. All the four persons, i,e, Khan, Hashim and other two unidentified persons, who had entered the kitchen attacked the complainant and others with Dandas and knives causing serious incised wounds to Nawab Ali who died soon after the receipt of such injuries. On their cries all the four culprits ran away. The police was informed of the incident on telephone and Station House Officer of Artillery Maidan Police Station came on the spot and recorded the First Information Report which was subsequently incorporated in the register kept under section 154, Criminal Procedure Code at the police station.
3. During the investigation Muhammad Roshan and Muhammad Siddiq were arrested and identified to be the other persons who had joined in the attack. They were sent up for trial in the month of June, 1966 and subsequently the third accused Hashim was apprehended and sent up for trial on 6-11-1966. A commital enquiry was then conducted by the Magistrate who committed them to stand trial in the Court of Sessions Judge. The fourth accused by name Khan was mentioned as an absconder in the challan.
4. Duripg the trial of aforementioned 'three accused the prosecution examined a number of witnesses. The ex-officio Sessions Judge, Karachi found Muhammad Roshan and Muhammad Siddiq not guilty while the third accused. Hashim was convicted to suffer a sentence of three years' rigorous imprisonment under section 325, Pakistan Penal Code as he was found to be responsible for causing hurt to one of the prosecution witnesses. He too was acquitted of the murder charge.
5. It appears that Misri Khan alias Khan alias Aslam was arrested in some other case by police at Rawalpindi. The Station House Officer, Soldier Bazar deputed Saeed Ahmed, A.S.I. To proceed to Rawalpindi and bring accused Misri Khan alias Khan alias Aslam son of Nawab Khan from Rawalpindi to be tried in this case. The said officer left Karachi on 28-3-1985 and after obtaining necessary permission from the District Magistrate, Rawalpindi, he arrested the said accused in this case from the Central Jail, Rawalpindi where he was already confined and brought him to Karachi.
He was then sent up to stand his trial being the fourth accused who had absconded earlier. On 12- 3-1986 the trial Judge framed the charge against the appellant under section 302/307/34, Pakistan Penal Code to which he pleaded not guilty. The prosecution witnesses were summoned and it was found that prosecution witnesses had either .Died or were untraceable. Muhammad Fayyaz, A.S.I., who was entrusted to serve the summons on the prosecution witnesses was examined in Court and he testified such facts on oath in Court. The`prosecutor then moved an application praying that statements of wintesses examined in the trial of the other three co-accused persons be brought on record alongwith the documents produced by them. The trial Judge passed orders on 8-8-1987 in the following terms:-- "The process-server has stated that all these witnesses are not traceable. The learned defence counsel opposes the application contending that the accused was not put to identification and that the statements of witnesses were recorded in the absence on record hence these statements cannot be brought on record.
' The case file states that accused Misri was declared as absconder at the stage of committal enquiry and case proceeded in his absence under section 512, Cr.P.C. Thus, it was natural that the statements would have been recorded in his absence, for the statement recorded under section 512, Cr.P.C. Can be used against accused and as such this is no ground to request the application for the identification is concerned (torn) matter of application which point can be raised at the time of final arguments.
' The witnesses are not traceable hence the statement may be brought on record. Accordingly application is allowed.
(Sd.)
Illegible 8-8-1987 1st Additional Sessions Judge East, Karachi."
6. The depositions of all the prosecution witnesses recorded during the trial of the other three co- accused were brought on record of the case of the present appellant and the trial Judge considered evidence so recorded against him and recorded the conviction as mentioned above.
7. The appellant was produced in this Court on 21-9-1989 and he stated that he was innocent and falsely implicated by the police. Mr. Ali Bux, Advocate was also heard on behalf of the State.
8. The entire evidence of the prosecution in this case rests on the testimony of witnesses who were already examined on behalf of the prosecution in case of trial of three co-accused persons. None of these witnesses were produced in Court as most of them had died while the rest were not traceable. The evidence recorded in the trial of co-accused was treated by the trial Judge to be evidence recorded against the present appellant under section 512, Criminal Procedure Code. The Additional City Magistrate, Court No,10, Karachi had passed the committal order in respect of other three accused persons on 11th May, 1968 and he had at one place mentioned in the committal order that file of the fourth accused, Misri Khan alias Khan shall, be kept dormant till his apprehension. In concluding line of the committal order he remarked 'the file of accused Misri Khan (who is absconding) shall be kept dormant till his apprehension'. On account of such observations made by the committing Magistrate the trial Judge gained an impression that proceedings under section 512 Criminal Procedure Code were conducted against the appellant. The record of the case otherwise does not show that such separate proceedings were at all initiated against the appellant at an earlier stage. The depositions of witnesses brought on record of this case against the appellant clearly indicate that these were the depositions which were recorded during the trial of the three co-accused persons.
9. Chapter XLI of Criminal Procedure Code makes a provision for special rules enabling a Court to record evidence in a particular manner in certain cases. These rules provide for recording of evidence in deviation of the rules contained in normal law regulating the recording of evidence.
Section 512(1) of the Criminal Procedure Code contained in that Chapter permits a Court to record evidence in absence of the accused. Subsection (1) of section 512, Criminal Procedure Code enables a Court to record evidence against an absentee accused person to prove the commission of an offence by him only after it is proved that he has absconded and there is no likelihood of his immediate arrest. Without first proving by tangible evidence that an accused person has actually absconded IA evidence regarding 'his commission of the offence cannot be recorded. As section 512, Criminal Procedure Code makes an exception to the general rule of recording of evidence only in presence of an accused person such special rule is required to be construed and applied strictly.
The main object of making such rule in deviation of the general rules of recording of evidence appears to be to B preserve the evidence in the case which can otherwise be lost if an accused person successfully avoids his arrest and trial by passage of time. Such evidence although recorded in absence of accused can always be used against him whenever he is apprehended even though by that time either witnesses be dead or not readily available for giving evidence.
Evidence recorded in absence of an accused person during the period he remained a fugitive at law can always be used under section 512, Criminal Procedure Code provided such evidence is recorded strictly in C compliance with the provisions in an independent and separate proceedings.
Such a view of the matter was taken in the case reported in AIR 1956 Mysore 1.
10. In the present case independent proceedings under section 512 Criminal Procedure Code were never initiated. The evidence recorded in the trial of the co-accused was treated as evidence recorded under section 512, Criminal Procedure Code against the appellant. The depositions used in the present case in view of above could not be used as evidence against the appellant. In view of it, the appellant has been convicted on the basis' of no evidence in the eye of law.
11. Even otherwise the important point to be determined in this case is if the present appellant who claims to be Aslam is the same person who was shown as `Khan' in the First Information Report and `Misri alias Khan' in the challan. The prosecution has indeed failed to produce any evidence to establish that the E present appellant is the same person who had participated in the commission of the offence.
12. For the foregoing reasons, I allow this appeal, set aside the impugned F judgment, acquit the appellant and direct that he shall be set at liberty forthwith, if not required in any other case.