1. ' ABDUL HAMEED DOGAR, J.--- By this appeal, the appellants have challenged the judgment, dated 27th August, 1997 passed by learned 1st Additional Sessions Judge, Kandhkot convicting them under section 302, P.P.C. And sentenced them to death with a fine of Rs,5,000 each and in case of default, to suffer further R.I. For six months each.
2. ' Precisely the facts of the prosecution case are that on 15-5-1998 at about 1-00 p.m. Complainant Muhammad Ali his relatives Abdul Majid and Dur Muhammad while returning back to their village from Ghouspur Town after finishing their private work when arrived near road going from Ghouspur Bus Stand, there appeared appellants Atta Muhammad, Yar Muhammad, Godo, Abdul Khaliq and co-accused Abdullah. Out of them, Atta Muhammad was armed with rifle and others have guns in their hands. It was further stated that appellants Atta Muhammad fired upon deceased Dur Muhammad from rifle, whereas appellants Yar Muhammad and co-accused Abdullah also fired upon him from their guns who sustained injuries on various parts of body and died on the spot.
3. After usual investigation, the appellants were arrested, whereas co-accused Abdullah was not challenged and sent up for trial.
4. ' A formal charge under section 302/148/149, P.P.C. Was framed on 27th June, 1992 against all the four appellants to which they pleaded not guilty and claimed trial. Appellant Atta Muhammad remained absent on 14-10-1992 and thereafter absconded.
5. ' The appellants Yar Muhammad, Godo and Abdul Khaliq faced the trial and prosecution in support of its case examined complainant Muhammad Ali, P.Ws. Thoro, Abdul Majid, Sono, Tapedar Nakifo, H.C. Haji Ahmed, Medical Officer Dr. Chocini Lal, S.I.P. Abdul Karim and thereafter, closed its side.
6. ' The abovementioned appellants in their respective statements under section 342, Cr.P.C. Denied the case of the prosecution and claimed innocence. They did not examine themselves on oath but examined Abdul Latif in their defence and produced certain documents.
7. ' Appellant Atta Muhammad was produced before the trial Court on 26-3-1995. On the assessment of evidence the trial Court found the appellants guilty, convicted and sentenced them as stated above.
8. At the very outset learned counsel for the appellants stated that the trial has not proceeded in accordance with law and the trial Court while conducting the trial and convicting the appellants have committed such an illegality which is not curable in law. According to him, the entire case proceeded in absence of appellant Atta Muhammad who started remaining absent from 14-10- 1992 and was declared absconder on 8-2-1994 and was produced in custody on 26-3-1995. In between this period the prosecution examined complainant Muhammad Ali, P.Ws. Thoro, Sono, Nakifo, Haji Ahmed, Abdul Majid, Dr. Chooni Lal and Abdul Karim. According to him, all these witnesses were examined during the period of absconding of appellant Atta Muhammad. He further contended that after the production of appellant Atta Muhammad, learned trial Court did not examine the abovesaid witnesses afresh but brought their entire evidence earlier recorded on the record. They were only recalled and reaffirmed and appellant Atta Muhammad's counsel was allowed to cross-examine them which was not the requirement of law. On this he drew our attention to section 353, Cr.P.C. Wherein it is expressly provided that all evidence taken under Chapter XXII-A shall be recorded in presence of accused. In support the learned counsel placed reliance on the case reported in PLD 1983 Lah. 612 and 1981 PCr.LJ 194 and submitted that under the similar circumstances Lahore High Court had remanded the case fbr recording of statements of witnesses afresh by giving the accused full opportunity of producing defense.
9. ' Mr. Habib Ahmed, learned Assistant Advocate-General acceded to the above contentions of the learned counsel for the appellants and frankly conceded that a gross violation of law has been made in this case by the trial Court and the case against the appellant Atta Muhammad has not been conducted in accordance with law, as such it is a fit case for remand. He also referred to a case reported in PU 1991 Cr.
10. 455.
11. We have gone through the entire record and proceedings of the trial Court. We are in full agreement with the contentions raised at the Bar. From the record it is found that appellant Atta Muhammad started remaining absent from 14-10-1992 and was brought before the trial Court again on 26-3-1995 and in between all the prosecution witnesses were examined. Admittedly, thereafter, the examination-in-chief of prosecution witnesses was not conducted afresh, but they were recalled and reaffirmed and counsel for the appellant Atta Muhammad was permitted to cross-examine them only. Not only this but the same was done in respect of P. Ws. Muhammad Ali, Sono and Abdul Majeed only. This shows that eye-witnesses Thoro, Tapedar Nakifo, P.W. Haji Ahmed, Dr. Chooni Lal and A.S.-I. Abdul Karim, Investigating Officer were neither recalled nor cross- examined by appellant Atta Muhammad. It is pertinent to note that thereafter the statements under section 342, Cr.P.C. Of appellants Yar Muhammad, Godho and Abdul Khaliq were not recorded afresh but the statements recorded before the arrest of appellant Atta Muhammad was taken into consideration for the purpose of conviction and it was thereafter, on 5-4-1997 that prosecution closed the side and recorded statement of appellant Atta Muhammad under section 342, Cr.P.C. And on the same day D.W. Abdul Latif was examined. This all again is in clear violation of the law. A mandatory provision of law has been laid down under section 353, Cr.P.C. Whereby when an evidence is to be taken under Chapter XXII-A, the same shall be recorded in presence of accused or, when his personal attendance is dispensed with, in presence of his pleader. The same view has been taken by the Supreme Court of Azad Jammu and Kashmir in the case of The State v.
12. Ali Zaman and another reported in 1981 PCr.0 194 and it has been held that the basic principle of administration of criminal justice is that examination of witnesses must be carried out in presence of accused or his pleader or attorney and if the same is not done, conviction on such evidence would be illegal. In the case of Muhammad Mehboob Ahmed and 3 others v. The State reported in PLD 1983 Lah. 612, accused was absconding on the day when statements of the witnesses were recorded. On joining proceedings by accused such witnesses were never summoned again for recording of evidence and for cross-examination. The trial held was thus, conducted in violation of section 353, Cr.P.C. The conviction and sentence were set aside and the case was remanded.
13. Another identical matter has been discussed by the Lahore High Court in the case of Irshad Mahmood v. The State reported in PU 1991 Crl. Cases 455 (1A), it would be relevant to refer the same as under:-- "Murder case---Trial of absconding accused later on---Whether statement of a witness in earlier trial of co-accused, could be transferred and read in evidence---Question of---Statements of P.Ws. Recorded during previous trial, were not consciously and specifically recorded against appellant in terms of section 512 of Cr.P.C.---Same were recorded primarily for purpose of trial of appellants-co-accused--General principle of law in criminal trial is that a statement made against a person in his absence cannot be used against him---Section 512 of Cr.P.C. Creates exceptions to this rule---Held: Possibility of co-accused taking advantage of absence of appellant and shifting liability on him in cross-examination of P.Ws., cannot be excluded---Held further--- Statement of Sarfraz Gill eye-witness recorded in previous trial, cannot be relied upon."
14. The purpose and the intent of recording the evidence of all prosecution witnesses afresh and that of statements under sections 342 and 340, Cr.P.C. And defence witnesses, if any, would be that the accused appellant should know as to what was the evidence against him and as to in which manner he will have to answer the same and prepare his defense. Having not done so the very purpose of dispensation of criminal justice would fail.
15. ' For the foregoing reasons, we are of the considered opinion that this is a fit case for remand.
16. Accordingly, we set aside the judgment, dated 27-8-1997 and also conviction and sentence recorded against the appellants. The reference for confirmation of death is also declined. Since the appellants were on bail during the trial as such they are granted bail. They shall be released forthwith on their furnishing solvent surety in the sum of Rs,1,00,000 (Rupees one hundred thousand) each with P.R. Bond each in the like sum to the satisfaction of the trial Court.