1. This appeal has been filed against the order and judgment of Tehsil Court of Criminal Jurisdiction, Muzaffarabad dated 30-9-2002, whereby the accused/respondents were acquitted of the charge.
2. The facts briefly stated are that the complainant lodged an F.I.R. On 3-10-1996 at 2-00 p.m. At Police Station Garhidopatta, District Muzaffarabad, alleging therein that on 14-9-1996 at 5-00 p.m.
3. Muhammad Satar, Raj Muhammad, Mir Muhammad and Shabeer sons of Kalu, Alaf Din son of Noora, Papa son of Sher Muhammad and Saraj Din son of Faqir Muhammad demolished his "Dhara" constructed in his land situated in Survey No.405. The accused/persons took away' door of the Dhara worth Rs.500 alongwith other wood. Taj Din son of Kalu, Hameed and Mir Muhammad sons of Juma witnessed the occurrence. It was further alleged that the complainant was kept busy it compromise proceedings and he also remained busy to obtain Revenue Record.
4. The motive behind the occurrence has been stated to be a dispute of land pertaining to Survey No.405.
5. On this report a case under section 147, 148, 448, A.P.C. Read with section 14. The Offences Against Property (Enforcement of Hudood) Act, 1985 (hereinafter to be referred as EHA) was registered.
6. After necessary investigation, the accused/persons were challaned under section 448, A.P.C. Read with section 14, EHA. The trial Court proceeded under section 512, Cr.P.C. Against all the accused/ persons except Raj Muhammad vide its order dated 9-12-1999. The statement of Raj Muhammad under section 242, Cr.P.C. Was recorded on 14-1-2000, who denied the guilt and claimed the trial.
7. The trial Court recorded the evidence of Juma (P.W.1), Abdul Hameed (P.W.2), Mir Muhammad (P.W.3), Taj Din (P.W.4), Sartaj Akhtar Patwari (P.W.5) and Muhammad Saghir, Head Constable police instead of Javed Hussain Khan, Head Constable Police (P.W.6). The trial Court once again pro--ceeded under section 512, Cr.P.C. Against all the accused/persons except Raj Muhammad vide its order dated 2-1-2002. The statements of accused/persons, Satar Muhammad and Mir Muhammad were recorded under section 242, Cr.P.C. On 23-7-2002, who also denied the guilt and claimed the trial but instead calling the P.Ws.1 to 6 for recording their evidence in presence of accused-persons, Satar Muhammad and Mir Muhammad and affording them an opportunity of cross---examination, the trial Court proceeded further and closed the evidence of Nazir Ahmed Khan, Sub-Inspector Police (P.W.7) vide its order dated 31-7-2002. The Court below again committed an illegality and sought the explanation of the accused/persons under section 342, Cr.P.C. About the incriminating material appearing in the prosecution evidence, which was never recorded in their presence. Finally, the Court below after hearing the arguments recorded the impugned judgment and acquitted the accused/respondents of the charge vide its order and judgment dated 30-9-2002. It is the aforesaid order and judgment, which has been assailed through the instant appeal.
8. I have heard the arguments of the learned counsel for the parties and perused the record with utmost care.
9. Mr. Shaukat Aziz, the learned counsel for the appellant has vehemently argued that the trial Court has passed a telegraphic order without discussing the merits of the prosecution evidence. The learned counsel has further contended that the charge has been proved by natural prosecution evidence but the trial Court failed to appreciate the evidence in its true perspective, therefore, the impugned judgment is liable to be set aside and the case may be remanded for rewriting the judgment.
10. During the course of arguments when the attention of the learned counsel for the parties as well as the State was drawn towards illegal proceedings of the trial Court through which it ignored the mandatory provisions of section 353, Cr.P.C. And Article 133 of Qanun-e-Shahadat Order, they frankly conceded the position and submitted for the retrial of the respondents.
11. It will be relevant to note here that section 512, Cr.P.C. Provides a special rule of evidence which is, an exception to the general rule that all evidence in a criminal trial shall be taken in the presence of the accused or his counsel when his personal appearance is dispensed with. The purpose of the provision is to preserve the important evidence till the time the accused is detained, therefore, section 512, Cr.P.C. Does not empower a Court to record a conviction or pass an order of sentence in absence of the accused. In this planner, when an accused/person is arrested and put to trial, the prosecution witnesses must be examined again in the presence of the accused/person. The prosecution evidence, thus, recorded when there was no immediate prospect of the arrest of the accused, could be treated as substantive piece of evidence only when it is proved that the witness is dead or incapable of giving evidence or cannot be procured without great inconvenience, delay or expense or is beyond the limits of the country.
12. "Under the law a previous statement of a person who is not called as a witness at the trial is rigidly excluded unless specially allowed by statute, and in all cases where there is a statutory exception stringent conditions are imposed. Section 512 itself indicates that the statements previously recorded are not to be admitted unless the witness is dead etc. Therefore, before admitting such a statement in evidence at the subsequent trial the Court trying the case must be satisfied that the provisions of section 512 have been complied with."
13. "That the object of recording evidence under section 512, Cr.P.C. Is to preserve the evidence against the accused who have absconded and there is no immediate prospect of arresting them. Any such deposition may on the arrest of the accused be given in evidence against them on the enquiry into or trial for the offence with which they are 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. No order can be passed on merits of the case under section 512, Cr.P.C. In the absence of the accused."
14. It, therefore, follows that it was incumbent upon the trial Court to record the statements of the prosecution witnesses again after recording the statements of Raj Muhammad and Mir Muhammad accused/persons under section 242, Cr.P.C. But the trial Court did not follow the mandatory provisions contained in Criminal Procedure Code and committed an illegality, thus, the impugned order and judgment is not sustainable and the case has to be remanded for retrial.
15. The perusal of the impugned judgment shows that it has been recorded in a slipshod manner without applying the judicial mind which reads as under:-- Furthermore, the Court below has not considered the case of both the parties side by side in all its bearings and arrived at a conclusion without appreciating and evaluating the evidence in its true perspective. The trial Court neither mentioned the plea of the accused nor points for consideration were formulated. It is, thus, clear that the trial Court proceeded to record its conclusion without analyzing the evidence and giving reasons for its conclusion. In this manner, the Court below has violated the mandatory requirements of section 367, Cr.P.C., therefore, the impugned judgment cannot be maintained (PLD 1987 Quetta; 174).
16. For the reasons listed above, I accept this appeal, set aside the impugned judgment of Tehsil Criminal Court, Muzaffarabad dated 30-9-2002 and remand the case with the direction that the trial Court shall record the prosecution evidence afresh and proceed further in accordance with law.