MUHAMMAD SADDIQUE vs The STATE

MAZHAR ALAM KHAN MIANKHEL, J.---This appeal with leave of this Court is directed against the judgment dated 12.11.2012 of the High Court of Balochistan whereby the convictions and sentences awarded to the appellant by the trial Court were maintained/upheld by dismissing his appeal and Murder Reference No,01/2009 was answered in affirmative. The appellant was convicted by the trial Court under section 302(b), P.P.C. and was sentenced to death on two counts with a further direction to pay Rs,100,000/- as compensation to the legal heirs of the deceased persons Peer Muhammad and Muhammad Aslam as provided under section 544-A, Cr.P.C. He was also convicted under section 324, P.P.C. and sentenced to ten years' R.I. with fine of Rs,20,000/- and in default whereof to further suffer S.I. for two months. He was also convicted under section 337-F(iii), P.P.C. and directed to pay a sum of Rs,30,000/- as Daman to the legal heirs of injured Jumma Khan with further direction that till the recovery of Daman amount he shall remain in S.I.

2. The appellant Muhammad Saddique was indicted by the Sessions Judge Khuzdar, Balochistan to face trial in case FIR No,17/1999 levies dated 17.02.1999, Police Station Nall registered under sections 302, 324, 337, P.P.C. After full fledged trial, the trial Court vide its judgment dated 09-01-2.009 convicted appellant as above. The appellant then questioned his convictions vide an appeal before the High Court which was dismissed. Thereafter his Criminal Petition for leave to appeal before this Court was allowed vide order dated 30.09.2013. Hence this appeal.

3. We have heard learned counsel for the appellant as well as learned Additional Prosecutor General and have perused the record with their assistance.

4. The case of the prosecution is that on 17.02.1999 at about 9:00 a.m. the appellant allegedly fired at Peer Muhammad and Muhammad Aslam sons of Saleh Muhammad Complainant/PW-1 and his father Jumma Khan. The complainant who was present nearby his fields was attracted to the spot on hearing the fire shots. The moment he reached the spot, his two sons, who succumbed to the injuries, were lying in the pool of blood and mud whereas his father Jumma Khan was lying in an injured condition who informed him that Muhammad Saddique appellant (the real brother of the complainant, uncle of both the deceased and son of Jumma Khan injured) has fired at them and has decamped from the spot. The matter was accordingly reported and a proper case was registered against the accused/appellant vide above stated FIR.

5. Initially this case was tried by a Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (the 'Act of 1975') and the appellant was tried in absentia because of his absconsion and was convicted by the Special Judge but his conviction was set aside vide judgment dated 26.09.2007 by the High Court by way of his jail appeal after his arrest and a trial afresh was ordered by keeping the appellant as under trial prisoner. During the trial in absentia, complainant Saleh Muhammad appeared as PW-1, Lal Bukhsh son of Imam Bukhsh as PW-2, Jumma Khan son of Saleh Muhammad as PW-3, Dr. Ahmad Khan appeared as 'PW-4 and Mehboob Ali, Naib Tehsildar, who registered the FIR, appeared as PW-5.

6. Since the appellant was absconder so initially incomplete challan was submitted but for a trial afresh, complete challan was submitted by the SHO. Prosecution to prove its case against the accused/appellant again produced complainant Saleh Muhammad as PW-1 who narrated the story given in the FIR. PW-2 Dr. Ahmad Khan produced Medico Legal Certificate of Jumma Khan, injured PW, as Ex.P/2-A and death certificates of Peer Muhammad and Muhammad Aslam, the two deceased, as Ex.P/2-B and C respectively. Report of occurrence was recorded in the shape of FIR by Mehboob Ali, Naib Tehsildar who appeared as PW-3. Jan Muhammad appeared as PW-4 who initially informed the Naib Tehsildar Mehboob Ali. Nasir Khan SHO submitted the complete challan and appeared as PW-5. After recording of the prosecution evidence statement of accused under section 342, Cr.P.C. was recorded who simply denied the commission of offence. He refused to record his statement on oath under section 340(2), Cr.P.C. and also refused to produce any defence evidence on record.

7. The most important aspect in this case is that the only direct evidence available to the prosecution was the ocular account to be furnished by the injured eye-witness Jumma Khan, father of the complainant and the appellant but during the trial afresh, only the statement of CW-1 Abdul Karim son of Rehmat Ullah constable No,1476 was recorded who was given the task of service of summons of said Jumma Khan to appear in the Court as a witness. He by producing the certificate from the Local Nazim, disclosed that Lal Bakhsh and Jumma Khan PWs have met their natural death. Jumma Khan PW (appeared as PW-3 in trial in absentia) was the person who was an injured eye-witness of the occurrence and his evidence was the only direct evidence against the appellant but during fresh trial he along with Lal Bakhsh were reported to have met their natural death and were no more in this mortal world. The trial Court on receiving the death report from CW-1 straight away accepted and considered the earlier statement of said Jumma Khan without being brought on the record according to law and passed his judgment of conviction which too was upheld by the High Court through the impugned judgment.

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 duty 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 Oanun-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. Article 47 of the Qanun-e-Shahadat Order, 1984 caters the situation which is reproduced for ready reference:- 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. By keeping in mind the above provision of law and facts and circumstances of the earlier judicial proceedings against the appellant though in absentia but under the Special Law, it was the bounden duty of the prosecution to have brought the said evidence on the judicial record. The statement of said Jumma Khan was neither before the Court nor was brought on the record in accordance with law. The record of the case is completely silent in this regard. No doubt the statement of said Jumma Khan was recorded in the trial in absentia but that cannot be considered/looked into by the trial Court on its own especially when that has not been brought legally on the judicial file and is there in the file of trial in absentia. Besides the above all, not a single question of earlier statement of Jumma Khan recorded during the trial in absentia was ever put to the appellant during his statement recorded under section 342, Cr.P.C. Law on the subject is very much clear and settled that any peace of incriminating evidence must be put to accused in his statement under section 342, Cr.P.C. otherwise the same cannot be used against him. Here in this case, the trial Court has based its judgment of conviction by keeping in mind the earlier statement of the ocular account of Jumma Khan which legally was not before the Court and the long standing abscondence of the appellant. There is nothing on the record to establish the abscondence of the appellant in the shape of proceedings under sections 87/88, Cr.P.C. So, for that matter the appellant in reply to the question of his absconsion has simply denied.

9. Prosecution in this case has also failed to bring on record any supportive or corroborative peace of evidence to prove the guilt of accused. There is no recovery of weapon of offence. No motive is brought against the appellant. Though the question of Article 47 was agitated before the High Court in appeal but that was not appreciated by the High Court.

10.So, for what has been discussed above, we are of the considered view that the prosecution has failed to prove the guilt of appellant to the hilt. Resultantly, this appeal is allowed. The sentence and conviction of the appellant are set aside. He is acquitted of the charges. He shall be released forthwith, if not required or detained in any other case. The above are the reasons for our short order of even date which reads as under:- "For detailed reasons to follow, this criminal appeal is allowed. The conviction and sentence of the appellant-Muhammad Siddique are set aside. He is acquitted of the charges. He shall be released forthwith, if not required or detained in any other case."