Rustam vs The State
This criminal appeal challenges the conviction and sentencing of the appellant for the murder of Muhammad Alam, as determined by the Sessions Judge, Tando Muhammad Khan, on April 5, 2018. The core legal question before the Sindh High Court was whether a conviction is legally sustainable when it relies on evidence recorded under Section 512 of the Code of Criminal Procedure 1898 during the appellant's period as an absconder, without providing the appellant the opportunity to confront witnesses in his presence during the trial. Both the appellant's counsel and the Assistant Prosecutor General conceded that the trial court's procedure violated the mandatory requirement of Section 353 of the Code of Criminal Procedure 1898, which necessitates that evidence be recorded in the presence of the accused. Finding merit in this contention, the Court set aside the impugned judgment. The High Court held that the trial court must record the evidence of the complainant and witnesses afresh in the presence of the appellant, establishing the principle that a conviction cannot be sustained if the trial court fails to ensure the accused's presence during the examination of witnesses as mandated by procedural law.
- Can a trial court convict an accused based on evidence recorded under Section 512 of the Code of Criminal Procedure 1898 without re-examining witnesses in the presence of the accused?
- Does the failure to examine witnesses in the presence of the accused, as required by Section 353 of the Code of Criminal Procedure 1898, vitiate a conviction?
- Is it legally permissible for a trial court to rely on evidence recorded during the absence of an accused without providing an opportunity for cross-examination in the accused's presence?
- Section 512, Code of Criminal Procedure 1898
- Section 353, Code of Criminal Procedure 1898
ORDER
1. The appellant for committing murder of Muhammad Alam was convicted and sentenced to various terms by learned Sessions Judge Tando Muhammad Khan vide his Judgment dated 05.04.2018 which is impugned by the appellant before this Court by way of instant Criminal Jail Appeal.
2. At the very outset, it is pointed out by the learned counsel for the appellant and learned A.P.G for the State that initially the appellant was absconding, on arrest he was charged for the above said offence and then evidence recorded under section 512 Cr.P.C was brought on file with opportunity to the appellant to make a cross examination to the witnesses already examined by learned Trial Court and he then was convicted accordingly , which is against the mandate contained by section 353 Cr.P.C which call for examination of the witnesses in presence of the accused. By pointing out so, they sought for remand of the case to learned Trial Court for its fresh disposal in accordance with Law .
3. In view of above, the impugned judgment is set-aside with direction to learned Trial Court to record evidence of the complainant and his witnesses afresh in presence of the appellant and then to dispose off the case in accordance with Law preferably within three months.
4. The instant appeal is disposed of f in above terms.