SHER MUHAMMAD ALIAS SHERA Versus THE STATE

1. IFTIKHAR MUHAMMAD CHAUDHRY, J. --- This appeal is directed against the order, dated 29th October, 1995, passed by Additional Sessions Judge-III, Quetta, whereby appellant has been found guilty for offence under section 302, P.P.C. and sentenced to ten years' R.I. with benefit of section 382 B, Cr.P.C.

2. Precisely the facts are that on 23rd October, 1992, appellant alongwith co-accused Abdul Ghani, Muhammad Yousaf, Abdul Nabi and absconding accused persons Akhtar Muhammad, Atta Muhammad, Pir Dost, Inayat Khan, Jan Muhammad and Ghous Bakhsh, launched murderous assault upon Bashir Ahmad son of Khan Muhammad and Arif Khan son of Mir Muhammad, due to which, former died whereas latter sustained injuries. After commission of offence, co-accused Abdul Ghani, Muhammad Yousaf and Abdul Nabi, were arrested. They were tried and ultimately convicted on 9th March, 1995, to undergo imprisonment of ten years with fine of Rs.25,000 each and in default in payment of fine to further' undergo R.I. for six months, with benefit of section 382-B, Cr.P.C. An Appeal No.33 of 199; was filed by them, which was dismissed by this Court on 31st July, 1995, with modification in quantum of sentence, as amount of fine was remitted.

3. It appears that when the trial of co-accused named hereinabove was completed, present appellant was also arrested on 15th May, 1995. As he denied the accusation, therefore, trial was held and on completion thereof, appellant was convicted and sentenced, as detailed hereinabove. As such, instant appeal has been preferred.

4. Mr. Muhammad Aslam Chishti, learned counsel for appellant, pointed out that a serious illegality was committed by trial Court in recording evidence, because instead of re-examining the prosecution witnesses and examining them in accordance with law, in presence of appellant and his counsel, they were only allowed to cross-examine, as this fact is indicative from the order sheets, dated 26th July, 17th August, 28th August, 10th September and 14th September, 1995. Learned counsel further emphasised that under the provisions of section 512, Cr.P.C. trial Court was bound to record their examination-in-chief as well as cross-examination because the witnesses were present before the Court and they were capable to give evidence and there was no apprehension of causing delay, in disposal of case etc. '

5. Chaudhry Ejaz Yousaf, learned Additional Advocate-General, contended that since the examination-in-chief, with regard to prosecution case had already been recorded by the trial Court, therefore, to impeach the credibility of witness, right of cross-examination was afforded to appellant and according to him for such technical reason, the trial of case, cannot vitiate.

6. We have heard the parties' counsel and also examined the relevant record, so made available before us. In this behalf, it is to be noted that there are two provisions of law, which are to be pressed into service, when an absconding accused is arrested and trial of co-accused had already been completed. First provision is section 512, Cr.P.C. and second is embodied in Article 47 of the Qanoon-e-Shahadat, 1984. For sake of convenience, both the provisions are reproduced hereinbelow:--

7. "512. Record of evidence in absence of accused . --- (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or send for trial to the Court of Session or High Court such person for the offence complained of may, in his absence, examine the witness (if any) produced on behalf of the prosecution, and record their dispositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is 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 which, under the circumstances of the case, would be unreasonable.

(2) Record of evidence when offender unknown . --- If it appears that an offence punishable with death or imprisonment for life, has been committed by some person or persons unknown, the High Court may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan.

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 authorised by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding in a tatter 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:

8. Provided that the proceeding was between the same parties of 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.

9. Explanation .--- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article."'

10. On careful perusal of section 512, Cr.P.C. and Article 47 of the Qanun-e -Shahadat, 1984, it emerges that Court is empowered to believe the evidence of a witness, if it has been recorded in his absence, provided that on the arrest of accused, the witness is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or convenience which in the circumstances of case, would be unreasonable. But in the instant case, admittedly attendance of witnesses were procured and appellant was allowed to cross-examine them on the basis of their examination-in-chief which they have already recorded in first round of trial, against co-accused Abdul Ghani and o others. In this behalf in the case of Musa and 26 others v. Messrs Hussain Bai Karim Jee and others 1968 PCr.LJ 839, it was held that "no evidence on record to establish that witness, who has given evidence in the earlier round of trial was traceable, the evidence given by him previously cannot in the circumstances of case, be brought on record". Earlier to this judgment, in another case reported in PLD 1963 (W.P.) Pesh. 77, the same principle was followed.

11. Thus, we are inclined to hold that procedure adopted by learned trial. Court is not recognized by any provision of law, particularly section 512, Cr.P.C. and Article 47 of the Qanun-e-Shahadat, 1984, as such, in the I circumstances of case, lower Court had not held proper trial of appellant, on account of which serious prejudice has been caused to him, therefore, the conviction/sentence is not maintainable.

12. We may mention here that during hearing both the learned counsel agreed that after setting aside the impugned judgment, case be remanded to trial Court, for holding fresh trial of appellant, in accordance with law with propel opportunity to him to defend the charge.

13. 2 For the discussion made hereinabove, appeal is allowed, impugned judgment is set aside and case is sent back to Additional Sessions Judge-III, Quetta for proceeding with the matter, keeping in view the observations, made hereinabove.

14. It is however, hoped that trial Court will dispose of case expeditiously, as far as possible, within a period of three months.

15. N.H.Q./585/Q Case remanded.