AYUB KHAN vs THE STATE And 2 Others

Ayub Khan son of Shahbaz Khan has moved the Instant application under section 561-A, Cr.P.C.

With the prayer that the statement of Aftab recorded under section 512, Cr.P.C. In case F.I.R. No.1461 of the Police Station Kalu Khan be transferred to the file of the Sessions Judge, Swabi.

2. The breviate of the instant matter is that on the report of Aftab son of the petitioner, a case under sections 302/324/34, P. P. C. Was registered vide F.

1. R. No. 1461 in Police Station Kalu Khan, District Swabi wherein respondent No.2 Rafiullah and 3 Ikram (father and son inter se) stood charged for the offence. The statement of Aftab was recorded during the proceedings' under section 512 of Criminal Procedure Code. Rafiullah and Ikram the accused were subsequently arrested and are facing their trial before the learned Sessions Judge, Swabi. The record indicates that after the recording of statement of Aftab under section 512, Cr.P.C. He was involved in a murder case bearing F.I.R. No.340, dated 9-6-2002 of the same Police Station and as such became absconder. An application for the transfer of his statement recorded under -section. 512, Cr.P.C. To the file of the trial Court was moved before the learned Sessions Judge, Swabi who after hearing the parties dismissed the application on 11-7-2002. Now the father of the said Aftab has moved the instant application for the same purpose on the ground that since his son has become absconder, therefore, his statement should be transferred to the file of the learned Sessions Judge.

3. The learned counsel appearing on behalf of the petitioner has argued that since R.W. Aftab has been involved in a murder case subsequent to the recording of his statement under section 512, Cr.P.C. And there is no likelhiood of his apearance before the trial Court, therefore, his statement should be transferred to the file of the learned Sessions Judge, Swabi.

4. On the other hand, the learned counsel appearing on behalf of the accused--respondents has opposed this application urging that in view of Article 47 of 'Qanun-e-Shahadat' Order 1984 (P.O.

No. 10 of 1984) the statement of P.W. Aftab has no relevancy and cannot be used against the accused-- respondent as they had no opportunity of cross-examining the witness during the earlier proceedings.

5. I have heard and considered the rival contentions of the learned counsel for the parties and have examined the record. The application moved in the Court of learned Sessions Judge on 1-7- 2002 indicates that it was moved by the learned counsel; on behalf of complainant Aftab when lie was absconder. The words mentioned at the bottom of the application are:-- The complainant of the case was obviously the Aftab. Now the instant application has been moved by his father, namely, Ayub. I see no force in the instant application for the reason that on the one hand Aftab has become fugitive from law in a murder case and on the other hand during his abscondence he has moved an application before the learned Sessions Judge. It means that the complainant has sought the enforcement of law to the disadvantage of the accused-respondents by depriving them of their valuable right of cross-examination while he himself is flouting the law.

Section 512, Cr.P.C. Is framed, and designed to meet a situation where the witless is dead, 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. In the instant case it is the witness himself who is avoiding his appearance before the Court and seeks to transfer his statement to the file of the trial Court. The unreason ability envisaged by section 512, Cr.P.C. Has been created by the witness himself and as such is not entitled to ask the Court for the enforcement of the provision of section 512, Cr.P.C. Adverse to the interest and rights of the accused/--respondents. The instant application has been moved by Ayub Khan who is the father of the complainant Aftab. His status is merely of a witness of certain recoveries in the instant case.

He is neither the complainant nor the prosecutor According to explanation to Article 47 of Qanun- e-Shahadat, 1984 criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article. Thus the present petitioner has got no locus standi to move the instant application. All the attending circumstances eloquently speak that the instant application is based on mala fide, to the disadvantage of the accused-- respondents and is not for the purpose of advancing the ends of justice. In the ultimate analysis the statement of Aftab recorded under section 512, Cr.P.C., for the purpose of its relevancy and .Admissibility does not qualify the test envisaged by the. Proviso to Article 47 of the 'Qanunre- Shahadat' Order, 1984. Article 47 being relevant is reproduced below:-- "47. Relevancy of certain evidence for proving, in subsequent proceedings. The truth of facts therein stated.----Evidence given by a witness is 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 proceedings, 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 unreason--able: 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.

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."

The plain reading of this Article would show, that both the former conditions under the proviso of this Article are lacking in the instant case. The petitioner not being the public prosecutor was neither a party in the earlier proceedings nor in the instant proceedings before the E learned trial Court. Moreover, the accused-- respondents had no opportunity to cross---examine Aftab P.W.

When his statement was recorded in proceedings under section 512, Cr. P.C.

6. On the facts and circumstances stated above and in view of the legal position this application is found destitute of merits and as such is dismissed. Announced.

S.M.A.H./681/P