P L D 2004 Peshawar 20 (PLP)

9. Under the provision of section 512, Cr.P.C. trial Court has powers to record evidence in the absence of an accused who has absconded. The object of this enabling provision is to preserve the available evidence so it may not be lost or destroyed by the time of arrest of the absconding accused. Reading this provision of law as a whole alongwith the provision of Article 46 of the Qanun-e-Shahadat Order, 1984 it is crystal clear that before making such evidence admissible, two foremost and essential conditions are to be satisfied which are:-- (i) The Court recording it must be judicially satisfied upon evidence recorded that the accused charged therein has absconded and that there is no immediate prospect of his arrest; and (ii) That such deposition having been made by the witnesses, on the arrest of the absconding accused may be used as evidence against him if it is proved to the satisfaction of the Court that the witnesses are dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expenses or inconvenience of unreasonable nature.

10. The necessary corollary as it appears from the said provision o law is that on both the occasions i.e. while proceeding under section

512. Cr.P.C. the Court must be judicially satisfied on the basis of recorded evidence that the accused charged therein has absconded and there is no immediate prospects of his arrest in the near future and secondly on the arrest of such accused it must be also proved to the satisfaction of the Court that the witness whose deposition was recorded and preserved under section 512, Cr.P.C. is either dead or is incapable of giving evidence or his attendance cannot be procured without any unreasonable amount of delay, expenses or inconvenience.

11. The provisions of section 512, Cr.P.C. read with Article 46 of the Qanun-e-Shahadat Order is a violent exception to the fundamental rule of the Law of Evidence wherein testimony of a witness becomes a legal piece of evidence when it is subjected to cross-examination. This exception is based on reasonable distinction because when an accused stays away deliberately not responding to the notice of the Court to face justice he forfeits his right of audience and that of cross-examination, for this very reason the law has taken much care by providing methodology to preserve the evidence of witnesses against such an accused so that it may not be destroyed or caused to disappear by the death of the witness/witnesses, their physical infirmity to depose or their not-availability: In such circumstances, therefore, Court is required to exercise proper judicial care and caution while conducting such proceedings at both the stages, the one under section 512, C.P.C. and the other when such evidence is, required to be used against the accused at a subsequent trial on his arrest. On both the occasions Court must comply with the mandatory requirements of the above provision of law and its judicial satisfaction on both the occasions must rest and be surely based on cogent evidence recorded therein because any action or order taken or made in vacuum or short of the prescribed standard would make the evidence so recorded of no legal worth to be used against such an accused person.

12. The learned trial Judge in this case has relied on the statement of Inayatullah, DFC which is reproduced below:-- CW 1. "I was entrusted with the bailable warrant of arrest issued against P.W. Khadim Hussain son of Fazle Hussain. I went to his village and it was reported to me that P.W. Khadim Hussain has gone to Karachi for earning livelihood and is not available in the area. To this effect I have recorded the statement of his brother Ata-ur-Rehman, Divisional Accountant, WAPDA which is duly verified by Tila Muhammad, Assistant Professor, Government College, Nawshera. The warrant is Exh.CW 1 / 1 and the statement is Exh. CW1/2."

13. On the basis of the above statement the Public Prosecutor abandoned the said P.W. and on his request his statement recorded on 13-9-2002 under section 512, Cr.P.C. was transferred to the present file.

14. The order to this effect passed by the learned trial Judge amounts to surrendering judicial function to the wish of the prosecution. The learned trial Judge while dittoing its .opinion with the one expressed by the APP has passed the following orders:-- 13-9-2002. Accused present as before with defence counsel. APP present for the State. P.W. Khadim Hussain abandoned by the prosecution with the request that the statement. of this P.W. recorded during the proceedings under section 512, Cr.P.C. may be transferred to the present case file, which is transferred to this file. Prosecution evidence closed: To come up for statement of accused on 6-10-2002."'

15. Yet in the absence of any specific and express order, without"' application of judicial mind, the statement of the other eye-witness P.W. Fazle Haq recorded under section 512, Cr.P.C. was given the same status and was ultimately used against the appellant despite the fact that this P.W. was abandoned, by the prosecution on the allegations being won over by the defence.

16. The order sheets of the learned trial Court further reveal that at some occasions the said P.Ws. have either accepted the summon/notices but did not turn up or were present but were sent unexamined because of the objection of the defence due to absence of the other eye-witness.

17. Now the question confronted is as to whether the learned trial Judge has acted within its lawful authority and jurisdiction by transferring the statement of P.W. Khadim Hussain and using it as a legal piece of evidence 'against the appellant. The answer is sure "No".

18. Under the law only that statement of a witness recorded under section 512, Cr.P.C. can be used to a subsequent trial of the absconder on his arrest if essential/ mandatory statutory requirements are fulfilled i.e. that the Court must be satisfied on the basis of legal evidence recorded to the effect that the witness is dead, is incapable of giving evidence or his attendance cannot be procured. Such satisfaction must be judicial one which shall rest on evidence Legal proof to that effect alone would confer powers on the Court to treat and use such evidence as a substantive one during the subsequent trial against the accused in whose absence the same was recorded.

19. The statement of P W. Fazle Haq recorded under section 512, Cr.P.C. transferred to the present file was equally in flagrant disregard of the statutory provision of law because the said statement was not falling within the purview of the provision of section 512, Cr.P.C. or that of Article 46 of the Qanun-e-Shahadat Order, 1984. This piece of evidence was absolutely inadmissible and cannot be legally used for resting on it a judicial belief about the guilt of the appellant. 20- The evidence of the search witness is inconclusive in substance because mere non-availability of a witness on a given address cannot constitute legal basis for holding that the witness cannot be procured without any amount of delay, inconvenience or expenses. There must be available clear evidence to that effect satisfying all such conditions as laid down in the statute itself whereafter Court would be within its authority and jurisdiction to transfer the statement of such witness and to use it against the accused while in the absence of such evidence Court would neither be competent to transfer such statement to the trial Court file nor it can be used as valid piece of evidence against an accused person. The exception created by the statute law making an evidence of a witness recorded' in ex parte manner as an admissible one carry with it stringent mandatory conditions and limitations which are to be faithfully and objectively complied with before treating such evidence as a substantive one against an accused person.

21. To apply the correct law to a particular case is the exclusive legal obligation/duty of the Courts alone. The party to a lis is not required to point out as to how and in what manner the law is to be applied nor it is required to engage a counsel for the assistance of the Court in the discharge of its judicial functions. All actions and orders of Court of law are called judicial one, therefore, it must be in conformity with the cardinal principle of law and justice and such end can only be secured by complying with the law in its letter and spirit. Any short cut course adopted in violation of the mandatory provision of law would, therefore, be bereft of legal sanctity hence would be of no legal effect. The action taken by the learned trial Judge by transferring the statements of the two P.Ws. to the present file and using it as a substance evidence against the appellant was in flagrant violation of the mandatory provision of law, the same, therefore, cannot be held to be part of evidence in the case and is liable to be ignored.

22. In the case of Ali Haider v. The State PLD 1958 SC (Pak.).392 the Hon'ble Supreme Court held a view which is reproduced below:-- "Where the prosecution witnesses were not summoned at the trial at the suggestion of the Public Prosecutor, in order `to avoid unnecessary expenses' to the State and the trial Judge ordered that the statement of those witnesses recorded by the committing Magistrate to be read as evidence at the trial on the ground that their depositions were of formal character and the counsel for the accused acquiesced in order of the trial Judge. Held that there was a flagrant disregard of the, provisions of section 33 of the Evidence Act in transferring the statements of the prosecution witnesses in question to the Sessions record without laying the foundation for that course, by adducing strict proof that the witnesses were incapable of giving evidence or that their presence could not be secured without an amount of delay or expenses which under the circumstances of the case, the Court could justifiably regard as unreasonable. The procedure adopted was not warranted by the reasons mentioned by the trial Judge, and as such the statements of the prosecution witnesses, under the circumstances, were to be kept out of consideration as they could not be said legally to form part of the evidence in the case."

23. Yet in another case of Allah Ditta v. The State PLD 1958 SC (Pak.) 290 the apex Court almost held the same view and enunciated a principle of law because the evidence of the witness was transferred and used as a piece of evidence on the statement of the Investigating Officer that the witness could not be served in spite of his best efforts. The Investigating Officer in that case had not gone in search of the accused nor he was entrusted with a search warrant for that purpose and it was further held that the Court (trial) had misapplied section 33 of the Evidence Act and evidence of the witness was inadmissible.

24. True that statements recorded under section 512, Cr.P.C. and validly transferred in the laid down manner to the trial Court file fall within the category of substantive evidence still judicial wisdom requires that much care and caution be exercised by the Courts before placing reliance on it moreso when a conviction on a capital charge is to be recorded because these statements are not subjected to the test of cross -examination which is universally considered to be a great engine for discovering the truth. In other words that much of sanctity cannot be attached to it which is normally attached to those statements having been tested by way of cross-examination. Of course no hard and fast rules can be laid do on to that effect but for the safe dispensation of justice the duty of the Court in such eventuality becomes more onerous while determining the guilt or innocence of an accused on the basis of such evidence. In such case the proper course to 'tie adopted is that the Court must look for strong independent corroboratory evidence, sufficient enough to enhance the evidentiary value of such statements/evidence to an extent where the guilt of the accused is established beyond reasonable doubts. The degree and quality of corroboratory evidence comparatively must be on higher' side. 25, Tested on the above principle of justice, now let it be judged as to whether in the instant case the evidence of the injured complainant recorded under section

512. Cr.P.C. is getting such corroboration from the ether evidence or not.

26. In all 5 persons almost of one-an the am family have been charged for a solitary inlet wound by the complainant. According to the F.I.R. version all the 5 accused fired at him simultaneously. The effective shot has not been attributed to any one of them. According to the site plan positions the distance between the accused and the complainant is shown 15 paces but despite of such a close distance the complainant sustained a solitary fire-arm injury. In view of the background of blood feud the complainant would have not required much time to add and implicit innocent persons alongwith the guilty one.

27. The charge and evidence against all the 5 accused is indivisible in its nature and substance therefore none of the 5 accused can be pointed out with clarity to have caused this single injury to the complainant moreso when there is no evidence on record to that effect.

23. In the case of Farman Ali and 3 others v The State PLD 1980 SC 201 dying declaration was disbelieved by the Hon'ble Supreme Court because 3 brothers were charged therein while injuries on the person of deceased were caused with .30 bore pistol which being an automatic weapon, therefore, in their lordship view could be the job of one person.

29. Again when for a single injury more than one person are charged then it becomes imperative for the prosecution to prove by strong corroboratory evidence the individual participation of each accused with specific role to the commission of the crime but to the instant case no such evidence is available. As the learned trial Court had disbelieved major part of the prosecution case by acquitting two co-accused charged almost for the same and similar role, therefore, in the absence of any legal and believable piece of evidence proving individually and distinctly guilt of the appellant it was almost unsafe to convicting the appellant. The learned trial Court has acted on self-assumed hypothesis in convicting the appellant because in its view the 3 empties found on the spot were having Proximal nexus with appellant, it is surely based on misreading of evidence.

30. The guilt of an accused can only be determined on the basis o legal evidence and even high probabilities cannot be substituted for a legal proof connecting nexus of appellant with recovery of 3 empties from the spot and such view is certainly a fallacious one cannot be approved on legal standards.

31. The Hon'ble Supreme Court in the case of Ghulam Sikandar v. Mamrez PLD 1985 SC 11 has firmly laid down principle of law which is' fully applicable to the instant case.

32. Again the learned trial Court has unreasonably elevated the motive to a pedestal which the law does not recognize or, confer on it. Motive is only corroboratory evidence and in the background of blood, feud it is always considered to be a double-edged weapon and to the contrary may prompt an enemy to level a false charge against his innocent opponent.

33. It is also more than settled by now that when ocular evidence is disbelieved then abscondence alone does not play any role in the conviction of an accused person because it is a weakest type of corroboratory evidence.

34. For the foregoing reasons, therefore, this appeal is accepted, the conviction and sentence recorded by the trial Judge are set aside and the appellant is acquitted of the charge levelled against him. He shall be set at liberty forthwith if not required in any other case. These are the detailed reasons for my short order of 17-10-2003. N.H.Q./958/P Appeal accepted.