1981 P Cr (PLP)

The accused-petitioners are facing trial under sections 14/15 of the Islamic Penal Laws Act in the Tehsil Criminal Court, Muzaffarabad. Shakeel ur-Rehman, one of the accused persons failed to appear in compliance with the process of the Court. A warrant of arrest was issued but the same was returned without execution, with the report that the accused could not be found in his house or any other place within the territorial limits of the Police Station. The trial Court summoned the S. H. O. for recording his statement in support of the said report, in order to proceed with the trial in the light of section 512, Cr. P. C. Consequently, the statement of Kh. Mumtaz Hussain, S. H. O., Muzaffarabad was recorded in compliance with the provisions of this section and the prosecution evidence was summoned for the next date. Mr. Muhammad Hanif Khan, the learned counsel for the complainant raised two preliminary objections: (i) That a revision petition could not be brought direct to tile High Court. (ii) That the petitioners, not being aggrieved persons, were incompetent to institute the revision petition. Ordinarily, a revision petition against an order of Magistrate is first lodged in the Court of Sessions Judge or District Magistrate and it is after that, that a petition is brought to this Court. This is as a matter of practice. There is no hard and fast rule, imposing conditions precedent, that a petition cannot be brought direct to the High Court. The learned counsel for the complainant was not in a position to support his objection by any rule of law or authority. In the present case, the impugned order was passed by the Tehsil Criminal Court constituted under the Islamic Penal Laws Act. Under the Islamic Penal Laws Act, there is no restriction that a revision petition cannot be brought direct to this Court. Therefore in absence of any restriction, the objection raised by the learned counsel for the complainant cannot be entertained. Under section 435, Cr. P. C. the revisional jurisdiction of this Court is concurrent to the jurisdiction of Sessions Judge or District Magistrate. The practice of filing of revision petition first to the Court of Sessions Judge or District Magistrate is based in consideration of dual benefit. Firstly, in order to avoid load of work to the High Court and secondly, to have the benefit of the opinion of the Sessions Judge or District Magistrate. Under section 439, Cr. P. C., the High Court is empowered to examine an order of the subordinate Court in the case of any proceedings. Therefore, under this section, this Court is competent to call for the record in any proceedings, sun motu, or on information of a party or otherwise on acquisition of its knowledge. Thus the contention of the learned counsel for the complainant is hereby repelled. The second objection relates to the competence of the petitioners for filing the present petition. As pointed out earlier, under sections 435 and 439, Cr. P. C. this Court was vested with the discretion to revise an order of the subordinate Court passed in any proceedings the record of which was called for, or on the initiative of a party or on receiving information or on the basis of knowledge of the Court. The only exception to this section was that a party who had aright of appeal against the impugned order could net avail remedy of revision unless the remedy provided through c appeal was exhausted. In that case too, the order affecting the said party could be challenged in a revision by a third person. The revisionals Jurisdiction of this Court was not controlled in that manner. In the present case, the impugned order affected Shakeel-ur-Rehman, an absent accused person. Shakeel-ur-Rehman did not authorise Mr. B. A. Farooqi, the learned counsel for the petitioners, to file a petition on his behalf, as the power-of-attorney does not bear signature of Shakeel-ur-Rehman. Mr.

3. A. Farooqi, frankly conceded that the petition was filed on behalf of other accused persons. In view of the aforesaid observations, the objection is not maintainable despite the fact that petition has not been instituted by Shakeel-ur-Rehman. Therefore; the second preliminary objection is also hereby repelled. While coming to the merits of the case, first of all, the provision of section 512, P. P. C. is to be examined. Under section 512, Cr. P. C., a rule of exception has been provided. The general rule is that evidence in criminal trial is to be recorded in presence of accused person. An accused person is provided an opportunity to cross-examine the prosecution witnesses. But in a case where the accused absconded and there was no immediate prospect of his arrest, an exception was provided so that important piece of evidence proposed to be produced by the prosecution against accused person was not lost in due course of time. Therefore, where it was sufficiently proved that an accused person absconded to avoid the consequences of commission of offence, trial Court was vested with power to record evidence of prosecution witnesses so that the same could be read against the absconding accused whenever he appeared or was brought before the Court. In order to proceed with the recording of evidence, in absence of accused, it was incumbent upon trial Court to satisfy itself by recording evidence to the effect:- (i) that the accused was absconding ; (ii) that there was no immediate prospect of his arrest. The word 'abscond' has been defined in Wharton's Law Lexicon as under:- "to fly the country in order to escape arrest for crime. 1n any action in the High Court in which before the Act the debtor might have been , arrested on 'mesne process', the plaintiff may procure the defendant to be arrested and imprisoned up to six months (unless he has sooner given security not to quit England without leave of the Court) on proof that he has good cause of action to the amount of 50. or upwards ; that there is probable cause to believe that the defendant is about to quit England unless he be apprehended ; and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action." According to Stroud's Judicial Dictionary, the word 'abscond' refers to an absconding man who, with intent to defeat, or delay his creditors, "departs out of England, or, being out of England, remains out of England". According to Webster's New International Dictionary, the word 'abscond' has been defined as under:- "To depart clandestinely; to steal off and secrete oneself used speclf of persons who leave the jurisdiction of a Court or secrete themselves within its jurisdiction for a fraudulent purpose, such as hindering or defrauding creditors by avoiding legal process." In the Oxford English Dictionary, the word 'abscond' has been defined as under:- "To hide oneself; to retire from the public view ; generally used of persons in debt, or criminals eluding the law ; to go away hurriedly and secretly." From the above references, it is evident that when word 'abscond' is used with reference to a criminal, it refers to an accused person who hides or conceals or makes himself inaccessible or does not come in public, in order to defeat the process of Court, or his arrest. Thus, it was imperative that in order to proceed with recording of prosecution evidence, to absence of an accused, the aforesaid conditions could be fulfilled by leading positive evidence. In view of the aforesaid principle, we have to examine the evidence available in the case. The only witness who appeared in support of a report relating to abscondence of the accused, is Kh. Mumtaz Hussain, the S.H.O. A personal of his testimony shows that ho deposed that on issuance of warrant of arrest by the trial Court he deputed the Head Constable who could not find the accused in his house. Another constable was depute who also failed to find out the accused, consequently, the reports we made on the warrant of arrest. This witness testified In light of the report of the subordinate officers. The substance of the testimony of the witness is that the accused was net found or in other words, the accused was not available within the territorial limits of Police Station, Muzaffarabad. The fact that an accused was not found or was not available at his house or place of business, does not necessarily mean that he was absconding, Absence from house may be bona fide. Any genuine circumstance may necessitate absence but that would not mean that absence corresponded to absconding The difference is evident. Again, mere fact that accused person absconded, would not allow to proceed with recording of evidence unless it was also proved that there was no immediate prospect of arrest of such an accuses person. Where evidence was lacking on either essential, trial Court could not proceed. It is evident from the aforesaid testimony that the prosecution has not successfully proved that the accused was absconding and that there were no immediate prospects of his arrest. Thus, in absence of positive evidence, the trial Court could not proceed to record evidence in absence of Shakeel-ur-Rehman, accused. The impugned order was patently beyond the scope of section 512, Cr. P. C. and, as such cannot be maintained. Mr. Muhammad Akram Khan, the learned Advocate-General, agreed that there was no evidence on record in order to record evidence in absence of Shakeel-ur-Rehman, accused. Mr. Muhammad Hanif, the learned counsel for the complainant argued that the Court may draw inference from absence of Shakeei-ur-Rehman in order to hold that. he was absconding and also that there were no immediate prospects of his arrest. I do not agree with the contention of the learned counsel for the complainant for the reason that an inference in respect of absconsion of an accused and non-prospects of his immediate arrest could only be inferred from the evidence led by the prosecution and from no other circumstance. I have already referred to the evidence led by the prosecution and have reached the conclusion that the aforesaid evidence is insufficient to allow to proceed with the recording of evidence in absence of the accused. However, it is open to the prosecution that in future, in case the accused does not appear in the trial Court or his arrest is not made, it may prove to the satisfaction of the trial Court that the accused eras absconding and that there were no immediate prospects of his arrest. It is only then that the trial Court is allowed by law to proceed with the trial in the light of provisions of section 512, Cr. P. C. In view of the aforesaid observations, the revision petition is accepted and the impugned order dated 2-8-1980 is hereby set aside. Revision allowed.