Recording evidence in absence of accused

2016 YLR 1791 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.9 (a) & 17 (c)Criminal Procedure Code ( V of 1898), S. 353Constitution of Pakistan, Art. 199Constitutional petitionEvidence in absence of accused

Accused filed application for re-recording of evidence of more than 60 prosecution witnesses in his presence but Trial Court declined the request and directed the accused to cross-examine all those witnesses who were recorded in his absence

Validity

All accused persons faced inquiry as well as investigation prior to year, 2008, and as such, it was rightly opined that direct statements of such witnesses, if re-recorded would cause hardship to accused facing agony of trial since long

Reasons recorded by Trial Court were neither arbitrary nor fanciful

Trial Court rightly passed the order keeping in view the mandate of S. 17 (c) of National Accountability Ordinance, 1999

High Court declined to interfere in the order passed by Trial Court

Petition was dismissed in circumstances.

2013 PCrLJ 244 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 353 & 512Qanun-e-Shahadat (10 of 1984), Art. 46Recording evidence in absence of accusedUsing earlier recorded evidence in absentia against absconding accused on his arrestScope

Under provisions of S.353, Cr.P.C., it was mandatory that evidence should be recorded in the presence of accused, except when personal attendance of accused was dispensed with and accused was represented through pleader

Logic behind that could be nothing, but to ensure providing a full and fair opportunity to accused, while eliminating all chances of subsequent plea of accused being prejudiced

Legislature had provided an exception to mandatory provision by enacting the provisions of S.512, Cr.P.C. and Art.46 of Qanun-e-Shahadat, 1984, while keeping in view certain natural facts and elements

Said exception was available in matters, where accused was absconder

Purpose of recording of deposition under S.512, Cr.P.C. was that same could be used against the absconder accused on his arrest which seemed to be with an intent to preserve the deposition keeping in view the chances of deponent being dead; or incapable of giving evidence at such time

Such evidence, could not be of such weight as recorded in presence of accused, whereby accused was provided a fair opportunity to cross-examine the deponent to test the veracity of deponent and Art. 46, Qanun-e-Shahadat, 1984 had made it clear that procedure for recording evidence and its evidentiary value was available in the statute with certain conditions on legal grounds

If evidence recorded earlier, was allowed to be used against the absconding accused on his arrest without providing him an opportunity to cross-examine the witness, that could result in a departure from the word of fair trial on which the criminal administration of justice rested, unless the court or the prosecution justified the exceptional circumstances, which compelled them to depart from such mandatory requirement of law

On arrest of absconding accused, the prosecution and court, at first instance, should make all efforts to secure evidence in presence of accused

Trial Court should record evidence in presence of accused, earlier evidence recorded, could not be used against absconding accused, except in exceptional circumstances

Previously recorded evidence, could be taken into consideration, but its evidentiary value could not be equated with such statement which had been subjected to cross-examination

For giving weight to the statement of such witness, it was to be seen whether such statement intrinsically rang true; and whether or not supported by circumstances through any source.