Faisal Zaman Vs The state

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Cr.Revision No. 02-A/2025

JUDGMENT

Date of hearing...................17.03.2025.................................

Petitioner (Faisal Zaman) By M/s. Fazlullah Khan and Humayun Khan, Advocates.

Respondent. (State) By Arbab Ifrahim, Additional Advocate General and (Complainant) By Mr. Muhammad Arshad Khan Tanoli, Advocate.

MUHAMMAD FAHEEM WALI, J.- Through this single judgment, I propose to decide this (Cr.Revision No. 02-A/2025) and the connected Cr.Revision No. 11-A/2025 titled “Naveed Iqbal Vs. Faisal Zaman & another” as both these revisions have arisen out of same FIR bearing No. 07 dated 14.09.2020 registered under Sections 302 / 427 / 324 / 34 PPC read with Sections 2 (ii) / 7 of the Anti- Terrorism Act, 1997 at Police Station CTD Hazara Division, Abbottabad.

2.Precisely stated facts of the case are that petitioner (Faisal Zaman) alongwith others, named in the FIR, have been charged in the aforesaid crime for murder of deceased

(1)Tahir Iqbal and (2) Gul Nawaz. After arrest of the petitioner when challan was submitted

before the learned trial court, trial commenced, evidence of the prosecution witnesses were recorded, followed by examination of the petitioner under Section 342 Cr.P.C. Meanwhile, upon the production order issued by the Speaker of Provincial Assembly, the petitioner was produced in the Assembly Sessions but he went into hiding from there, hence, FIR No. 277 dated 22.04.2022 was also registered against him at Police Station East Cantt Peshawar. His co- accused namely, (1) Sher Ghazi, (2) Rehmat Ullah, (3) Sher Ali and (4) Farman Ullah after a full dressed trial were convicted and sentenced to life term imprisonment etc vide judgment dated 12.08.2023. Upon their appeal to this court, their convictions and sentences were set-aside and they were acquitted vide judgment dated 10.09.2024.

Now after acquittal of co-accused, the petitioner surrendered himself before the court of law and obtained ad-interim bail from the court of learned Additional Sessions Judge-IV, Haripur vide order dated 23.10.2024, hence, the complainant (Naveed

Iqbal) filed the connected Cr.Revision No.

11-A/2025 for recalling of the ibid order while the petitioner filed the instant criminal revision against the order dated 21.12.2024 whereby his petition for requisitioning of record and arguments on full case was turned down.

3.I have heard arguments of learned counsel for the parties as well as learned Additional Advocate General and gone through the record.

4.Perusal of record reveals that after nomination of the petitioner in a crime he obtained transitory as well as bail before arrest from different courts of law and when taken into custody upon rejection of his bail before arrest vide order dated 12.02.2021, he applied to the competent court of jurisdiction for regular bail which was declined to him.

Thereafter, he moved post arrest bail before this court, which was disposed of vide order dated 11.03.2021 with direction to the learned trial court to conclude the trial within three

(03)months with further clarification that in case there was any fault on part of prosecution, the petitioner would be deemed

to be admitted to bail. After completion of the above period when the trial could not be concluded within the stipulated period, the petitioner again moved this court for his release on bail, which was also disposed of with direction to conclude the trial within further two (02) months vide order dated 01.10.2021. The petitioner then upon the production order issued by the Speaker of the Provincial Assembly when produced for Assembly Session, went into hiding, hence, another FIR bearing No. 277 was registered against him at Police Station East Cantt Peshawar. It is pertinent to mention here that the entire trial had been conducted in presence of the petitioner, he was having a opportunity to cross-examine the prosecution witnesses and even his statement under Section 342 Cr.P.C had been recorded when he went into hiding and was proceeded against under Section 512 Cr.P.C.

5.Now the moot point for consideration before the court is that whether after arrest of the petitioner and submission of supplementary challan against him, the

evidence preserved under Section 512 Cr.P.C would be sufficient to decide the fate of his case, particularly when entire evidence was recorded in his presence, or the trial would be conducted denovo?

6.In order to meet the above query, this court deems it appropriate to reproduce Section 512 Cr.P.C for ready reference: - “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 witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, of 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.”

7.A plain reading of the above quoted provision shows that when a person has absconded and there is no immediate prospect of his arrest and the offence for which he is charged is punishable with death or imprisonment for life, the Court may examine the witness produced by the prosecution and record his deposition and when the accused is arrested, then at the stage of trial, if any of such witnesses are not available being dead or cannot be found or is incapable of giving evidence or his attendance cannot be obtained without an amount of delay, expense or inconvenience, and when the matter is between the same party, then the statements recorded under Section 512 Cr.P.C may be accepted in the evidence.

8.If the situation of present case is taken in juxtaposition with the ingredients of Section 512 Cr.P.C, the same does not tally each other as in the present case the petitioner went into hiding at the time when all

the evidence was recorded in his presence rather his statement was recorded under Section 342 Cr.P.C and thereafter he had gone into hiding whereas the purpose of Section 512 Cr.P.C was merely to preserve the evidence of a witness for an eventuality where protection was given to the deposition of such witness, who might not be alive at the time of appearance of the accused or might have become incapable of giving evidence or attendance of said witness could not be procured without any delay, expense or inconvenience.

9.There is no cavil to the fact that the law on the point, involved in this petition, requires further clarity as there is no specific provision that when an accused went into hiding upon conclusion of trial, then the evidence produced and recorded in his presence would be sufficient or the trial would be conducted denovo upon his re-arrest, however, keeping in view the admitted position that not only the entire evidence was recorded in presence of the petitioner rather his statement under Section 342 Cr.P.C was

also recorded and the trial had practically concluded, only waiting for delivery of final judgment, but before the said could be announced, the petitioner went into hiding, thus, this court deems it appropriate to observe that providing second opportunity to the accused to cross-examine the entire prosecution witnesses by holding a denovo trial would not be in the interest of justice and fair play and at the most the new facts after his re-arrest and submission of

supplementary challan against the petitioner could be covered by recording supplementary statement of accused under Section 342 Cr.P.C.

10.In view of the foregoing reasons, the instant criminal revision bearing No. 02- A/2025 is allowed by setting aside the impugned order dated 21.12.2024 and resultantly application of the petitioner for requisitioning the record for hearing the full arguments stands accepted.

11.So far as connected Cr.Revision No.

11-A/2025 filed by the complainant is concerned, as the learned trial court while

passing the impugned order dated

23.10.2024 has rightly exercised its jurisdiction by granting ad-interim pre-arrest bail, to which no except could be taken, hence, the same is dismissed with direction to the learned trial court to decide the same upon its own merits, independently.

Announced:

JUDGE

/*Saif. SCS*/