Fazal Manan Vs The State and another

v

JUDGMENT SHEET

PESHAWAR HIG H COURT. PESHAWAR

JUDICIAL DEPARTMENT

Criminal Revision No.3 L-P/2024

Bazal Manan Vs The State and another

Date of hearin gz 22.04.2024

Mr. Qaiser Zaman, advocate for the petitioner. Mr' Yousaf shah Mohmand, advocate for respondent No.2 on video link.

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JUDGEMBNT

IJAZ ANWAR. J: This is a criminal revision petitioner filed by petitioner under section 439 Cr.P.C against the order of learned Additional Sessions Judge-I, Takht Bhai dated 16.12.2023 whereby the application of respondent for transposition of statements of PWs recorded under section 512 Cr.P.C was allowed

2.Petitioner is an accused, charged in case FIR No. 534 dated 22.10.1994 under section 3021324134 PPC 4( of Police Station Lund Khwar. Initially, challan under section 512 C1.P.C was submitted against him and other co-accused before the trial court wherein evidence was

recorded in their absence u/s 512 Cr.P.C and on its conclusion, all accused including petitioner herein were declared proclaimed offenders by the trial court vide order dated 14.5.1997. After, arrest/appearance of petitioner before the court, supplementary challan was submitted and charge was framed against him to which he claimed trial. During trial, counsel for the complainant/respondent submitted an application for transposition of statements of the dead witresses recorded r.r/s 512 Cr.P.C which was allowed vide order dated 16.12.2023. Hence this revision petition.

3 Arguments of counsel for the parties heard and record perused

4 Perusal of record would reveal that the instant occulrence pertains to the year 1994. Soon after the occurrence the petitioner/accused went into hiding and after fulfillment of legal requirement u/s 204 as well as 87 Cr.P.C when the accused could not be arrested/ they did not surrender, investigation was completed and challan n/s 512 C|.P.C was submitted before the Court during which the statements of PWs were recorded and

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on completion of trial under section 512 Cr.P.C, the accused were declared proclaimed offenders.

5 Section 5I2 of the Criminal Procedure Code, 1898 empowers the trial court to record statements of PWs in absence of an accused person in order to preserve such evidence to be used against the absconding accused at a later stage after his arrest. The same being relevant is reproduced as under:- "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 (t on the inquiry into, or 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' expanse or inconvenience which, under the circumstancers of the case, would be unreasonable,

(2)Record of evidence when offender unknown : if it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court may direct that any Magistrate of the X'irst Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may. be given in evidence against any person who is subsequently accused of the offence, if

the deponent is dead or -incapable of giving evidence or beyond the Iimits of Pakistan."

6 Similarly, Article 47 of the Qanon-e- Shahadat Order, 1984 provides for relevancy of earlier recorded evidence in subsequent proceedings. The same is reproduced as under:-

tt47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated: Evidence given by a witness in 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 proceeding, 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 unreasonable 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- 4t examine I the questions in issue were substantially the same in the first as in the second / proceeding."

7 The Hon'ble Supreme Court of Pakistan in the case reported as Arbab Tasleem vs. The State (PLD 2010 S.C 642). has held as under:-

v' toArticle 47 visualize relevancy and significance to the evidence of a witness in a judicial proceeding or before any person authorized by law to take evidence, when the said witness is dead or cannot be found or is incapable of giving evidence, subject to the conditions, provided in the proviso to the said Article, that the proceedings were between the same parties or their representative-in-interest, which for the purpose of criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the said Article; when the adverse party in the first proceedings had the right and opportunity to cross-examinel the questions in issue were substantially the same in the first as in the second proceeding. Article 131 of the Qanun-e- Shahadat, 1984 leaves at the discretion of the Judge to decide admissibility of any evidence and for this purpose gives wide powers to him subject to the language of this Article. Moreso, as there is no provision in the Qanun-e- Shahdat Order which specifically makes such piece of evidence inadmissible."

8 In this petition, the main ground taken by the petitioner/accused is that he cannot be deprived of the right to cross exarnine the said wifiresses and that the trial court without any inquiry regarding the death of the PWs has accepted the application of the o complainant/respondent for transposition of their statements earlier recorded. It is noted that the said witnesses appeared before the court back in the yetr 1994195 for evidence in trial under section 512 Cr.P.C,

however, it was petitioner's own failure to surrender and defend his case by cross-examining those witnesses.

So far as the non-conduct of inquiry regarding the death or otherwise of those witnesses is concerned, no doubt, the trial court failed to make any effort qua such aspect, however it is also a fact based on record that during the period when the witnesses appeared for recording their evidence u/s 512 Cr.P.C, all the three witnesses were in their 50s/60s and by now almost 29130 years have been passed and in such state of affairs, the application of the complainant/respondent for transposition of their statements on the ground of they being dead cannot be believed to be based on falsehood.

9 It is also observed that the application for the purpose of transposition was submitted before the trial court on 21.10.2023 copy whereof was given to counsel for the present petitioner and was adjourned for ( arguments on 04.11.2023. On the said date, the case was further adjourned to 25J12023 for arguments, again adjourne d to 29.11.2013 and then to 16.12.2023. During this period, the counsel for petitioner did not raise any

v objection to the said application. On 16.12.2023, the counsel for petitioner submitted application for exemption of petitioner from attendance which is sufficient proof of his (counsel for petitioner) attendance before the Court and on that day too, no objection was raised to the transposition of the statements of dead PWs.

The matter has already been delayed for decades and cannot be allowed to be lingered on further.

10.In view of what has been discussed above, the impugned order dated 16.12.2023 of the learned trial court allowing the application of the respondent qua transposition of statements of dead PWs to the present trial of petitioner needs no interference by this Court.

Resultantly, this revision petition is

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Senior Puisne Judge Announced Dated. 22.04.2024

'Amix'