By virtue of Article 47 of the Qanun-e-Shahadat Order, 1984, 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 the same in a subsequent judicial proceeding or at 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. The aforesaid article has been inserted in the Statute to meet such like situation as in this case where both the eye witnesses died before they could appear before the learned trial court during the trial of the appellant. Similarly, section 512 of the Code of Criminal Procedure, 1898 provides three eventualities for preservation and transfer of statements of witnesses during the abscondence of accused i.e. 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. Section 512 of the Code of Criminal Procedure, 1898 provides a special rule of evidence which is an exception to the general rule that all evidence in a criminal case shall be taken in the presence of the accused or his counsel when his personal appearance is dispensed with. The basic object of the section 512 of the Code of Criminal Procedure, 1898 is to exclude the possibility of loss of evidence at the time the accused is arrested and such statements recorded during the proceedings under section 512 of the Code of Criminal Procedure, 1898 are considered as substantive evidence.
The bare reading of the section 512 of the Code of Criminal Procedure, 1898 provides that the witnesses produced on behalf of the prosecution may be examined in the absence of the absconding accused and such deposition may, on the arrest of such person, be given in evidence against him during the trial for the offence with which he is charged, if the deponent is dead. In this case, both the eye witnesses namely Ghulam Muhammad and Mst. Begum Jan are proved to have died prior to the recording of their statements during the trial of the appellant after his arrest and their depositions, as recorded by the learned trial court during the proceedings under section 512 of the Code of Criminal Procedure, 1898 are admissible and relevant to prove the facts in issue.
Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons.
According to column No.8 of the inquest report at the time of preparation of the same, the eyes of the deceased were also closed and had the deceased met his death in absence of the witnesses, then his eyes would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes of the deceased further proves the prosecution's version regarding the presence of the witnesses at the place at the time of occurrence.
Article 21 of the Qanun-e-Shahadat, 1984 provides that the fact that any person accused of a crime absconded after the same is a relevant fact to prove the fact in issue.This conduct of the appellant to evade the law after the occurrence is a further indicator pointing towards of his guilt when considered in conjunction with the ocular evidence in the case.
Murder Reference No.94 of 2017.
(The State Vs. Sharaaf Khan)
Criminal Appeal No. 1129-J of 2017
(Sharaaf Khan Vs. The State)
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