‑Evidence recorded in absence of accused‑‑‑Using of such evidence against the accused‑‑

 2000 Y L R 2330

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 512‑‑‑Evidence recorded in absence of accused‑‑‑Using of such evidence against the accused‑‑‑Scope‑‑‑Where the deponent was dead or was incapable of giving evidence‑ or his attendance could not be procured without any amount of delay, expense or inconvenience, only then depositions recorded under S.512, Cr. P. C. could be used against the accused/absconders on their arrest or as per S.512(2), Cr. P. C. thereof against the person or persons who may subsequently be accused of the offence.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 512(2)‑‑‑Recording of evidence in absence of accused‑‑‑Provisions of S.512, Cr. P. C.‑‑‑Applicability‑‑‑Procedure pres­cribed under S.512, Cr.P. C. could be applied only to cases of great gravity and could be put in force only under an order of High Court‑‑‑Mere delay, expense or inconvenience in obtaining the presence of the deponent was not a sufficient ground for accepting such deposition as evidence against the person subsequently accused‑‑‑Statement recorded under S.512, Cr. P. C. could not be used against such person who before recording of the same had neither absconded nor were the persons unknown.

(c) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 353‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 133‑‑‑Evidence, recording of‑‑‑Right of cross‑examination of the accused ‑‑‑Scope‑‑­The evidence of witnesses in criminal cases had to be recorded in presence of accused as the same had been provided under S.353, Cr. P. C. and the accused had a right of cross­examination under Art. 133, Qanun‑e­Shahadat, 1984.

(d) Criminal trial‑‑‑

‑‑‑‑ Requirement of law was that conviction or acquittal could only be passed when all mandatory provisions of law were complied with.

(e) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.353 & 512‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 133‑‑‑Recording of evidence in absence of accused‑‑‑Object was to procure and preserve evidence in connection with an offence so that when accused is subsequently apprehended or found and put on trial, such accused may not be able to take advantage of his abscondence or the evidence by lapse of time is not lost or disappeared‑‑‑Recording of such evidence neither facilitates the Court to bypass or ignore the mandatory provisions of law contained in S.353, Cr. P. C. nor the same empowers the Court to devise its own procedure qua examination of witnesses in disregard of the provision of Art. 133 of Qanun‑e‑Shahadat, 1984.

(f) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 537‑‑‑Curable defect in trial‑‑­Jurisdiction of Trial Court‑‑‑Scope‑‑‑Defects of mere formal character arising from inadvertence can be cured under the provision of S.537, Cr. P. C. and it is never intended to allow a Court to contravene or disobey express provisions of law.