2013 P Cr. L J 282
[TRANSFER OF STATEMENT OF COMPLAINANT FROM A PREVIOUS TRIAL TO A FRESH (PRESENT) TRIAL]
[Peshawar]
Before Mrs. Irshad Qaiser, J
AMJID ALI and another---Petitioners
Versus
The STATE and another---Respondents
Criminal Revision No.65-P of 2012, decided on 27th July, 2012.
Criminal Procedure Code (V of 1898)---
----Ss. 512 & 344---Qanun-e-Shahadat (10 of 1984), Art. 47---Transfer of statement of complainant from a previous trial to a fresh (present) trial---Scope---Danger and apprehension to life of complainant---Effect---Power to postpone or adjourn proceedings---Scope---Complainant had charged accused persons (petitioners) and co-accused for committing the murder of his brother---Accused persons absconded while trial of co-accused ended with his acquittal---Accused persons were subsequently arrested and faced trial but by that time complainant, himself had absconded due to his involvement in a murder case---Prosecution submitted application for transfer of statement of complainant recorded in the trial of the co-accused to the file of accused persons---Trial Court allowed said application---Contentions of accused persons were that they had no opportunity to cross-examine the complainant when his statement was recorded in the trial of the co-accused; that complainant himself was flouting the law as he was an absconder, and that in view of Art.47 of Qanun-e-Shahadat 1984, statement of complainant had no relevancy and could not be used against them as they had no opportunity of cross-examination of witnesses during the trial of co-accused---Validity---Section 512, Cr.P.C. provided three eventualities for preservation and transfer of statement of witnesses, during abscondence of accused, one of which was where the attendance of prosecution witness could not be procured without an amount of delay, expense or inconvenience---Complainant in the present case was charged for committing murder due to a blood-feud, which meant that there was danger and apprehension to his life to appear in public places and in view of the law and order situation in the country, there was possibility that he might have been advised not to attend court and record statement at the cost of his life---Postponing or adjourning proceedings of trial under S.344, Cr.P.C., to procure attendance of complainant would cause great inconvenience to accused persons, who were behind bars---Record showed that complainant regularly attended court during trial of co-accused and his statements were recorded twice but now due to unavoidable circumstances, he was unable to attend court and record his statement---Trial Court had rightly passed an order for the transfer of statement of complainant---Revision petition was dismissed, in circumstances.
2003 YLR 919 and PLD 2010 Pesh. 19 ref.
PLD 2010 SC 642 rel.
Ishtiaq Ibrahim for Petitioner.
Rehan Malik Awan for the State.
Khawaja Muhammad Khan for Respondent No.2.
Date of hearing: 27th July, 2012.
JUDGMENT
MRS. IRSHAD QAISER, J.---This judgment shall dispose of Criminal Revision No.65-P of 2012 filed by Amjad Ali and another against the order/judgment of learned Additional Sessions Judge-I, Lahor, District Swabi dated 5-5-2012 vide which the learned Court allowed the application filed by respondent for transfer of statement of complainant Zafar Ali recorded as P.W.9 from the previous trial to the trial of the present accused.
2. The breviate of the instant matter is that complainant Zafar Ali had charged acquitted accused Jamil Khan, present petitioner Amjad Ali and Saleem for committing Qatl-e-amd of his brother Akbar Ali by giving him dagger blows vide case F.I.R. No.285 dated 23-5-2009 under section 302/34, P.P.C. registered at Police Station Yar Hussain, District Swabi wherein accused Jamil Khan and Saleem were charged for caught holding of deceased Akbar Ali while present accused petitioner Amjad Ali is charged for stabbing/giving blows of dagger to the deceased who received serious injuries and on his way to hospital succumbed to his injuries.
3. After completion of investigation, challan against accused for proceeding under section 512, Cr.P.C. was submitted in the trial Court. On the conclusion of prosecution evidence within the meaning of section 512, Cr.P.C., the accused along with present petitioners were declared as proclaimed offenders vide order of trial Court dated 25-1-2010 in Sessions Case No. 223/SC of 2009. On 1-9-2010 accused Jamil Khan was arrested and supplementary challan was submitted in the trial Court and after the completion of trial accused Jamil Khan was acquitted by learned Additional Sessions Judge, Lahor vide its judgment dated 17-3-2011.
4. Record reveals that during proceedings under section 512, Cr.P.C. against all the accused, statement of complainant Zafar Ali was recorded on 24-11-2009 as P.W.1. During the trial of acquitted accused Jamil Khan, he appeared in the Court and his statement was recorded as P.W.9 on 5-1-2011. He was cross-examined in detail by learned counsel for accused Jamil. Petitioner Amjad Ali and his brother Saleem were subsequently arrested and are facing their trial before Additional Sessions Judge, Lahor. During the course of trial when P.Ws. including complainant Zafar Ali were summoned for 19-1-2012, it was reported that complainant has gone into hiding in a case of murder registered vide F.I.R. No.907 dated 28-12-2011. On 26-4-2012 an application was submitted by the prosecution for transfer of statement of complainant recorded in the previous trial to the file of trial of accused. After hearing the arguments, the learned trial Court vide order (dated 5-5-2012 allowed the petition and office was directed to place on file copy of the statement of complainant Zafar Ali recorded as P.W.9 in the previous trial in Session Case No.150/SC of 2010 to the record of this case and case was fixed for recording statement of accused.
5. Feeling aggrieved of the impugned order, petitioners/accused Amjad Ali and Saleem filed present Criminal Revision and assailed the impugned order on the ground that the judgment/order of the learned trial Court is against law and facts on the record, hence liable to be reversed. That the complainant Zafar Ali whose statement recorded in previous trial is now absconder in a murder case vide F.I.R. No.907 dated 28-12-2011 under section 302/34, P.P.C. of Police Station Yar Hussain but the learned trial Court while passing the impugned order has not appreciated the facts and circumstances of the case. That petitioners had no opportunity to cross-examine the complainant when his statement was recorded in previous trial and in this way petitioners have been deprived of their valuable rights of cross examination while the complainant himself is flouting the law as he is absconder. That the provisions of section 512, Cr.P.C. are not applicable to the present case. He further contended that in view of Article 47 of Qanun-e-Shahadat Order 1984, the statement of P.W. Zafar Ali has no relevancy and cannot be used against accused as they had no opportunity of cross-examination the witness during earlier proceedings. He relied on 2003 YLR page 919.
6. On the other hand, the learned counsel appearing on behalf of complainant and learned A.A.-G. have opposed the application and placed their reliance on PLD 2010 Peshawar page 19 and PLD 2010 Supreme Court 642 and contended that the order passed by learned trial Court is correct and in accordance with law and needs no interference.
7. I have heard and considered the rival contention of the learned counsel for the parties and have examined the record. Now the question is that whether the statement of complainant Zafar which were recorded for two times on 24-11-2009 and 5-1-2011 during the course of abscodence of present petitioners can be transferred when he is fugitive from law and is absconder in a murder case. With advantage it would be proper to reproduce relevant provisions of section 512, Cr.P.C.
"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, 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, expense or inconvenience which, under the circumstances of the case, would be unreasonable."
Section 512, Cr.P.C. is meant for preservation of evidence for eventuality where statutory protection is given to deposition of such witnesses who may not be alive at the trial when accused appeared for trial, or they have become incapable of giving evidence or their attendance cannot be procured without an amount of delay, expense or inconvenience. Three eventualities are given for preservation and transfer of the statement of P.Ws. recorded under section 512, Cr.P.C. during the abscondence of accused. From perusal of whole record, I am of the opinion that the case of the respondent falls under third eventuality/category i.e. when the attendance of P.W. cannot be procured without an amount of delay, expense or inconvenience. Present complainant Zafar Ali is charged for committing the murder of one Ahmad Ali son of the complainant Wasil Khan in case F.I.R. No.907 dated 28-12-2011 under section 302/34, P.P.C. wherein it is clearly mentioned that the motive of the occurrence is blood-feud enmity between the parties. It means that there is danger and apprehension to his life to appear in public places. Keeping in view the law and order situation in the area, there are possibility that he may have been advised not to attend the court and record the statement at the cost of his life and due to this reason, the prosecution could not procure the attendance of complainant without an amount of delay and if the prosecution is allowed to exercise its power to postpone or adjourn proceeding of the trial of accused under section 344, Cr.P.C. then it would definitely cause great inconvenience to the accused who are behind the bars. For ready reference, section 344, Cr.P.C. is reproduced:--
"344. Power to postpone or adjourn proceedings.---(1) If from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody."
Record shows that complainant used to attend the Court regularly during the abscondence of all the accused as well as during the trial of acquitted accused and his statements were recorded for two times and now due to unavoidable circumstances, he is unable to attend the Court and record his statement.
8. There is hardly any need to observe that law is a living organ and it is the duty of the Court to adopt a realistic and pragmatic approach for its application, looking in the peculiar facts and circumstances of each case. Keeping in view the above facts, I hold that learned trial Court was right to pass an order for the transfer of statement of complainant.
9. So far the objection of the learned counsel for the petitioners that by transferring the statement of complainant on present trial of accused, the accused would suffer a lot as they will be deprived of their valuable rights of cross-examination of the witness is concerned, reliance is placed on PLD 2010 SC page 642 wherein it is held: evidentiary value-statement of eye-witness in the form of examination-in-chief, though found legal and admissible in evidence, yet its evidentiary value could not be equated with such statement subject to cross-examination, therefore, for giving weight to the statement of such witness, it would have to be seen whether the examination-in-chief intrinsically rang true and whether or not the same was supported by circumstantial evidence if such statement is supported by independent evidence in the shape of any circumstantial or corroborative it would be good piece of evidence.
Keeping in view the above facts and circumstances of case, the criminal revision being without any substance is hereby dismissed.
MWA/268/P Petition dismissed.
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