Faisal Zaman vs State Ss — 2025 PCrLJ 1978 PESHAWAR-HIGH-COURT

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Faisal Zaman VS State Ss. 342 & 512---Penal Code (XLV of 1860), Ss. 302, 324, 427 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Recording of evidence in absence of accused---Scope---Application for requisitioning the record, dismissal of---Legality---Petitioner along with others, named in the FIR, had been charged in the crime for murder of deceased---After arrest of the petitioner when challan was submitted before the Trial Court, trial commenced, evidence of the prosecution witnesses were recorded, followed by examination of the petitioner under S. 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, another FIR was registered against him---Co-accused of the petitioner after a full dressed trial were convicted and sentenced to life term imprisonment etc. vide judgment dated 12.08.2023---Upon their appeal to the High Court, their convictions and sentences were set-aside and they were acquitted vide judgment dated 10.09.2024---After acquittal of co-accused, the petitioner surrendered himself before the Court of law and obtained ad-interim bail from the Court---Petitioner's application for requisitioning the record and arguments on full case was turned down---Validity---Plain reading of S. 512,Cr.P.C., showed that when a person had absconded and there was no immediate prospect of his arrest and the offence for which he was charged was punishable with death or imprisonment for life, the Court might examine the witness produced by the prosecution and record his deposition and when the accused was arrested, then at the stage of trial, if any of such witnesses were not available being dead or could not be found or were incapable of giving evidence or their attendance could not be obtained without an amount of delay, expense or inconvenience, and when the matter was between the same party, then the statements recorded under S. 512,Cr.P.C., may be accepted in the evidence---If the situation of present case was taken in juxtaposition with the ingredients of S. 512,Cr.P.C., the same did 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 S. 342,Cr.P.C and thereafter he had gone into hiding whereas the purpose of S.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---No cavil to the fact that the law on the point, involved in this petition, required further clarity as there was 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 de novo 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 S.342, Cr.P.C., was also recorded and the trial had practically concluded, and only wait was for delivery of final judgment, but before the said could be announced, the petitioner went into hiding---Thus, the High Court deemed it appropriate to observe that providing second opportunity to the accused to cross-examine the entire prosecution witnesses by holding a de novo trial would not be in the interest of justice and fair play and at the most the new facts after re-arrest and submission of his supplementary challan against the petitioner could be covered by recording supplementary statement of accused under S. 342, Cr.P.C.---Petition was allowed, accordingly.

Faisal Zaman vs State Ss — 2025 PCrLJ 1978 PESHAWAR-HIGH-COURT

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