2012 P Cr. L J 1308
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
KHALIL AHMED and others ---Appellants
Versus
THE STATE---Respondent
Criminal (ATA) Appeals Nos. 76 and 77 of 2009, decided on 11th April, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 353 & 512--- Qanun -e-Shahadat (10 of 1984), Art. 47 ---Penal Code (XLV of 1860), Ss.
365-A & 109--- Anti-Terrorism Act (XXVII of 1997), S. 7(e) ---Kidnapping or abduction for
extorting propert y, valuable property, etc., abetment, kidnapping for ransom or hostage -taking ---
Evidence to be taken in presence of accused ---Scope ---Recording of evidence in absence of
accused ---Scope---Challan of the case was submitted before the Trial Court against the accused
persons and material prosecution witnesses were examined ---Subsequently one co- accused was
arrested and witnesses who were examined earlier were recalled for cross -examination by the
said co -accused on the basis of their examination- in-chief which they had already recorded
earlier ---Section 353, Cr.P.C. provided that examination- in-chief of the witness must be carried
out in the presence of the accused or his pleader ---Mere cross -examination of the witnesses in
the presence of the accused was not s ufficient -Recording of evidence in derogation of such
mandatory rule of law vitiated the trial---Section 512, Cr.P.C. and Article 47 of Qanun -e-
Shahadat, 1984, demonstrated that Trial Court was empowered to believe the evidence of a
witness recorded in the absence of accused, provided on the arrest of the accused, such witness
was dead or incapable of giving evidence or his attendance could not be procured without an amount of delay or expense ---In the present case, witnesses were produced and co -accused was
allowed to cross -examine them on the basis of their examination -in-chief, which they had
already recorded in the first round of trial, which was a violation of the rule enacted under S.353,
Cr.P.C.---Prosecution witnesses must have been examined again in his presence after the arrest
of the co -accused ---Procedure adopted by the Trial Court was illegal and the conviction and
sentence awarded to the accused persons and co -accused on the basis of such evidence
was not sustainable ---Trial Cour t had also made reliance on details of call locations issued by
a foreign company, which was never exhibited before the Trial Court and the same caused
serious prejudice to the accused persons and co- accused ---Appeals were partly allowed,
impugned judgment was set aside, and the case was remanded to the Trial Court for re-examining the witnesses.
Sher Muhammad alias Shera v. The State 1997 PCr.LJ 259 rel.
(b) Administration of justice ---
---Disposal of case---Scope --- Speedy disposal of case should not be allowed to surpass safe
administration of justice.
H. Shakil Ahmed for Appellants (in Criminal (ATA) Appeal No.76 of 2009).
Muhammad Riaz Ahmed for Appellant (in Criminal (ATA) Appeal No.77 of 2009).
Muhammad Wassay Tareen, P. -G. for the State.
Date of hearing: 27th March, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---These appeals are presented against
the judgment dated 7th M arch, 2009, passed by the Special Judge, Anti terrorism Court, Mekran
at Turbat, whereby appellants Khalil Ahmed, Muhammad Ali alias Heera and Mumtaz Brohi
were convicted and sentenced in the following manner: --
"Accused Muhammad Ali alias Heera and Mum taz Brohi:
under section 365- A of the P.P.C. read with section 7(e) of the Anti -terrorism Act, 1997
to suffer life imprisonment and forfeiture of their all movable and immovable property in favour
of the State, with the benefit of section 382- B of the C r.P.C.
Accused Khalil Ahmed:
under section 109 of the P.P.C. to suffer life imprisonment and forfeiture of his all
movable and immovable property in favour of the State, with the benefit of section 382- B, of the
Cr.P.C."
2. Brief facts of the case are that on 26th March, 2006, a case vide F.I.R. No.16 of 2006 was
registered at police station Gwadar on the report of complainant Mir Rashid, under section
365 read with section 34 of the P.P.C., wherein he alleged that on 19th March, 2006 at about 2-00 p.m., his brother Zahid along with one Hafiz proceeded from Gwadar to Karachi, in his Corolla car, bearing Registration No.AHI -858, however, it has come to his knowledge that they
could not reach Karachi, at which he and others started search and lodged a complaint at police
station, Gwadar on 21st March, 2006. It was further alleged by the complainant that he received a satellite phone call and talked to his brother Zahid, who told him that they had been abducted by some unknown accused persons, however, they are save. Next morning i.e. 23rd March, 2006 at about 11- 00 a.m., he received another call from his brother from the same satellite mobile that
the abductors are demanding an amount of Rs.5 Crores as ransom. The complainant also alleged that, thereafter, one of the abductors talked with him and demanded to arrange the payment of
ransom within a period of three days and that in case of failure, they would sell the abductees to another party and since he is a poor person, therefore, he told the abductors that he could not arrange the demanded amount. Thereafter, they abductors used to call him for the
purpose, thus, the aforesaid case was registered.
3. After registration of the F.I.R., investigation of the case was carried out by P .W.10 Abdul
Sattar, IP/SHO, who arrested co -accused Tabish on 18th April, 2006, got recorded his
confessional statement under section 164 of the Cr.P.C. through Judicial Magistrate concerned,
who also involved accused Muhammad Ali alias Heera in the instant case, thus, accused Muhammad Ali alias Heera was arrested by Turbat police, whose custody was handed over to him. The accused persons were interrogated and during course whereof, accused Khalil, who happens to be the nephew of accused Muhammad Ali alias Heera, was also arrested and whose confessional statement was also got recorded through Judicial Magistrate concerned. He also recovered satellite phone mobile and other articles used in the commission of the offence on the disclosure of accused persons and after completion of the investigation, incomplete challan Exh.P/10- A was prepared against accused persons Tabish, Khalil Ahmed and Muhammad Ali.
4. Subsequently, the investigation of the case was transferred from Gwadar Police Station to
Pasni police s tation on the ground of jurisdiction. On 25th September, 2006, abductee Zahid
came to police station and recorded his statement before P.W.12 Ahmed Ali, SHO/IO, at which
another incomplete challan was prepared. Thereafter, on 9th June, 2007, abductee Hafee z-ur-
Rehman also came to police station, whose statement was recorded and another incomplete
challan was prepared.
5. After recovery of the abductees, further investigation of the case was commenced by
P.W.11 Muhammad Arif, SI/SHO, who carried out invest igation from accused Mumtaz Brohi in
the premises of district jail, arrested in another case and on completion of the investigation, he
prepared incomplete challan Exh.P/11- A to his extent.
6. On the stated allegation, a formal charge was framed and read over to the appellants, to
which they did not plead guilty and claimed trial, whereas the charge was presumed to be denied
by the absconding accused persons. At the trial, the prosecution examined as many as 12
witnesses. Thereafter, the appellants were examined under section 342 of the Cr.P.C., wherein they once again denied the prosecution's accusation, however, they did not opt to record their statements on oath as envisaged under section 340(2) of the Cr.P.C., nor produced any
witness in their defence. On conclusion of the trial, the appellants were convicted and sentenced, as mentioned and detailed above.
7. We have heard learned counsel for the parties and also per used the entire evidence with
their valuable assistance.
8. At the very outset, we have noted that initially challan of the case was submitted before
the Anti -Terrorism Court against the accused Muhammad Ali, Khalil and Tabish and some of the
material pr osecution witnesses were examined. However, after arrest of convict/appellant
Mumtaz Brohi, P.Ws. Abdul Rasheed, Muhammad Ilyas, Shaukat Abbas and Zahid Kareem
were recalled and appellant Mumtaz Brohi was allowed to cross -examine them on the basis
of their examination -in-chief, which they had already recorded in the first round of trial against
co-accused.
9. It is basic principle of administration of criminal justice that the examination of the
witnesses must be carried out in presence of accuse d or his pleader, as provided under section
353 of the Cr.P.C., which speaks as under: --
"353. Evidence to be taken in presence of accused. Except as otherwise expressly
provided, all evidence taken under [Chapters XX, XXI, XXII and XXIIA] shall be tak en in the
presence of the accused, or, when his personal attendance is dispensed with, in presence of his
pleader."
10. A bare perusal of the above provisions of law clearly demonstrates that the evidence of
the witness has to be recorded in presence of accused and mere cross -examination in the
presence of accused is not sufficient. An anxiety of speedy disposal of case should not be
allowed to surpass safe administration of justice, because the rule enacted in the aforesaid section is imperative and reco rding of evidence in derogation of this mandatory rule of law vitiate the
trial.
11. So far as the contention of learned PG regarding the powers of the Court under section
512 of the Cr.P.C. and Article 47 of the Qanun -e-Shahadat, Order 1984 is concerned, before
dilating upon the contention, for better understanding, it would be advantageous to reproduce
both the provisions herein below, which speak 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 on the inquiry into, or trial for the offence with which he is charged, if the deponent is dead or inc apable 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.
(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 unknown,
the High Court may direct that any Magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence. Any deposition 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 limits of Pakistan."
"47. Relevancy of certain evidence for proving, i n 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 s tage 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 -examine;
the question in issue were substantially the same in the first as in the second proceeding."
12. Both the provisions clearly demonstrate that the trial Court is empowered to believe the
evidence of a witness recorded in the absence of accused provided on the arrest of accused such
witness is dead or incapable of giving evidence or his attendance cannot be procured without an
amount of delay or expense. In the instant case, the aforesaid witnesses were produced and appellant Mumtaz Brohi was allowed to cross -examine them on the basis of their examination -
in-chief, which they had already recorded in firs t round of the trial, which is flagrant violation of
the rule enacted under section 353 of the Cr.P.C. If law provides a particular thing to be done in a
particular manner, then it should be done in that manner. After arrest of the appellant, the
prosecuti on witnesses must be examined again in his presence. The procedure adopted by the
trial Court is illegal and the conviction and sentence awarded to the appellants on the basis
of such evidence is not sustainable by holding this view, we are forti fied from the judgment of
"Sher Muhammad alias Shera v. The State" reported in 1997 PCr.LJ 259.
13. Besides the aforesaid illegality committed by the trial Court, the conviction awarded to
the appellants is also not sustainable for the reason that the t rial Court, while passing the
conviction judgment, had also made reliance upon the list of updated call details geographical
location issued by Fort Info Technology FZC, Dubai UAE, which was never exhibited before the trial Court and the same has caused serious prejudice to the appellants.
For the aforesaid reasons, we are inclined to partly allow these appeals, set aside the
impugned judgment dated 7th March, 2009, passed by the Special Judge, Anti -terrorism Court,
Mekran at Turbat and remand the case t o the trial Court for re -examining the aforesaid witnesses.
Both the parties are also at liberty to lead additional evidence, if so desire.
M.W.A./26/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.