Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH
JUDICIAL DEPARTMENT
[Link] No. 02-A/2025
JUDGMENT
Date of hearing……………….17.03.2025…………………………...

Petitioner (Faisal Zaman) By M/s. Fazlullah Khan and Humayun

Khan, Advocates.

Respondent. (State) By Arbab Ifrahim, Additional Advocate

General and (Complainant) By Mr. Muhammad
Arshad Khan Tanoli, Advocate.
*******************

MUHAMMAD FAHEEM WALI, J.- Through

this single judgment, I propose to decide this

([Link] No. 02-A/2025) and the

connected [Link] No. 11-A/2025 titled

“Naveed Iqbal Vs. Faisal Zaman & another”

as both these revisions have arisen out of

same FIR bearing No. 07 dated 14.09.2020

registered under Sections 302 / 427 / 324 / 34

PPC read with Sections 2 (ii) / 7 of the Anti-

Terrorism Act, 1997 at Police Station CTD

Hazara Division, Abbottabad.

2. Precisely stated facts of the case are

that petitioner (Faisal Zaman) alongwith

others, named in the FIR, have been charged

in the aforesaid crime for murder of deceased

(1) Tahir Iqbal and (2) Gul Nawaz. After arrest

of the petitioner when challan was submitted

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before the learned trial court, trial

commenced, evidence of the prosecution

witnesses were recorded, followed by

examination of the petitioner under Section

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, FIR No. 277 dated

22.04.2022 was also registered against him at

Police Station East Cantt Peshawar. His co-

accused namely, (1) Sher Ghazi, (2) Rehmat

Ullah, (3) Sher Ali and (4) Farman Ullah after

a full dressed trial were convicted and

sentenced to life term imprisonment etc vide

judgment dated 12.08.2023. Upon their

appeal to this court, their convictions and

sentences were set-aside and they were

acquitted vide judgment dated 10.09.2024.

Now after acquittal of co-accused, the

petitioner surrendered himself before the

court of law and obtained ad-interim bail from

the court of learned Additional Sessions

Judge-IV, Haripur vide order dated

23.10.2024, hence, the complainant (Naveed

 3

Iqbal) filed the connected [Link] No.

11-A/2025 for recalling of the ibid order while

the petitioner filed the instant criminal revision

against the order dated 21.12.2024 whereby

his petition for requisitioning of record and

arguments on full case was turned down.

3. I have heard arguments of learned

counsel for the parties as well as learned

Additional Advocate General and gone

through the record.

4. Perusal of record reveals that after

nomination of the petitioner in a crime he

obtained transitory as well as bail before

arrest from different courts of law and when

taken into custody upon rejection of his bail

before arrest vide order dated 12.02.2021, he

applied to the competent court of jurisdiction

for regular bail which was declined to him.

Thereafter, he moved post arrest bail before

this court, which was disposed of vide order

dated 11.03.2021 with direction to the learned

trial court to conclude the trial within three

(03) months with further clarification that in

case there was any fault on part of

prosecution, the petitioner would be deemed

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to be admitted to bail. After completion of the

above period when the trial could not be

concluded within the stipulated period, the

petitioner again moved this court for his

release on bail, which was also disposed of

with direction to conclude the trial within

further two (02) months vide order dated

01.10.2021. The petitioner then upon the

production order issued by the Speaker of the

Provincial Assembly when produced for

Assembly Session, went into hiding, hence,

another FIR bearing No. 277 was registered

against him at Police Station East Cantt

Peshawar. It is pertinent to mention here that

the entire trial had been conducted in

presence of the petitioner, he was having a

opportunity to cross-examine the prosecution

witnesses and even his statement under

Section 342 Cr.P.C had been recorded when

he went into hiding and was proceeded

against under Section 512 Cr.P.C.

5. Now the moot point for consideration

before the court is that whether after arrest of

the petitioner and submission of

supplementary challan against him, the

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evidence preserved under Section 512 Cr.P.C

would be sufficient to decide the fate of his

case, particularly when entire evidence was

recorded in his presence, or the trial would be

conducted denovo?

6. In order to meet the above query,

this court deems it appropriate to reproduce

Section 512 Cr.P.C for ready reference: -

“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, of 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,
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under the circumstances of the

case, would be unreasonable.”

7. A plain reading of the above quoted

provision shows that when a person has

absconded and there is no immediate

prospect of his arrest and the offence for

which he is charged is punishable with death

or imprisonment for life, the Court may

examine the witness produced by the

prosecution and record his deposition and

when the accused is arrested, then at the

stage of trial, if any of such witnesses are not

available being dead or cannot be found or is

incapable of giving evidence or his

attendance cannot be obtained without an

amount of delay, expense or inconvenience,

and when the matter is between the same

party, then the statements recorded under

Section 512 Cr.P.C may be accepted in the

evidence.

8. If the situation of present case is

taken in juxtaposition with the ingredients of

Section 512 Cr.P.C, the same does not tally

each other as in the present case the

petitioner went into hiding at the time when all

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the evidence was recorded in his presence

rather his statement was recorded under

Section 342 Cr.P.C and thereafter he had

gone into hiding whereas the purpose of

Section 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.

9. There is no cavil to the fact that the

law on the point, involved in this petition,

requires further clarity as there is 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 denovo 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 Section 342 Cr.P.C was

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also recorded and the trial had practically

concluded, only waiting for delivery of final

judgment, but before the said could be

announced, the petitioner went into hiding,

thus, this court deems it appropriate to

observe that providing second opportunity to

the accused to cross-examine the entire

prosecution witnesses by holding a denovo

trial would not be in the interest of justice and

fair play and at the most the new facts after

his re-arrest and submission of

supplementary challan against the petitioner

could be covered by recording supplementary

statement of accused under Section 342

Cr.P.C.

10. In view of the foregoing reasons, the

instant criminal revision bearing No. 02-

A/2025 is allowed by setting aside the

impugned order dated 21.12.2024 and

resultantly application of the petitioner for

requisitioning the record for hearing the full

arguments stands accepted.

11. So far as connected [Link] No.

11-A/2025 filed by the complainant is

concerned, as the learned trial court while

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passing the impugned order dated

23.10.2024 has rightly exercised its

jurisdiction by granting ad-interim pre-arrest

bail, to which no except could be taken,

hence, the same is dismissed with direction to

the learned trial court to decide the same

upon its own merits, independently.

Announced:
17.03.2025.
JUDGE
/*Saif. SCS*/