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Criminal Procedure Code (V of 1898).

S. 353-Evidence to be taken in presence of accused-Accused being absconding not present on day when statements of witnesses recorded nor on day of their cross-examination---On joining proceedings by accused such witnesses never summoned again for recording of evidence and for cross-examination-Trial, held, conducted in violation of S. 353Conviction and sentence set aside-Case remanded for recording of statements of witnesses in. presence of accused and giving fresh opportunity of producing defence.

Rana Ijaz Ahmad Khan and ljaz Anwar for Petitioners.

S. M. Zubair Asst. A.-G. assisted by Sardar A. Khalid for the State.

Date of hearing : 28th June, 1983.

The revision petition is directed against the order dated -the 5th February, 1983, of Malik Nazir Hussain Awan, Additional Sessions Judge, Lahore, whereby the learned Additional Sessions Judge dismissed the appeal filed by .the petitioners against the order dated 14th November, 1981 of Magistrate 1st Class, Lahore whereof the learned Magistrate convicted the petitioners under section 325/34, P. P. C. and sentenced them to various imprisonments.

2. The learned counsel for the petitioners apart from arguing the case on merits, challenged the legality of the trial. It has been pointed out that the statements of Muhammad Sharif complainant (P. W. 1) Fiaz Ahmad.

(P. W. 2) and Khushi Muhammad (P. W. 3) who were eye-witnesses of the occurrence and also witnesses of recovery of weapons of offence, at the instance of the petitioners, were recorded in the absence of Maqsud Ahmad petitioner, who -had absented during the trial and against whom proceedings under section 512 of the Code of Criminal Procedure tad been ordered by the learned trial Magistrate vide order dated 19-12-1979.

< [if supportLists]>3. The contention is borne out from the record. Maqsud Ahmad petitioner was not present either on the day when the statements of the three witnesses were recorded or on the day when they were cross-examined. He joined the proceedings later on. In this regard the interim orders are confusing. In the interim order dated 9-9-1980 it is recorded

JUMLA MULZMAN BAR-ZAMANAT HAZIR HAIN

Same has been repeated on 229-1930 but in the interim order dated I1-10-1980, Maqsud Ahmad again has been shown to be an absconder. However, from the order dated 18-10-1980 onward his presence has been marked. The witnesses whose statements have been recorded in the absence of Maqsud Ahmad petitioner, were never summoned again so as to record their statements in the presence of Maqsud Ahmad - petitioner and to afford him an opportunity of cross-examining the witnesses.

In this view of the matter there is no doubt that the trial in this case has been conducted in an illegal manner. Mr. S. M. Zubair, Assistant Advocate-General assisted by Sardar A. Khalid, Advocate has not been able to defend the procedure adopted by the learned trial Magistrate.

4. Learned counsel for the petitioners have contended that although the evidence was recorded in the presence of other accused and their case does not suffer from legal disability of the statement of any witness having been recorded in their absence, but their case definitely was prejudiced as their case was adjudged alongwith Maqsud Ahmad petitioner.

In view of what has been observed above the convictions of the petitioner cannot be maintained as the trial was conducted in . violation of the Code o Criminal Procedure. The order dated 14-I1-1981 of the Magistrate and that of the Additional Sessions Judge, dated 5-2-1983 are set aside. Their case is B remanded for recording the statements of the three P. Ws. afresh in the presence of all the accused persons. The accused, of course, shall be given fresh opportunity of producing defence, if they chose to.

5. The petitioners, at the time of their conviction were on bail. They be allowed to remain on bail, unless for any fault of theirs. The learned trial Magistrate may, however, direct them to file fresh bail bonds.

M.A.K. Case remanded.

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