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Criminal Revision No. 11 of 1986, decided on 4th October,1986.

‑‑‑Ss. 512 & 190(3)‑‑Scope and application of S. 512‑‑Recording of evidence in absence of accused‑ 4rovisions of S. 512(1) vest concurrent power in Magistrate and Court of Session to examine witnesses and record their depositions on production before either of them by prosecution‑‑Where, however, there are more than one accused and some are absconding and some were to face trial by the Court of Session, it should, in all propriety be the Trial Court, i.e. the Court of Session possessed of jurisdiction to pass orders of abscondance of accused and to proceed to record evidence at trial as against co‑accused and declare same evidence as against absconding accused recorded under. S. 512, Cr. P.C.

Mufti Muhammad Idris for Petitioner.

Kh. Nazir Ahmed, A.A.‑G. for the State.

Date of hearing: 27th September 1986.

Criminal Revision No. 11 of 1986 has been filed against the orders of Additional Sessions Judge, Haripur, dated 27‑2‑1986, whereby he disapproved the procedure adopted by Magistrate 1st Class in examining search witness only and sending the case for trial to his Court. He had accordingly returned the file to him with directions to record the whole evidence made available by the prosecution as against the absconding accused under section 512, Cr.P.C. Munshi Khan one of the accused in custody facing trial alongwith two others on bail approached this Court for quashment of the aforesaid orders of the learned Additional Sessions Judge on grounds that after the amendment of section 190(3), Cr.P.C. by Law Reforms Ordinance, 1972 proceedings under section 512, Cr.P.C. against the absconding accused can now only be taken by the trial Court i.e. the Court of Sessions as the case, being exclusively triable by him, was to be sent by the Magistrate to him without recording any evidence. No doubt, the marginal note of section 512, Cr.P.C. reads 'Record of evidence in absence of accused' and that section 190(3), Cr.P.C. also forbids the recording of any evidence by the Magistrate in cases exclusively triable by Sessions but at the same time the provisions of section 512.(1) vest concurrent power in the Magistrate and Court of Sessions to examine the witnesses and A record their depositions on production before either of them by the prosecution. We have not, therefore, to question the wisdom of Legislature and to read implied amendment in section 512, Cr.P.C. in conformity of the amendment of section 190(3), Cr.P.C. The provision of law contained in section 512, Cr.P.C. is primarily meant for preservation of evidence as against the absconding accused. In case of one or more accused and all absconding with no immediate prospect ion arrest it will be an easier and equally safer course to get the witnesses examined and their depositions recorded by the Magistrate under section 512, Cr.P.C. However, where there are more than one accused and some are absconding and some have to face trial by the Court of Sessions a question will arise if it will be proper and feasible to first examine the witnesses and record their depositions as against the absconding accused by Magistrate 1st Class and that later on the same witnesses are examined by the Court of Sessions as against the accused on trial. This will be simply a duality to serve no useful purpose. Rather it will be prejudicial, most probably, ‑to the cause of prosecution because the statements of such witnesses will also be availed by the defence in cross‑examination at the time of the trial of the co‑accused. Further Legislature has vested a concurrent power and discretion in the Court of Magistrate and trial Court i.e. the Court of Sessions or the High Court to examine the witnesses and record their depositions if produced by the prosecution as against the absconding accused under section 512, Cr.P.C. Herein the Magistrate 1st Class has since exercised his discretion in examining only the search witness and has sent the case for trial to the Court of Sessions under section 190(3) read with section 512, Cr.P.C. will not the propriety demand that it should be the trial Court i.e. the Court of Sessions possessed of jurisdiction and powers to pass orders of the abscondence of the accused and to proceed to record evidence at the trial as against the co‑accused and declare the same evidence to be the evidence as against the absconding accused recorded under section 512, Cr.P.C.

2. In this view of the discussion I will accept this revision; petition, set aside the judgment and order of the learned Sessions Judge, dated 27‑2‑1986 and shall direct him to himself record the evidence as against the absconding accused under section 512, Cr.P.C. at the time of the trial of the co‑accused.

M.B.A. Petition accepted.

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