P L D 1988 Karachi 535 (PLP)

This is an application under section 561‑A Cr.P.C. for the quashment of order passed by the learned Sessions Judge, Karachi South on 27‑10‑1987. The brief facts of the case are that the applicant made a grievance before the Deputy Commissioner, Karachi South, that a complaint be lodged against the respondents Nos.l to 4 under the provisions of Pakistan Essential Services Act, 1952. The learned Deputy Commissioner was pleased to lodge the complaint, being Complaint No.70/87 in the Court of Sub‑Divisional Magistrate, Civil Lines, Karachi, who was pleased to issue summons against the respondents. That the respondents failed to appear on certain dates and therefore the applicant moved an application for issuance of warrants against them. On 20‑7‑198? the respondents moved an application under section 205 Cr.P.C. for exemption from their personal appearance, and the learned SDM was pleased to dismiss the same vide order dated 10‑9‑1987. Being aggrieved with the above order the respondents filed a Revision application against the above order before the Sessions Judge, South Karachi who by his order dated 27‑10‑1987 was pleased to set aside the order of SDM and granted exemption as prayed by the respondents. The present application is directed against the said order passed by the learned Sessions Judge, Karachi South. I have heard the learned counsel for the applicant, learned counsel for the private respondents, learned counsel for the State, and have gone through the documents produced alongwith the main application. It was contended by the learned counsel for the applicant that since the warrants were issued against the respondents Nos.l to 4 by the learned SDM in the present case, section 205 Cr.P.C. was not applicable, and the learned Sessions Judge had erred in granting exemption to the respondents under the above provision of law. It was further contended that merely because the respondents were enjoying high positions they could not claim exemption on this ground, and therefore the order was bad in law. In this connection he has relied upon P L D 1979 SC5 3; arid 1986 P CrL J

277. It was contended by the learned counsel for the private respondents that the word 'incapable' of remaining before the Court has to be interpreted benevolently. That according to section 205 Cr.P.C. it was not necessary that the accused should in fact be incapable of appearing before the Court but the Court had discretion to allow exemption in appropriate cases. He has further contended that the respondents Nos.l, 2 and 4 were responsible Officers and their presence was essential for day to day working in the office, sometimes they had to even go on tour. He has further contended that the present application under section 561‑A Cr.P.C. was not maintainable under the law. The learned counsel for the State has contended that the order passed by the learned Sessions Judge does not suffer from any infirmity, and therefore does not call for interference. I have considered the contentions of the learned counsel. In order to appreciate the contentions raised by the learned counsel for the applicant it is necessary to refer to section 205 Cr.P.C. which reads as under:‑ "Section 205.‑(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided." The bare reading of the above provision will show that the Magistrate who issued summons against the accused could dispense with his personal appearance if he saw any reason to do so. This provision does not say that the accused should be incapable of appearance before the Court. As far as the contention of the learned counsel A that warrants having been issued against the accused, the Court was not competent to grant exemption under section 205 Cr.P.C. was concerned, the contention is untenable and without any merit. Even where the Magistrate had issued warrants he could substitute the same by summons and allow exemption. In this respect it will be appropriate to refer to the case of State v . Victor Henry and two others P L D 1973 Kar. 273 wherein it was observed by this Court that: "The law is also well‑settled that when a Magistrate‑ grants exemption from appearance to an accused person under section 205 Cr.P.C. in a case where warrants have been issued as process against the accused, the Magistrate can convert the warrants into summons and then proceed to apply the provisions of section 205 Cr.P.C. and give exemption to the accused person from appearance at the trial or‑ inquiry before him." In the above case, case of Crown v. Muhammad Qadco and others (3 S L R page 167) was relied upon. In the case of Muhammad Hussain v. Pervezur Rehman and another, 1980 P Cr.L J 1 it was observed that:‑ "If an accused on bail prays for a permission to be represented through a counsel, the request should be generously granted, as there is no compelling legal necessity to force an accused to attend in person instead of being represented through a counsel. By granting such a permission, unnecessary overcrowding in Court, humiliation and the forced companionship of hardened criminals, leading to many sufferings, can be conveniently prevented." The case of Zulfiqar Ali Bhutto v. The State P L D 1979 SC 53 relied upon by the learned counsel for the applicant was concerned, the exemption was granted to the accused by the trial Court (High Court) under section 540‑A Cr.P.C. suo motu without there being any request from the accused and therefore the facts of the above case are distinguishable and, with utmost respect, are not applicable to the facts of the present case. As far as the second case State v. Willayat Hussain and others 1986 P Cr,

1. J 2977 relied upon by the learned counsel for the appellant was concerned, the application. was moved under section 540‑A Cr.P.C. for dispensing with the personal attendance of the accused for a period of two months as the accused had to go abroad for treatment, and the learned Judge while considering various provisions of the Criminal Procedure Code came to the conclusion that while framing of charge, regarding plea, examination either under sections 342 and 340‑A Cr.P.C. the presence of the accused is obligatory before the Court, hence on those stages his presence under the provisions. of section 540‑A Cr.P.C. cannot be dispensed with. With utmost respect, there is no cavil with the above proposition, and I am in respectful agreement with the learned Judge who decided the above case, but the facts of the two cases are, totally different inasmuch as the charge has already been framed in the present case and the plea has been recorded. The order of the learned Sessions Judge clearly shows that the respondents will appear before the Court at the time when their statements are to be recorded. B Even otherwise the Court can always direct the accused to be present at a particular date in spite of the fact that he has been granted exemption. In the case of Muhammad Shafiq and others v. Abdul Hai and others 1987 S C M R 1371 it was observed by their Lordships o; the Supreme Court that:‑ "The jurisdictional requirements for the exercise of powers under section 561‑A Cr.P.C. are: (i) to give effect to any order under the Criminal Procedure Code; (ii) to prevent abuse of process of any Court; and (iii) to secure the ends of justice." In view of the above discussion and the decision in the case of Muhammad Shafiq and others v. Abdul Hai and others, I am of the considered view that the learned Sessions Judge has given cogent reasons for allowing exemption to respondents Nos. i, 2 and 4 ante the order does not suffer from any infirmity. The application. is therefore accordingly dismissed. However, the respondent No.3 shall continue to appear in the Court regularly, while the remaining respondents shall appear before the trial Court if and when required. M.Y.H./N‑119/K Petition dismissed.