1995 PLP 1652 (MLD)

Nasir Hussain Zaidi and others PLD 1988 Kar. 379 in support of this contention. The last paragraph3f the judgment in the precedent case is as follows:

"I, therefore, hold that the charge can be framed in the presence of the Advocate for the Wised who have been granted exemption from personal appearance Court under section 205, Cr.P.C. in cases like the present one. However, they would appear as and when required by the Court as mentioned under sections 205 and 540-A of the Criminal Procedure Codr898."

8. Learned counsel for the petitioner also referred to another judgment of the learned Peshawar High Court in Dr. Ali Yahya v. State 1989 PCr.LJ 1652, wherein exemption from personal appearance was allowed. It was, however, held that trial Court retained the power to summon the accused' at any stage.

9. In the light of these submissions, the learned counsel for the petitioner prays that orders dated 27-4-1995 and 14-5-1995 passed by the learned trial Court be sets ,aside and direction be issued to the learned trial Court to frame charge, if any in the presence of the counsel for the petitioner, without requiring" petitioner to be present in person.

10. Sh. Zamir Hussain, Advocate, learned Special Public Prosecutor, who is assisted by Syed Sajjad Hussain Shah, learned AA.-G. raised preliminary objection to the maintainability of the present petition. In this regard, he submitted that the orders pass by the learned trial Court on 27-4-1995 and 4-5-1995, being of interlocutory nature not to be interfered with by this Court in revisional jurisdiction. He referred to section 537, Cr.P.C. which provides that:

" .no finding, sentence, order passed by jurisdiction shall be reversed or altered under Chapter of competent appeal or revision on account -- (a) of any error, omission or irregularity in the complaint, report officer under section 173, summons, warrant, charge, proclamations order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or. (b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless, such error, omission or irregularity -has in fact occasioned a failure of justice. Explanation.

In determining whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised it any earlier stage in the proceedings:'

11. Relying on Rama Shanker v. State AZ 1956 All. 525, State v. M.A. Beg AIR 1963 Jammu and Kashmir 20 and Sarkar v. Muhammad Malik PLJ 1974 Cr.C. (AJ&K) 311, the learned Public prosecutor submitted that the impugned orders were not arbitrary or Capricorn therefore, interference in the exercise of revisional jurisdiction, at this stag-, 'is not warranted by this Court.

12. He further submitted that the learned trial court was within its powers to require the accused persons to appear in per; at any stage of the trial, notwithstanding the exemption granted under section 205, Cr.P.C. He also referred to the application submitted by the petitioner for grant of exemption which, inter alia, stated as follows:

'The petitioner, however, undertakes to appear be,, the Court as and when directed to do so."

13. It is also similar undertaking was given by the learned counsel for the petitioner for producing the accused as and required. This undertaking is incorporated in the order of the learned trial Court dated 15-12-1994, wherein the learned trial Judge states: "I dispense with his attendance on all future dates subject to the undertaking given by his counsel to attend this Court on al. dates of hearing and to produce him before as and when required".

14. The learned Public Prosecutor submitted that the orders dated 27-4-1995 and 14-5-1995did not r ant to reviewing the orders passed by the learned trial Court on 15-12-1994 and 5-4-1995. According to him the learned trial Court or 15 on the aforesaid undertaking and are in accord subsequent orders were passed on the aforesaid undertaking and are in accord with s4ection 205 (2) of Criminal Procedure, which empowers the with section 205(2) of learned trial Court require the personal attendance of the accused at trial, notwithstanding the exemption granted earlier. any stage of Cr.P.C. reads as follows:

By 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." In this connection, reference may also be made to section 540-A, Cr.P.C. which also empowers the learned trial Court to direct the personal attendance of the accused at any stage of the proceedings, notwithstanding the fact that the same was dispensed with and in his place the accused was represented by his counsel. Reference may also be made to a reported judgment of the Indian jurisdiction in Dudhnath v. State AIR 1938 Cal. 431 wherein, in somewhat similar circumstances, although with reference to section 342, Cr.P.C., it was observed as follows:

"As I have said, there is nothing in section 205 or in section 540-A of the Code of Criminal Procedure which encourages the view that the Court can dispense with the attendance of the accused even for purposes of examination under section 342 of the Code. The two sections (sections 205 and 540-A) contained express provisions on the contrary for directing whenever necessary the presence of the accused in the course of the trial."

15. There is another aspect of this case. The learned trial Court has directed the petitioner to appear in person to answer the charge. Apart from the fact that the learned trial Court has the power to make such a direction at any stage of the proceedings, as observed above, this particular situation has been specifically dealt with under section 265-E of the Code of Criminal Procedure, which is as follows:

"Plea.

(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. (2) If the accused pleads guilty, the Court shall record the plea, and may in its. discretion convict him thereon." ' Subsection (2) of section 265-E provides that the accused may plead guilty whereupon the Court may convict him and sentence accordingly. I am afraid, whether any such plea by the counsel on behalf of the accused can bind the accused and make him liable to conviction and punishment. In my view, the accused cannot be convicted and sentenced on the basis of the plea of guilt made by his counsel in the absence of the accused.

16. In this connection, learned Special Public Prosecutor has referred to an unreported judgment of this Court in Criminal Reference No.1 of 1994 "State v. Mian Muhammad Nawaz Sharif' wherein it is observed as follows:

"I am of the view that the presence of the respondent is essential so as to explain the charge to him, as amended by the Magistrate."

17. It is thus evident that by directing the petitioner to appear in person to answer the charge, the learned trial Court has not committed any error or irregularity in the proceedings, nor-has such a direction occasioned failure of justice. On the other hand, the converse of it may be true, inasmuch as framing of charge in the absence of the accused may cause some prejudice to him. The orders impugned herein cannot, therefore, be said to be arbitrary or capricious.

18. For the foregoing reasons, this revision petition is held to be without any force and is dismissed in limine. N.H.Q./M-2147/L Revision dismissed.