P L D 1988 Karachi 326 (PLP)

In this case summons has been issued to accused No.3, who is present in Court though in 1Burqa

1. An application has been made under section 205, Cr.P.C. for dispensing with her 'attendance in Court and allowing her Advocate to represent her. This application is opposed by the learned counsel for the complainant. On 14‑2‑1989, when this application was filed, I allowed the learned counsel for the complainant four days, time to file objections, if any. No written objections have been filed. Mr. Shibli, however, vehemently opposes the application. The grounds mentioned in the affidavit filed in support of the application are that accused No.3 is pardah observing lady and does not move in the society freely and that she is mother of four small children and has to look after them and it is not possible for her to attend the Court on every date of hearing. In a case of this Court, namely, The State v. Victor Henry and 2 others P L D 1973 Kar. 273, the learned Judge of this Court referring to Code of Criminal Procedure by I V.V. Chitaley, 5th Edition 1956 page 1038 at page 277 of the report observed as follows:‑ , "It has become a general practice of Courts by now that in cases where accused are pardanashin women their personal appearance at the hearings is dispensed with and they are allowed to appear by a pleader until such time when their attendance becomes necessary. But such an order need not be refused merely because a lady accused is not a pardanashin woman, as this is not a condition laid down under section 205, Cr.P.C. Under this section in the commentary in the Code of Criminal Procedure by V.V. Chitaley (5th Edition (1956) it has been observed at page 1038 as under:‑ "The Court will extend the privilege of Pardah to women who' though not strictly observing Pardah, are yet not accustomed generally to appear before the public.,' Reliance was also placed in this case on Mst. Asu and another v. Emperor A I R 1931 Sind 37 (38). Further, I have noticed another case, namely, Crown v. Mahomed Wd. Kadu and others 3 SLR 167, wherein a Division Bench consisting of A. Lucas, and R.Knight Esquire recalled the warrants and substituted the same by summons and thereafter allowed the accused lady exemption from personal appearance under section 205, Cr.P.C. I have already held in an unreported order in Criminal Original Miscellaneous No.11/1988 (State Bank of Pakistan v. Messrs Uni Packs and others) that the powers under section 205, Cr.P.C. are available to this Court. I would add in this case the Court is exercising original jurisdiction, and therefore, the powers meant for Magistrate must be deemed to be available to this Court. I, therefore, accept this application and exempt accused No.3 from personal appearance in Court and allow her to be represented by her counsel. She will however, attend the Court as and when ordered to do so. The accused Nos.1 and 2 are also present. All the three accused are directed to execute personal bonds within three days in the sum of Rs.10,000 each before the Nazir of this Court. To come up on 13th March, 1988, for framing of charge. M.B.A./S‑152/K. Application accepted.