2012 P Cr (PLP)

IFTIKHAR HUSSAIN BUTT, J.

The legality and correctness of an order passed by Tehsil Court of Criminal Jurisdiction Kotli dated 3-3-2011 has been called in question through the instant revision petition. The necessary facts forming the background of instant revision petition are that accused-respondents are facing trial in a case registered against them in offences under sections 440, 506, 337- A(2), 337-F(v) and 34, A.P.C. The case is at the stage of recording of prosecution evidence. The challan was presented on 30-4-2010, which was fixed for 10-5-2010 and on the next date i.e. 10-5-2010 accused Muhammad Iqbal was dispensed with personal attendance without assigning any reason by the Tehsil Court of Criminal Jurisdiction Kotli. Feeling aggrieved, the complainant filed an application for cancellation of the aforesaid order, which was dismissed vide order dated 3-3-2011. It is the aforesaid order which has been assailed through the instant revision petition. Zaffar Rolvi, the learned Counsel appearing on behalf of the petitioner-complainant argued with vehemence that the trial Court without affording an opportunity of hearing to the complainant dispensed with the personal attendance of Muhammad Iqbal accused without recording any reason. The learned Counsel further contended that the trial Court after announcing the order dated 10-5-2010, made addition in the order and the application for cancellation of the aforesaid order was also arbitrarily dismissed without applying its judicial mind. The learned Counsel pointed out that respondent Muhammad Iqbal is involved in heinous offences and at second date of hearing he was dispensed with personal attendance, who after obtaining the dispensation order has absconded to a foreign country, but the Court below declined to revoke the aforesaid order. The learned Counsel finally submitted that an absconder is not entitled to the discretionary relief of the Court; therefore, his dispensation from personal appearance may be revoked and his presence may be procured. Abdul Razzaq, the learned Additional A.-G. appearing on behalf of the State fully owned and supported the arguments raised by the learned counsel for the complainant-petitioner and submitted that after recoding the order dated 10-5-2010, the Court below re-recorded the impugned order, which is liable to be set aside. On the contrary, Kh. Abdul Basit, the learned Counsel for the respondents submitted that the Court below has exercised its discretion in a legal fashion and respondent No.2 has gone to U.K. after obtaining dispensation from personal appearance from the trial Court; therefore, the impugned order may be maintained. In the light of arguments addressed at Bar, I have carefully examined the record. As stated earlier, the challan was instituted before trial Court on 30-4-2010 and on the same day Muhammad Iqbal respondent No.2 filed an application for exemption from personal appearance. The perusal of order dated 30-4-2010 reveals that an application for dispensation from personal appearance is available on the record, whereby he submitted that he is a British National and whole of his family resides in England; and he wants to proceed to U.K. for sometime; therefore, he may be dispensed with from personal appearance. On the next date of hearing i.e. 10-5-2010, the Court below passed routine order and after completion of the order, re-recorded the impugned order and allowed dispensation to Muhammad Iqbal accused from personal appearance till further orders. The aforesaid order was assailed before the trial Court but it was again maintained and application for revocation of personal appearance was dismissed. It may be necessary to mention here that although the order dated 10-5-2010 is not a speaking order and the reasons for allowing personal appearance were not recorded even though it has been proved on the record that the accused-respondent No.2 is a British National and whole of his family resides in U.K.; therefore, he wants to go to U.K. for sometime. Thus, the aforesaid application was allowed, which means that the accused-respondent was also permitted to leave for U.K.; therefore, he cannot be treated as an absconder. It is an admitted principle of criminal law that an accused who is incapable of remaining before the Court can be dispensed with personal appearance by the Court due to inadequate physical and mental power and due to some personal liability, unfitness and disability to remain before the Court and perform his functions and duties. The respondent has clearly mentioned his intention of inability and he has chosen to defend himself through a counsel with the permission of the Court; therefore, the complainant has not been prejudiced in any manner. In such state of affairs, the impugned order has been properly passed in accordance with judicial principles, which is sustained. The epitome of above discussion is that I find no force in this revision petition, which is dismissed. However, the trial Court will be at liberty to revoke the personal exemption of the accused and recall the accused when it deems necessary for the purpose of trial. H.B.T./7/SH.C.(AJ&K) Petition dismissed.