2015 P Cr (PLP)

MUHAMMAD TARIQ ABBASI, J.

This revision petition is directed against the order dated 19-9-2013, passed by the learned Additional Sessions Judge, Dera Ghazi Khan, whereby personal appearance of Irshad, the respondent No. 2 has been dispensed with and the application moved by the petitioner for cancellation of the bail bonds of the said respondent has been dismissed.

2. The facts are that Irshad (respondent No. 2) along with his co-accused was facing trial in case F.I.R. No. 284/2012 registered under sections 302/324/148/149/109 of P.P.C. at Police Station Choti, District Dera Ghazi Khan, in the court of learned Additional Sessions Judge at Dera Ghazi Khan. The said respondent preferred an application under sections 205/540-A of Cr.P.C., whereby he sought dispensation from personal appearance, in the court, on the grounds that he for labour and to earn the livelihood had to go to Saudi Arabia as his visa was going to expire. The said application was entertained by the learned trial Court on 19-1-2013. Thereafter on 9-2-2013, the petitioner had moved an application before the learned trial Court, whereby he sought cancellation of the bail bonds of Irshad (respondent No. 2) on the grounds that he had proceeded abroad, hence became absent. Both the above mentioned petitions were taken up by the learned trial Court and decided through the impugned order, whereby personal appearance of the respondent No. 2 was dispensed with, whereas the application of the petitioner for cancellation of the bail bonds of the said respondent was dismissed.

3. Feeling aggrieved, the instant revision petition has been preferred, with the contention and the grounds that the respondent No. 2 had left the country prior to passing of the impugned order, hence no reason, cause or justification to grant him the dispensation, and as such the impugned order is not acceptable under the law.

4. The learned counsel appearing on behalf of the petitioner has advanced his arguments in the above-mentioned lines, whereas the learned counsel for the respondent No. 2 has supported the impugned order and opposed the revision petition.

5. Arguments heard and record perused.

6. Section 540-A of the Code of Criminal Procedure, 1898 deals with exemption to an accused from personal appearance, in a trial or the inquiry. The said provision reads as under:-- "540-A. Provision for inquiries and trial being held in the absence of accused in certain cases.

(1) At any stage of an inquiry or trial under this code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied for reason to be recorded, that any one or more of such accused is or incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."

7. Plain reading of the above mentioned provision shows that to claim and grant, exemption to an accused, the following conditions should be fulfilled:-- (i) There should be two or more accused before the court. (ii) The accused seeking exemption should be before the court. (iii) The accused should be incapable to remain before the court. (iv) The accused should be represented by a pleader. (v) The court should be satisfied about incapability of the accused to remain before it.

8. In the matter in hand, Irshad (respondent No. 2) along with his co-accused (more than two) was facing the trial before the learned Additional Sessions Judge, Dera Ghazi Khan. On 19-1-2013, he filed an application, before the learned trial Court under sections 205/540-A of Cr.P.C., whereby he sought dispensation from personal appearance, on the grounds that during investigation, he had been declared innocent, but appeared and joined into the trial on summoning of the court and that he to earn livelihood was serving at Saudi Arabia, for which purpose he obtained visa while incurring heavy expenditures, which was going to expire and that in his place, Malik Muhammad Shiraz Arshad Advocate will appear in the court on each and every date of hearing and join into the proceedings.

9. The august Supreme Court of Pakistan in the case titled 'Haji Aurangzeb v. Mushtaq Ahmad and another' (PLD 2004 SC 160) has held that in the above mentioned like situation, exemption to an accused should be given. The relevant portions of the said judgment read as under:-- "Incapability is word of wide import and may cover all circumstances beyond the control of the accused. The exemption could be granted in absence in extremely exceptional cases like ailment of accused which rendered his movement difficult (like the case of paralysis) or departure from country or station is absolutely necessary and there is no time to have recourse to the court for seeking permission/exemption." "The provisions of section 540-A, Cr.P.C. are to be interpreted with benevolence, because it is an enabling provision not meant to punish some one. The section, in the circumstances, aims at achieving three-fold benefit. One benefit being that of the exempted accused, second being that of the co-accused under trial and third being the convenience of the Court itself."

10. In the situation in hand, all the above mentioned conditions are fulfilled. There are more than two accused. Only one (respondent No. 2) has claimed the exemption, while showing the above mentioned incapability, which, as per the above mentioned dictum of the august Supreme Court of Pakistan can rightly be termed to be a fit one, for grant of exemption. He has categorically stated that if exemption is granted, then in his place, the above named Advocate will appear in the court and join into the proceedings on his behalf.

11. Undoubtedly, at the time of filing of the application, the respondent No. 2 was personally before the learned trial Court, but due to his above mentioned hardships, subsequently he had proceeded to Saudi Arabia and as such at the time of grant of exemption on 19-9-2013, he was incapable to be before the court. The learned trial Court was fully aware of the above-mentioned facts and circumstances, but while realizing that the respondent No. 2 had gone abroad due to unavoidable circumstances had granted exemption to him.

12. It has been observed that the learned trial Court, while dealing with and deciding the above mentioned application, had narrated each and every aspect, including the law on the subject in detail. Therefore, the impugned order could not be termed to be having any legal objection.

13. In the impugned order, it has been categorically mentioned that whenever the respondent is required and summoned, he will be bound to appear in the court.

14. It has been noted that after grant of the dispensation, due to non-availability of the respondent No. 2, no hurdle in the trial has occurred.

15. For what has been discussed above, the revision petition in hand being devoid of any force and merit is dismissed. However, the learned trial Court is directed that if at any stage, it feels any hurdle in trial, due to non-appearance of the respondent No. 2 or his above named Advocate, then it will not hesitate in withdrawing the above mentioned concession and requiring personal appearance of the respondent No.

2. MWA/M-138/L Petition dismissed.