2007 PLP 1059 (MLD)

MAULVI ANWARUL HAQ, J.

In case F.I.R. No.198, dated 27-5-2004 under sections 354/500/341/365/109, P.P.C. at Police Station Gujar Khan, District Rawalpindi, after the receipt of the challan, petitioners Nos. 1 and 2 were summoned. I may note here that petitioner No.3 was placed in Column No. 2 being having been found to be innocent. The petitioners Nos. I and 2 were charged. In the first instance on 23-11-2004, petitioner No.2 filed an application for exemption from appearance. The ground was that he is working in England for gain and it is not possible for him to appear on every date of hearing and he will be deprived of his livelihood if exemption is not granted. Vide order, dated 4-12-2004 the prayer was granted after recording the undertaking of his learned counsel for appearance on every date and further subject to furnishing of surety bonds in the sum of Rs.1,00,000 with two local sureties in the like amount. Thereafter, on 28-1-2006 the petitioner No.2 filed an application for similar relief. His ground was that a work visa had been issued to him for Spain. This application was also allowed on 31-1-2006 on similar terms. I may note here that even the complainant of the case sought a similar relief which was granted. The respondent No.2 then filed a revision which was heard by a learned A.S.J., Gujar Khan, who proceeded to allow the same on 18-8-2006 and to cancel the said exemption orders.

2. Learned counsel for the petitioner contends that the impugned order has been passed by the learned A.S.J. without lawful authority and for reasons which are not sustainable. He relies on the case of State Bank of Pakistan v. Syed Nasir Hussain Zaidi and 5 others (PLD 1988 Karachi 379). Learned counsel for the complainant contends that since the attendance of the petitioners was procured by means of a warrant, the Magistrate could not have exempted them from attendance under section 205, Cr.P.C. learned DPG is of the opinion that the Magistrate could have granted the relief in the circumstances of the case. He refers to section 540-A, Cr.P.C. as the petitioners were represented by a learned counsel.

3. I have gone through the copies of the records. It will be noted that the said two petitioners as well as the complainant of the case were granted exemption on almost literally similar grounds. The learned A.S.J. has pointed out some irregularities in the proceedings of the learned Magistrate and thereafter has observed that since petitioner No.3 has not been summoned, the charge could not have been framed against petitioners Nos.1 and 2 and since the charge has not been framed, the exemption could not be granted. Learned counsel for the complainant is unable to point out any provision of law supporting the said observations of the learned A.S.J. On the other hand, upon a plain reading of section 205, Cr.P.C. the Magistrate can grant the exemption to any accused whom he has summoned and there is no bar that he cannot grant the relief before framing the charge. In the present case, as noted by me above with reference to the copies of the proceedings, all the three applications were filed and granted after the charge had been framed. The said judgment being relied upon the by learned counsel fully supports his pleas. The impugned order, dated 18-8-2006 of the learned A.S.J., Gujar Khan, is accordingly found to be without jurisdiction and is quashed. The Criminal Miscellaneous is accordingly allowed. N.H.Q./N-8/L Petition accepted.