' MUHAMMAD ALAM KHAN, J.---Fareed Khan son of Raqeeb Khan has filed this petition seeking the quashment of the order of the learned Additional Sessions Judge-III, Bannu, dated 22-1-2008 vide which his application for exemption from personal appearance in case F.I.R. No.10, dated 1-2-2007 under sections 302/324/34, P.P.C. Of Police Station Haved was rejected.
2. Briefly narrated the facts of the case are that the accused/ petitioner was involved in a case under sections 302/324/34, P.P.C. Vide F.I.R. Referred to above and during the pendency of the trial, his counsel submitted an application to the learned Trial Court on 11-12-2007 seeking exemption of the accused from personal appearance under the provisions of section 540-A, Cr.P.C. On the ground that the accused/petitioner has gone abroad in connection orhis service and thus he cannot appear before the Court. The learned trial Court after hearing the counsel for the petitioner vide the impugned order, dated 11-12-2007 dismissed the application, hence the present quashment petition by Fareed Khan, accused/petitioner.
3. It was submitted by Mr. Anwar-ul-Haq, the learned counsel for the petitioner, that as the petitioner had gone abroad much before the starting of the Sessions trial and was not physically present before the Court, therefore, the learned trial Court was required to have acceded to his request for the exemption from personal appearance. It was next submitted that the accused has engaged Mr. Iftikhar Ahmad Durrani Advocate to be present on his behalf during the trial, so the learned trial Court was not justified in refusing the exemption to the petitioner. It was also argued that in view of the dictum rendered in the case of Tahir Muhammad v. Mst. Arifa and others, reported in PLD 2003 Peshawar 123, the physical presence of the accused/petitioner was not necessary while granting the exemption to the petitioner under the provisions of section 540-A.
Cr.P.C. It was also argued that the exemption was sought in order to avoid delay in the completion of trial, so the grant of exemption would have enabled the Court to have expeditiously disposed of the trial of the case, and the refusal of the exemption was a harsh order passed by the trial Court.
4. Mr. Gohar Zaman Khan Kundi, learned counsel for the complainant/respondent No.2, submitted that the learned trial Court has rightly refused the concession of exemption to the petitioner, as under section 540-A, Cr.P.C. While seeking exemption the accused must be physically present before the Court. Elaborating his argument, he submitted that non-appearance of the accused before the Court will disentitle him to seek concession of exemption from personal appearance.
Lastly, he submitted that as the petitioner has returned from abroad, hence this petition has become infructuous.
5. Mr. Farooq Akhtar, learned counsel for the State adopted the arguments of the learned counsel for the complainant/respondent No.2.
6. I have given anxious consideration to the facts and circumstances of the case and have gone through the record annexed to the petition.
7. As far as the contention of the learned counsel for the petitioner that while seeking exemption the personal appearance of the accused is not necessary and he should not be present physically at the time of seeking exemption is concerned, it is without any substance as under the provisions of section 540-A, Cr.P.C., the presence of accused/petitioner at the time when the request for exemption is made is a must. The opening words of section 540-A, Cr.P.C. Speaks about the presence of the accused while invoking the jurisdiction of the trial Court under the provisions of section 540-A, Cr.P.C. In the case in hand, the accused/ petitioner had gone abroad without seeking the leave of. The Court much before the start of the trial and he was not entitled to the discretionary relief under section 540-A, Cr.P.C. As held by the apex Court in the case of Haji Aurangzeb v. Mushtaq Ahmad and an other reported in PLD 2004 Supreme Court page 160, which ruling of the apex Court on all the four covers the facts of the present case.
8. In the last hours of the day, Fareed Khan, accused/petitioner, personally appeared before this Court and requested that as he has returned back from aboard, the warrants issued against him and his sureties be cancelled. As that matter is not before this Court, he may appear before the trial Court and seek his remedy if so advised in the matter.
9. In view of the facts and circumstances of the case narrated above, there is no force in this quashment petition which fails not only on legal premises, but also having become infructuous and thus stands dismissed accordingly.