1. ' Learned counsel for the respondent has moved an application for dispensing with the personal appearance of the respondent and for recalling the bailable arrest warrant. This application cannot be entertained unless the respondent appears in person. Learned counsel is directed to produce him on the next date of hearing when the charge will be framed against him if necessary.
2. To come up on 31-5-2011.
3. (Sd)/- (Sd)/- Khawaj a Muhammad Afzal Ch. Khalil (Chairperson) (Member Tech.)
4. ' I respectfully disagree with the view adopted by learned Chairperson in above order. My separate order is appended herewith.
5. (Sd)/- Ms. Gulzar Butt (Member Legal)
6. ' My separate observations regarding personal appearance of respondent in trial are as follows:- ' The brief facts of the case are, the complaint was filed on 5-1-2010 in which respondent entered appearance through his counsel on 26-4-2010 whereas written reply was filed on 17-2-2011, upon which the learned counsel was also directed to produce the respondent in person for framing of charge. Prior to the fixed date learned counsel moved an application under sections 205, 540-A and section 353, Cr.P.C. To dispense with the personal attendance of respondent and for the withdrawal of warrant of arrest and recalling of order dated 9-3-2011. The reasons mentioned in the application for dispensing with the personal appearance of the respondent is that the Chief Executive Officer of the respondent unit is a foreigner and unable to enter his personal appearance before this honourable Tribunal due to the security reasons.
7. ' I have gone through the order sheet of the case and find out that instant case was never fixed for 9-3-2011 therefore, recalling of order dated 9-3-2011 regarding withdrawal of warrant of arrest is out of question.
8. ' As far as dispensing with the personal appearance of the respondent is concerned, I would like to reproduce section 540-A of the Criminal Procedure Code as follows for ready reference.
9. "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 reasons to be recorded, that any one or more of such accused is or are 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."
10. ' It is crystal clear from the plain reading of above section that the three ingredients are important to be noticed by a Court while exercising Jurisdiction under this section.
(i) Firstly.
11. That there should be two or more accused present before the Court.
(ii) Secondly Any one or more asking for exemption.
(iii) Thirdly ' Incapable of remaining before the court.
12. ' This provision, no doubt deals with the situation where the accused is incapable of remaining before the Court physically for which he asks to dispense with his personal attendance. No doubt the reasons for dispensation from personal attendance must be very strong.
13. ' Normally enquiry or trial takes place in the presence of accused as envisaged in section 353 of the Code, unless exemption granted from the personal appearance is granted as provided in section 540-A, Cr.P.C. In the instant case, reasons provided for exemption from personal appearance are the security reasons. The respondent who is foreigner is not able to appear personally before this Tribunal safely. In such circumstances the important question arises; whether this exemption can be granted to the respondent in absence of the respondent or not and merely an application through pleader is sufficient. Another question which requires consideration is that in the instant case there is only one accused whereas one of the essential of section 540-A is that there must be two or more accused present before the Court.
14. ' In my view, personal attendance of the respondent can be dispensed with as he is foreigner 'and of course due to the social and political situation prevailing in the country now-a-days, the travelling of foreigner is not safe; especially in public places. The reasons provided are strong enough to dispense with the personal attendance of respondent. Moreover the exemption can be asked through pleader due to security reasons.
15. ' As far as the second question is concerned, in the instant case and almost in all the cases pending before this Tribunal, only one accused is impleaded as respondent who is allegedly a pollutant. In my view the intention of legislation while drafting the section was that one accused can explain the proceedings to another accused who is seeking exemption. This requirement can be safely fulfilled as respondent's counsel is present before this Tribunarwho can well inform the respondent. Therefore this essential can be ignored upon this reason. Moreover the plain reading of section reveals that exemption can be asked by "any one or more of such accused". Therefore in my view exemption can be asked by any one or more of such accused and attendance of any one accused is not necessary before the Court.
16. ' The principle laid down by august Supreme Court in case titled as Haji Auranzeb v. Mushtaq Ahmad; PLD 2004 SC 160 while discussing above preposition, can be safely relied upon:-- "We will, therefore, conclude that normally the accused has to be physically present in the Court for claiming exemption and that if the Court is satisfied about his incapability of remaining before the Court, the Court may proceed to grant exemption. Incapability is word of wide import and may cover a 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) departure from country or station is absolutely necessary and there is time to have recourse to the Court for .Seeking permission/ exemption. It may be observed that the provision i.e. Section 540-A, Cr.P.C. Covers case temporary exemption from one or two dates of hearing or exemption till conclusion of inquiry/trial. The Courts have to pass appropriate order depending on the facts and circumstances of the case."
17. ' Resultantly the application requires acceptance subject the respondent will appear before this Tribunal when it will be ordered.
18. (Sd)/- Ms. Gulzar Butt (Member Legal)