MOHAMMAD AZAM KHAN, CJ. The captioned appeal under section 25 of the Azad Jammu and Kashmir 'Islamic Penal. Laws Enforcement Act, 1974, has been filed against the judgment of the Shariat Court dated 20th October, 2011, whereby criminal revision petition No,143/2611 has been accepted and respondents No,1 to 3 have been exempted from personal appearance and are allowed to appear through counsel in .a case under sections 324, 341, 506, 452, 337, 147, 148 and 149 APC pending in Tehsil Criminal Court, Mirpur.
2. Necessary facts for the disposal of instant appeal are that a case under the above referred sections of A.P.C. was registered at Police Station Mangla on 3rd August, 2009 at 23:15 p.m. on a report lodged by Muhammad Anwar s/o Muhammad Ismail aginst (1) Abdul Razzaq ,s/o Muhammad Khan, (2) Sohail, (3) Jan, (4) Munna sons of Abdul Razzaq, (5) Muhammad Fazil s/o Muhammad Ismail, (6) Nasir son of Muhammad Fazil, (7) Majeed son of Muhammad Ismail, (8)
Adnan, (9), Navid, (10) Imran, sons of Muhammad Majeed, (11) Munir s/o Muhammad Ismail, (12)
Zubaida wife of Muhammad Muneer, (13) Jameel, (14) Saghir and (15) Shabbir, sons of Muhammad Gulzar, castes Arain, residents of Dhoke Awan, Mangla Hamlet, alleging therein that he' is resident of Mangla Hamlet. Today at 10:30 p.m. he was present in the house when all the above referred accused, who were armed with sticks, entered his house and beat him and the inmates of the house with sticks, fists ancl kicks. His wife Tasleem Begum and sons namely Nabeel Anwar and Tasveen Anwar were seriously injured. On the hue and cry raised by them, the people of locality, Muhammad Yusuf, Riaz, Shamail and others came on the spot, who witnessed the occurrence. The accused ran away from the spot, while hurling abuses. While attaining the knowledge of the occurrence, the son of his paternal aunt, Muhammad Ilyas, came on the spot where Abdul Razzaq, Muhammad Boota s/o Muhammad Alam, Afzal s/o Fazal Kareem who were waylaying, beat him with sticks. He was seriously injured. The alleged motive is previous enmity between the parties.
3. After necessary investigation, the police filed a challan against all the accused persons. During the trial, Zubaida Begum, one of the accused in challan, filed an application for exemption from personal appearance and she was exempted. Later on, the accused, Abdul Majeed, Muhammad Razzaq, Muhammad Boota, Saghir Hussain, Suhail Razzaq, Shoaib Razzaq, Junaid Razaq, Navid Ahmed and Imran Hussain moved an application on 16th March, 2010 for their exemption from personal appearance. The trial Court, on 31st March, 2010, exempted Abdul Majeed, Sohail Razzaq and Muhammad Hussain from personal appearance and they were allowed to appear through counsel while application to the extent of other accused was dismissed. Another application was dismissed on 4th August, 2011. The respondents challenged the order dated 4th August, 2011 before the Shariat Court. A learned single Judge in the Shariat Court accepted the revision petition and exempted the respondents from personal appearance through the impugned judgment dated 20th October, 2011.
4. Meer Sharafat Hussain, the learned counsel for the appellant, argued that the accused are nominated in the F.I.R. and they are members of the same family. They attacked the house of the complainant, appellant herein. There is a strong prima-facie case made out against the accused- respondents. The Court has passed the order for exemption from personal appearance without any justification.
5. While controverting the arguments, Mr. Sadaqat Huss.ain Raja, the learned counsel for accused- respondents No,1 to 3, defended the judgment of the Sharit Court and argued that in 'all 15 persons were nominated in the F.1.R. who have been challaned in a false case with the connivance of the police. No specific role is ascribed, to each of the accused-respondents. Due to unnecessary delay in the trial, they are unable to earn their livelihood. The judgment passed by the Shariat Court is perfectly legal. The appeal merits dismissal..
6. Ch, Shokat Aziz, the learned Additional Advocate-General, while adopting the arguments advanced by Meer Sharafat Hussain, Advocate argued that the judgment passed by the Shariat Court is not a valid and legal judgment. He requested for acceptance of appeal.
7. We have heard the learned counsel for the parties and perused the record. A perusal of F.I.R. reveals that the written report was filed at Police Station Mangla against 15 persons to the effect that they have beaten the inmates of the house of the complainant with sticks, fists and kicks. No specific role is ascribed to any of the accused persons. Initially, one accused lady filed an application for her exemption from personal appearance which was accepted and she was exempted from personal appearance. Later on accused, Abdul Majeed and Muhammad Hussain were exempted from personal appearance on the ground that they are of old age while Sohail Razzaq was exempted from personal appearance on the ground that he is a Government servant and unable to appear in the Court on each and every date of hearing. The Shariat Court accepted the application on the ground that 15 accused persons are nominated in the F.I.R. and are involved in the bailable offences. No active role has been ascribed to any of the accused-respondents.
There is no justification for depriving them of the exemption from personal appearance.
8. Sections 540-A, 205 and 353 Cr.P.C. deal with exemption of the accused from personal appearance and the inquiries and trials to be conducted in absence of accused in certain eventualities. It will be useful to reproduce section 540-A Cr.P.C. which is as under:- 540-A. Provision for inquiries and trials 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 anyone 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.
A perusal of above reveals that the section has been enacted not only for the benefit of an accused, who is incapable of remaining before the Court, but also for the benefit of other accused so that their trial may not be delayed due to absence of other accused and due to no fault on their part. The section postulates that if a Judge or Magistrate is satisfied for reasons to be recorded that if any one or more of the accused is or are incapable of remaining before the Court and such accused is represented by a pleader he can be dispensed with from personal appearance from attendance on every date of hearing. He can be allowed to appear through the counsel and trial may continue in absence of such accused. Of course the section also lays down that at any subsequent stage of the inquiry or trial, if the Court feels that the attendance of such accused is necessary and in the appropriate cases, after recording reasons, the Court again can order for appearance of such accused.
9. While considering the application for exemption from personal appearance two things are to be considered. Firstly there should be two or more accuse before the Court and secondly if the Judge or Magistrate is satisfied that one or more of accused is or are incapable of remaining before the Court. The wisdom behind the rule of exemption from personal appearance is that when there is a large number of accused in a case and any one of them intentionally or unintentionally is absent, the trial will be delayed and the accused, who are present in the Court will suffer due to no fault of them. Although there may be reasons that the accused is absent due to ill health or some bona- fide reason, in such circumstances if the Court reaches the conclusion that it is difficult to secure the presence of all accused at the hearing which results in unnecessary delay in their joint trial, then the Court may order the exemption of certain accused from personal appearance. In a case reported as Haji Aurangzeb vs. Mushtaq Ahmed & another [PLD 2004 SC 160] it has been observed as under:- ''........ What our law requires the Court to appreciate before the grant of exemption is that: (i) there should be 'two or more' accused facing the trial; (ii) that the accused asking for exemption, should be "before the Court": and (iii) that the, he be represented by a counsel. As already discussed with reference to law of our country, here the words "before the Court" employ the physical presence of an accused before the Court. The words "incapable of remaining before the Court" also give a strong indication of the fact that the accused who at one time was before the Court, has now become, for some reasons or the other, incapable to remain present before the Court for future."
It was further observed as under:- "10. What I comprehend from the history of section 541, is that 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 someone. 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."
The provision of section 540-A Cr.P.C. is to be interpreted in such a manner that it should be benevolent not only to the exempted accused person but also to other accused and is also convenient to the -Court. The consideration should be expeditious disposal of the case and to avoid undue harassm ent to the other accused, who are before the Court. The matter of exemption from personal appearance in the Court is in the discretion of the Court. The discretion must be exercised properly. The question whether in a case the discretion under section 540-A Cr.P.C. has been exercised properly or not depends upon the circumstances of each case. It is necessary that the Court must pass a speaking order, the reason for an accused being incapable of remaining before the Court must be born out from the record; it is not necessary that an accused is incapable of remaining before the Court due to sickness or inadequate physical or mental condition. There must tie other reasons such like earning of livelihood, service or performing other functions but exemption from personal appearance must be qualified with the condition that the accused shall be represented through a pleader or counsel. The court shall not grant exemption to an accused on frivolous grounds. In a case reported as The State vs. Victor Henry and 2 others [PLD 1973 Karachi 273] it was observed as under:- "It will be seen from the above quoted section 540-A Cr.P.C. that ' exemption can be granted by a Judge or Magistrate for reasons to be recorded when the accused is incapable of remaining before the Court. This section, therefore, obviously has not been taken into consideration properly by the learned trying Magistrate who passed the impugned order as he does not advance this reason in support of his order but has merely said that because the complainant is protracting the case, therefore, he granted exemption from appearance to the two lady accused. In my opinion, the learned Magistrate even on any of the grounds mentioned in the application for exemption could, not invoke the provisions of-section 540-A Cr.P.C.-because there is no reason in that application for exemption showing that the two lady accused are incapable of remaining before the Court merely because they had been shown to have domestic responsibilities and allied work which was not a sufficient reason to cover their case within the expression "incapable of remaining before the Court", as mentioned in section 540-A Cr.P.C. Besides, the learned Magistrate himself also does not say that he has passed the order impugned under this section. The other section is section 205 of the Code of Criminal Procedure which empowers a Magistrate to grant exemption from appearance to an accused person when in the case summons have been issued by him as a process for the appearance of the accused persons. This section also would not held the sustainability of he impugned order. because in the instant case bailable warrants had been issued against all the accused in the case, including the two lady accused who have been granted exemption under question. The third section, i,e. section 353, Cr.P.C. has also not been pressed into service by the learned Magistrate which he could well do for dispensing with the personal attendance of the accused concerned but since he has not mentioned this section in his order it cannot be said that he has exercised his powers dispensing with the presence of the two lady accused in question under this section. I like to make it clear that section 540-A Cr.P.C. is mainly for the purpose of dispensing with the personal attendance of one or more accused when such an accused is or are incapable of remaining before the Court i,e. for instance when they are ill or due, to some other reason beyond their control they cannot attend at the hearing of the cases. This section also shows that exemption to be granted under it is to be for the purpose of dispensing with the appearance of the accused only for'some short time generally and not during the whole course of trial or enquiry. Obviously, therefore, the application thade 'by the accused persons in this case under section 540-A Cr.P.C. was not maintainable as being incompetent because this section could not be invoked by them under the circumstances of this case.
10.In the present case the record reveals that 15 accused persons were challaned before the Court. One of the accused was exempted on the ground that she is a woman and cannot appear in the Court on every date of hearing. Two others were exempted, on the ground that they are of advance age and another was exempted on the ground that he is a Government servant. The record reveals that the F.I.R. was registered one 3rd August, 2009 and the challan was presented in the Court on 29th October, 2009. The charge under section 242 Cr.P.C.awas framed on 21st November, 2009. From 29th October till 26th August, 2011, twenty seven dates of hearing have been fixed in the case, but still there is no progress in the case and delay in the trial is only due to reason that there are a large number of accused and on every date of hearing any one of the accused is absent on one or the other pretext due to which there is delay in disposal of case. The Shariat Court while delivering the impugned judgment observed as under:- "4. It may be mentioned here that 15 accused persons were nominated in the F.I.R. From perusal of the record reveals that the petitioners were alleged for committing bailable offences, they were not ascribed any active role in the occurrence. Thus in the circumstances, there was no justification to deprive them from their livelihood."
The observation made by the learned Judge in the Shariat Court that the petitioners (respondents herein) have allegedly committed bailable offences is uncalled-for. The order passed by the Shariat Court is maintained on the ground that due to large number of accused persons, delay has been caused in the trial of the case. In the peculiar circumstances of the case, the order of exemption passed by the Shariat Court is maintained. The appeal merits dismissal which is hereby dismissed.
11. Before parting with the case, we may observe that the challan was presented in the trial Court on 15th October, 2009, statement of none of the witnesses has been recorded so far. We therefore direct that the trial Court shall immediately proceed with the case and complete the trial within a. period of four months from the date of receipt of record from this Court.