QAZI FAEZ ISA, C.J.---This petition assails the order dated 26th November, 2013 passed by Special Judge Anti-Terrorism Court-I, Quetta, whereby he dismissed the application submitted on behalf of Mr. Pervez Musharraf under section 540-A of the Code of Criminal Procedure ("the Code") seeking exemption from his personal appearance in respect of pending criminal case. The said arises out of F.I.R. No.26 dated 13th October, 2013, wherein Mr. Pervez Musharraf has been nominated as an accused for the murder of the late Mr. Akbar Khan Bugti. The learned trial Judge states in the impugned order that the challan (charge sheet) has been submitted but the trial could not commence as Mr. Pervez Musharraf has never once appeared in court. "So that the charge may be framed and trial commenced, however, the petitioner is at liberty to file application for exemption at subsequent stage or after framing of charge."
2. Mr. Muhammad Ilyas Siddiqui Advocate, the learned counsel for the petitioner, stated that the petitioner apprehends threat to his life from different organizations and as such the learned trial Judge should have allowed his exemption from personal appearance by exercising powers vesting in him under section 540-A of the Code, and in not doing so he failed to judiciously exercise the authority vesting in him which can be corrected by this court in its constitutional jurisdiction under Article 199 of the Constitution of Pakistan.
3. The learned counsel for the petitioner stated that under section 540-A of the Code the trial court is empowered to exempt an accused from attending, and that the provisions of the Code, unless otherwise excluded, are applicable to trials before the Anti-Terrorism Court and in this regard referred to section 32 of the Anti-Terrorism Act, 1997, which states as under:-- "32. Overriding effect of Act.---(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before an Anti-terrorism Court, and for the purpose of the said provisions of the Code, an Anti-terrorist Court shall be deemed to be a Court of Session.
(2) In particular and without prejudice to the generality of the provisions contained in subsection (1), the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before an Anti-terrorism Court and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to an Anti-terrorism Court."
' Section 540-A of the Code is reproduced hereunder:-- "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 reason 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."
' The learned counsel also relied upon the following precedents:--
(1) State Bank of Pakistan v. Nassir Hussain Zaidi (PLD 1988 Karachi 359);
(2) Aurangzeb v. Bilal (2002 PCr.LJ 947);
(3) Ali Yahvah v. State (1989 PCr.LJ 1652);
(4) Tahir Muhammad v. (PLD 2003 Peshawar 123);
(5) DG-EPA v. Telenor ComArifapany (2011 CLD 1067); and
(6) Aurangzeb v. Mushtaq Ahmed (PLD 2004 SC 160).
4. Mr. Humayun Tareen, Additional Advocate-General, and Mr. Sultan Mehmood, Special Prosecutor Anti-Terrorism Court, opposed the petition and stated that the impugned order does not call for any interference as it is in accordance with law. They too relied upon the above precedent of the Hon'ble Supreme Court (Aurangzeb v. Mushtaq Ahmed, PLD 2004 SC 160) and stated that this binding precedent controverts the contention that an accused can be exempted from attendance without first appearing in court.
5. We have examined the precedents relied upon by Mr. Muhammad Ilyas Siddiqui (mentioned above in-paragraph 3):--
(1) The State Bank of Pakistan's case (above) is a judgment of a learned single judge of the. Sindh High Court, wherein the accused was granted exemption from personal appearance and it was held that a charge can be framed in the presence of the Advocate for the accused; in this regard the learned judge referred to section 205 of the Code, reproduced hereunder: "205. Magistrate may dispense with personal attendance of accused.---(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided."
' In summons cases section 205 specifically enables a Magistrate to, "dispense with the personal appearance of the accused, and permit him to appear by his pleader." However, the present case is not a summons case, but a murder case and the warrant of arrest of the accused has been issued, therefore, section 205 of the Code is not applicable and the cited precedent is distinguishable. We may also observe that a comparable provision, like the one contained in section 205, does not find mention in any of the sections of Chapter XIX of the Code.
(2) In Aurangzeb v. Bilal's case (above) an F.I.R. Was lodged against the accused under section 436 read with section 34 of the Pakistan Penal Code for allegedly, "putting the outer gate of the Hujra to fire." In this case the accused had applied for pre-arrest bail and bail was granted to him.
Thereafter, he went abroad in connection with his livelihood and submitted vakalatnama through the concerned Embassy. It is not clear whether at the time of framing of charge he was present or not. The trial Court had exercised its powers under section 540-A of the Code and had exempted the presence of the accused, which was assailed before the High Court in criminal revision, but the same was dismissed. The High Court in dismissing the petition observed that exempting the said accused was, 'for the benefit of other accused whose trial is likely to be delayed unnecessarily for no fault on their part, also attract no patent illegality in the exercise of such discretion". (at page 949 C).
(3) That Ali Yahyah's (case) is another judgment of a learned single judge of the Peshawar High Court. The accused was working abroad as a Professor of Medicine and had obtained bail before arrest, and also "no objection from the Superintendent of Police" he was also undergoing specialized treatment for heart disease in that country. There were nine accused in total and the petitioner was the ninth nominated accused and the trial was pending only because of the absence of the petitioner. The learned judge held that, "the other eight accused were also facing trial with the petitioner will greatly suffer" if the trial was not proceeded and that, "the intention of the law is to dispose of the Sessions cases as early as possible." Under such circumstances the petitioner was granted exemption and was allowed to be represented by his counsel at the time of framing of charge.
(4) The case of Tahir Muhammad (above) is also a judgment of a learned single judge of the Peshawar High Court. The petitioner was facing a criminal case lodged under sections 419, 420, 468 and 471 of the Pakistan Penal Code and was granted exemption from personal appearance as he was "serving abroad" and was permitted to be represented by counsel. It is not clear from the judgment whether the charge had been framed in the petitioner's presence.
(5) DG-EPA v. Telenor Company (above) is an order of the Environmental Tribunal Lahore granting exemption from personal appearance to the foreign Chief Executive of a corporate entity, the alleged "pollutant".
(6) That Aurangzeb v. Mushtaq Ahmed (above) is a unanimous judgment of a three member bench of the Hon'ble Supreme Court, authored by Justice Karamat Nazir Bhandari, however, Justice Sardar Muhammad Raza Khan also wrote an additional note tracing the history of the section 540- A of the Code and the difference between the provision in Pakistan and India. After referring to section 540-A Justice Bhandari held that; "Plain meanings of the words indicate that the accused has to be physically present before the Court and subsequently, if has become incapable of remaining before the Court, exemption can be granted, for reasons to be recorded." It would also be useful to reproduce the following extract from paragraph 10 of his judgment; "10. It is clear to us that none of the relied upon precedent cases support the wild proposition canvassed by learned counsel before us. We will, therefore, conclude that normally the accused has to be physically present in 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 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."
' In his additional note Justice Khan held, that:- "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, 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.
' 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. To my mind the only lacking feature in the instant case is that the accused asking for exemption has not been present before the Court. For this one and the only short coming, the grant of exemption was rightly denied to him."
6. That the aforesaid judgment of the Supreme Court (Aurangzeb v. Mushtaq Ahmed) concludes the matter; Mr. Pervez Musharraf, as held by the Hon'ble Supreme Court, would have to be, "physically present in Court for claiming exemption" and "if the Court is satisfied about his inability of remaining before the Court, the Court may proceed to grant exemption" and after the charge has been framed and answered by Mr. Pervez Musharraf.
7. That the matter of responding to the charge was also alluded to by the learned judge in his impugned order and that Mr. Pervez Musharraf has not appeared in court even to answer the charge and consequently the trial cannot commence. The form of charge and the matters relating thereto are attended to in Chapter XIX of the Code. Every charge is required to state the offence with which the accused is charged (section 221) and particulars about the offence are required to be mentioned therein (section 222). A charge is to be read to the accused and if necessary explained and the accused is asked as to how he pleads, whereafter his plea of admission or denial of guilt is recorded, and if the accused denies the charge the trial commences. The right to respond to a serious criminal charge is an important right of an accused and one which should not be interfered with. Presuming, for arguments sake, that an attorney or lawyer was allowed to answer the charge and had been instructed by the accused to enter a plea of 'not guilty' but instead pleaded guilty, or if the accused had instructed that a plea of 'guilty' be entered, but the attorney or lawyer decided to plead not guilty'. If the attorney or lawyer was allowed to respond to a serious criminal charge on behalf of the accused, but acted contrary to his instructions, it could give rise to difficult and complex legal and constitutional questions. Then there is also the question of Faith; in Islam shariah encourages Muslims to acknowledge crimes committed by them, because they would then not suffer the consequence of the same in the Hereafter.
8. We conclude by holding that, (1) the impugned order does not suffer from any illegality that requires correction, (2) in non-summons cases the accused must be present to answer the charge, (3) if exemption, from personal attendance is sought, such application would be considered by the trial court in terms of section 540-A of the Code, but after the charge lids been answered personally by Mr. Pervez Musharraf and (4) we 'direct the State to ensure the safety of Mr. Pervez Musharraf when he is taken to and from the court and whilst he is present in court.
9. The petition is disposed of in the above terms.