MOHAMMAD AZAM KHAN, CJ. --- This appeal under Section 25 -of the AJ&K Islamic Penal Laws Enforcement Act, 1974, has been filed against the order passed by the Shariat Court of Azad Jammu & Kashmir on 21.10.2011, whereby Cri. Revision Petition No. 136/2011 has been dismissed.
2. Necessary facts for disposal of appeal are that a case under Sections 324, 147, 148, 149, 427, 337-A and 337-F, APC, was registered at Police Station Ali Beg on 11.1.2010 on a report made by the appellant, herein, against respondents and 6 others, After necessary investigation challan was - filed in Tehsil Court of Criminal Jurisdiction Bhimber on 17.3.2010. During trial, the respondents and Shahzad, accused, moved application for exemption from personal appearance. The Trial Court vide order dated 8.8.2010 accepted the application to the extent of respondents while application to the extent of Shahzad was rejected. Dissatisfied from the order dated 8.8.2010 the appellant filed a revision petition in the Shariat Court. A learned single Judge in the Shariat Court dismissed the revision petition vide impugned judgment on 21.10.2011.
3. Ch. Yasir Mehmood, advocate, counsel for the appellant, argued that the order passed by the Shariat Court is against law and record and not maintainable. The accused respondents are involved in heinous offence falling under Sections- 324, 337 and others. The respondents moved application that they are going to Karachi for earning livelihood but after exemption the respondent Muhammad Suleman has proceeded abroad in violation of the Court order, therefore, the order is not maintainable. The learned counsel referred to the cases reported as Aziz Bi v. Fazal Hussain & another [2007 SCR 141] and M. Saleem Babar v. The State [PLD 1988 Lahore 288].
4. While controverting the arguments of the counsel for the appellant, Sardar Muhammad Raziq Khan. Advocate, counsel for the respondents, argued that the order passed by the Trial Court and the Shariat Court is perfectly legal. The accused respondents were present before the Court., They moved an application for exemption from personal appearance. The Trial Court exempted them from personal appearance and the Shariat Court correctly dismgsed the revision petition. The learned counsel submitted that under Section 205, Cr.P.C., the Court has powers to exempt the accused from personal appearance with permission to appear through a counsel.
5. Mr. Muzaffar Ali Zaffar, Additional Advocate- Geheral, defended the judgment of the Shariat Court and submitted that under Section 205, Cr.P.Q., the Court is competent to pass the order of exemption from personal appearance.
6. We have heard the learned counsel for the `parties' and perused the record. The record reveals that a case under Sections 324, 147, 148, 149, 427, 337-A and 337-F, APC, was registered against the respondents and 6 others and a challan was presented against the accused in Tehsil Court of Criminal Jurisdiction Bhimber. During the trial, three- accused persons filed application for exemption from personal appearance on the ground that they want to go out of the jurisdiction of the Court for earning livelihood. The Trial Court accepted the application to the extent of respondents, herein. Under Section 540-A, Cr.P.C., if at any stage of the inquiry or trial when there are two, or more accused- persons before the Court, if the Judge or the Magistrate is satisfied for the reasons to be recorded that 'any one or more of the such accused , persons is/are incapable of remaining before the Court, he may, if such accused is represented by a pleader, may dispense with such attendance and proceeded and permit to appear through pleader and may, at any subsequent stage of proceedings, direct the person for appearance before the Court. For proper appreciation Section 540-A, Cr.P.C. Is reproduced as under:--- "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 'Writ Magistrate considers his personal attendance exit necessary, he may, if he thinks fit, and for reasons to poi ,bni be recorded by him either adjourn such inquiry or trial, or order that the case of such accused be taken up or noiaeim- tried separately." a isrrilen Section 540-A imposes three conditions for passing 11 *order of exemption from personal appearance and 1 4 p0earance through counsel; firstly that there shall be two or al more accused' persons, secondly that the accused are tc before the Court and thirdly that one or more of such 14. Accused is/are incapable of remaining before the Court. If the Court is satisfied that three conditions are fulfilled, then the Court may dispense with the personal appearance of the accused.
C101,q1ft- er,
7. The provisions of Section 540-A, Cr.P.C., deal with the situation where number of accused before the Court is two or more. In a trial all the accused have to physically (1 remain presentbefore the Court and subsequently if any one of then-rbedorties incapable of remaining before the Court, the exemption can be granted. In the cases where an accused, who is facing trial alondwith the others, seeks Q exemption on the ground that he wants to proceed abroad for earning livelihood, in such circumstances when there is delay in the trial and the cases are not expeditiously e; disposed of provisions of Section 540-A, Cr.P.C., are to be 9 interpreted with benevolence. The aim of the provisions of Section 540-A, CT.P.C., is to expedite the trial in the absence lc of some of the accused persons if there are more than one /c accused in.th6-case. In the case reported as Haji Aurangzeb v. Mushtaq Ahmed & others [PLJ 2004 SC 533] it was rit observed in paras 9 and 10 of the judgment as under:- II:31 ' "9. In the conditions given above, I believe that on rrterit the exemption should have been granted to an and who, in view of the prevailing delays in the disposal of cases, cannot wait for the commencement and conclusions of trial. I also have reservations that in case the Presiding Office is not available or the challan is not put in Court, such person is bound, for years, to wait for the congenial atmosphere before leaving for abroad. When law requires the submission of report under Sectibn 173, Cr.P.C. Within a normal period of fifteen days, the non-compliance thereof, for years together should not be counted to the credit of the prosecution and an accused be not compelled to bow before these culpable omissions, at Ale cost of . His employment, livelihood of his family and better employment prospects abroad. Any how, I do agree, that once a challan is put in Court but- the P.O. Thereafter becomes non-available for an unreasonable time, the accused seeking exemption can resort to the Appellate Court for any appropriate order or for transfer of case to another Court.
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 some one. 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."
In an unreported judgment of this Court recorded in the cage titled Muhammad Anwar v. Naveed & others (Crl. Appeal No. 36/2012, decided on 8 6.2012), it has been observed as under:--- "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 op 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 Nearing. He can be allowed to apt)ear through the counsel and trial may continue in absence of such accused. Of course the Section also lays down that 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 accused 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 ls a large number of accused ill a cate, 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 circumstance 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 the case reported as Aziz Bi v. Fazal Hussain & another [2007 SCR 141], referred to by the counsel for the appellant, the proposition was quite different. At the time of filing of application for exemption, the accused was already out of the country. He was absconder. The Court declared that a person, who is absconder, after registration of the case. Is not entitled for exemption from personal appearance.
The case referred to by the counsel for the appellant and reported as M. Saleem Babar v. The State [PLD 1988 Lahore 288] the accused was proclaimed offender. It was observed that a proclaimed offender is not. Entitled to exemption from personal appearance.
8. In the case in hand the accused were eight in number. Challan was presented against all the accused in the Court. The accused respondents were facing trial before the Court and during trial they moved an application for exemption from personal appearance on the ground that they want to proceed out of the jurisdiction of the Court for earning livelihood. All the three conditions of Section 540-A, Cr.P.C., are fulfilled. The order of exemption from personal appearance was passed in a legal fashion. There was no illegality in the order. The Shariat Court correctly dismissed the revision petition.
The result of the above discussion is that finding no force in this appeal, it is hereby dismissed.