' MUHAMMAD TARIQ ABBASI, J.---This writ petition is directed against the orders dated 16-4-2014 and 15-5-2014, respectively passed by the learned Judicial Magistrate, Jand and the learned Additional Sessions Judge, Jand of District Attock.
2. Through the above mentioned earlier order dated 16-4-2014, an application moved by Ghulam Hussain (respondent No.1), for dispensation from personal appearance has been accepted and his personal appearance has been dispensed with. Whereas through the above said lateral order, a revision petition, filed by the petitioner, challenging the above mentioned order of the learned Judicial Magistrate has been dismissed.
3. The facts are that in a private complaint, filed by the present petitioner, against Sultan, Ghulam Hussain (respondent No. 1) and Abdul Ghaffar, under sections 382, 506(ii)/34, P.P.C., all the above named accused were summoned by the learned Judicial Magistrate to face the trial. Thereafter, Ghulam Hussain (respondent No. 1) preferred an application, before the learned Judicial Magistrate, whereby he sought dispensation of his personal appearance, on the grounds that due to his employment at Karachi, he was unable to personally attend the court, hence may be exempted and that in the said eventuality, his co-accused will keep in appearing, in the court, also on his behalf. The learned Judicial Magistrate through the order dated 16-4-2014 had accepted the above mentioned application and exempted personal appearance of the respondent No. 1, subject to the condition that his brother namely Abdul Ghaffar will be bound to appear on his behalf.
4. The petitioner while challenging the above mentioned order had filed a revision petition, before the learned Additional Sessions Judge, Jand, but dismissed on 15-5-2014. Consequently the writ petition in hand.
5. Arguments heard and the record perused.
6. In the Criminal Procedure Code, 1898, there are two provisions, under which, personal appearance of an accused can be dispensed with. Those provisions are sections 205 and 540-A of Cr.P.C. For convenience, both the said provisions are reproduced herein below:- ' Section 205 "Magistrate may dispense with personal attendance of accused.---(1) Whenever a Magistrate issues a summons, he may, if he sees reasons 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."
' Section 540-A "Provision of 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 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."
7. In both the above mentioned provisions, besides other conditions, one mandatory is that the accused must be represented by his pleader, who should make an undertaking before the learned trial Court that he, on behalf of the accused shall join into the proceedings and keep in appearing on each and every date of hearing. In the situation in hand, in the application, whereby the respondent No. 1 had sought exemption from personal appearance, he had contended that on his behalf, his co-accused will appear in the court. The learned trial Court in the order dated 16-4-2014 had also granted the exemption and allowed Abdul Ghaffar, brother of the respondent No. 1 to appear on his behalf.
8. Firstly, mentioning in the application that in case the exemption is granted, the co-accused of the respondent will appear in the court on his behalf, was not the requirement of the above mentioned provisions. Secondly, it was mandatory for the learned trial Court to know the relevant law on the subject and while relying on it, an order should have been passed. But it has been observed that the learned trial Court had granted the exemption to the respondent No. I and allowed his brother namely Abdul Ghaffar to join into the proceedings on his behalf, which at all was not the mandate of the provisions highlighted above.
9. It is well settled principle of law that if law prescribes an act to be done in a particular manner, then it must be done in the prescribed manner or should not be done at all. Reliance in this respect is respectfully placed upon the judgments reported as "Raja Hamayun Sarfraz Khan and others v.
Noor Muhammad" (2007 SCM R 307), "Muhammad Akram v. Mst. Zainab Bibi" (2007 SCM R 1086), "Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others" (2010 SCM R 1437).
10. In the situation in hand, as stated above, the law on the subject clearly prescribes that an exemption from personal appearance of an accused could only be granted if he is represented by a pleader, who undertakes before the Court to be available on behalf of the accused. But the learned trial Court while ignoring the said mandatory procedure has passed the above mentioned order in the above stated manner.
11. The learned Additional Sessions Judge was supposed to watch the proceedings of the courts subordinate to it, and if any deviation from a procedure or law is noted, to cure the defect and bring the concerned court at right path. But unfortunately, when the above mentioned erroneous and unwarranted proceedings of the learned trial Court had been brought before the learned Additional Sessions Judge in shape of a revision petition, he instead of realizing the above mentioned defect committed by the learned trial Court and curing it, in a mechanical and slipshod manner had affixed stamp of confirmation on the above mentioned erroneous findings made by the learned trial Court and dismissed the revision petition.
12. It is expected that hereinafter, the learned trial Court will sit in the chair with open eyes and the mind and also the learned Additional Sessions Judge being Appellate Authority shall be vigilant about the proceedings carried on by the courts subordinate to it and shall act as a true supervisor/watcher, so that in future, any instant like matter may not come before this Court.
13. For what has been discussed above, the writ petition in hand is accepted, the above mentioned impugned orders are set aside and the application moved by the respondent No. 1 for exemption of his personal appearance being not according to the above mentioned mandate/provision is dismissed. However, if the respondent No. 1 files any fresh petition, while fulfilling the required criteria, then should be entertained, proceeded with and decided on merits, without being prejudiced from the above mentioned findings.