SYED SAEEDUDDIN NASIR, J.---By this order, I intend to dispose of the instant application of applicant, in which he has prayed to dispense with his appearance in the trial Court and allow him to appear through his pleader, on the medical ground. Such application filed by the applicant before trial Court has been dismissed vide order dated 31-5-2014.
2. Learned counsel for the applicant inter alia contended that the applicant is old and chronic patient of prolapsed Intervertebral Disc of L4-5 and L5-5 and having Spinal Stenosis since 2002, which is evident from the medical record of the applicant; on 11-4-2002 venous color Doppler sonography of left lower limb was done from the Liaquat National Hospital and in the conclusion of the said report dilated venous channels with echoes are seen at the dorsum of left foot; no flow is seen on color Doppler study; these most probably represent thromboses vein; on 13-6-2002 electromyography was done in department of neurology of Liaquat National Hospital in the conclusion is suggestive of left L-5-SI radiculophtathy; MRI of lumbosacral spine is recommended and on such advise on 26-6-2002 the MRI was done with the history of pain in left leg and with observation that there is disc degeration at L4/5 and L5/SI with the conclusion that there is central and left posterolateral disc herniation at L4/5 which is causing pressure on the thecal sae and encroachment and narrowing of left neural formina, this is resulting in the mild to moderate left forminal stenosis. She further contended that the physician/doctor had suggested the applicant for minimize the movement and to avoid taking weight, using stairs due to his acute and chronic spinal cord problem and carelessness would result most dangerous mishaps and that result of paralysis of lower part of the body for ever. She further submits that the applicant had old history of this disease since 2002 and his condition became very acute and painful after scaling/climbing the stairs of the honourable Court of Rohri as it is situated on a hill; due to this, he recurred pain in his lower limb, his doctor conducted the fresh MRI on 4-2-2014 and he has been advised for complete bed rest as his condition became critical and he has also been advised for spinal cord surgery. She further contended that the applicant had moved application for exemption from his personal attendance with prayer to allow him to appear through his counsel, and his counsel is his real elder brother, who on each date is appearing from Karachi due to reason the applicant had became incapable to remain before Court; the circumstances are beyond the control of applicant and his absence is neither deliberate nor wilful and his health condition will be the same till his surgery; the applicant is under treatment and is not in a condition for operating his spinal cord, that is very risky, he may face paralysis after the surgery and lose senses in his lower part of body and his doctor and his family is of the opinion to get this surgery from abroad. She further submitted that the doctor is not allowing him for travelling and had also forbidden him from physical work. She contended that under the circumstances, the applicant is unable to attend the honourable trial Court and prayed that the attendance of the applicant may be dispensed with and allowed to appear through his pleader.
3, The learned A.P.G. Sindh appearing for the State after scrutinizing the medical record of the applicant has extended his no objection for grant of instant application.
4. I have heard the arguments of the learned counsel for the parties and perused the record. In view of the medical record/documents placed on record by the learned counsel for the applicant, it appears that the IA applicant is suffering from serious disease and unable to attend the trial Court. Section 540-A, Cr.P.C. Implicitly deals with a situation where there are two or more accused in the Court facing inquiry or trial and subsequently have become incapable of remaining before the Court. Plain meaning of the words indicates that accused to be physically present before the Court and subsequently, if it has become incapable of B remaining before the Court, exemption can be granted for reasons to be recorded. Normally the accused has to be physically present in the Court for claiming exemption and if the Court is satisfied about his incapacity of remaining before the Court it may grant exemption. Exemption can be granted in absence of accused in extremely exceptional cases like his ailment rendering his movement difficult. In the present case, the medical record of the applicant shows that the doctor has advised the applicant for complete bed rest and if the applicant would travel, move on stairs, such carelessness would be dangerous and result paralysis of lower part of the body for ever.
5. In view of above circumstances, the attendance of the applicant, before trial Court, is dispensed with and allowed to appear through his pleader on each and every date. It is pertinent to mention that the Magistrate can direct the applicant/accused for his physical attendance at the stage of final disposal of the case. Accordingly, criminal miscellaneous application is allowed as prayed.
6. Above are the reasons for the short order dated 8-8-2014.