RAJA SAJJAD AHMAD KHAN, J.---The captioned revision petition has been directed against the order of Tehsil Court of Criminal Jurisdiction, Rawalakot dated 09.10.2017, whereby an application for exemption from personal appearance before the Court filed by accused-petitioner was dismissed.
2. Necessary facts for disposal of the revision petition are that case vide FIR No.08/2014 in offences under sections 447, 427, 34, A.P.C. and 14 of the Offences Against Property (Enforcement of Hudood)
Act, 1985 was registered against the accused-petitioner and co-accused at Police Station, Rawalakot on 09.01.2014 on the complaint of Shoukat Mehmood. After necessary investigation challan againg five accused persons was submitted before Tehsil Court of Criminal Jurisdiction, Rawalakot on 08.07.2014. During trial accused-petitioner in his presence moved an application under section 540-A, Cr.P.C. along-with copy of entry VISA of Saudi Arabia on 06.05.2017, for exemption from personal appearance before the Court which was dismissed vide impugned order dated 09.10.2017. Feeling aggrieved of the aforesaid order of the trial Court, the petitioner has filed instant revision petition.
3. Sardar Amir Jameel, the learned counsel for the petitioner reiterated the grounds raised in the revision petition and argued that the impugned order passed by the trial court is against law and facts of the case, is not maintainable as the petitioner has no specific role in the occurrence. The examination of accused under section 242, Cr.P.C. was in 19.10.2015, since then statement of no any one witness has been recorded. The impugned order is unlawful and based on surmises, hence the same is liable to be set aside, therefore, by accepting the revision petition, the petitioner may be exempted from personal appearance. In support of his arguments, the learned counsel relied upon 2012 PLC (C.S.) 462 and 2013 SCR 270.
4. On the other hand, learned A.A.G for State argued that petitioner is nominated in the FIR and he is involved in heinous offences falling under the prohibitory Clause. The learned State counsel further submitted that trial Court while disallowing the application of the accused petitioner did not commit any illegality. The learned State counsel defended the impugned order on all counts and finally prayed for dismissal of revision petition.
5. I have heard the learned counsel for the petitioner and learned A.A.G for the State and gone through the impugned order dated 09.10.2017. The complainant was not arrayed in the line of respondents, however, for the purpose of hearing a notice was issued to the complainant but it has been reported that he has died.
6. It will not be out of place to mention here that to exempt the personal appearance or not is within the discretion of the trial Court. For the sake of convenience, section 540-A, Cr.P.C. is hereby reproduced as under:- "(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."
7. The words "before the Court" can, therefore, not be assigned the strict meaning of personal attendance of an accused before the court, because one of the necessary elements for attracting the jurisdiction of the Court under this section is that an accused can be represented by a pleader and the Court may exempt an accused from personal appearance. From perusal of record reveals that the accused petitioner was present before the court when the application for exemption from personal appearance was moved. The presence of accused, at the time of presentation of application for exception, is necessary. In a case reported as PLD 2004 SC 160. (Section 540-A.
Cr.P.C). (Case titled Haji Aurangzeb v. Mushtaq Ahmad and others) it has been observed as under:- "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 the 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. It may he observed that the provision i.e. section 540-A, Cr.P.C. covers cases of temporary exemption from one or two dates of hearing or exemption till the conclusion of inquiry/trial. The Courts have to pass appropriate orders depending on the facts and circumstances of the case.
For the above reasons, we find no ,force in this Petition, which is hereby dismissed and leave to appeal is refused."
8. From bare reading of above case law shows that it is clear to me that none of the relied upon precedent cases support the wild proposition canvassed by learned counsel before the Court will, therefore, conclude that normally the accused has to be physically present in the 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.
9. In the present case it may be mentioned here that challan was submitted before the trial Court on 08.07.2014. The complainant has died and since 19.10.2015 when the examination of accused petitioner under section 242, Cr.P.C. was recorded, statement of no any witnesses was recorded.
Even otherwise five accused persons were challaned in the case and except petitioner others are present before the Court. Admittedly petitioner has gone abroad for earning his livelihood after filing application before the trial Court and rejection of application for exemption will amount to deprive him and his family from earning livelihood. So in the circumstance of the case the learned trial Court has committed illegality while passing the impugned order, which is nullity in the eye of law, and is not maintainable.
In light of the above observation and circumstances of the case, by accepting the revision petition, the accused petitioner is exempted from personal appearance and is allowed to appear before the trial Court through counsel.