1. RAZA ALI KHAN, J. This revision petition has been filed against the order passed by the learned Additional fehsil Criminal Court, Mirpur , dated 22.11.2018, whereby , the accused respondent has been exempted from personal appearance.
2. Precise facts of the case are that FIR No.81/2006 was registered against the accused respondent as well as co- accused under sections 341/ 347, 149/337-A.P .C. The accused respondent is facing trial in the said FIR. On 03.10.2018, the accused respondent moved an application for his exemption from personal appearance. The learned trial Court after hearing the parties, vide impugned order dated 22.11.2018, accepted the application and exempted the accused respondent from personal appearance, hence, the captioned revision petition.
3. The learned Advocate appearing for the complainant/petitioner argued that under section 540-A, Cr.P.C. an accused can be exempted from personal appearance subject to two conditions i.e. firstly , the accused should be "before the Court" and secondly , the accused is "incapable of remaining before the Court". The learned Advocate submitted that on 22.04.2018, the accused respondent was absent but despite that the learned trial Court accepted the application and exempted him from personal appearance. The learned Advocate submitted that impugned order is violative of the provisions contained in section 540-A Cr.P.C. The learned Advocate in support of his submissions placed reliance on following cases:
(1) 2007 SCR 141 and (2) PLD 1987 Lah. 288 .
4. In 2007 SCR 141, referred to by the learned counsel for the complainant, the apex Court of Azad Jammu and Kashmir has observed that there are two conditions for exemption from personal appearance under section 540-A, Cr.P.C.; first that the accused should be "before the Court" and second the accu sed is "incapable of remaining before the Court" and an absconding accused cannot claim any benefit under this section. The relevant observation recorded in para 5 of the judgment is reproduced as under: "Under section 540-A, Cr.P.C. there are two conditions for exemption from personal appearance. First that the accused should be "before the Court" and second that the accused is "incapable of remaining before the Court".
5. The word "before the Court" imply the physical presence of an accused during the trial before the Court. Similarly the words "incapable of remaining before the Court" also contemplate that an accused was present in the Court and for some reasons is incapable to continue to remain present before the Court on each and every date of hearing. Thus, only such person, who is present before the Court and incapable to remain present, can be exempted under section 540-A Cr.P.C. An absconding accused cannot claim any benefit under this section."
6. In PLD 1987 Lahore 288, the learned Judge of Lahore High Court has observed in the same manner . The relevant observation recorded at page 290 is reproduced as under: "A study of section would show that there are two conditions to dispense with the attendance of an accused during an enquiry or trial. Firstly that the accused should be "before the Court" and secondly that the accused is "incapable of remaining before the Court" . The words "before the Court" imply the physical presence of an accused during the trial before the Court. Similarly the words "incapable of remaining before the Court" also contemplate that an accused was present in Court and for some reasons, is incapable to continue to remain present before the Court on each and every date of hearing . Thus, an absconding accused cannot claim any benefit under section 540-A, Cr .P.C."
7. The learned AAG argued that the accused respondent was present before the Court on which date he filed application for exemption from personal appearance, hence, no illegality has been committed by the Court below while passing the impugned order .
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. Under section 540-A, Cr.P.C. an accused can be exempted from personal appearance subject to conditions mentioned in the said section. For ready reference section 540-A Cr.P.C. is reproduced as under:- "540-A. Provisions for inquires 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, in such accused is prese nted 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 ."
10. The above reproduced provision of law provides that first condition for exemption from personal appearance of an accused is that there should be two or more accused persons before the Court. Second condition is that the accused seeking exemption should be before the Court. The words "before the Court" used in the above reproduced section have been interpreted by the superior Courts in the terms that the accused has to be physically present before the Court. The third condition is that the accused seeking exemption has become incapable of remaining before the Court. If first two conditions are fulfilled and the Court from whom the exemption is sought, is satisfied that the accused is unable of remaining before the Court and is represented by a pleader , may exempt him from personal appearance and may proceed with such inquiry or trial in his/her absence. No doubt, the exemption under section 540-A, Cr.P.C. is discretion of the Court, but this discretion always is to be exercised in judicious manner and not arbitrarily . The words "incapable of remaining before the Court" indicates that accused who at once remained physically present before the Court has now become for one reason or the others, incapable to remain present before the Court in future . The act of going abroad for earning livelihood has been considered as sufficient ground for exemption from personal appearance by the Superior Courts" Courts as has been held in case titled Maqbool Hussain v. Muhammad Suleman alias Abu Bakar and another (2014 SCR 113). The relevant observation recorded in para 7 of the report is reproduced as under: In the cases where an accused, who is facing trial along with the others, seeks 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 disposed of f, provisions of section 540-A, Cr .P.C., are to be interpreted with benevolence.
11. However , the condition precedent for seeking exemption from personal appearance to an accused facing trial is that there should two or more accused facing trial and he should be physically present before the Court. A perusal of the record reveals that accused respondent moved application for exemption from personal appearance on 03.10.2018 on the date when he was present before the trial Court and it was stated that he wants to go abroad for earning his livelihood, however , without obtaining order from the Court for his exemption proceeded abroad. The superior Courts have held in various judgments that duty of an accused seeking exemption under section 540-A, Cr.P.C. is not only to file an application for the purpose but he has to wait till his application is duly allowed. The argument that on the date of filing applica tion the accused was present before the Court and the proceeded abroad after filing application, hence, it was sufficient compliance of section 540-A, Cr.P.C., has been considered by the apex Court in case tilted Haji Aurangzeb v. Mushtaq Ahmed and another (PLD 2004 Supreme Court 160) and in para 6 of the report observed as under:- "6. Here, in this case, the accused left the country in the month of July, 2002 as stated by learned counsel before us while application for exemption was made on 05.09.2002. The absence of Presiding Officer was not an insurmountable obstacle. An application could have been filed before the Sessions Judge and then in the High Court seeking transfer of the case or at least for entrustment of application for exemption to a competent Court of law so that appropriate orders could be obtained within time. No such ef fort was made in the present case."
12. In PLD 2004 Supreme Court 160, supra, the apex Court also observed that exemption could be granted in extremely exceptional cases. The relevant observation recorded in para 10 of the report is reproduced as under: "10. It is clear to us that none of the relied upon precedent cases support the wild proposition canvassed by the 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 aliment 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."
13. The same like proposition came under consideration of Lahore High Court Lahore in caste titled Tassawar Rasheed v. Additional Sessions Judge, Chakwal and others (2010 MLD 1395 ). The Lahore High Court Lahore, maintained the rejection of the application by the trial Court and observed in paras 11 and 13 of the report as under:- "11. The provisions of section 540-A, Cr.P.C. are to be applied by the Court of law according to facts of each case.
14. The duty of an accused does not come to an end by just moving an application before the Court for seeking exemption from appearance but it contin ues thereafter as well; he must wait till his application is duly allowed because the Court has not to pass a mechanical order of acceding to each such application whenever moved by an accused. The trial Court has to see the possibility of its ability to enforce the direction of personal attendance of the accused at subsequent stage if and when so deemed necessary by the Court in case he is granted exemption from attendance."
13. It is not the entitlement of the petitioner seeking exemption from presence during trial which is as such controverted but the manner in which he conducts himself in making the prayer and then leaving abroad without grant of said permission by the trial Court which has resulted into dismissal of his application. He was present before the trial Magistrate when he moved an application for exemption but left the country without any order having been passed by the trial Court on his application, he did not take Court into confidence about his commitment of job abroad in proper manner . The trial Court was thus left with no option but to dismiss his application under section 540-A, Cr .P.C.
15. In view of above, the revision petition is accepted and the impugned order is set-aside, resultantly , the application filed by accused respondent for exemption from personal appearance under section 540-A, Cr.P.C. is rejected. The trial Court is directed to proceed in the matter in accordance with law .