SARDAR EJAZ ISHAQ KHAN, J. The petitioners Intezar Hussain and Khawar Kayani are respondents in a private complaint dated 17.09.2021 under sections 302/34, P.P.C. They moved an application dated 06.07.2022 before the learned trial court under section 540-A, Cr.P.C. for exemption from personal appearance as they apprehended murderous assault by the complainants in the private complaint. The learned trial court dismissed this application vide impugned order dated 21.09.2022 giving the reasons that both the complainant and the petitioners were residents of the same vicinity/village and "...so the ground urged by the petitioners that they have severe threats by the complainant while appearing in Court on each and every date is not justified". The court also stated that the petitioners had not appended any medical evidence to support the ground in their application that they had received firearm injuries in 2 incidents between the date of the private complaint and their aforesaid applications under section 540-A, Cr.P.C. for which FIRs were duly registered.
2. Learned counsel for the petitioners submits that the private complaint was filed after Iqrar and Intizar were declared innocent in FIR No. 12 dated 46.01.2021 under section 302, P.P.C. Iqrar is the father and Intizar and Khawar are his 2 sons. After the private complaint was registere ion 17.09.2021, FIR No. 174/2021 dated 29.08.2021 was filed by Iqrar as the injured complainant stating that he received 2 firearm injuries and nominating the complainant side in the private complaint as the accused in the FIR. Subsequently, another FIR No.849/2022 was filed by Intizar as the injured complainant, again nominating the complainant side in the private complaint as the aggressors.
Learned counsel states that Khawar, one of the petitioners, was not injured in the aforesaid two incidents because he was in jail at the time.
3. The learned counsel states that the evidence of medical report of the injuries in the aforesaid 2 FIRs was filed but was not adverted to by the trial court. Learned counsel states that the medical report of Iqrar's injuries was not required because the exemption from his appearance is not sought and he will continue to appear in the trial. In respect of Intizar, he submits that the learned trial court never asked for the medical report, but he has appended the medical report with the record in this criminal revision (at page 72). That medical report is now perused in the presence of the learned counsel for the petitioner as well as the learned State counsel. The said medico-legal examination certificate is dated 16.06.2022 (that is, the same date on which FIR No. 849/2022 was registered with Intizar as the injured complainant), and records blood stains and torn clothes of Intizar, a lacerated injury on the left shoulder with active bleeding, and an abrasion of 4 cm by 0.5 cm on the left lateral aspect of the neck. The report also records "a lacerated wound of .5 x .5cm an interior aspect of left shoulder with inverted margins and blackening, tearing skin and muscle ...
Metallic density foreign body seen in the region of upper humerus."
4. Learned counsel submits that the two occurrences after the private complaint was filed fortify the apprehension of the petitioners that the complainant side would not wait for the law to take its due course and would seek to take the law in their own hands. He submits that the incidence of murders within the court precincts between the warring parties is not uncommon.
5. Learned counsel cites Haji Aurangzeb v. Mushtaq Ahmad and another (PLD 2004 Supreme Court 160) wherein the Hon'ble Supreme Court observed that the word "incapability" being a term of wide import covers all circumstances beyond the control of the accused. He also refers to another observation by the Hon'ble Supreme Court in the same case that section 540-A, Cr.P.C. is to be interpreted with benevolence, being an enabling provisions and not a penal law.
6. Section 353, Cr.P.C. requiring the presence of the accused before the trial court during the trial acknowledges the exception of dispensation with the personal attendance of the accused. The word incapability in section 540-A ought not be confined to physical incapability alone; for instance, absence due to employment abroad is one of the grounds which qualifies as incapability to remain before the court. Learned counsel rightly submits that the presence of the accused first and foremost is for his own benefit so that he may observe all the evidence being led against him and defend himself accordingly and also for the convenience of the court which may observe his demeanour or put such questions as it may consider necessary. Nothing has been shown as to how the complainant side would be prejudiced if the petitioners are not present before the learned trial court during the trial. The petitioners have already given an undertaking through their counsel that the counsel will be present on each and every date, and in the presence of such an undertaking, it will no longer be open to the petitioners to claim their absence as causing any prejudice in the conduct of their trial. The learned trial court's observations that the petitioners are in the same village/vicinity as the complainants is not entirely persuasive, given that it is common in rural areas for extended families to live in close proximity to each other, and within the same village a given family may have several houses in close proximity which can act as a deterrent against the opposite party mounting an attack within the village. The vulnerability of the accused is somewhat enhanced when they come to courts without their clan accompanying them. As noted above, murders within the court premises by parties attending trial are not an uncommon occurrence.
7. In view of the peculiar circumstances of this case, namely, the two FIRs under inter alia section 324, P.P.C., the medical report of injury of Intizar, and the undertaking of the counsel that he will be present on each and every date and therefore waiving any later plea of prejudice due to their absence, I find the grounds plausible, and therefore allow this revision, for lntizar and Khawar to be exempted from personal appearance. However, it is observed that, per the concluding sentence of section 540-A(1), Cr.P.C., the learned trial court remains at liberty to direct the personal attendance of the petitioners where it considers it necessary for the just and proper conclusion of the trial.