1. ' Facts necessary for deCision of this petition are that on 3-8-1982 a case under section 409, P.P.C.
2. And section 5(2), Prevention of Corruption Act was registered at Police Station A.C.E., Punjab, Lahore at the instance of Inspector Aftab Muzaffar Butt against Malik Gulzar Ahmad XEN Tubewell Operation Division, Sheikhupura and others on the charge of forgery and misappropriation of Government funds. After necessary investigation, on 8-3-1986, a challan under sections 409, 420, 406, 471, P.P.C. And section 5(2), Prevention of Corruption Act was filed in the Court of Special Judge Anti-Corruption Punjab, Lahore against Muhammad Saleem Babar, a businessman (the present petitioner) Malik Gulzar Ahmad, Mian Ijaz Ahmad, Sh. Muhammad Younas, Mian Khurshid Ahmad and Muhammad Ghauri accused. It is admitted at the bar firstly that Muhammad Saleem Babar petitioner did not appear before the learned trial Judge on any date of hearing after filing of the challan and secondly that after registration of the case the accused left Pakistan and in these days residing in United States of America.
2. On 7-2-1987 an application under sections 205, 353 and 540-A, Cr.P.C. Was filed on behalf of Muhammad Saleem Babar petitioner praying for exemption from attending the Court during the trial of the case. This application was dismissed by learned Special Judge, Anti-Corruption, Lahore vide the impugned order dated 1-3-1987. It was observed by learned Special Judge that the petitioner being an absconder could not be exempted from appearance in Court. In support of this petition the learned counsel for petitioner placed reliance on Kh. Abdul Aziz v. Muhammad Ali PLD 1982, A J & K 34; Fida Muhammad Paracha v. The State 1972 P Cr. L J 951 and Muhammad Hussain v.
3. Parvezur Rehman 1980 P Cr. L J 1. I have gone through all these judgments which are not attracted to the facts of the present case. In all the cited cases the accused were present before the Court and attended hearings of the case. In the instant case as admitted by the learned counsel the accused left Pakistan after registration of the case. He was declared absconder and proceeded against under sections 87 and 88, Cr.P.C. He never appeared before the trial Court at any stage of the hearing of the case. The accused is aware of the proceedings .Pending in the instant case against him. As such the learned Special Judge rightly did not allow exemption of his presence in Court during the trial. Section 540-A, Cr.P.C. Is reproduced below:- "(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 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."
4. A study of the 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 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.
5. ' In view of the above discussion I find no merit in this petition which is dismissed in limine. in limine.