' In this case the petitioner Dr. All Yahyah alongwith 8 others is facing trial in case F.I.R. No, 658, dated 12/13-10-1986 Police Station Mansehra which is pending before the Additional Sessions Judge, Mansehra for the offence under section 302/148/149/427, P.P.C. It is alleged that the petitioner is serving in Libya as Medical Specialist and posted as Professor of Medicines in Albeda (Libya). He was visiting home on short leave when the occurrence took place and he was also charged for the murder. As the petitioner was suffering from heart disease, therefore, he was granted bail before arrest by the learned Sessions Judge, Manshera on 6-11-1986. After sometime the petitioner was obliged to leave his home country and before going back to Libya he obtained no objection from the Superintendent of Police, Mansehra which is dated 11-2-1987 addressed from S.P. Mansehra to Director Immigration, Islamabad. The challan was put in Court on 4-1-1988 during the absence of the petitioner, after about 11-1/2 months of the occurrence. Coming to know of the submission of the challan the petitioner applied for exemption from appearance in Court through his counsel Mr. Ghulam Mustafa Khan, Advocate on 19-3-1988, through his brother Mian Farooq Shah before the learned Additional Sessions Judge, Mansehra. The exemption petition was still pending disposal before the trial Court, when on 15-5-1988 the learned Court forfeited the bail bonds by issuing bailable warrant of arrest against the petitioner. This order was impugned before this Court which was decided on 9-10-1988 with the direction to the learned Additional Sessions Judge, Mansehra to first dispose of the pending exemption petition according to law and then proceed with the case further. Accordingly the learned Additional Sessions Judge passed the impugned order on 2-2-1989 and refused to grant exemption to the petitioner. The impugned order has been assailed in this criminal revision petition.
2. I have heard the learned counsel for the parties and the learned counsel for the State and have also perused the record.
3. The petition for exemption is made under section 540-A, Cr.P.C. On the ground that the petitioner is serving in Libya as Professor and is also suffering from heart disease and is under going specialized treatment in that country.
' Section 540-A, Cr.P.C. Says that 'at any stage of any 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'. The above quoted section would show that wide discretion has been given to the Court to exempt any of the accused when there are more than one accused if he is incapable of appearing before the Court and if such accused is represented by a pleader, the Court may dispense with his attendance and proceed with such inquiry or trial in his absence. The discretion of Court is to be exercised by the Court judicially and not arbitrarily.
4 In the instant case as pointed out earlier there are 9 accused in total and the petitioner is No,9.
The case is lingering on before the learned trial Court since 24-2-1988 for the only reason that the petitioner has remained absent. The petitioner has given cogent reasons for not attending the Court and he requested the learned trial Court for exemption. If this exemption is not granted as the case is then the case will be lingering on in the trial Court without any proceeding and the other 8 accused who are also facing trial with the petitioner will greatly suffer. The intention of the law is to dispose of the Sessions'-cases as early as possible and not to prolong them unnecessarily. In this view of the matter the legislature has enacted section 540-A, Cr.P.C. In order to cope with such situation. The learned counsel for the petitioner has cited 1982 SCMR 1006, wherein it has been laid down by their Lordships that the murder case has been adjourned without sufficient reasons so many times and mere absence on medical grounds of one or the other accused when they are large in number and are represented by counsel, was by no means an impediment to the continuance of the trial. It has been said further that section 540-A, Cr.P.C. And other provisions of Cr.P.C. Could be made use of and the adjournments could be avoided easily. It has been provided further that the learned trial Judge should realise that according to the rules and directions on the subject, murder cases, are to be disposed of within a short period of time after completion. In view of the above judgment the learned trial Court could have avoided the unnecessary adjournments granted in this case and could have proceeded with the case after granting exemption to the petitioner who is represented by a counsel.
5. The learned counsel for the State submitted that there is no Wakalatnama of the petitioner and his petition is incompetent. I have perused Annexure 'D' which is exemption application and in para. 3 it has been stated by the brother of the petitioner that the petitioner has given Wakalatnama to him which was duly signed and he has authorised counsel to represent him in the case. There is a Wakalatnama ob-the file which has been duly signed by Dr. All Yahyah petitioner and lie has executed this Wakalatnama in favour of Ghulam Mustafa Khan, Advocate and the application for exemption was also presented by two counsel including Ghulam Mustafa Khan, Advocate. In view of the above this petition cannot be termed as incompetent.
6. In this case section 242, Cr.P.C. Will not be applicable which comes in Chapter XX (of the trial of cases by Magistrate) and it has been laid down in section 242, Cr.P.C. That when the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged. Similarly the authority on which reliance is placed by the learned Additional Sessions Judge, Mansehra reported as PLD 1986 Kar. 417 is also not attracted to the case because it dealt with section 242, Cr.P.C. Only which section is applicable to the cases triable by Magistrate only. In the instant case the relevant section is 265-D of the Criminal Procedure Code which is for framing of charge by the Court of Sessions and section 265-D does not lay down that the presence of the accused at the time of framing of charge is necessary. In any case the accused petitioner is represented by his duly appointed counsel and he can represent the petitioner at the time of framing of the charge and even at the time when the statement of the accused is recorded under section 342, Cr.P.C. Through his counsel. According to the provisions contained in section 540-A, Cr.P.C. The trial Court has the discretion after granting exemption under the abovequoted section to summon the accused at any stage of the trial when his presence is considered necessary.
7. For the aforegoing reasons I accept this petition and set aside the impugned order of the learned Additional Sessions Judge, Mansehra dated 2-2-1989. Dr. All Yahyah accused-petitioner is exempted from personal appearance before the trial Court and the trial Court is directed to proceed with the case and to dispose of the case as early as possible. The petitioner will be represented by his duly appointed counsel Ghulam Mustafa Khan, Advocate. Notices given to the sureties by the learned trial Court and the order of issuing of bailable warrant against the petitioner are also withdrawn. However, the learned trial Court is at liberty to summon the accused, if considered necessary, at any stage of the trial according to law.