The facts giving rise to this revision application filed under section 439, Cr.P.C., are simple and may be briefly summed up.
2. Applicant Zaheer Mirza is facing trial before VII th Additional Sessions Judge (East), Karachi/Tribunal under F.E.R. Act, 1947, in a case under sections 5, 9 and 23 of the F.E.R. Act, 1947. The applicant who has been attending the Court regularly since 1989 was stuck up in Islamabad and therefore, he could not attend the Court on 8-2-1992. The application was moved on his behalf by his son who is co-accused for condoning the absence, which came to be dismissed with the following order:-- "Rejected. Issue N.B.W. And notice to surety."
This order-dated 8-2-1992 is the subject-matter of the present revision application.
3. I have heard Mr. Usman Ghani Rashid, learned counsel for applicant and Mr. S.ZA. Qureshi, learned counsel for State. The latter has not supported the impugned order.
4. The impugned order which I have reproduced above is not a speaking order. It does not tell the applicant why and how his prayer for condonation of absence was rejected. The order is obviously judicial one which rules out any caprice or whim. Recording reasons is the best evidence to show that the Court has applied its mind while passing an order of this nature wherein liberty of an individual is involved. It is unnecessary to state how important and how valuable the liberty of a person is. As a presumably innocent person the accused is entitled to a fair opportunity to defend himself, which includes an indulgence of this nature. A balance is to be kept between undue leniency and undue severity. If the prosecution can be permitted to drag the case for years together, the accused is also entitled to seek an exemption on account of urgency or emergency.
At, any rate there is nothing on record to show as to why such a serious view was taken by the trial Court and in the absence of any reason, I am unable to persuade myself to sustain this telegraphic order of one sentence.
5. In the result the revision application is allowed and the impugned order is set aside.
N.H.Q./186/Z-K