' The brief facts of the case are that a private complaint for offences under sections 499/500 and 501, P.P.C. Has been filed in the Court of learned Sessions Judge, Rawalpindi, under section 198-A, Cr.P.C. Against the petitioner and others on 15-3-1994. The petitioner and other co-accused were summoned by the learned trial Court. The petitioner appeared on 15-12-1994 before the learned trial Court and submitted his bail bonds. He also submitted an application under section 205, Cr.P.C. For exemption from personal appearance on the dates of hearing. This application was submitted through a learned counsel who undertook to appear on behalf of the accused petitioner. On this application the learned trial Court passed the following order:- "The respondent No,2 Mr. Moshahid Hussain is present in person. He has submitted bail bonds as per orders of this Court. The bail/surety bonds have been accepted. He has applied for dispensation of his attendance on future dates. His counsel Mr. Ibadur Rehman Lodhi, Advocate, has undertaken to appear on his behalf on all future dates and has furnished an undertaking to produce him as and when required by this Court. Attendance of this accused is, therefore, dispensed with for future dates, subject to the undertaking given by his counsel."
2. On 5-4-1995 the learned Sessions Judge passed the following order:- "Vide separate order passed today, two applications submitted by the two accused have been dismissed. The matter is adjourned to 13-4-1995 for framing of charge when the accused shall appear before me personally or through their counsel to answer the charge."
3. However, on 27-4-1995 the learned trial Court passed the order, inter alia, observing as follows:-- - "The learned counsel for the two accused persons namely Mian Muhammad Nawaz Sharif and Syed Mushahid Hussain are directed to produce their clients before this Court for framing of charge on 9-5-1995."
4. As 9th of May, 1995 was declared public holiday due to Eid-ul-Azha, the case was taken up on 14- 5-1995, but was adjourned to 25-5-1995 as the learned counsel for the petitioner stated before the learned trial Court that he could not contact his client due to Eid Holidays. The direction for personal appearance of the petitioner was repeated in the following terms:--- "In this matter, therefore, this case is adjourned to 25-5-1995 when counsel for the respective accused persons are directed to produce their clients before me on the date fixed for framing of charge."
5. The petitioner has now challenged the orders, dated 27-4-1995 and 14-5-1995 through this Criminal Revision Petition.
6. Learned counsel for the petitioner submitted that the learned trial Court on 5-4-1995 had specifically ordered that the "accused shall appear before him personally or through their counsel to answer the charge." According to the learned counsel, the learned trial Court had given option to the accused petitioner to appear personally or through his counsel to answer the charge which was to be framed by the learned trial Court. He further submitted that the petitioner was granted exemption from appearing before the learned trial Court on all the future dates of hearing in accordance with the provision of section 205, Cr.P.C. Since there was no violation of the terms of the exemption order passed by the learned trial Court, the same could not be varied or withdrawn by the learned Court. Finally he argued that the learned trial Court was not vested with the power of review and, therefore, the orders passed on 27-4-1995 and 14-5-1995, which have the effect of reviewing the order, dated 5-4-1995, were without jurisdiction.
7. Learned counsel for the petitioner submitted that the counsel who used to appear on behalf of the petitioner under exemption order was legally competent to answer the charge. He relied upon State Bank of Pakistan v. Nasir Hussain Zaidi and others PLD 1988 Kar. 379 in support of this contention. The last paragraph of the judgment in the precedent case is as follows:--- "I, therefore, hold that the charge can be framed in the presence of the Advocate for the accused who have been granted exemption from personal appearance in Court under section 205, Cr.P.C. In cases like the present one. However, they would appear as and when required by the Court as mentioned under sections 205 and 540-A of the Criminal Procedure Code, 1898."
8. Learned counsel for the petitioner also referred to another judgment of the learned Peshawar High Court in Dr. Ali Yahya v. State 1989 PCr.LJ 1652, wherein exemption from personal appearance was allowed. It was, however, held that the trial Court retained the power to summon the accused at any stage.
9. In the light of these submissions, the learned counsel for the petitioner prays that the orders dated 27-4-1995 and 14-5-1995 passed by the learned trial Court be set aside and direction be issued to the learned trial Court to frame charge, if any, in the presence of the counsel for the petitioner, without requiring the petitioner to be present in person.
10. Sh. Zamir Hussain, Advocate, learned Special Public Prosecutor, who is assisted by Syed Sajjad Hussain Shah, learned AA.-G. Raised preliminary objection to the maintainability of the present petition. In this regard, he submitted that the orders passed by the learned trial Court on 27-4-1995 and 14-5-1995, being of interlocutory nature, are not to be interfered with by this Court in revisional jurisdiction. He referred to section 537, Cr.P.C. Which provides that:--- ' no finding, sentence, order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account --
(a) of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or.
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless, such error, omission or irregularity has in fact occasioned a failure of justice.
' Explanation.---In determining whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings."
11. Relying on Rama Shanker v. State AIR 1956 All. 525, State v. M.A. Beg AIR 1963 Jammu and Kashmir 20 and Sarkar v. Muhammad Malik PLJ 1974 Cr.C. (AJ&K) 311, the learned Public Prosecutor submitted that the impugned orders were not arbitrary or capricious, therefore, interference in the exercise of revisional jurisdiction, at this stage, was not warranted by this Court.
12. He further submitted that the learned trial Court was within its powers to require the accused persons to appear in person at any stage of the trial, notwithstanding the exemption granted under section 205, Cr.P.C. He also referred to the application submitted by the petitioner for grant of exemption which, inter alia, stated as follows:--- ' The petitioner, however, undertakes to appear before the Court as and when directed to do so."
13. It is also submitted that a similar undertaking was given by the learned counsel for the petitioner for producing the accused as and when required. This undertaking is incorporated in the order of the learned trial Court dated 15-124994, wherein the learned trial Judge states: "I dispense with his attendance on all future dates subject to the undertaking given by his counsel to attend this Court on all dates of hearing and to produce him before me as and when required".
14. The learned Public Prosecutor submitted that the orders dated 27-4-1995 and 14-5-1995 did not amount to reviewing the orders passed by the learned trial Court on 15-12-1994 and 5-4-1995.
According to him, the subsequent orders were passed on the aforesaid undertaking and are in accord with section 205(2) of the Code of Criminal Procedure, which empowers the learned trial Court to require the personal attendance of the accused at any stage of the trial, notwithstanding the exemption granted earlier. Section 205(2), Cr.P.C. Reads as follows:--- "But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided."
' In this connection, reference may also be made to section 540-A, Cr.P.C. Which also empowers the learned trial Court to direct the personal attendance of the accused at any stage of the proceedings, notwithstanding the fact that the same was dispensed with and in his place the accused was represented by his counsel. Reference may also be made to a reported judgment of the Indian jurisdiction in Dudhnath v. State AIR 1938 Cal.431 wherein, in somewhat similar circumstances, although with reference to section 342, Cr.P.C., it was observed as follows:--- "As I have said, there is nothing in section 205 or in section 540-A of the Code of Criminal Procedure which encourages the view that the Court can dispense with the attendance of the accused even for purposes of examination under section 342 of the Code. The two sections (sections 205 and 540-A) contained express provisions on the contrary for directing whenever necessary the presence of the accused in the course of the trial."
15. There is another aspect of this case. The learned trial Court has directed the petitioner to appear in person to answer the charge. Apart from the fact that the learned trial Court has the power to make such a direction at any stage of the proceedings, as observed above, this particular situation has been specifically dealt with under section 265-E of the Code of Criminal Procedure, which is as follows:- "Plea.---(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon."
' Subsection (2) of section 265-E provides that the accused may plead guilty whereupon the Court may convict him and sentence accordingly. I am afraid, whether any such plea by the counsel on behalf of the accused can bind the accused and make him liable to conviction and punishment. In my view, the accused cannot be convicted and sentenced on the basis of the plea of guilt made by his counsel in the absence of the accused.
16. In this connection, learned Special Public Prosecutor has referred to an unreported judgment of this Court in Criminal Reference No,1 of 1994 "State v. Mian Muhammad Nawaz Shari!" wherein it is observed as follows:--- "I am of the view that the presence of the respondent is essential so as to explain the charge to him, as amended by the Magistrate."
17. It is thus evident that by directing the petitioner to appear in person to answer the charge, the learned trial Court has not committed any error or irregularity in the proceedings, nor .Has such a direction occasioned failure of justice. On the other hand, the converse of it may be true, inasmuch as framing of charge in the absence of the accused may cause some prejudice to him. The orders impugned herein cannot, therefore, be said to be arbitrary or capricious.
18. For the foregoing reasons, this revision petition is held to be without any force and is dismissed in limine.