Muhammad Sudais Vs The State etc

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JUDGMENT SIIEET

IN THE PESHAWARIIIGH COURT'

BAI\NU BENCII.

(J ud. ic i al D eP a rtme n t)

JUDGMENT

Cr.R. No.5L-B/2025

Muhammad Sudais.

Versus

The State etc.

Date of hearing 2r.07.2025

For petitioner: Mr. Fidaulalh Khattak, advocate.

For the State: Mr. Muhammad Asghar Khan Ahamdzai, Addl: A.G.

For respondent: Nemo (in motion).

ABDUL FAYAZ. J.-

1.The instant criminal revision petition filed u/s 439 Cr.P.C, against the order of learned Additional Sessions Judge- III, Karak dated 30.06.2025, whereby the learned trial court dismissed the application filed by the petitioner for exemption t through his counsel from the court appearance.

2.Arguments of learned counsel for the petitioner and that of learned AAG (present in court accepts notice in this case) heard and the available record gone through, however, the learned AAG has raised no objection on the acceptance of the

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instant petition while submitting that exemption is the legal right of the petitioner through counsel from the court appearance

3.Perusal of the record reveals that petitioner being involved in a criminal case vide F.I.R No.27 dated 22.01.2024 uls 302134 P.P.C, Police Station, Latamber, Distict Karak is on bail as is evident from the order sheet dated 11.06.2025, and he has submitted an application for his exemption through counsel from court appearance on the ground of serious threat to his life and security while attending court proceedings on each and every date, but the request of petitioner did not find favour with the learned trial court, and turned down the same vide the impugned order dated 30.06.2025 mainly on the ground that the d petitioner did not attach or refer to any F.I.R, police complaint, or protective request in order to substantiate the alleged threats and that he had to be physically present in the court proceedings. Hence, this criminal revision petition.

4.Since the question of exemption of petitioner from court appeamnce through counsel is involved in the instant petition, hence, for the sake of convenience section 540-4 PPC, deals with the matter, would be advantageous to be reproduced:-

"[540A. Provision for inquiries and trial being held in the absence of accused in certain cases. (1) At any stage of an inquiry or trial under thts Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, fo, reasons to be recorded, that any one or more of such accused is or are incapable of remaintng 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 hts absence, and may, at any subsequent stage of the proceedtngs, 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 hts personal attendance necessqry, he may, f h" thinlcs /it, and for reasons to be recorded by him, either adjourn such tnquiry or trial, or order that the cqse of such accused be taken up or tried separately.J."

5.Even section 353 Cr.P.C, empowers the Court of Sessions to grant exemption even in a single accused case, hence, section 353 Cr.P.C is reproduced as under:-

353.Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under I [Chapters D(, ru, ruIand WIAJ shall be token in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.

6.The record reveals that charge against the petitioner has been framed on 18.05.2024 and 04 PWs have also been examined in the case till date. Since there is a serious threat to the life of petitioner, thus, his non-appearance should have been

condoned by granting him exemption from his personal appearance particularly when he is represented by his counsel before the court, after obtaining a valid Wakolatnama fixrushed in his favour. Reliance is placed on the case of DnAli Yahya v' The State [1989 P.Cr.L.J 16521, wherein it was obsenred by the Hon'ble Peshawar High Court Peshawar as under:-

6.---- 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 ls 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 ,s 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 fitdge, Mansehra dated 2-2-1989. Dr. Ali Yahyah accused-petitioner ls 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 hts duly appointed counsel Ghulam Mustafa Khan, Advocate. Notices given to the sureties by the learned trial Court and the order of issuing of lj bailable warrant against the petitioner are also wtthdrawn.

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However, the learned trtal Court is at liberty to summon the accused, if considered necessary, at any stage of the trial according to law' "

7.Thus, what to think of exemption of the accused, even charge can be framed in absence of the accused through his counsel, therefore, in view of the above, the instant petition is

accepted and the impugned order dated 30.06.2025 rendered by

the learned trial court is hereby set-aside, the desired exemption is granted to the petitioner from his personal appearance before the court as prayed for while petitioner will be represented by his duly appointed counsel.

Announced Dt:21.07.2025 -Sd- *Imranullah*PS Judge Jt]DGE

(S.B) Hon'ble Mr. Justice Abdul Fayaz

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