Mohammad Younas vs State etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.R. No.135-P/2014

Date of hearing: 12.12.2014

Petitioners (s) : Muhammad Younas by Mr. Fazl-e-Haque Kohidamani, Advocate.

Respondent(s) : Mst. Gul Naz Begum by Mr. Sawar Khan, Advocate and the State by Mr.

Muhammad Sohail AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Muhammad

Younas, Petitioner, who is an under trial accused before the learned Sessions Judge, Hangu, in case FIR No.564 dated 05.07.2014, registered under sections 302/109/201 PPC read with section 15-AA, is aggrieved from order of the learned Trial Court dated 28.10.2014, whereby his request for exemption from his personal appearance during the trial, has been turned down.

2.Learned counsel for the petitioner argued that petitioner is serving in Abu Dhabi “Seven Sea Rent a Car”, (Transport Company) and is the only bread winner of his family; that his leave is going to be expired on 20.12.2014, and *M.Siraj Afridi P.S. D

in case of refusal of exemption, he would suffer an irreparable loss. He drew attention of this court towards passport and other documents relating visa and leave etc of the petitioner.

He contended that formal charge has already been framed against the petitioner and the case fixed for prosecution evidence; that petitioner is ready to appear before the learned Trial Court, after his exemption, as and when required/directed. He contended that the impugned order being against the mandate of section 540-A Cr.P.C. is liable to be struck down.

3.Conversely, learned AAG assisted by learned counsel for the complainant while supporting the impugned order, sought dismissal of the instant petition.

4.I have heard the arguments and perused the record.

5.It appears from the record that challan has been put in Court against the petitioner and his co-accused Asif Nawaz, before the learned Trial Court on 18.09.2014, where they have been formally charge-sheeted on 28.10.2014. On denial of the charge by the accused, the prosecution evidence *M.Siraj Afridi P.S. D

has been invited. As manifest from the record, three accused including the petitioner has been charged in the case, in which petitioner and his co-accused/brother Asif Nawaz under trial, while co-accused Mst. Asia is at large. Section 540-A Cr.P.C.

copes with situation of holding trial and inquiries in absence of accused in certain cases. For convenience, I would like to reproduce the same as below:

”S.540-A Cr.P.C. Provision for inquiries

and trial being held in absence of

accused in certain cases:- (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 anyone 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

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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”.

Provision of the section ibid contemplates that where there are two or more accused in the Court, facing trial or inquiry, and subsequently have become incapable of remaining before the Court exemption may be granted to an accused through pleader by taking into consideration physical presence of the accused before the court and subsequently, his incapability of remaining before the court, for the reasons to be recorded by the Trial Court. Under section 540-A Cr.P.C., wider discretion has been given to the Court to exempt any of the accused when there are more than one accused if he/she is incapable of appearing before the Court and if such accused is *M.Siraj Afridi P.S. D

represented by a pleader, the court may dispense with his/her attendance and proceed with such inquiry or trial in his/her absence. Admittedly, such discretion is to be exercised judicially and not arbitrarily, keeping in view the peculiar facts and circumstances under which the exemption has been sought. What are essential to be kept in mind by the Court at the time of granting exemption is to see the number of the accused facing trial to be more than one; that accused seeking exemption is “before the court” and represented by a counsel/pleader. Words “before the court” employ the physical presence of an accused before the Court. Similarly, the words “incapable of remaining before the Court” also strongly indicate that the accused who at one time was before the court, has now become for some reason or the other, incapable to remain present before the Court in future.

Provisions of section 540-A Cr.P.C. are to be construed with benevolence because it is an enabling provision not meant to punish someone but meant for aching three fold benefits i.e.

first benefit to exempt accused, second benefit to co-accused under trial, and third benefit being the *M.Siraj Afridi P.S. D

convenience of the Court itself. Guidance in this regard can be derived from case titled, “Haji Aurangzeb Vs Mushtaq Ahamd and another” (PLD 2004 Supreme Court 160).

6.In the instant case as stated earlier total three accused are charged including the petitioner. Petitioner and his co-accused Asif Nawaz, who also happens to be the real brother of the petitioner are under trial, while third accused Mst. Asia is absconding. The physical presence of the petitioner is proved from compliance of section 265-C Cr.P.C.

and formal charge framed against him on 28.10.2014, which he has denied. Record of visa and service as well as record pertaining to leave of the petitioners, are the reasonable grounds which tilt in his favour coupled with the fact that he has engaged counsel/pleadinger, entitling him for benefit of section 540-A Cr.P.C.

7.In view of the above, this revision petition is allowed. Impugned order of the learned Trial Court, dated 28.10.2014, is set-aside. The application filed by the petitioner for exemption from personal appearance before the learned Trial court, is allowed and he is exempted from his personal *M.Siraj Afridi P.S. D

appearance through his pleader. However, the petitioner shall attend the court as and when directed by the learned Trial Court to do so and the learned Trial Court is expected for such direction only when it is absolutely necessary and not at the whimsical request of the opposite side which may be calculated to frustrate the order of exemption.

Announced.

JUDGE

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maintained that the learned Trial Court has the jurisdiction to entertain the suit and in case of decision of issue of the jurisdiction in favour of the *M.Siraj Afridi P.S. D

petitioners, after conclusion of trail, it would be respondent to suffer and she is ready to face the consequences of such scenario. He while supporting the impugned orders, sought dismissal of the instant petition.

5.Come what may, the issue raised, being a mixed question of law and fact, can properly be resolved, after recording pro and contra evidence of the parties by the learned Trial Court. In view of the above, the impugned orders of both the courts below are set aside and the matter is remanded to the learned Trial Court with the direction to frame a specific issue (qua) jurisdiction, if already not framed, to afford an opportunity to the parties for leading their evidence and then to decide the suit on merits in accordance with law. The learned Trial Court shall conclude the trial as early as possible, but not later than 4 months, on receipt of the record. Office shall ensure *M.Siraj Afridi P.S. D

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