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JUDGMENT SHEET
PESHAWAR HIGH COURT D.I.KHAN BENCH
JUDICIAL DEPARTMENT
CR No. 8-D of 2015
JUDGMENT
Date of hearing 08.02.2016
Appellant / petitioner Haji Arshad Mehmood by
Mr. Saifur Rehman Khan Advocate
Respondent Azmat Hayat etc by Mr. Kamran Hayat
Miankhel, AAG for State and Mr. Burhan Latif Khaisori
Advocate for accused respondent
______________________________________________
MOHAMMAD GHAZANFAR KHAN J.- Through
instant criminal revision petition filed by petitioner Haji
Arshad Mahsood seeks cancellation of order dated
21.9.2015 passed by learned Additional Sessions Judge,
Paharpur District D.I.Khan vide which application filed
by respondents-accused for their exemption from
personal appearance has been allowed.
2. Short facts of the instant case are that on the
report of petitioner case FIR No.324/337-A(2)/337-
F(i)/148/149 PPC was registered against the respondents-
accused at police station, Band Korai District D.I.Khan.
After completion of investigation, complete challan was
submitted before the learned trial Court, where the
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respondents-accused appeared and filed an application
for their exemption from personal, which was accepted
by the learned trial Court on 21.9.2015, hence the instant
criminal revision petition.
3. Learned counsel for petitioner argued that
no reason whatsoever has been advanced in the
impugned order for exempting the respondents-accused
from their personal appearance. He further argued that
the order passed by trial Court is illegal as it is held in the
impugned order that exempted respondents-accused are
allowed to appear through co-accused Sher Baz and their
counsel. He maintained that an accused cannot be
permitted to appear through co-accused, so in this way
the order is perverse and deserves reversal.
4. On the contrary, learned counsel for
respondents-accused argued that the order passed by trial
Court, is within four corners of law and there is no wrong
with the exemption order, so he solicited for dismissal of
instant revision petition.
5. Arguments heard and record perused.
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6. Section 540-A Cr.P.C deals with the
exemption of accused from personal appearance, which
is reproduced as under:
“540-A. Provision of inquires and trial
being held in the absence of accused in
certain cases---(1) At any stage of inquiry or
trial under this Code, where two or more
accused are before the Court, if the Judge or
Magistrate is satisfied for reason 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.
(2) If the accused in any such case is not
represented by pleader or if the Judge or
Magistrate considers his personal attendance
necessary, he may, if he thinks fit, and for
reason 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.”
7. Bare perusal of above section reveals that
where more than two accused are before the Court, the
Court on its own discretion can exempt anyone or more
of the accused from personal appearance till further
order. It is held by their lordships in Haji Aurangzeb’s
case reported in PLD 2004 Supreme Court 160 that
provisions of section 540-A Cr.P.C are to be interpreted
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with benevolence. The main ingredients of this section
are that the Court before the grant of exemption to an
accused must see that there are two or more accused
facing trial; that accused seeking exemption was before
the Court and were represented by a counsel.
8. In the instant case the respondents-accused
have been exempted through impugned order, were
before the Court and were represented by their counsel,
so there is no wrong with the impugned order.
9. For the foregoing reasons, I do not find any
merit in the instant criminal revision petition and
consequently, the same is dismissed.
ANNOUNCED JUDGE
08.02.2015
Aftab/*
