JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH,
MULTAN.
(JUDICIAL DEPARTMENT)

Crl.Revision No. 43/2014

Muhammad Nawaz
Versus
The State and another

JUDGMENT

Date of hearing: 02.04.2014

Petitioner by: Mr. Usman Sharif Khosa,

Advocate.

State by: Mian Abdul Qayyum, Additional

Prosecutor General.

Respondent No. 2 by: Malik Muhammad Saleem,

Advocate.

MUHAMMAD TARIQ ABBASI, J. This revision petition is

directed against the order dated 19.9.2013, passed by the

learned Additional Sessions Judge, Dera Ghazi Khan,

whereby personal appearance of Irshad, the respondent No.

2 has been dispensed with and the application moved by

the petitioner for cancellation of the bail bonds of the said

respondent has been dismissed.

2. The facts are that Irshad (respondent No. 2) alongwith

his co-accused was facing trial in case FIR No. 284/2012

registered under Sections 302/324/148/149/109 of PPC at

Police Station Choti, District Dera Ghazi Khan, in the court

Crl.Rev.No. 43/2014 -: 2 :-

of learned Additional Sessions Judge at Dera Ghazi Khan.

The said respondent preferred an application under Sections

205/540-A of Cr.PC, whereby he sought dispensation from

personal appearance, in the court, on the grounds that he

for labour and to earn the livelihood had to go to Saudi

Arabia as his visa was going to expire. The said application

was entertained by the learned Trial Court on 19.1.2013.

Thereafter on 9.2.2013, the petitioner had moved an

application before the learned trial Court, whereby he

sought cancellation of the bail bonds of Irshad (respondent

No. 2) on the grounds that he had proceeded abroad, hence

became absent. Both the above mentioned petitions were

taken up by the learned Trial Court and decided through the

impugned order, whereby personal appearance of the

respondent No. 2 was dispensed with, whereas the

application of the petitioner for cancellation of the bail

bonds of the said respondent was dismissed.

3. Feeling aggrieved, the instant revision petition has

been preferred, with the contention and the grounds that

the respondent No. 2 had left the country prior to passing

of the impugned order, hence no reason, cause or

justification to grant him the dispensation, and as such the

impugned order is not acceptable under the law.

4. The learned counsel appearing on behalf of the

petitioner has advanced his arguments in the above

mentioned lines, whereas the learned counsel for the

Crl.Rev.No. 43/2014 -: 3 :-

respondent No. 2 has supported the impugned order and

opposed the revision petition.

5. Arguments heard and record perused.

6. Section 540-A of the Code of Criminal procedure,

1898 deals with exemption to an accused from personal

appearance, in a trial or the inquiry. The said provision

reads as under:-

”540-A. 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
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 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 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.”

7. Plain reading of the above mentioned provision shows

that to claim and grant, exemption to an accused, the

following conditions should be fulfilled:-

i) There should be two or more accused before the

court.
ii) The accused seeking exemption should be before
the court.
iii) The accused should be incapable to remain
before the court.
iv) The accused should be represented by a pleader.
Crl.Rev.No. 43/2014 -: 4 :-

v) The court should be satisfied about incapability

of the accused to remain before it.

8. In the matter in hand, Irshad (respondent No. 2)

alongwith his co-accused (more than two) was facing the

trial before the learned Additional Sessions Judge, Dera

Ghazi Khan. On 19.01.2013, he filed an application, before

the learned Trial Court under Sections 205/540-A of Cr.PC,

whereby he sought dispensation from personal appearance,

on the grounds that during investigation, he had been

declared innocent, but appeared and joined into the trial on

summoning of the court and that he to earn livelihood was

serving at Saudi Arabia, for which purpose he obtained visa

while incurring heavy expenditures, which was going to

expire and that in his place, Malik Muhammad shiraz Arshad

Advocate will appear in the court on each and every date of

hearing and join into the proceedings.

9. The august Supreme Court of Pakistan in the case

titled ‘Haji Aurangzeb Vs. Mushtaq Ahmad and another’ (PLJ

2004 SC 533) has held that in the above mentioned like

situation, exemption to an accused should be given. The

relevant portions of the said judgment read as under:-

”Incapability is word of wide import and may cover

all circumstances beyond the control of the
accused. The exemption could be granted in
absence in extremely exceptional cases like
ailment of accused which rendered his movement
difficult (like the case of paralysis) or departure
from country or station is absolutely necessary
and there is no time to have recourse to the court
for seeking permission/exemption.”
Crl.Rev.No. 43/2014 -: 5 :-

”The provisions of Section 540-A Cr.P.C. are to be

interpreted with benevolence, because it is an
enabling provision not meant to punish some one.
The section, in the circumstances, aims at
achieving three-fold benefit. One benefit being
that of the exempted accused, second being that
of the co-accused under trial and third being the
convenience of the Court itself.”

10. In the situation in hand, all the above mentioned

conditions are fulfilled. There are more than two accused.

Only one (respondent No. 2) has claimed the exemption,

while showing the above mentioned incapability, which, as

per the above mentioned dictum of the august Supreme

Court of Pakistan can rightly be termed to be a fit one, for

grant of exemption. He has categorically stated that if

exemption is granted, then in his place, the above named

Advocate will appear in the court and join into the

proceedings on his behalf.

11. Undoubtedly, at the time of filing of the application,

the respondent No. 2 was personally before the learned

Trial Court, but due to his above mentioned hardships,

subsequently he had proceeded to Saudi Arabia and as such

at the time of grant of exemption on 19.9.2013, he was

incapable to be before the court. The learned Trial Court

was fully aware of the above mentioned facts and

circumstances, but while realizing that the respondent No. 2

had gone abroad due to unavoidable circumstances had

granted exemption to him.

 Crl.Rev.No. 43/2014 -: 6 :-

12. It has been observed that the learned Trial Court,

while dealing with and deciding the above mentioned

application, had narrated each and every aspect, including

the law on the subject in detail. Therefore, the impugned

order could not be termed to be having any legal objection.

13. In the impugned order, it has been categorically

mentioned that whenever the respondent is required and

summoned, he will be bound to appear in the court.

14. It has been noted that after grant of the dispensation,

due to non availability of the respondent No. 2, no hurdle in

the trial has occurred.

15. For what has been discussed above, the revision

petition in hand being devoid of any force and merit is

dismissed. However, the learned trial Court is directed

that if at any stage, it feels any hurdle in trial, due to non

appearance of the respondent No. 2 or his above named

Advocate, then it will not hesitate in withdrawing the above

mentioned concession and requiring personal appearance of

the respondent No. 2.

(Muhammad Tariq Abbasi)

Judge

Abid/*

Approved for reporting.

JUDGE