NADEEM AKHTAR and 2 others vs ADDITIONAL SESSIONS JUDGE, GUJAR KHAN
This criminal petition challenges an order passed by an Additional Sessions Judge, which cancelled the exemption from personal appearance previously granted to the petitioners by a Magistrate in a criminal case involving charges under the Pakistan Penal Code. The core legal question was whether a Magistrate possesses the authority to grant exemption from personal appearance to an accused person, particularly before or after the framing of a charge, and whether such an order can be set aside by a revisional court on the grounds cited. The High Court held that the Magistrate acted within his jurisdiction in granting the exemption, noting that the law does not prohibit such relief, especially when the accused is represented by counsel. The Court found the revisional order cancelling the exemption to be without jurisdiction and unsustainable, as the Magistrate's initial exercise of discretion was lawful. The key principle laid down is that a Magistrate has the discretion to grant exemption from personal appearance to an accused person under the Code of Criminal Procedure, provided the accused is represented by counsel, and such discretion is not restricted by the stage of the proceedings, such as the framing of a charge.
- Does a Magistrate have the authority to grant an accused exemption from personal appearance before the framing of a charge?
- Can an order granting exemption from personal appearance be cancelled by a revisional court without a valid legal basis?
- Is the presence of an accused mandatory at every hearing if they are represented by counsel?
- Section 354, Pakistan Penal Code 1860
- Section 500, Pakistan Penal Code 1860
- Section 341, Pakistan Penal Code 1860
- Section 365, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 205, Code of Criminal Procedure 1898
- Section 540-A, Code of Criminal Procedure 1898
ORDER
' MAULVI ANWARUL HAQ, J.---In case F.I.R. No,198, dated 27-5-2004 under sections 354/500/341/365/109, P.P.C. At Police Station Gujar Khan, District Rawalpindi, after the receipt of the challan, petitioners Nos. 1 and 2 were summoned. I may note here that petitioner No,3 was placed in Column No, 2 being having been found to be innocent. The petitioners Nos. 1 and 2 were charged. In the first instance on 23-11-2004, petitioner No,2 filed an application for exemption from appearance. The ground was that he is working in England for gain and it is not possible for him to appear on every date of hearing and he will be deprived of his livelihood if exemption is not granted. Vide order, dated 4-12-2004 the prayer was granted after recording the undertaking of his learned counsel for appearance on every date and further subject to furnishing of surety bonds in the sum of Rs.1,00,000 with two local sureties in the like amount.
' Thereafter, on 28-1-2006 the petitioner No,2 filed an application for similar relief. His ground was that a work visa had been issued to him for Spain. This application was also allowed on 31-1-2006 on similar terms. I may note here that even the complainant of the case sought a similar relief which was granted. The respondent No,2 then filed a revision which was heard by a learned A.S.J., Gujar Khan, who proceeded to allow the same on 18-8-2006 and to cancel the said exemption orders.
2. Learned counsel for the petitioner contends that the impugned order has been passed by the learned A.S.J. Without lawful authority and for reasons which are not sustainable. He relies on the case of State Bank of Pakistan v. Syed Nasir Hussain Zaidi and 5 others (PLD 1988 Karachi 379).
Learned counsel for the complainant contends that since the attendance of the petitioners was procured by means of a warrant, the Magistrate could not have exempted them from attendance under section 205, Cr.P.C. Learned DPG is of the opinion that the Magistrate could have granted the relief in the circumstances of the case. He refers to section 540-A, Cr.P.C. As the petitioners were represented by a learned counsel.
3. I have gone through the copies of the records. It will be noted that the said two petitioners as well as the complainant of the case were granted exemption on almost literally similar grounds. The learned A.S.J. Has pointed out some irregularities in the proceedings A of the learned Magistrate and thereafter has. Observed that since petitioner No,3 has not been summoned, the charge could not have been framed against petitioners Nos.1 and 2 and since the charge has not been framed, the exemption could not be granted. Learned counsel for the complainant is unable to point out any provision of law supporting the said observations of the learned A.S.J. On the other hand, upon a plain reading of section 205, Cr.P.C. The Magistrate can grant the exemption to any accused whom he has summoned B and there is no bar that he cannot grant the relief before framing the charge. In the present case, as noted by me above with reference to the copies of the proceedings, all the three applications were filed and granted after the charge had been framed. The said judgment being relied upon the by learned counsel fully supports his pleas. The impugned order, dated 18-8-2006 of the learned A.S.J., Gujar Khan, is accordingly found to be without jurisdiction and is quashed. The Criminal Miscellaneous is accordingly allowed.