KHALID HUSSAIN vs MUHAMMAD LAL and 6 others
This revision petition challenges the order of the Tehsil Criminal Court No.II Kotli dated 4-1-2012, whereby accused-respondents Nos.4 to 6 were exempted from personal appearance and allowed to appear through counsel in a criminal trial under sections 147, 148, 149, 448, 337A-2, 337F-6/1, 337H-2 and 406 of the Azad Penal Code. The core legal question concerns the scope of the trial court's discretion to grant exemption from personal attendance to an accused person and permit representation through counsel. The Shariat Court of Azad Jammu and Kashmir held that exempting an accused from personal appearance falls within the lawful discretion of the trial court, which should be generously exercised to prevent unnecessary overcrowding, humiliation, and forced companionship with hardened criminals, provided the accused attends when directed. The petition was accordingly dismissed.
- Whether the trial court has the discretion to exempt an accused person from personal appearance during trial?
- Should a request by an accused for permission to be represented through a counsel be generously granted?
- Under what circumstances can an appellate or revisional court interfere with a trial court's order granting exemption from personal appearance?
- Section 147, Azad Penal Code
- Section 148, Azad Penal Code
- Section 149, Azad Penal Code
- Section 448, Azad Penal Code
- Section 337A-2, Azad Penal Code
- Section 337F-6/1, Azad Penal Code
- Section 337H-2, Azad Penal Code
- Section 406, Azad Penal Code
ORDER
1. ' SARDAR MUHAMMAD SHAHZAD KHAN, J.---The above titled revision petition has been directed against the order of Tehsil Criminal Court No.II Kotli dated 4-1-2012 whereby the accused- respondents were exempted from personal appearance before the Court and allowed to appear through counsel.
2. ' Brief facts forming background of the revision petition are that the accused-respondents are facing trial in a case registered against them under sections 147, 148, 149, 448, 337A-2, 337F-6/1, 337H-2 and 406, A.P.C. Before Tehsil Court of Criminal Jurisdiction Court No.II Kotli. The case was at the stage of recording the prosecution evidence. On 8-12-2009, the accused-respondents moved an application for exemption from personal appearance which was allowed to the extent of Muhammad Lal and objections were summoned to the extent of other accused-respondents. On 19-1-2010, the objections were filed by the other side and accused-respondent Muhammad Arshad was exempted from personal appearance before the Court and allowed to appear through counsel. On 15-4-2010 another application for exemption from personal appearance to the extent of respondents Nos.4 to 6 was moved before the trial Court. The said Court after necessary proceedings, exempted the aforesaid accused respondents through impugned order dated 4-1- 2012, hence the above titled revision petition.
3. ' Ch. Zaheer-ud-Din, Advocate the learned counsel for the petitioner argued that the learned trial Court has wrongly and illegally passed the exemption order of the accused-respondents. Finally, the learned counsel prayed that by accepting the revision petition, the order dated 4-1-2012 may be set aside.
4. ' Conversely, Abdul Aziz Ratalvi, the learned counsel for the accused-respondents while controverting the arguments raised by the learned counsel argued that the trial Court has rightly exempted the respondents in right direction which warrants no interference by this Court. The learned counsel further argued that the petitioner has only challenged the impugned order dated 4-1-2012. According to the learned counsel, the trial Court is competent to exempt the accused persons at any stage. The learned counsel defended the impugned order on all counts.
5. ' The learned A.A.-G., appearing on behalf of the State fully owned and supported the arguments raised by the learned counsel for the petitioner.
6. ' I have heard the learned counsel for the parties, A.A.-G., representing the State and gone through the record of the case.
7. It may be stated here that the learned counsel for the petitioner has only pressed the exemption order dated 4-1-2012, therefore the present revision petition lies only to the extent of accused- respondents Nos.4 to 6. It is pertinent to note here that to exempt the personal presence or not was within the discretion of the learned trial Court, and the learned trial Court lawfully exercised its discretion. I am also of the view that if an accused of bail prays for a permission to be represented through a counsel the request should be generously granted, as there is no compelling legal necessity to force an accused to attend in person instead of being represented through a counsel.
8. By granting such permission, unnecessary overcrowding in the Court, humiliation and the forced companionship of hardened criminals, leading to many sufferings, can be conveniently prevented, therefore the order of trial Court is quite in accordance with law, which is allowed to stand.
9. ' In the light of what has been stated above finding no force in this revision petition, it is hereby dismissed. However, the respondents shall attend the Court as and when directed by the learned trial Court to do so, and the learned trial Court is expected to direct personal appearance only when it is absolutely necessary, and not at the whimsical requests of the complainant which may be calculated to frustrate the order of exemption.
10. Revision .