HAYAT KHAN vs MUHAMMAD FAROOQ and 9 others

' In this Criminal Revision application applicant Hayat Khan has challenged an order dated 15-10- 1992, passed by the Additional Sessions Judge, Sanghar.

2. Applicant Hayat Khan has filed a Criminal case against nine persons including Sarfraz (respondent No,5) for the offences punishable under Article 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 448, 148 and 395 of P.P.C. Read with section 149, P.P.C. The complaint was sent to the Sessions Court, Sanghar, as some of the alleged offences were exclusively triable by a Court of Session. After the P.E. The case was brought on regular file and assigned No,68/92.

3. During the pendency of said Sessions case, respondent No,5 moved an application for dispensing with his presence, on the grounds that he hailed from District Kohat where he lived and that he was heart and diabetic patient and that he was a retired Government servant/Head Master of a School. Said application was accepted under the impugned order dated 15-10-1992 by the Additional Sessions Judge, Sanghar, who dispensed with personal appearance of the respondent No,5, provided his counsel represented him on each date of hearing. Hence this revision.

4. Applicant Hayat Khan, who was present in person argued that respondent Sarfraz was residing mostly at a place in Sanghar district. It was next argued that no Medical Certificate was produced in support of the ground of illness.

5. Learned AA.-G. Did not oppose the application. He was of the view that section 205 of Cr.P.C.

Would not apply to this case, where the trial Court on taking cognizance of the offence issued warrants against the accused. He, however, was of the view that section 540-A of Cr.P.C. Was applicable to the case.

6. In the case of Nasir Ahmed v. Dil Muhammad and others 1982 SCM R 1006 it was held that section 540-A, Cr.P.C. And other provisions of Cr.P.C. Could be made use of for continuance of the proceedings when one of the accused was absent on medical grounds. There can be no cavil with the argument that the trial Court possessed power to grant exemption to an accused person in a suitable case covered by section 540-A or section 205 of Cr.P.C. This case is not covered by section 205 of Cr.P.C. The trial Court has invoked section 540-A of Cr.P.C. Which is mainly for the purpose of dispensing with personal attendance of one or more accused, when such accused is incapable of remaining before the Court. However, exemption under section 540-A of Cr.P.C. Cannot be granted to an accused for the entire period B of trial. In the case of State v. Victor Henry and 2 others PLD 1973 Karachi 273, the view taken was that the exemption to be granted under section 540-A of Cr.P.C. Is to be for the purpose of dispensing with the appearance of the accused only for some short time and not during the whole course of trial or enquiry. This authority appears to be holding the field on the point at issue.

7. In this view of the matter, the impugned order dated 15-10-1992 is not sustainable in law and the same stands set aside. Consequently for each date of hearing respondent No,5 accused Sarfraz will have to seek exemption, in case C he is incapable of appearing in the trial Court. Such exemption can be granted to him if he is represented by an advocate. The Criminal Revision Application stands disposed of accordingly. MA. 1066/92 has become infructuous and it stands dismissed.