SHAH ZAMAN vs SHER AFZAL KHAN and another

' Shah Zaman, ex-Member, Union Council, Sarai Nahmat Khan, Tehsil and District, Haripur, complainant/petitioner herein lodged report case F.I.R. No, 915 dated 4-12-1991, Police Station, Haripur, under sections 430/506/148/149, P.P.C. Against a number. Of accused persons including Sher Afzal Khan, accused-respondent herein.

2. The petitioner in the report has stated that in the capacity of Project Leader Water Supply Scheme the work was being completed when last evening at 6-00 p.m. His opponents came to his house while firing and after abusing him and removing the pipes left the place, who were stated to be five persons including the accused respondent and the firing is attributed to 6 accused- respondents. The case is pending trial before the Magistrate at Haripur. The Magistrate in his order dated 8-10-1992 has recorded that the careful perusal of the file would show that the accused- respondent is serving is Saudi Arabia and is to join the assignment on 13-10-1992 and, therefore, exempted the accused-respondent from appearance under section 540-A, Cr.P.C. The complainant filed petition for revision from the said order and the learned Additional Sessions Judge, Haripur by order dated 14-10-1992 dismissed the petition in limine. The complainant has filed this application under section 561-A, Cr.P.C. For quashment of the order of the Magistrate and the learned Additional Sessions Judge.

3. Learned counsel for the complainant/petitioner vehemently argued that the accused respondent is neither sick nor infirm and, therefore, has no incapability of appearing before the Magistrate during the trial of the case. Learned counsel for the accused-respondent submitted that in the circumstances of each case the exemption of an accused person from appearance is to be decided. Reference was made to the judgments reported in PLD 1979 SC 53, 1985 PCr.LJ 1528, 1982 SCM R 1006 and 1989 PCr.LJ 1623.

4. Without discussing the merits of the case in the detail it will suffice to say that the alleged offence arises out of rivalry in the execution of public works by the concerned councilor. The case is such that the trial will take some time as large number of accused are involved. The accused- respondent is employed in Saudi Arabia earning his livelihood and is represented by his pleader in the case. The incapability of appearance is not necessarily because of either sickness or other such like reasons. The ordinary meaning of incapability is that a person is not capable to do a thing for any reason. As in this case the accused-respondent will not be able to appear on each and every date of proceedings and hearing in the case before the Magistrate being employed in Saudia Arabia. Moreover, the word incapability is very much connected with the satisfaction of the Presiding Officer of the trial Court. The r, satisfaction is to be based on objective consideration and in the circumstances of each and every case.

5. In this case the Magistrate was satisfied in the circumstances of the case that the accused respondent will not be able to appear on each and every date of proceeding or hearing of the case and the satisfaction is also based on objective consideration. The complainant by making this application seems to be interested in withholding or restraining the accused-respondent from employment of work in Saudi Arabia. This application by the complainant in this Court is in negation of the objects, purposes and considerations of section 561-A, Cr.P.C.

6. The application is therefore, without any merit and substance and is dismissed.