HAKIM ALI ZARDARI vs THE STATE and anothers
This criminal revision petition arose from an order of an Accountability Court directing the personal appearance of the applicant, Hakim Ali Zardari, for the purpose of recording his statement under Section 342 of the Code of Criminal Procedure 1898, despite a prior order granting him exemption from personal appearance due to severe medical conditions. The core legal question was whether the trial court could compel the personal attendance of an accused who had been granted a conditional exemption from appearance due to serious illness and was represented by counsel. The High Court, noting the medical evidence confirming the applicant's inability to move or travel, set aside the trial court's order. The Court held that the applicant could continue to be represented by his counsel for the purposes of his examination under Section 342, provided an undertaking was filed. The key principle laid down is that where an accused is granted exemption from personal appearance due to genuine medical grounds, the court may allow the trial to proceed and statements to be recorded through counsel, while retaining the discretion to summon the accused if necessary at a later stage.
- Can an accused who has been granted exemption from personal appearance due to medical grounds be compelled to appear for the recording of a statement under Section 342 of the Code of Criminal Procedure 1898?
- Is a trial court permitted to proceed with the examination of an accused under Section 342 of the Code of Criminal Procedure 1898 through legal counsel when the accused is exempted from personal appearance?
- Section 342, Code of Criminal Procedure 1898
ORDER
1. ' The applicant Hakim Ali Zardari an accused in NAB case was exempted from appearing before the Accountability Court during his trial in NAB Reference No,7 of 2001. He was accordingly represented by his counsel till the prosecution closed its side. Thereafter, the Special Prosecutor made an application for summoning the applicant for the purpose of his statement under section 342, Cr.P.C. Which was allowed by order, dated 28-11-2001 and directed his production before the Court.
2. Being aggrieved by the above order, this revision is filed.
3. ' Mr. Muhammad Yousuf Leghari, learned counsel for the applicant, contended that the applicant was granted exemption from his appearance during the trial due to his serious sickness which confined him to bed and that till today the applicant is in the same position and is not stable. He further referred to various medical reports issued in respect of the applicant and submits that he had given an undertaking earlier before the trial Court to represent the applicant and is ready to represent the applicant for the purposes of his examination under section 342, Cr.P.C. And onwards.
4. ' Relevant portion of the order of the trial Court granting exemption to the applicant is reproduced below:-- "Looking at the copy of the medical report, received by this Court through the Superintendent, District Jail, Malir, whereby the accused has been advised 'restricted movement', and also the facts that the accused has given a written undertaking that in his absence penal of Advocates will appear in the Court in this case, as already undertaken by the learned Advocates, and authorized the accused in writing, application is hereby allowed, conditionally, to the effect that the personal appearance of the accused as exempted in this case, and the trial of this case may proceed against him in his absence, and that he shall be represented by the above-named two defence counsels, namely Mr. M. Yousuf Leghari"
5. ' The learned Deputy Prosecutor-General, NAB in the first instant vehemently opposed the revision but later conceded.
6. The applicant's Medical Board's examination of 6-1-2000 shows "acute sciatica due to lumber sacral pathology. Left hip joint. Unable to move, turn, sit or walk on his own. As such in this condition Mr. Hakim Ali Zardari cannot be shifted from hospital". Later report of the same Medical Board of 20-1-2000 states "left hip joint is extremely painful and as has been previously stated left hip, X-Ray and bone scane show loosing, this needs revision surgery of the left hip, in order to mobilize him and relieve his pain".
7. ' The applicant is stated to be in the same situation.
8. In view of the above, we set aside the impugned order and allow the revision and direct the applicant's counsel to make a statement of undertaking within a fortnight of his representation for the applicant, before the trial Court for the purposes of recording the statement under section 342, Cr.P.C. The learned trial Court would, however, be at liberty to summon the applicant, if considered necessary, at any stage of the case according to law. Reference is made to the cases of (1) Dr. Ali Yahyah v. The State 1989 PCr.LJ 1652, (2) Nasir Ahmad v. Dil Muhammad and 2 others 1982 SCM R 1006, and (3) State Bank of Pakistan v. Syed Nasir Hussain Zaidi and 5 others PLD 1988 Kar.
9. 379.\ ' This revision petition stands disposed of in the above terms alongwith the listed application.