TAHIR MUHAMMAD vs Mst. ARIFA and another

1. Impugned herein are the orders of the Illaqa Qazi, Swat and the Additional Sessions Judge/Izafi Zilla Qazi-I, Swat dated 23-7-2002 and 9-9-2002 respectively through which the petitioner was refused exemption from personal appearance in the trial Court wherein case F.I.R. No,70 dated 23- 1-2002 under sections 419/420/468/471, P.P.C. Of Police Station Mingora is pending trial. The learned counsel for the petitioner contends that the petitioner as is evident from the passport annexed with this petition is serving abroad and it would be highly inconvenient as well as unbearably expensive for him to attend the trial Court on-each 'Peshi' once or twice in a month and that the impugned orders are based on technicalities'defeating the settled principle of justice. The learned counsel appearing for the State, however, did not strongly oppose this petition.

2. The view taken by the learned two Courts below is based on mere technicalities and the reliance placed on the judgment of Lahore High Court in the case of M. Saleem Babar v. The State (PLD 1987 Lah. 288) is misconceived one because the exemption therein from appearance was claimed by an accused who was by then declared by the competent Court as an absconder. The provision of section 540-A, Cr.P.C. Is coached with plain language which does not postulate the physical presence of the accused as a condition precedent for granting exemption to him. To understand the intent of the law maker, the said provision is reproduced below: -- "540-A.--(1) At any stage of an inquiry or trial under this Code, where two or more accused arc before the Court if the Judge or Magistrate is satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, he may if such accused is represented by a pleader, dispense with his attendance am proceed with such inquiry or trial in his absence, and may at any subsequent stage of the proceedings, direct the personal attendance of such accused."

3. Subsection (2).--Not relevant.

4. On reading of the above Provision it is squarely clear that for granting exemption from appearance, the physical presence of an accused before the Court is not a condition precedent one. If it was intended by the law-maker to attach such a condition then it would have done it by mentioning the same clearly and in unambiguous term. The term used "before the Court" does not necessarily lead to a conclusion that it means and points towards the physical presence of the accused. For the interpretation of Statute there are settled rules/principles some of which are old as Hills are and one of such principle is that neither the Court shall add to it what is omitted nor omit anything from it which is expressly mentioned therein and it be interpreted in a manner to advance the cause of justice by making it workable, practicable and harmonious so that mischief is avoided as far as possible. Such interpretation would also make the system of justice to sail smoothly without any unnecessary obstruction. The other principle of the same statute is that while interpreting a Statute relating to the realm of Criminal Law which transgresses/encroaches upon the liberty, person or property of a subject, much care be taken and observed and the interpretation be made in a manner which is to preserve such right and not to disturb the same subject of course having regard to the express language of the Statute by not committing any violence to it. The above view is based on the wisdom which is derived from the principle of law enunciated by the Honourable Supreme Court in the case State v. Qaim Ali Shah (1992 SCMR 2192) which is in the following terms:-- "Any Statute which transgresses/encroaches on the rights of a subject whether as regards to his person or property should be so construed, if possible, which may preserve such rights." The Full Bench of the Honourable High Court of Lahore in the case Mazhar Ali Khan v. Governor of Punjab (PLD 1954 Lahore 14 ) while interpreting a Penal Statute also laid down the same principle in the following terms:-- "Provision of Penal Act ought to be construed liberally so as to lean towards the liberty of the subject"

5. Again it is a principle universally accepted and acted upon that in the case of doubt both on the point of law and fact then the same be resolved in favour of the accused, therefore, on the basis of this principle even if the F term/phrase "before a Court" as mentioned in section 540-A, Cr.P.C. Is held susceptible to two interpretations then the one which favours the accused is to be accepted and followed. The entire Scheme of the Criminal Procedure Code is to streamline, channelize and facilitate the smooth running of the system of criminal justice, therefore, while interpreting any provision of it efforts are to be made so that neither any obstruction in its way is created nor it is thwarted in any manner and that too on the basis of technicalities simpliciter because giving effect to the form and not to the substance would certainly defeat the ends of justice and ultimately the purpose of the law itself and such approach would definitely be prejudicial to the system itself. Now. When the law has conferred a discretion on the Court in granting exemption to an accused from personal appearance at any stage of trial or inquiry the only intent and purpose .Behind it is that the trial is not brought to hault but the Court is able to proceed and conclude it in his absence and if prayer made for exemption is also based on genuine ground then refusal to grant it certainly would be violative of the above settled principle and would amount to defeat the very purpose for which this provision is enacted. However, no hard and fast Rule can be laid down but it must be kept in mind by the Court seized of the trial/inquiry of a 'case that a fair balance must be struck and the exemption although is to be liberally granted in genuine cases but no one to be permitted to misuse the same in any manner. For the above stated reasons, the impugned judgments/orders of the learned two Courts below dismissing the application of the accused seeking exemption from personal appearance are not sustainable in law in the given circumstances, therefore, are set aside. This petition is accordingly accepted and the petitioner is granted exemption from personal appearance in the trial Court pending trial. However, at the conclusion of trial or at any subsequent stage whenever it is deemed appropriate or essential that the personal appearance of the petitioner is required then notice be issued to him in this regard. In his absence the duly appointed/constituted counsel shall be deemed to represent the petitioner and to perform all acts on his behalf and to defend him before the trial Court.