Physical presence of accused is not mandatory for 540-A Petition

PLJ 2003 Cr.C. (Peshawar) 395

Present: DOST MUHAMMAD KHAN, J. TAHIR MUHAMMAD--Petitioner

versus

Mst. ARIFA and another-Respondents Cr. Misc. No. 224 of 2002, decided on 28.01.2003. (i) Criminal Procedure Code, 1898 (V of1898)--

—S. 540-A-It is a principle universally accepted and acted upon that in thecase of doubt both on the point of law and fact then the same be resolvedin favour of the accused, therefore, on the basis of this principle even ifthe term/phrase "before a Court" as mentioned in Section 540A Cr.P.C. isheld susceptible to two interpretations then the one which favours theaccused is to be accepted and followed.                                   [P. 398] D

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 540-A-Entire Scheme of Criminal Procedure Code is to streamline, channelize and facilitate smooth running of 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 anymanner and that too on basis of technicalities simpliciter because givingeffect to form and not to substance would certainly defeat ends of justiceand ultimately purpose of law itself and such approach would definitelybe prejudicial to system itself.                                                   [P. 398] E

(iii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 540-A—When law has conferred a discretion on Court in granting exemption to an accused from personal appearance at any stage of trial or inquiry only intent and purpose behind it is that trial is not brought to hault but 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 above settled principle and would amount to defeat very purpose for which this provision is enacted.

[P. 398] F

(iv) Criminal Procedure Code, 1898 (V of 1898)--

—S. 540-A--No hard and fast Rule can be laid down but it must be kept in mind by Court seized of trial\inquiry of a case that a fair balance must be struck and exemption although is to be liberally granted in genuine cases but no one to be permitted to misuse same in any manner. [P. 398] G

(v) Criminal Procedure Code, 1898 (V of 1898)--

    [P. 397] A

(vi) Interpretation of Statutes­'—There are settled rules/principles some of which are old as Hills are andone of such principle is that neither Court shall add to it what is omittednor omit anything from it whish is expressly mentioned therein and it beinterpreted in a manner to advance cause of justice by making itworkable, practicable and harmonious so that mischief is avoided as for
as possible-Such interpretation would also make system of justice to sailsmoothly without any unnecessary obstruction.                       '" [P. 397] B

(vii)   Interpretation of Statutes-

—While interpreting a Statute relating to realm of Criminal Law whichtrangresses/encroaches upon liberty, person or property of a subject,much care to taken and observed and the interpretation be made in amanner which is to preserve such right and not to disturb the samesubject of course having regard to express language of Statute by notcommitting any violence to it.                                                   [P. 398] C

Mr. Nek Nawaz Khan Awan, Advocate for Petitioner. ImtiazAli, AAG for Respondent. Date of hearing: 28.1.2003.

JUDGMENT

Impugned herein are the orders of the Hlaqa 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 FIR No. 70 dated 23.1.2002 under Section 419/420/468/471 PPC 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.

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 ofM. Saleem Babar u. The State (NLR 1987 Criminal 468) 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 are 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 and 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."

Sub-section (2).--Not relevant.

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 B the cause of justice by making it workable, practicable and harmonious so that mischief is avoided as for as possible. Such interpretation would also make the system of justice to sail smoothly without any unnecessary obstruction.

The other principle of the same status is that while interpreting a Statute relating to the realm of Criminal Law which trangresses/encraoches 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 vs. Qaim Mi 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 All Khan vs. 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."

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 term/phrase "before a Court" as mentioned in Section 540A 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 acceptedand 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 tohim in this regard. In his absence the duly appointed/constituted. Counsel
shall be deemed to represent the petitioner and to perform all acts on hisbehalf and to defend him before the trial Court.
(T.A.F.)                                                                           Petition accepted.