Judgement on 540-A exemption Application

Judgement on 540-A exemption Application 540-A CrPC 1898 

Citation Name : 2018 YLRN 99 PESHAWAR-HIGH-COURT
Side Appellant : PARVAIZ KHAN
Side Opponent : State
S. 540-A—Penal Code (XLV of 1860), Ss. 337-A(i) & 337-F(ii)—Exemption of accused for appearance in the court—Scope—Sentence of accused was suspended by the appellate Court—Accused thereafter, submitted application for his exemption on the premise that he was to go abroad as his visa was about to expire and proceeded—Trial Court turned down the request of exemption—Appeal was dismissed on the ground that accused had left the country without permission of the court—Validity—When a person could be tried in absentia, there was no reason as appeal of accused could not be heard in his absence—Exemption for appearance could be granted to the accused in such a situation in appeal, as the appeal was continuation of trial—Criminal Procedure Code, 1898 did not forbid the court for grant of exemption by keeping in view peculiar circumstances of a case—Conduct of the accused was of much relevance in case of granting exemption—Record showed that accused remained on exemption throughout trial and whenever he was ordered to appear, he accordingly appeared before the court—Accused had left the country after submitting exemption application—Physical presence of accused before the court for granting exemption was not a condition precedent and court could exempt the accused from appearance—Circumstances established that court had not exercised jurisdiction conferred by law properly—Appeal was allowed by setting aside judgment and order, consequently, criminal appeal filed before the court was restored—Accused was directed to appear before the court within four months and appeal be disposed of at the earliest.Judgement on 540-A exemption Application

Citation Name : 2018 PLD 127 PESHAWAR-HIGH-COURT
Side Appellant : MUHAMMAD ARIF
Side Opponent : State
S. 540-A—Exemption from personal appearance—Application of accused, during trial, for exemption from personal appearance and representation through counsel was dismissed by the Trial Court—Validity—Application in question was filed after about 5 months from framing of charge against accused—Exemption was sought on the ground that petitioner being student of Matric was getting education in a “Madrassa”—Trial Court allowed the application for exemption for one day only, but thereafter the accused failed to appear before the court—Grant of exemption to accused from personal appearance during trial was discretionary in nature; depending upon the satisfaction of the Court regarding incapability of accused to appear—Accused, must be present before the court at the time of seeking such exemption—Accused, after obtaining one day’s exemption, failed to appear before the court—Petitioner could not point out any illegality or material irregularity in the impugned order of the Trial Court, refusing exemption from personal appearance during the trial—Petition was dismissed.Judgement on 540-A exemption Application

Citation Name : 2017 PCrLJN 20 PESHAWAR-HIGH-COURT
Side Appellant : Haji ARSHAD MEHMOOD
Side Opponent : AZMAT HAYAT
S. 540-A— Dispensing with the attendance of accused—Requirements—Where more than two accused were before the court, court on its own discretion could exempt anyone or more of the accused from personal appearance till further order—Court before grant of exemption to an accused must see that there were two or more accused facing trial and accused seeking exemption was before the court and was represented by the counsel—Accused exempted, in the present case, appeared before the court and was represented by his counsel—No illegality had been committed while passing the impugned order—Revision was dismissed in circumstances.

Citation Name : 2015 PCrLJ 1413 KARACHI-HIGH-COURT-SINDH
Side Appellant : HIZBULLAH
Side Opponent : JUDICIAL MAGISTRATE-I, ROHRI
S. 540-A—Criminal trial—Exemption to an accused from personal appearance— Medical reasons—Exemption from appearance granted in absence of accused—Scope—Exemption from appearance before court could be granted to accused in his absence in extremely exceptional cases such as his ailment rendering difficulty in movement—Accused-applicant, in the present case, was suffering from serious ailment (prolapsed intervertebral disc and spinal stenosis) and was unable to attend court— Medical record of accused showed that the doctor had advised him complete bed rest, and if he travelled or moved on stairs, then such carelessness would be dangerous and result in paralysis of lower part of his body—High Court directed that in such circumstances, the attendance of the accused before Trial Court was dispensed with and he was allowed to appear through his pleader on each date—Application was allowed accordingly.

Citation Name : 2015 PCrLJ 58 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD NAWAZ
Side Opponent : State
S. 540-A—Exemption to an accused from personal appearance—Conditions to be fulfilled for grant of exemption to an accused enumerated.

Citation Name : 2015 PCrLJ 58 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD NAWAZ
Side Opponent : State
Ss. 205 & 540-A—Exemption to an accused from personal appearance—Grounds and conditions—Accused earning his livelihood abroad—Accused faced trial along with the co-accused and sought dispensation from personal appearance on the grounds that he was working and earning his livelihood abroad, for which purpose he had obtained a visa after incurring heavy expenditure; that during investigation he had been declared innocent, but appeared and joined the trial on summoning of the court, and that in his place an advocate would appear in the court on each and every date of hearing and join the proceedings—Validity—Incapability to appear before the Trial Court, as pleaded by the accused could be termed a fit (ground) for exemption— Accused fulfilled all the conditions that were required to be fulfilled to claim and grant exemption to an accused from personal appearance during trial—After grant of dispensation by the Trial Court, no hurdle had occurred in the trial due to non-availability of accused— Revision petition against dispensation allowed to accused was dismissed in circumstances with the direction that if at any stage of trial, Trial Court felt any hurdle due to non-availability of accused or his advocate, then it should not hesitate in withdrawing the concession and requiring personal appearance of accused.

Citation Name : 2015 PCrLJ 1413 KARACHI-HIGH-COURT-SINDH
Side Appellant : HIZBULLAH
Side Opponent : JUDICIAL MAGISTRATE-I, ROHRI
S. 540-A—Exemption to an accused from personal appearance during trial—Scope—Section 540-A, Cr.P.C. implicitly dealt with a situation where there were two or more accused in court facing inquiry or trial and subsequently had become incapable of remaining before the court—Plain meaning of the words (of S. 540-A, Cr.P.C.) indicted that accused had to be physically present before the Court, and subsequently, if he had become incapable of remaining before the Court, exemption (from appearance) could be granted for reasons to be recorded—Normally, the accused had to be physically present in the Court for claiming exemption and if the Court was satisfied about his incapacity for claiming exemption, it may grant exemption—Exemption from appearance could be granted in absence of accused in extremely exceptional cases such as his ailment rendering difficulty in movement.

Citation Name : 2014 PCrLJ 1434 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : Syed PERVEZ MUSHARRAF
Side Opponent : State
S. 540-A—Penal Code (XLV of 1860), S. 302(b)—Qatl-e-amd—Exemption from personal appearance in the court—Accused, who had been nominated as an accused in murder case, had sought exemption from his personal appearance in court—Trial Court disposed of application of accused vide impugned order, stating that challan (charge-sheet) had been submitted, but the trial could not commence as accused had never (once) appeared in court; that accused should appear in court so that the charge could be framed, and trial could commence; that accused was at liberty to file application for exemption at subsequent stage, or after framing of charge—Held, that the impugned order of the Trial Court did not suffer from any illegality which required correction; that in non-summons cases, accused must be present to answer the charge; that if exemption from personal attendance was sought, application in that respect must be considered by the Trial Court in terms of S.540-A, Cr.P.C., but after the charge had been answered personally by accused; that State was directed to ensure the safety of accused when he was taken to and from the court and whilst he was present in court.

Citation Name : 2014 PCrLJ 1795 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NAZIM HAYAT
Side Opponent : GHULAM HASSAN
Ss. 205 & 540-A— Constitution of Pakistan, Art. 199—Constitutional petition—Personal attendance, dispensing with—Non-appointing of pleader—Personal appearance of accused was dispensed with by Trial Court during trial of private complaint, without appointing any pleader— Validity— Exemption from personal appearance of accused could only be granted if he was represented by pleader who had to undertake before Court to be available on behalf of the accused—Trial Court while ignoring such mandatory procedure passed the order—High Court in exercise of Constitutional jurisdiction set aside application filed by accused for his exemption from personal attendance, as the same was not according to mandate/provisions of law—Petition was allowed in circumstances.

Citation Name : 2011 CLD 1067 ENVIRONMENTAL-TRIBUNAL-LAHORE
Side Appellant : DG EPA
Side Opponent : TELENOR COMPANY, GHARIB SHAH
Ss. 16, 17, 18, 20 & 21—Criminal Procedure Code (V of 1898), Ss.205, 353 & 540-A—Violation of environmental protection order—Dispensing with personal attendance of accused—Counsel for accused moved an application to dispense with personal attendance of accused and for the withdrawal of warrant of arrest on the ground that; Chief Executive Officer of accused unit was a foreigner and was unable to enter his personal appearance before the Tribunal due to security reasons—Three ingredients were important to be noticed by a court while exercising Jurisdiction under S.540-A, Cr.P.C. with regard to deal with absence of accused viz., there should be two or more accused present before the court; any one or more asking for exemption and incapable of remaining before the court—Reasons for dispensation from personal attendance must be very strong—Normally enquiry or trial would take place in the presence of accused as envisaged in S.353, Cr.P.C., unless exemption from personal appearance was granted as provided in S.540 A, Cr.P.C.—In the present case, reasons provided for exemption from personal appearance, were the security reasons–Accused who was foreigner, was not able to appear personally before the Tribunal safely—Personal attendance of accused could be dispensed with when due to social and political situation prevailing in the country, the travelling of a foreigner was not safe, especially in politic places—Order accordingly.

Citation Name : 2010 PLD 270 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAKI UR REHMAN LAKHWI
Side Opponent : Malik MUHAMMAD AKRAM AWAN
S. 540-A—Exemption from appearance—Pre-requisites—Two conditions are essential to dispense with attendance of an accused during an enquiry or trial, firstly that the accused should be before the court and secondly that the accused is incapable of remaining before the court—Words “before the Court” imply the physical presence of accused during the trial before the court and the words “incapable of remaining before the Court” contemplate that the accused was present in court and for same reasons is incapable to continue to remain present before the court on each and every date of hearing—Absconding accused cannot claim any benefit under S.540-A, Cr.P.C..

Citation Name : 2010 MLD 1395 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TASSAWAR RASHEED
Side Opponent : ADDITIONAL SESSIONS JUDGE, CHAKWAL
S. 540-A—Penal Code (XLV of 1860), Ss.337-A(i)(ii), 337-F(i)(i) (v)(vi), 337-L(ii), 458, 147 & 149—Constitution of Pakistan (1973), Art.199—Constitutional petition—Shajjah and house-trespass–Exemption from personal appearance—Application for—During trial petitioner filed application to the effect that he should be exempted from his personal appearance under S.540, Cr. P. C. as his work visa to join his employment abroad had been received, Trial Court dismissed said application and his revision petition filed against order of the Trial Court had also been dismissed by the Appellate Court—Validity—Provisions of S.540-A, Cr.P. C. were to be applied by the court of law in view of facts of each case—Duty of an accused would not come to end by just moving an application before the court for seeking exemption from appearance, but would continue thereafter as well—Accused must wait till his application was duly allowed, because the court had not to pass a mechanical order—Trial Court had to see the possibility of its ability to enforce the direction of personal attendance of accused at a subsequent stage—Accused involved in a criminal case who was allowed concession of bail during pendency of the trial, could not be allowed to act at will, making it impossible by the Trial Court to exercise reasonable control over his movement—Accused/petitioner was not entitled to exemption from appearance during the trial—Manner in which the petitioner conducted himself in making the prayer and then leaving abroad without grant of said permission by the Trial Court, had resulted into dismissal of his application—Accused was present before the Trial Court when he moved application for exemption, but he left the country without any order having been passed by the Trial Court on his application, he did not take the court into confidence about his commitment of job abroad in proper manner—Trial Court, in circumstances, was left with no option, but to dismiss his application under S.540-A, Cr. P.C.—Order passed by the two courts below did not call for any interference by High Court in exercise of its constitutional jurisdiction, particularly when the petitioner had misused the concession of bail granted to him by going abroad without seeking permission from the court, when he was facing trial as an accused—Accused was not entitled to any relief—Constitutional petition was dismissed.

Citation Name : 2010 PLD 270 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAKI UR REHMAN LAKHWI
Side Opponent : Malik MUHAMMAD AKRAM AWAN
Ss. 7/11-F(5)(6)/11-J/11-N/11-V/21/21-C—Penal Code (XLV of 1860), Ss.302/34/109—Prevention of Electronic Crimes Ordinance (IV of 2008), Ss.11/17/19—Passports Act (XX of 1974), S.6—Foreigners Act (XXXI of 1946), S.14—Criminal Procedure Code (V of 1898), Ss.164, 540-A & 512—Qanun-e-Shahadat (10 of 1984), Art.43—Constitution of Pakistan (1973), Art.199—Terrorism, Qatl-e-amd, abetment offence relating to passport—Constitutional petition—Quashing of order—Principal accused was reportedly arrested in India as a result of terrorist attack and on the basis of his statement recorded there under S.164, Cr.P.C. before a Magistrate, present accused and his co-accused had been arrested in the case after an inquiry conducted in Pakistan—In none of three successive interim challans submitted by the prosecution in the Trial Court the principal accused was shown as an accused person or as an absconder—Application moved by the present accused under S.265-K, Cr.P.C. for acquittal had been dismissed by the Trial Court by impugned order—Validity—Confessional statement of an accused could be used against his co-accused in the same case, but until and unless a person was shown as accused therein, his statement could not be used against his co-accused, which was the pre-condition under Art.43 of the Qanun-e-Shahadat, 1984—Contention that principal accused was not shown as an accused in S.173, Cr.P.C. report and by mere mentioning his name in the F.I.R., and on the basis of his alleged confessional statement before a Magistrate in India, he could not be given a status of co-accused of the present accused seemed to be technically sound—Trial Court while applying S.540-A(2), Cr.P.C. had exempted the appearance of principal accused and his co-accused and separated their case from the case of present accused and proceeded further by framing the charge—Principal accused had been taken by Trial Court as an accused in the case—Absconder or a person who never appeared before the court to face trial, his case was not covered under S.540-A(2), Cr.P.C.—Without having enforced the attendance of accused under Arts. 87 and 88, Cr.P.C. and proceeding under S.512, Cr.P.C.; separation of the trial was not lawful—Presence of accused before the court for application of S.540-A, Cr.P.C. was necessary and if subsequently he became incapable of remaining before the court, then he might apply for dispensation of his attendance and court might pass an appropriate order—Procedure adopted by Trial Court while applying S.540-A(2), Cr.P.C. for separation of the trial of alleged principal accused, therefore, was totally illegal and to that extent the impugned order was set aside—As regards the dismissal of the application of accused under S.265-K, Cr.P.C., Trial Court had framed the charge while applying judicial mind and trial had commenced—At such stage it was not appropriate for High Court to go into deeper appreciation of evidence in exercise of its constitutional jurisdiction or to discuss the merits or demerits of the case—Contention about the admissibility of the aforesaid statement of the principal accused and other material available on record, would be seen by Trial Court after recording some relevant evidence—Since after framing of the charge no evidence had been recorded in the case, application under S.265-K, Cr.P.C. at that stage was not maintainable and the same had rightly been dismissed by Trial Court and the impugned order to that extent was upheld—Accused could move such application before Trial Court at proper stage after recording of evidence—Constitutional petition was disposed of accordingly.

Citation Name : 2008 YLR 2901 Supreme Court (AJ&K)
Side Appellant : AZIZ BIBI
Side Opponent : FAZAL HUSSAIN
S. 540-A—Penal Code (XLV of 1860), S.302/34—Exemption from personal appearance— Conditions for— Under S.540-A, Cr.P.C. two conditions were for allowing exemption from personal appearance; first that accused should be “before the court”; and second that accused was “incapable of remaining before the court “—Words “before the court” would imply the physical presence of an accused during the trial before the court–Words “incapable of remaining before the court” also contemplated that an accused was present in the court and for some reasons was incapable to continue to remain present before the court on each and every date of hearing—Only such person, who was present before the court and incapable to remain present, could be exempted under S. 540-A, Cr. P. C.—Absconding accused could not claim any benefit under S.540-A, Cr.P.C.—To grant or refuse personal exemption was entirely the discretion of the court, but such discretion must be exercised judicially and where discretion had been properly exercised by the Appellate Court, it should not be interfered with—In the present case accused had claimed that he was suffering from cancer and in that respect the photostat copies of certain medical certificates issued by a Doctor abroad were produced—Said certificates contained different signatures, which had revealed that forged documents had been prepared—Court below had not examined those documents carefully—Accused, who did not appear before the court and had absconded, could not be exempted from personal appearance—Order passed by the Shariat Court was set aside.

Citation Name : 2006 PCRLJ 1256 KARACHI-HIGH-COURT-SINDH
Side Appellant : FARRUKH QADRI
Side Opponent : State
—Ss. 497 & 540-A—Penal Code (XLV of 1860), S.302—Refusal of bail on ground of hardship—Accused had submitted that on sole ground of delay in disposal of case, he was entitled to be released on bail—Validity—Prosecution witnesses were present on more than ten dates, but case did not proceed and witnesses lost patience and discontinued to appear before the Court—Prosecution and defence were not supposed to test patience of witnesses—Benefit could be sought only if witnesses would fail to appear in order to cause delay and extend incarceration of accused in jail—If witnesses appeared on several dates and were not examined, their subsequent absence, would not justify release of accused on bail as a matter of right—Same principle was applicable when bail was not granted as a matter of right, but could be considered on the ground of inordinate delay in disposal of the case—Trial Court, prosecutor, advocate for complainant and defence advocates, had equally contributed in causing delay in disposal of case and perpetuating the agony of accused as well as prosecution witnesses—Such state of affairs could not be termed as satisfactory by any stretch of imagination—System of law could work properly, if all stake holders performed their duty properly and with due diligence—Entire responsibility for delay could not be placed on the shoulders of prosecution witnesses—Accused, in circumstances was not entitled to be released on bail—Bail application filed by accused, stood dismissed accordingly.Judgement on 540-A exemption Application

Citation Name : 2005 PCRLJ 384 FEDERAL-SHARIAT-COURT
Side Appellant :
Side Opponent :
—S. 10(4)—Penal Code (XLV of 1860), Ss.452 & 458—Criminal Procedure Code (V of 1898), Ss.200, 202 & 540-A—Appreciation of evidence—Filing of complaint case pending challan case—Examination of witnesses—Earlier, on report of complainant, police recorded F.I.R. under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S.452, P.P.C., but since local police was not prepared to redress the grievance of complainant, she was constrained to file complaint case—Said complaint was sent to Judicial Magistrate for inquiry under S.202, Cr.P.C. and on receiving report from Judicial Magistrate, Trial Court summoned accused to face trial under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.458, P.P.C. and stayed the proceedings in earlier challan case—Complainant, at the trial after producing two witnesses and after getting herself Judgement on 540-A exemption Application

Citation Name : 2004 YLR 745 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABID JAVAID
Side Opponent : MUSTAFA AHMAD
—-S.540-A—Exemption from personal appearance granted to accused—Validity–Exemption from personal appearance had been granted to accused when he was not present before the Court—Accused was also granted bail before arrest by the Court in his absence in clear violation of S.498, Cr. P. C. —Although accused had been summoned by the Trial Court in the complaint case, yet he never appeared before it—Impugned order passed by Trial Court was consequently set aside and the exemption of-personal appearance granted to accused was withdrawn.

Citation Name : 2004 PLD 160 SUPREME-COURT
Side Appellant : Haji AURANGZEB
Side Opponent : MUSHTAQ AHMAD
—S. 540-A—Inquiry and trial in absence of accused —Scope–Section 540-A, Cr.P.C. deals with a situation where there are two or more accused in the Court facing inquiry or trial and subsequently have become incapable of remaining before the Court—Accused has to be physically present before the Court and if subsequently he has become incapable ‘of remaining before the Court, exemption can be granted to him for reasons to be recorded.Judgement on 540-A exemption Application

Citation Name : 2004 YLR 1915 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : MUHAMMAD ASHRAF
Side Opponent : THE STATE
—-Ss.205, 353 & 540-A—Penal Code (XLV of 1860), Ss. 341 /324, 337/337-A, 147, 148 & 149—Application for dispensing with personal appearance of accused–Provisions of Ss.205, 353 & 540-A, Cr. P. C. had empowered the Court to dispense with personal appearance of accused—Court while granting such exemption had to apply its mind and pass an order keeping in view the facts and circumstances of the case—No restriction existed on the Court that personal attendance could be dispensed with but it only if accused appeared before it, but the Court could not pass any order in vacuum and had to consider the nature of allegation and other facts and circumstances of the case—No legal justification had been shown in the application for dispensing with personal appearance of accused and even at the time of arguments, applicants were unable to show any such justification—Application, was rightly dismissed by Courts below, in circumstances.

Citation Name : 2003 PLD 123 PESHAWAR-HIGH-COURT
Side Appellant : TAHIR MUHAMMAD
Side Opponent : Mst. ARIFA
—-Ss. 540-A & 561-A—Penal Code (XLV of 1860), Ss.419/420/468/471–Exemption from personal appearance in Trial Court refused to petitioner–Validity—View taken by the Courts below in refusing exemption to petitioner from personal appearance in the Trial Court was based on mere technicalities—Physical presence of accused was not a condition precedent for granting exemption to him—Purpose for conferring a discretion on the Court by S.540-A, Cr.P.C. in granting exemption to accused from personal appearance at any stage of trial or inquiry was that the trial was not brought to halt and the Court was able to proceed and conclude it in his absence–Where the prayer made for such exemption was based on genuine ground, its refusal certainly would be violative of the said settled principle and would defeat the very purpose for which the aforementioned provision was enacted—Impugned orders of the Courts below were consequently set aside and the accused was granted exemption from personal appearance in the Trial Court pending trial—Petition was accepted accordingly.

Citation Name : 2002 PCRLJ 1268 KARACHI-HIGH-COURT-SINDH
Side Appellant : HAKIM ALI ZARDARI
Side Opponent : THE STATE
—-Ss. 540-A, 342 & 439—National Accountability Bureau Ordinance (XVIII of 1999), S.10—Revision—Dispensation of attendance of accused—Accused having been exempted from appearing before the Accountability Court during the trial was directed to be produced before the Court for the purpose of recording his statement under S.342, Cr.P.C. by means of the impugned order—Latest report of the Medical Board showed that the left hip joint of the accused was extremely painful and his left hip X-Ray and bone scanning showed loosening which needed surgery in order to mobilize him and relieve his pain—Counsel of the accused, in circumstances, was directed to make a statement of undertaking of his representation before the Trial Court for the purpose of recording his statement under S.342, Cr.P.C.—Trial Court, however, was at liberty to summon the accused, if considered necessary, at any stage of the case according to law—Revision petition was allowed accordingly.

Citation Name : 2002 PCRLJ 100 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MEHR MUHAMMAD RAFI
Side Opponent : ADDITIONAL SESSIONS JUDGE, SIALKOT
Criminal Procedure Code (Cr.P.C) —-S. 540-A—Constitution of Pakistan (1973), Art.199—Constitutional petition—Maintainability—Dispensation from personal appearance in the Court—Application for—Private complaint was filed against 11 accused wherein it had been alleged that accused armed with fire-arms had fired indiscriminately, but nobody had received any injury during the occurrence—Application filed by some of the accused for dispensation from their personal appearance in the Court on each and every date of hearing had been accepted -by the Judicial Magistrate and also by the Sessions Judge in revision–Complainant challenged concurrent judgments of the Courts—Validity—Acceptance of application for dispensation of personal appearance had caused no miscarriage of justice while the Trial Court had exercised its discretionary power judiciously–Order passed by Sessions Judge in revision was also a speaking order and cogent reasons had been given—If any person had a genuine case, the Court could dispense with his personal attendance and if the Court would exercise. its power, orders of Courts below could not be challenged through a Constitutional petition having been not passed without jurisdiction—In absence of any illegality or irregularity in the orders, passed by the Courts below, Constitutional petition against said orders was not maintainable.

Citation Name : 1998 PCRLJ 1689 FEDERAL-SHARIAT-COURT
Side Appellant : MST. NAZIRAN
Side Opponent : SAIFAL
—-Ss. 239 & 540-A—Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3) & 11—Penal Code (XLV of 1860), S.363—Private complaint and police challan pending in Trial Court—Joint trial—Procedure–Trial Court seized of the complaint and challan case has to take up the complaint case first for trial and after recording statements of complainant’s witnesses has to record statements of prosecution witnesses named in the challan case but not named in the complaint case and produced by the complainant, as Court witnesses under S.540-A, Cr.P.C., so that they can be cross-examined by both the parties—Such a procedure will enable the Court to have the whole evidence included in one trial and decision can be arrived at after a proper consideration of the entire material relied upon by both the parties.

Citation Name : 1996 PCRLJ 291 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD AFZAL
Side Opponent : ABDUR REHMAN
—-S. 10/11—Criminal Procedure Code (V of 1898), Ss.540-A & 439–Dispensation with appearance of accused—Trial Court had exempted the lady accused from appearance before it on the undertaking of her counsel to ensure her presence if so required—Such order of Trial Court did not suffer from any illegality justifying interference in exercise of revisional jurisdiction—Revision petition was dismissed in limine accordingly.

Citation Name : 1995 MLD 1652 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUSHAHID HUSSAIN SYED
Side Opponent : STATE
—-Ss.205, 540-A & 439—Penal Code (XLV of 1860), s.499/500/501–Attendance of accused has been dispensed with by Trial Court for future dates subject to the undertaking given by his counsel to appear on his behalf and to produce him as and when required by Court—Subsequently by directing the accused to appear in person in Court to answer the charge, Trial Court had not committed any error or irregularity in the proceedings, nor such direction had occasioned any failure of justice—Framing of charge, on the other hand, in the absence of accused might have caused some prejudice to him—Impugned orders passed by Trial Court, therefore, were neither arbitrary nor capricious—Revision petition was dismissed in limine accordingly.Judgement on 540-A exemption Application

Citation Name : 1993 PLD 373 KARACHI-HIGH-COURT-SINDH
Side Appellant : HAYAT KHAN
Side Opponent : MUHAMMAD FAROOQ
S. 540-A — Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3) — Penal Code (XLV of 1860), S.395/448/148/149– Attendance of accused in Court, dispensation of — Trial Court had dispensed with personal appearance of the accused provided his counsel represented him on each date of hearing — Trial Court, held, could not grant exemption to the accused for the entire period of trial under S.540-A, Cr.P.C.—Such order of the Trial Court was consequently set aside being not sustainable in law — Accused, however, could seek exemption for each date of hearing if he was incapable of appearing in Trial Court, and was represented by counsel.Judgement on 540-A exemption Application

Citation Name : 1993 PLD 155 PESHAWAR-HIGH-COURT
Side Appellant : SHAH ZAMAN
Side Opponent : SHER AFZAL KHAN
Ss. 540-A & 561-A—Penal Code (XLV of 1860), S.430/506/148/149–Quashing of orders —Accused’s exemption from appearance—Accused was employed in Saudi Arabia earning his livelihood and was represented by his pleader in the case—Magistrate was satisfied in, the circumstances about inability of accused to appear on each and every date of proceeding or hearing of the case and his satisfaction was based on objective consideration–Complainant seemed to have made the application for withholding or restraining the accused from employment in Saudi Arabia which was in negation of the objects, purposes and considerations of S.561-A, Cr.P.C.–Application was dismissed in circumstances.

Citation Name : 1989 PCRLJ 1652 PESHAWAR-HIGH-COURT
Side Appellant : ALI YAHYAH
Side Opponent : STATE
Criminal Procedure Code (Cr.P.C) —Ss. 540-A, 561-A & 265-D–Penal Code (XLV of 1860), Ss.302, 427 & 148/149–Exemption from appearance–Exemption refused by Trial Court–Revision against–Accused facing trial alongwith eight others–Exemption from appearance in Court claimed on grounds of his employment abroad and- being a heart patient–Accused duly represented by counsel who could represent him at time of framing of charge and at the time when statement of accused was to be recorded under S.342, Cr.P.C. through his counsel–Case lingering on only for appearance of accused–Other accused also suffering due to non-appearance of petitioner-accused–Sessions cases intended to be disposed of as early as possible–Trial Court having discretion to summon accused at any stage of trial when his presence considered necessary–Accused exempted from personal appearance before Trial Court in circumstances.

Citation Name : 1988 PLD 379 KARACHI-HIGH-COURT-SINDH
Side Appellant : STATE BANK OF PAKISTAN
Side Opponent : NASIR HUSSAIN ZAIDI
Ss. 205 & 540?A?? Words “to appear by pleader” in S.205, Cr.P C.?Meaning Appearance by a pleader involves the performance of all acts that devotee upon the accused in the course of the trial??Charge can be framed in the presence of pleader for such accused?? Pleader authorised to appear or to represent can plead guilty or not guilty to the charge.

Citation Name : 1987 PLD 288 LAHORE-HIGH-COURT-LAHORE
Side Appellant : M. SALEEM BABAR
Side Opponent : THE STATE
S.540-A–Penal Code (XLV of 1860), S. 409–Prevention of Corruption Act (II of 1947), S.5(2)–Exemption from attendance–Accused leaving Pakistan after registration of case and declared as proclaimed offender-Accused aware of proceedings pending against him but never appeared before Trial Court at any stage of hearing of case–Conditions to dispense with attendance of accused in Court stated–Absconding accused, held, not entitled to any benefit under 5.540-A, Cr.P.C.

Citation Name : 1987 PLD 245 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AZIZ-UR-REHMAN
Side Opponent : THE STATE
Ss. 233, 239, 200 & 540-A-Penal Code (XLV of 1860), Ss. 302, 307, 304, 148 & 149-State challan case and private complaint case-Prosecution story and defence version basically different Certain accused named by complainant found innocent or certain persons not named found to be liable for offences committed Complaint case, held, was to be taken up first and prosecution witnesses listed in police challan to be also examined as court witnesses under S. 540-A, Cr. P. C.-Police challan to be taken up only if complaint case resulted in acquittal and in case of conviction, police case to be withdrawn by public prosecutor under S. 494, Cr. P. C.

Citation Name : 1986 PCRLJ 2977 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : THE STATE
Side Opponent : WILAYAT HUSSAIN
Criminal Procedure Code (Cr.P.C) —Ss. 540-A, 205, 265-D, 265-E & 342–Distinction between import of provisions of Ss.205 & 540-A, Cr.P.C.–Presence of accused cannot be dispensed with at the stage of examination of accused under S.342, Cr.P.C.

Citation Name : 1985 PCRLJ 1528 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AFSAR HUSSAIN
Side Opponent : THE STATE
—Ss.205 & 540-A–Personal attendance, dispensation of–Personal attendance of petitioner sought to be dispensed with on ground of his impending visit to India to see his ailing father–Held: No reasonable ground to show that petitioner was incapable of remaining before trial Court–Interference with orders of Courts below declined, in circumstances.Judgement on 540-A exemption Application

Citation Name : 1984 PCRLJ 3002 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHER MUHAMMAD
Side Opponent : FALAK SHER
Criminal Procedure Code (Cr.P.C) —-S. 540-A (2)-Judgement on 540-A exemption Application Trial in absentia-Provision contained in subsection (2) of S. 540-A, Cr. P. C., held, could not be invoked to case of an accused already appeared in Court but subsequently absented.

Citation Name : 1983 PCRLJ 1242 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD AKRAM
Side Opponent : MAHMOOD ALI B. NANJIANI
—-Ss. 205, 540-A & 353 read with S. 561-A-Exemption from personal appearance of accused-Besides Ss. 205 & 540-A, provisions of S. 353, Cr. P. C., held, also available to trial Court in granting exemption to accused from personal attendance–Application for exemption from personal appearance, held further, to be heard on merits after giving full opportunity to counsel for applicant to argue such application.

Citation Name : 1982 SCMR 1006 SUPREME-COURT
Side Appellant : NASIR AHMAD
Side Opponent : DIL MUHAMMAD
-S-540-A-Judgement on 540-A exemption Application Mere absence of one or other accused on medical grounds when large in number and represented by counsel, held, by no means an impediment to continuance of trial and S. 540-A and other provisions of Criminal Procedure Code; 1898 could be made use of.

Citation Name : 1980 PCRLJ 1 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD HUSSAIN
Side Opponent : PERVAIZ-UR-REHMAN
Criminal Procedure Code (Cr.P.C) — Ss. 540-A & 537-Exemption from personal appearance–Reasons for exemption not recorded–Failure to record such reasons, held, irregularity curable under S. 537, Cr. P. C.-[Exemption from personal appearance].

Citation Name : 1980 PCRLJ 3 LAHORE-HIGH-COURT-LAHORE
Side Appellant : PERVAIZ UR RAHMAN
Side Opponent : MUHAMMAD HUSSAIN
Criminal Procedure Code (Cr.P.C) —-S. 540-A–.Exemption from personal appearance-Accused appearing in Court for more than 2J years stucking abroad before next date of hearing-Held, can instruct his counsel for asking exemption.-[Exemption from personal appearance]. Judgement on 540-A exemption Application

Citation Name : 1979 PLD 53 SUPREME-COURT
Side Appellant : ZULFIKAR ALI BHUTTO
Side Opponent : THE STATE
Ss. 540-A & 205(1) read with S. 353-Exemption of personal attendance of accused-General rule requiring all evidence to be taken in presence of accused-Ceases to be applicable when Magistrate dispenses with personal attendance of accused and permits him to appear by his pleader under S. 205(1) or when under given circumstances under S. 540-A a Judge or Magistrate dispenses with presence of accused in case of his being represented by a pleader, or when an accused absconds-Power to dispense with personal attendance of accused also implicit in, and spelt out of, closing line of S. 353 itself.[Exemption from personal attendance of accused].Judgement on 540-A exemption Application

Citation Name : 1979 PLD 741 SUPREME-COURT
Side Appellant : ZULFIKAR ALI BHUTTO
Side Opponent : THE STATE
Ss. 540-A & 537-Irregularity-Cure of-Court in order to determine whether an omission, error, or irregularity in conduct of trial vitiated trial must look to substance and not technicalities Accused having had fair trial and not prejudiced in his defence, error omission, or irregularity in conduct of trial stands cured under S. 537-Such position, held, also obtains in regard to application of S. 540-A and no contradiction involved in observations of majority judgment that provisions of S. 540-A should be strictly complied with and then that it does not mean that any error, omission or failure in that behalf must necessarily vitiate trial.-[Criminal trial] Judgement on 540-A exemption Application

Citation Name : 1975 PCRLJ 545 KARACHI-HIGH-COURT-SINDH
Side Appellant : AZHAR LATIF
Side Opponent : ESOOF HASHIM
— Ss. 561-A, 205 & 540-A-Exemption from personal attendance-High Court empowered to exercise powers beyond those conferred by sections 205 & 540-A-Accused persons (including one lady) required to come from L to K after spending huge amount on fares and leaving their business-Accused granted exemption from personal appearance and permitted to appear through duly authorised counsel except at stage when Magistrate considers their presence necessary. Judgement on 540-A exemption Application

Citation Name : 1973 PLD 273 KARACHI-HIGH-COURT-SINDH
Side Appellant : THE STATE
Side Opponent : VICTOR HENRY
Criminal Procedure Code (Cr.P.C) S. 540-A-ExemyLion from attendance in Court-Can be granted for reasons to be recorded when accused “incapable of remaining before the Court”-Protraction of case on behalf of complainant or because accused being ladies had domestic responsibilities and other allied work at home-Not covered within expression “Incapable of remaining before the Court”.

Citation Name : 1968 PCRLJ 791 KARACHI-HIGH-COURT-SINDH
Side Appellant : GODHO
Side Opponent : THE STATE
Criminal Procedure Code (Cr.P.C) S. 540-A-Accused (8 in number) charged under S. 302/149, P.,P. C. Magistrate on request of counsel of one of accused exempting presence of his client and then recording statements of Police Officers present in Court-Held, nothing was wrong with examination of such Officers by committing Court-Commitment on that account not rendered bad.Judgement on 540-A exemption Application

Citation Name : 1966 PLD 708 SUPREME-COURT
Side Appellant : NUR ELAHI
Side Opponent : STATE
Ss. 233 & 239 read with Ss. 208, 213, 270, 286 & 540-A-(Separate or joint trial)(Murder case)-(Commitment proceedings)-Two versions of case, with two totally different sets of accused, put forward by complainant in private complaint and by State in police challan-Committing Magistrate making two orders of commitment-Procedure to be adopted by Sessions Judge at trial-By majority: per S. A. Rahman, J., Cornelius, C. J., Fazle-Akbar and Hamoodur Rahman, JJ., agreeing: Complaint case to be taken up first and prosecution witnesses listed in police challan to be also examined, “as Court witnesses” under S. 540-A-Police challan to be taken up only if complaint case results in acquittal and in case of conviction, police case to be withdrawn by Public Prosecutor under S. 494, Criminal Procedure Code (V of 1898)-Per Kaikaus, J., contra: Difficulties to be encountered in adopting procedure recommended in majority judgment-Procedure does not solve difficulty in legal rnanner-Principle of “consolidation” of proceedings in civil matters-Civil Procedure Code (V of 1908), S. 151-Inherent powers of Court to adopt procedure not prohibited by Civil Procedure Code (V of 1908)-Consolidation of criminal proceedings not open to objection No express prohibition in Criminal Procedure Code (V of 1898) against joint trials in cases other than those permitted by Code Difficulties following from provisions of S. 270, Criminal Procedure Code (V of 1898) that all trials before a Court of Sessions are to be conducted by a Public Prosecutor-Proper course for Public Prosecutor to lay both versions before Court-No bar to joint committal of both sets of accused. Judgement on 540-A exemption Application.

 

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