livelawpk.com - Personal Attendance of Accused through Video Link

The Personal Attendance of Accused at Pre-Arrest Bail Stage may be Procured by Video Link in Special Circumstances --- Lahore High Court, Lahore

Islamabad 27-01-2024: The Honourable Divisional Bench of Lahore High Court, Lahore decided the [Criminal Revision 54056/2023] filed by Imran Ahmad Khan Niazi (petitioner) for setting-aside the orders dated: 11.08.2023 of similar nature passed by learned Special Judge, Anti-Terrorism Court No. III, Lahore whereby applications for exemption from personal attendance and applications for pre-arrest bail filed by the petitioner in the cases, have been dismissed.

It is observed by the Honourable Division Bench that it has been admitted by both the sides that petitioner was on ad-interim pre-arrest bail in aforementioned cases by the order of learned Special Judge, Anti-Terrorism Court No. III, Lahore when he was convicted and sentenced in another case titled as “District Election Commissioner, Islamabad versus Imran Khan Niazi” vide judgment dated: 05.08.2023 passed by learned Additional Sessions Judge, Islamabad-West, taken into custody and confined in the prison in said case; therefore, it was not possible for the petitioner to appear on 08.08.2023 as well as 11.08.2023 before Anti-Terrorism Court, Lahore of his own without intervention/order of said court and even said state of affairs was brought into notice/knowledge of the court through applications filed for exemption from personal appearance on 08.08.2023. It is relevant to mention here that during pendency of said applications for pre-arrest bail filed by the petitioner before said court in these cases, at one stage on 13.04.2023, said court obtained/marked attendance of the petitioner through video-link. Perusal of the impugned order dated: 11.08.2023 passed by learned Special Judge, Anti-Terrorism Court No. III, Lahore reveals that it was in the knowledge of the court that petitioner has been convicted and sentenced in aforementioned case.

By now it is well settled that presence of accused on each and every date of hearing before the court during pendency of application for pre-arrest bail is necessary/ mandatory and if he is not present in the court, his petition is to be dismissed due to lack of his presence, however, it is also equally well settled that if some explanation has been given or brought into notice of the court regarding non-appearance of the accused and said explanation is satisfactory, then his presence can be exempted. It goes without saying that if an accused is granted ad-interim pre-arrest bail in a case and during pendency of said application for pre-arrest bail before the court, he is arrested in another case or confined in jail in another case and it is made impossible for him to approach the court where his application for pre-arrest bail is pending on the relevant date and said state of affairs comes into notice/knowledge of the court, then court has to consider that whether absence of the accused is for the reason beyond his control and in such circumstances, court can procure his attendance to decide the application for pre-arrest bail on merits. It is important to mention here that every citizen of Pakistan is to be dealt with in accordance with law and accused is entitled to fair proceeding as well as due process as provided under Articles: 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973, respectively.

Finally it was held by the Honourable Court that in view of what has been discussed above, we have come to the conclusion that since petitioner was on ad-interim pre-arrest bail in these cases and during pendency of his applications for pre-arrest bail before Anti-Terrorism Court, Lahore, he was convicted and sentenced in another case titled as “District Election Commissioner, Islamabad versus Imran Khan Niazi” vide judgment dated: 05.08.2023 passed by learned Additional Sessions Judge, Islamabad-West (mentioned above), taken into custody and confined in the prison in said case which fact was brought into notice/knowledge of Anti-Terrorism Court through aforementioned applications for exemption from personal attendance, and it was not possible for the petitioner to appear before Anti-Terrorism Court, Lahore on the fixed date of hearing in said applications for pre-arrest bail without intervention of the court; therefore, explanation regarding absence of the petitioner before Anti-Terrorism Court, Lahore on aforementioned dates was well explained and satisfactory, hence, learned Special Judge, Anti-Terrorism Court No. III, Lahore fell into legal error while holding that applications for exemption of personal attendance of the petitioner are not maintainable as well as while dismissing aforementioned applications for pre-arrest bail due to non-appearance/non-prosecution rather in peculiar facts and circumstances of the case, he was under all the obligations to exempt personal attendance of the petitioner on 08.08.2023 and thereafter to mark/ establish presence of the petitioner on 11.08.2023 through modern device i.e. video-link, which exercise was even earlier done by very same court in the very same application for pre-arrest bail vide order dated: 13.04.2023 (mentioned above) and then to decide the applications for pre-arrest bail filed by the petitioner on merits. Therefore, all aforementioned impugned orders dated: 11.08.2023 are hereby set-aside; all the applications filed by the petitioner for pre-arrest bail in aforementioned cases shall be deemed as pending before learned Special Judge, Anti-Terrorism Court No. III, Lahore. Learned counsel for both the sides are directed to appear before learned Special Judge, Anti-Terrorism Court No. III, Lahore on 30.01.2024 and thereafter said court while keeping in view peculiar facts and circumstances of the case i.e. safety of the petitioner which was itself observed by the Anti-Terrorism Court No.III, Lahore in its order dated: 13.04.2023 (as mentioned above), after obtaining/marking personal attendance of the petitioner through video-link will decide all applications for pre-arrest bail till 06.02.2024.