IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Miscellaneous Application No. 62 of 2018
Shakeel
Ahmed Khan.………..………………...…………...………..Applicant
Versus
Khursheed
Alam and another……. …………..……………….Respondents
Date of Hearing : 16.08.2018
Mr. Mushtaq Ahmed Joyia, advocate for
the Applicants
Mr. Zahoor Shah, DPG.
O
R D E R
FAHIM AHMED SIDDIQUI, J: Through
the instant criminal miscellaneous application, the Applicants have assailed
the impugned order dated 26-03-2018, passed by the learned Additional Sessions
Judge-V, Karachi Central, whereby the learned Judge dismissed the revision
application filed by the applicant and maintained the order of trial Court.
2. Briefly,
the facts of the case are that one Khursheed lodged FIR at PS Gabol Town
against applicant with allegations that he had prepared bogus documents of his
plot and had encroached upon the same. Resultantly, the report was lodged under
Sections 448, 468, 471 PPC, which is pending trial before the concerned
Judicial Magistrate. During trial, the applicant has filed an application under
Section 539-B CrPC for local inspection, which was dismissed. The dismissal
order was challenged before the Sessions Court by filing a revision application
but the same was also dismissed through impugned order.
3. While
pressing the instant application, the learned counsel for the applicant submits
that the learned Judicial Magistrate is duty-bound to visit the place of
incident and cast a clear picture in his mind before proceeding further. According
to him, the applicant has rightly moved an application under Section 539-B,
which was required to be allowed. In response to a query, he submits that this court
can issue a direction to the trial Judge in a matter which purely falls under
his discretion. He submits that since there is no legal bar; therefore, if
direction be issued to the learned trial Judge to conduct a local inspection and
decide the matter accordingly. He submits that from the local inspection, it
will be clarified that no offence was taken place and the present applicant /
accused has not done anything wrong. In support of his contentions, the learned
counsel for the applicant has relied upon Asfandyar
and another v. Kamran and another (2016 SCMR 2084).
4. The
learned DPG has strongly opposed the instant criminal miscellaneous application
and submits that it is not appropriate to issue directions to trial Court for
conducting local inspection. According to him, no doubt there is a law for the
purpose of local inspection of the place of incident but the same is to be used
seldom and with care.
5. After
hearing the arguments advanced, I have gone through the entire material
available before me regarding the present controversy. The contention of the
learned counsel for the applicant is that the trial judge is duty-bound to
conduct a ‘local inspection’ before initiating the trial but he could not point
out the reasons for such ‘local inspection’. Even he could not explain how he
would be jeopardized if such inspection is not carried out. It is worth
mentioning that the witnesses have yet not been examined. There is no cavil in
the proposition that a trial judge is empowered to carry out ‘local inspection’
if it is necessary for the fair adjudication of the criminal trial. Before further
discussion, I would think it appropriate to reproduce Section 539-B, which
reads as:
“539-B. Local inspection: (1) Any
Judge or Magistrate may at any stage of any inquiry, trial or other proceeding,
after due notice to the parties, visit and inspect any place in which an
offence is alleged to have been committed, or any other place which it is in
his opinion necessary to view for the purpose of properly appreciating the
evidence, given at such inquiry or trial and shall without unnecessary delay
record a memorandum of any relevant facts, observed at such inspection.
(2) Such memorandum shall form part
of the record of the case if the Public Prosecutor, complainant or accused so
desires, a copy of the memorandum shall be furnished to him free of cost”
The section provides that a Judge or Magistrate
may conduct a local inspection of a place of occurrence or any other place. A bare
reading of the section makes it clear that such powers can be invoked during
the course of enquiry, trial or other proceedings and the purpose of the local
inspection is to properly appreciate the evidence given in the case. It is
important to note that ‘local inspection’, if necessary, is to be done by the
Judge or Magistrate with utmost care and cautious. In my humble view, as the
purpose of ‘local inspection’ is to appreciate the evidence properly;
therefore, it would be appropriate to do so at the end of trial. Even at that
time, the trial judge should not, in making the ‘local inspection’, do anything
which would reduce him to the position of a witness. In a case reported as Tirkah v. Nanak AIR (1927 All. 350), it
was held that “if a Magistrate makes use
of knowledge derived from a ‘local inspection’ without affording the accused an
opportunity to cross-examine or to explain the points against him, he acts with
material irregularity sufficient to vitiate the trial”. It was also held
that “a local inspection of the
Magistrate is permitted for the purpose of properly appreciating the evidence
in this case and cannot take the place of evidence itself”. In a case
reported as Sheikh Badasha v. Emperor
{40 Crl. Law Journal (1939) 624}, the Magistrate carried out spot
inspection at evening time and he came to conclusion that there was sufficient
light to enable a person to mark closely the features of a stranger and
convicted the accused. In appeal, the High Court held that the learned
Magistrate assumed that the condition of the light and atmosphere were the same
on the night that he went to the spot as they were at the time of the
occurrence, as such he had gone beyond the scope of Section 539-B CrPC, and
result of such inspection could not provide basis of conviction.
6. A
Court is not entitled to make a local inspection in each and every case as a
rule and even if such an inspection is made, it can never take the place of
evidence or proof but is really meant for appreciating the position at the
spot. The learned counsel for the applicant contends that through local
inspection, the learned trial Magistrate can ascertain at the very initial
stage of case that the offence was taken place or not. In my view it is not the
purpose of Section 539-B CrPC. If considered in the backdrop of explanation
given under Section 556 CrPC, it would become crystal clear that what Section
539-B CrPC contemplates is limited to the local inspection of the topography of
the place in which the offence was alleged to have been committed or its local
peculiarities for the purpose of properly appreciating the evidence which was
already on record. As discussed above, the purpose of local inspection being
properly appreciate the evidence given at the trial, as such I am of the view that
propriety demands that the time for local inspection should come after all the witnesses
are examined. Even that should be resorted to very sparingly, the Court taking
special precautions to prevent itself becoming a witness unconsciously. It is
pertinent to mention that at the time of local inspection, the Court should not
import new material collected or observed by it during inspection. The moment
the Court collected new material, it becomes a witness, and as it cannot
cross-examined itself, it cannot try the case. It is the reason that on some
occasions, it is practically impossible for the Court to make a local
inspection, and it is the reason that the option of ‘local inspection’ is not a
mandatory rule and it is left at the discretion of the Court.
7. As
far as, case of Asfandyar (supra) is concerned, the ratio of the said case is
that the local inspection should be carried out by the trial judge himself and
he cannot delegate his power to a person subordinate to him or even to a
subordinate Judge. It is pertinent to point out that in the case of Asfandyar
(supra), the local inspection was carried out after completing evidence and
before recording statement under Section 342 CrPC. Besides, from the case of
Asfandyar (supra), it is evident that local inspection can only be made when it
is felt necessary by the trial judge or magistrate to do so and there would be
an impediment or obstacle for proper appreciation of evidence without doing so.
If there is no such necessity arose, there would be no need to perform local
inspection of the place of incident or any other place, it is necessary that
the inspection should be carried out by the trial Judge or Magistrate himself.
8. Since,
the case against the applicant is at the initial stage and there is nothing
available on the record, which requires ‘local inspection’ necessary;
therefore, no direction could be given to the trial Court in this respect in a
matter, which purely falls under the discretion of trial Court. The instant
criminal miscellaneous application is dismissed.
The above are the reasons for my short order
dated16-08-2018.
J
U D G E