SHAKEEL AHMED KHAN vs KHURSHEED ALAM and another

ORDER

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 Police Statio n 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 P.P.C., which is pending trial before the concerned Judicial Magistrate. During trial, the applicant has filed an application under Section 539-B Cr.P.C. 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 procee ding, 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 Cr .P.C, 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 Cr.P.C.. If considered in the backdrop of explanation given under Section 556 Cr.P.C., it would become crystal clear that what Section 539-B Cr.P.C. 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 Cr.P.C. Besides, from the case of Asfandyar (supra), it is evident that local inspection can only be made when it is felt necessar y 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 dated 16-08-2018.