UMAR FAROOQ--Petitioner versus STATE etc.

--Respondents

Citation: 2022 PLJ Law Note Criminal 52

Result: Application Dismissed
Court: Lahore High Court (Multan Bench)
Date of Decision: 22.12.2020.
Judge(s): Anwaarul Haq Pannun, J.
Case Number: Crl. Misc. No. 7693-M of 2020
JUDGMENT

Order

By means of instant miscellaneous application under Section 561-A, Cr.P.C., the petitioner
calls in question the vires of orders dated 25.11.2020 passed by the learned Revisional
Court/Additional Sessions Judge, Dera Ghazi Khan and the order dated 10.09.2020 passed by
the learned Magistrate Section-30, Dera Ghazi Khan, whereby the petitioner’s application
under Section 539-B, Cr.P.C. for local inspection was dismissed.

2. Precisely the relevant facts for the disposal of the instant miscellaneous application are that
a criminal case vide F.I.R No. 250/2016 dated 09.06.2016, offence under Sections 322, 427,
279, PPC, Police Station Saddar Dera Ghazi Khan, has been registered on the complaint of
Respondent No. 2 against the petitioner with the allegation that while driving a car rashly and
negligently he collided with the motorcycle of complainant’s paternal cousin namely
Muhammad Kamran, who succumbed, the pillion rider namely Abdul Ghaffar also sustained
serious injuries. Presently, the petitioner is facing trial before the learned Magistrate
Section-30 Dera Ghazi Khan. After the evidence of some of the PWs and one CW had been
recorded by the trial Court, the petitioner moved an application under Section 539-B, Cr.P.C.,
which is reproduced in its verbatim hereunder:-

1? ?? ?? ????? ??? ??? ???? / ???? ?? ?? ??????? Charge frame ???? ??? ?? ?? ??? ?? ????? ???? /
???? ?? ???? ??? ?????? ?? ??????? ??? ?

2? ?? ?? ???? ????? ??? ????? ??? ?? ?? ?? ???? ?? ??? ????? ???? ???? ?? ??? ???? ????? ???? ???
?? ???? ???? ????? ?? ????? ???? ???? ?? ?????

3? ?? ?? ???? ????? ???? ??? ?? ????? ?? ????? 35 / 40 ??????? ???? ?? ????? ???? ?? ?? ???? ????
?? Normally ???? ????? ?? ????? ???? ??? ???? ?? ?

4? ?? ??539-B Local Inspection ?? ???

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 any un-
necessary delay record a memorandum of any relevant facts observed at such inspection.

?????? ???? ?????? ?? ?? ??? ????539-B?? ??? ???? ?? ??????? ????? ?????? ???? ???? ???? ???
???? ?????? ??????? ???? ????? ?? ????? ? ?????? ????? ????? ??? ???? / ???? ?? ???? ????? ?????
??? ????? ?? ????? ???? ?????? ?

The request of the petitioner failed to find favour, as stated above, with the learned Magistrate
as well as the learned Revisional Court. Hence, the instant petition.

3. The learned counsel for the petitioner while reiterating the grounds urged through his
application in writing and relying upon the judgments reported as Asfandyar and another v.
Kamran and another (2016 SCMR 2084), Abdur Rehman v. the State (2000 SCMR 1355) and
Ghulam Hussain alias Hussain Bakhsh and 4 others v. the State and another (PLD 1994 SC
31), has craved for acceptance of the instant petition. The learned Deputy Prosecutor General
assisted by the learned counsel for the complainant/ Respondent No. 2, on the other hand,
have vociferously opposed the submissions of the learned counsel for the petitioner and
defended the impugned orders.

4. Heard. Record perused.

5. At the outset it may be observed that while considering the importance of the sketch of a
crime scene, some necessary guidelines have been issued to police officers by means of Rule
25.13, Chapter 25 of Police Rules, 1934, to preserve the factual information relating to crime
during investigation for proper appreciation of evidence at trial. The site-plan of a crime scene
or place of occurrence is prepared either by a qualified police officer, expert or other suitable
agencies. The Financial Commissioner with the concurrence of the Inspector General of Police
as required under sub-rule 2(i) of Rule 25.13 ibid., read with Paragraph No. 26 of the Patwari
Rules is competent to issue instructions concerning the preparation of map of a crime scene to
Patwaris, to illustrate police inquiries regarding the crime scene. Ordinarily in petty offences
no demands are made upon Patwaris for the preparation of such site-plan of scene of the
offence. However, after visiting the crime scene, while conducting investigation into even
ordinary offences, in the light of available factual information relating to crime, as an
established practice, the Investigating Officers proceed to prepare such maps. The police
officer investigating cases of heinous crimes especially of homicide, riots, land disputes etc., if
considers, that an accurate map of crime scene is required to be prepared, he after
summoning the Patwari of the circle or a duly qualified draftsman to the scene of crime,
causes him to prepare map in duplicate i.e. one for its submission along with the charge-sheet
or the final report for producing it as evidence in the Court and the other for the use of the
police/investigating agency. In the original map, a reference relating to facts observed by the
police officer is to be entered while in the duplicate, references are recorded which are not
relevant for evidence but are based on the statements of the witnesses. It is necessary to
clearly define the responsibility of the Patwari, draftsman etc. and the police officer in respect
of these maps. The police officer has to indicate to the Patwari the limits of the land, of which
the map, the topographical items etc., he desires to be shown. While drawing a map, the
Patwari is responsible for its correctness. The Patwari cannot write any explanation on the
map which is intended to be produced as evidence before the Court. The police officer,
however, may write any explanation on the duplicate copy of the map. He can add such
remarks which may be necessary to the duplicate of the map to explain its connection with the
case. A police officer is equally responsible along with the Patwari for the correctness of all
particulars regarding crime scene. However, he cannot make any remarks or explanations on
the copy of a map produced by a party. It will be convenient if all the entries made by the
Patwari are made in black ink and those added by the police officer in red ink. The police
officer in any case cannot require a Patwari to make a map of any inhabited enclosure or of
land inside a town or village site. The site-plan is not per se admissible in evidence as it has to
be proved by producing its maker, as a witness in the Court, who may be subjected to cross-
examination. Needless to say that the site-plan is not a substantive piece of evidence. See
Javed Ishfaq vs. The State (2020 SCMR 1414) and Muhammad Iqbal and others vs. Muhammad
Akram and another (1996 SCMR 908). It is generally used for explaining the information
relating to the crime scene for the purpose of appreciation of evidence. Being a reflection of
the crime scene, preparing and bringing on record the site-plan is part of an attempt to furnish
a panoramic view of the occurrence to scrutinize the evidence of prosecution witnesses
produced at the trial. Alam Zar Khan vs. The State and another (2018 YLR (Notes) 59) is
referred.

6. It may further be observed that the diversity of motive behind crimes, the variety in modes
of commission thereto, coupled with a perceptible desire of perpetrator, either to attenuate or
for shielding him from the culpability or punishment of the crime, he had committed, being the
undeniable realities have been taken care of while evolving the systems of criminal
dispensation of justice throughout the world. The keen inspection of the prevailing
circumstances and self-evident hard realities at the crime scene, despite their silence and
voice lessness, in some cases may carry a potential either to fortify the accusation or to belie
the same. While making use of modern techniques in the field of forensic science, by keenly
observing a crime scene; an officer conducting investigation to form a mature opinion about
the involvement of an accused so that his liability may be fixed by a Court is, therefore,
considered to be relevant and important. A Criminal Court or a Judge while deciding about a
crime is, therefore, well advised to make every effort to visualize the crime scene through site
map or from other pieces of evidence, for proper appreciation of evidence to reach at a just
conclusion.

7. After making the above discussion, the stage has now been set to examine the scope of the
provisions of Section 539-B, Cr.P.C., which is reproduced hereunder:

“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 as 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.

Upon bare perusal it transpires unequivocally that the traits of this provision are procedural
and substantive in their nature besides being discretionary. A Judge or a Magistrate at any
stage of the trial or inquiry or other proceedings, after due notice to the parties, is vested with
the power to visit and inspect any place in which either an offence is alleged to have been
committed or any other place having a nexus with the offence committed, which “it is in his
opinion” is necessary to view for the purpose of properly appreciating the evidence given at
such inquiry or trial. It may further be observed that the proceedings under this provision are
judicial in their nature. The requirement of issuance of notices before local inspection is
ingrained in the Maxim “audi alteram partem” i.e. no one should be condemned unheard, to
afford a fair opportunity to the parties to represent themselves even during such inspection
proceedings. The power of local inspection either may be exercised suo motu or on the
application of a party. A Judge or a Magistrate is required mandatorily, without any
unnecessary delay, to record a memorandum of relevant facts observed by him at such
local/site inspection. Such memorandum shall form part of the record of the case. A copy of
the memorandum, if so desired by the public prosecutor, the complainant or the accused, shall
be furnished to them free of cost. The requirement of recording of memorandum of the
relevant facts observed by a Judge or a Magistrate at the time of inspection and forming it a
part of the record without unnecessary loss of time appears to be a pragmatic attempt of the
law givers to cover the risk of loss of evidence which occurs with the passage of time as a
result of fading of human memory. The main object behind vesting of such power with a Judge
or a Magistrate is to enable him for properly appreciating evidence given at an inquiry or trial.
The power of local inspection cannot be delegated to any other agency, as has been held by
the Hon’ble Supreme Court of Pakistan in the dictum reported as Asfandyar and another vs.
Kamran and another (2016 SCMR 2084). Therefore, while exercising this power of local
inspection, a Judge or a Magistrate is required to regulate the proceedings in the light of
Maxim “Actus curiae neminem gravabit” i.e. an act of the Court should prejudice no man.

8. Our system for criminal dispensation of justice even from the investigation stage is
adversarial in its nature. The Police Officer conducting investigation into an offence has been
enjoined upon to collect the evidence having nexus with the case, irrespective of the fact that
it is in favour of the prosecution or the defence and after forming a mature opinion regarding
the involvement or otherwise of the accused in the crime under investigation, he is bound to
forward/submit it in the form of a report before the Court. Preparation of a crime’s site-plan at
the inception of investigation, as aforesaid, significantly is a wise step to preserve the relevant
and available information about the place of occurrence. It may be observed that tendering the
site-plan in evidence besides producing its maker as a witness, affording a fair opportunity to
cross-examine such witness, by the adversaries, is a pragmatic effort to enable the
Judge/Magistrate/ Court to visualize the crime scene, for appreciating properly the evidence
brought before it/him, at trial. Under Section 540, Cr.P.C. a Court trying an accused is also
vested with the power to examine any person in attendance or to summon any person as a
witness, though not summoned as a witness or recall and re-examine any person already
examined, if his evidence appears to be essential for just decision of the case. The defence, at
the same-time, is permitted to produce evidence or any person as a witness in its defence also.

9. In the light of above discussion, it can safely be concluded that despite it being discretionary
with the Judge or a Magistrate seized of an inquiry or trial to exercise, primarily suo-motu or
on the application of a party, his powers under Section 539-B, Cr.P.C. for local inspection
provided “It is in his opinion necessary to view for the purpose of properly appreciating the
evidence given at such inquiry or trial”, yet in view of the fact that the system for criminal
dispensation of justice being adversarial in its nature, after production of site-plan of the crime
scene as evidence, and prosecution and the defence being at liberty to produce the evidence
they wish, coupled with the fact that a Judge or a Magistrate is also empowered under Section
540, Cr.P.C. as aforesaid during the trial, the existence of some exceptional and extraordinary
reasons justifying the resort to exercise of such power appears to be a sine qua none and the
scope for exercise of power under Section 539-A, Cr.P.C. for local inspection becomes
relatively narrow. However, exercise of power for the site inspection during an inquiry is
envisaged differently.

10. After discussing the scope of Section 539-B, Cr.P.C. in the light of case law in detail, and
while considering the facts and circumstances of instant case, it is observed that under Section
95 of the Provincial Motor Vehicles Ordinance, 1965, in case of an occurrence of an accident
in which a motor vehicle is involved, a mechanism in detail has been provided for the
inspection of the vehicle by the authority concerned. The ground on the basis of which the
petitioner has made the request for site inspection to the Court is that the road on which the
accident had taken place is relatively narrow and a car could not have been driven thereon
negligently or rashly, appears to be fictional and result of imagination, particularly when the
place of occurrence is not as such disputed, therefore, in absence of any exceptional
circumstances justifying the Court to make a resort to local inspection appears to be fanciful
and without force, thus cannot be entertained under the law. Neither any impropriety nor any
illegality while rejecting the request of the petitioner could have been shown in the impugned
orders passed by the Courts below. Resultantly, the orders impugned are upheld and this
miscellaneous application is dismissed. Before parting with the order, it may be observed that
in the case law cited by the learned counsel referred hereinabove, is outcome of laudable
efforts for expounding the scope of provision of Section 539-B, Cr.P.C. made by their lordships
but at the same time it does not advance the petitioner’s cause, hence, it requires no separate
discussion.