2020 PLP 938 (YLR)

RAJA SAEED AKRAM KHAN, J.

The titled revision petition has been filed against the judgment/order passed by the learned Shariat Appellate Bench of the High Court on 12.7.2019, whereby the revision petition filed by the petitioner, herein, has been dismissed.

2. The accused-petitioner is facing trial in the offences falling under sections 302, 147, 148 and 149, A.P.C., read with section 13 of the Arms Ordinance, 1965, on the allegation of assassination of Muhammad Rafique son of Mir Hussain. The trial of the case is almost complete, as the evidence of all the witnesses has been recorded. At this stage, on 21.2.2019, the accused-petitioner moved an application under section 539-B, Cr.P.C, before the trial Court, for local inspection of the place of occurrence, which was turned down vide order dated 7.5.2019. The order dated 7.5.2019 was assailed before the Shariat Appellate Bench of the High Court (to be referred as the High Court, hereinafter) by filing a revision petition, which has also been dismissed through the impugned judgment dated 12.7.2019, hence the instant revision petition.

3. Syed Hazoor Imam Kazmi, Advocate, counsel for the petitioner, submitted that the learned Courts below have misconstrued the law and the facts of the case as both the Courts below have not adhered to the statutory provision in its true perspective. The learned counsel forcefully argued that it is settled principle of law that discretion must be exercised in the judicious manner whereas in the case in hand the Courts below failed to act as such. The learned counsel added that both the Courts below have failed to consider that local inspection in the present case is necessary for right appreciation of the evidence but they failed to do so and the learned trial Court has dismissed the application without assigning any reason and the learned High Court has also committed the same illegality without following the guidelines laid down by the superior Courts to meet such an eventuality. The learned counsel submitted that local inspection was also solicited on the ground that the residential house of the petitioner was set on fire by the complainant party and the petitioner was falsely enroped in the case but the learned Courts below have rejected the plea and refused to allow the local inspection. The learned counsel reiterated that for safe administration of criminal justice local inspection of the place of occurrence is necessary for just appraisal of the evidence of the witnesses. The learned counsel referred to and relied upon the cases reported as the State through the Advocate-General of Baluchistan, Quetta v. Jamil Iqbal (PLD 1974 Quetta 28), Mir Zakam and another v. The State and another (1999 PCr.LJ 927), Mukhtar Ali and 3 others v. The State (2000 PCr.LJ 372) and Asfandyar and another v. Kamran and another (2016 SCMR 2084).

4. In reply, Ch. Shuakat Aziz, advocate, appearing on behalf of the legal heirs of the deceased, strongly opposed the arguments of the counsel for the accused-petitioner while supporting the orders passed by the Courts below. The learned counsel forcefully argued that the grounds assigned by the trial Court while dismissing the application of the petitioner for local inspection are based on cogent reasons and the same have rightly been affirmed by the High Court after due appreciation of the relevant provisions of law. The learned counsel added that the petitioner's conduct itself disentitles him from any discretionary relief, as he remained absconder for a long period of time, for which no explanation has been brought on the record. The learned counsel further submitted that the matter has already been finalized up to this Court to the extent of other accused involved in the offence, after due appreciation of the evidence, which cannot be reopened after making the local inspection, as the occurrence took place in the year 2000 and a period of about 19 years has elapsed. According to the learned counsel, many changes have occurred on the place of occurrence, therefore, local inspection at this stage may prejudice the case of the complainant party. The evidence of the witnesses, who were present at the spot at the relevant time is available on the record and on the strength of the same, the case has been finalized up to this Court to the extent of the other accused-persons. The learned counsel lastly argued that it is sole prerogative of the trial Court to make the local inspection, whereas no such occasion is available in the case, as all the Courts below have properly appreciated the matter in a legal manner.

5. Raja Ayaz Ahmed, the learned Assistant Advocate-General, adopted the arguments of Ch. Shuakat Aziz, advocate, counsel for the legal heirs of the deceased and requested for dismissal of the revision petition.

6. We have heard the learned counsel for the parties and gone through the impugned judgment along with the record made available.

7. The proposition involved in the case in hand relates to the interpretation of section 539-B, Cr.P.C. The case built up by the petitioner is that, without making local inspection, the appreciation of evidence cannot be made properly, hence, it is the requirement of law to invoke the powers under section 539-B, Cr.P.C. and both the Courts below have failed to discharge their duty in a legal manner. We have given our serious thought to the argument of the counsel for the parties and also perused the relevant provision of law. As the same has been reproduced by the learned High Court while handing down the impugned judgment, therefore, we do not intend to reproduce the same again. A plain reading of the provision of section 539-B, Cr.P.C. leaves no ambiguity that the local inspection is the sole discretion of the Court and the same is permitted only for the purpose of proper appreciation of the evidence in the case, which may be helpful to explain any point in the evidence. The learned trial Court while dismissing the application, has recorded the following findings:- The findings recorded by the learned trial Court appear to be well-reasoned. Although the learned trial Court has mistakenly mentioned due to some typing error that the occurrence took place in 2002, which, in fact occurred in the year 2000, however, the Court has rightly observed that many changes would have been taken place on the spot with the passage of time. The most relevant evidence is of the witnesses, who were present on the spot at the relevant time and their statements are part of the record. The same have been duly appreciated up to this Court. The veracity of evidence has already been tested regarding the features of locality, therefore, the reasoning assigned by the trial Court for not making order for the local inspection appears to be genuine and lawful. The learned High Court has also taken care of the relevant provision of law and the other material brought on the record and rightly came to the conclusion that at this stage local inspection cannot be allowed on the application of the accused-petitioner, as the same is the sole discretion of the Court. Both the Courts below have wisely attended to the proposition and decided the application in a legal manner, which is not open for interference by this Court. The case-law referred to by the counsel for the petitioner is quit distinguishable, which needs not to be discussed in detail. In view of the above discussion, finding no force in this revision petition, the same is hereby dismissed. As the revision petition stands dismissed, the ancillary application is consigned to record. JK/82/SC(AJ&K) Revision dismissed.