PLJ 2022 Cr.C. (Note) 52
Police Rules, 1834--
----Rr. 25.13(2)(i)--Preparation of map of a crime scene--Prepare by a qualified police officer, expert or other suitable agencies--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 Patwari of circle or a duly qualified draftsman to scene of crime, causes him to prepare map in duplicate i.e. one for its submission along with charge-sheet or final report for producing it as evidence in Court and other for use of police/investigating agency--In original map, a reference relating to facts observed by police officer is to be entered while in duplicate, references are recorded which are not relevant for evidence but are based on statements of witnesses.
[Para 5] A
Responsibility of Patwari, Draftsman and Police Officer--
----It is necessary to clearly define responsibility of Patwari, draftsman etc. and police officer in respect of these maps--The police officer has to indicate to Patwari limits of land, of which map, topographical items etc., he desires to be shown--While drawing a map, Patwari is responsible for its correctness--The Patwari cannot write any explanation on map which is intended to be produced as evidence before Court--The police officer, however, may write any explanation on duplicate copy of map--He can add such remarks which may be necessary to duplicate of map to explain its connection with case--A police officer is equally responsible along with Patwari for correctness of all particulars regarding crime scene--However, he cannot make any remarks or explanations on copy of a map produced by a party--It will be convenient if all entries made by Patwari are made in black ink and those added by 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 Court, who may be subjected to cross-examination. [Para 5] B
2020 SCMR 1414 & 1996 SCMR 908.
Crime scene--
----Appreciation of evidence--It is generally used for explaining information relating to crime scene for purpose of appreciation of evidence--Being a reflection of crime scene, preparing and bringing on record site plan is part of an attempt to furnish a panoramic view of occurrence to scrutinize evidence of prosecution witnesses produced at trial. [Para 5] C
2018 YLR (Notes) 59.
Power of Magistrate--
----Power of local inspection--While exercising this power of local inspection, a Judge or a Magistrate is required to regulate proceedings in light of Maxim “Actus curiae neminem gravabit” i.e. an act of Court should prejudice no man. [Para 7] D
Criminal justice system--
----Duty of police officer--Preparation of a crime site-plan--Our system for criminal dispensation of justice even from investigation stage is adversarial in its nature--The Police Officer conducting investigation into an offence has been enjoined upon to collect evidence having nexus with case, irrespective of fact that it is in favour of prosecution or defence and after forming a mature opinion regarding involvement or otherwise of accused in crime under investigation, he is bound to forward/submit it in form of a report before Court--Preparation of a crime’s site plan at inception of investigation, as aforesaid, significantly is a wise step to preserve relevant and available information about place of occurrence.
[Para 8] E
Criminal Procedure Code, 1898 (V of 1898)--
----S--540--Under Section 540, Cr.P.C. a Court trying an accused is also vested with 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 case--The defence, at same-time, is permitted to produce evidence or any person as a witness in its defence also. [Para 8] F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 539-A--That despite it being discretionary with Judge or a Magistrate seized of an inquiry or trial to exercise, primarily suo-motu or on 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 purpose of properly appreciating evidence given at such inquiry or trial”, yet in view of fact that system for criminal dispensation of justice being adversarial in its nature, after production of site plan of crime scene as evidence, and prosecution and defence being at liberty to produce evidence they wish, coupled with fact that a Judge or a Magistrate is also empowered under Section 540, Cr.P.C. as aforesaid during trial, existence of some exceptional and extraordinary reasons justifying resort to exercise of such power appears to be a sine qua none and scope for exercise of power under Section 539-A, Cr.P.C. for local inspection becomes relatively narrow--However, exercise of power for site inspection during an inquiry is envisaged differently. [Para 9] G
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A & 539-B--Inherent jurisdiction--Scope of Section 539-B, Cr.P.C. in light of case law in detail, and while considering facts and circumstances of instant case, it is observed that under Section 95 of 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 inspection of vehicle by authority concerned--The ground on basis of which petitioner has made request for site inspection to Court is that road on which 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 place of occurrence is not as such disputed, therefore, in absence of any exceptional circumstances justifying Court to make a resort to local inspection appears to be fanciful and without force, thus cannot be entertained under law--Neither any impropriety nor any illegality while rejecting request of petitioner could have been shown in impugned orders passed by Courts below--Application was dismissed. [Para 10] H
Ms. Humaira Naheed Khand, Advocate for Petitioner.
Malik Mudassir Ali, Deputy Prosecutor Generals for State.
Mr. Mubashar Hussain Khosa, Advocate for Respondent No. 2.
Date of hearing: 22.12.2020.
PLJ 2022 Cr.C. (Note) 52
[Lahore High Court, Multan Bench]
Present: Anwaarul Haq Pannun, J.
UMAR FAROOQ--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 7693-M of 2020, decided on 22.12.2020.
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۔ یہ کہ مقدمہ ہذا میں سائل / ملزم پر جو الزامات Charge frame ہوئے ہیں ان کی روح کے مطابق سائل / ملزم کے اوپر تیز رفتاری کے الزامات ہیں ۔
2۔ یہ کہ جائے وقوعہ ایک مصروف روڈ ہے جس کے اوپر ہر وقت ٹریفک رواں دواں ہے اور جائے وقوعہ والی جگہ پر کوئی گاڑی زیادہ سے زیادہ سپیڈ نہیں چل سکتی۔
3۔ یہ کہ جائے وقوعہ والی جگہ پر زیادہ سے زیادہ 35 / 40 کلومیٹر سپیڈ سے زیادہ گاڑی چل ہی نہیں سکتی یا Normally گاڑی دوسرے سے تیسرے گیئر میں چلتی ہے ۔
4۔ یہ کہ539-B Local Inspection کے تحت
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.
بحالات بالا استدعا ہے کہ زیر دفعہ539-Bکے تحت سائل کی درخواست منظور فرماتے ہوئے جناب والا خود موقع ملاحظہ فرمائیں تاکہ مقدمہ کے حالات و واقعات سامنے آسکیں اور سائل / ملزم کے ساتھ انصاف ہوسکے اور انصاف کے تقاضے پورے ہوسکیں ۔
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.
(A.A.K.) Application dismissed
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