P L D 2014 Balochistan 113
Before Muhammad Hashim Khan Kakar, J
MIR SANAD KHAN and 6 others ---Petitioners
Versus
THE STATE---Respondent
Criminal Revision Petition No.148 of 2012, decided on 13th September, 2013.
(a) Criminal Procedure Code (V of 1898) ---
----S. 4(k), (l), (m)--- Inquiry, investigation, judicial proceedings ---Scope ---Expressions 'judicial
proceedings" and "inquiry" used in provisions of S.4(k)(l)(m), Cr.P.C., were not synonymous
and the difference was apparent from the definiti ons---Expressions "inquiry" and "judicial
proceedings" also could not be termed as synonymous and interchangeable; both terms were
quite distinct from each other having altogether different characteristics and nothing was
common between the adjudicative forums, by whom separate prescribed procedure and
mechanism were followed for adjudication; and both the forums had their own domain of
jurisdiction ---"Inquiry" was to be made by Magistrate, whereas the "investigation" was to be
undertaken by Police or any person other than a Magistrate or court ---Object of "investigation"
was collection of evidence, but that of an inquiry was determination of truth or falsehood of
certain allegations in order to take further action---"Inquiry" was something different from tr ial;
when inquiry would stop the trial would begin---Proceedings before a Magistrate, prior to the
framing of a charge for the statement of particulars of the offence charged, which did not result
in conviction or acquittal, could be termed as "inquiry" ---Judicial proceedings would include any
proceedings in the course of which evidence was or could be taken on oath---Not necessary that
every proceedings in which evidence had taken on oath, could be termed as judicial proceedings -
--"Criminal trial" and "inq uiry" proceedings were independent of each other, and different
standard of evidence was required in both such proceedings ---Result of one could not influence
the other.
(b) Words and phrases ---
----'Fact', ---Defined and explained.
(c) Qanun -e-Shaha dat (10 of 1984) ---
----Arts. 59 to 65 ---Opinion of witness, admissibility ---Opinion of a witness was irrelevant and
inadmissible in evidence, except the exceptions as envisaged under Arts.59 to 65 of Qanun- e-
Shahadat, 1984, which allowed admission of opinion in evidence.
(d) Criminal trial ---
----Conviction, basis of ---Conviction of an accused could only be based on the basis of evidence
properly recorded by competent court of law, having jurisdiction to try accused; to hold
otherwise, would lead to the absurd result that Trial Court would be c ompetent to act on
evidence recorded by anybody, irrespective of the consideration, whether it was recorded by a
court or a Magistrate or by any other individual; or whether it was recorded in an informal
manner without any jurisdiction to record the same.
(e) Criminal Procedure Code (V of 1898) ---
----S. 540---Summoning material witness or examining persons present ---Power of court ---
Object of S.540, Cr.P.C., as a whole was to do justice not only from the point of view of accused
and the prosecution, but also that of orderly society ---Section 540, conferred a wide discretion on
the court to act as the exigencies of justice ---Discretion was to be exercised judiciously, only for
the ends of justice and it did not confer on any party the right to examine, cross -examine or re-
examine any witness which was entirely the discretion of the court ---Witness could not be
examined under S.540, Cr.P.C., as court -witness just to fill up the gap of the prosecution's case,
or to prolong the proceedings ---Paramount cons ideration was doing justice between the parties ---
Proposed statement of Magistrate, was not a statement about fact, but was only his opinion
drawn from the material collected by him; which was neither admissible in evidence, nor binding
upon the Trial Cour t, while deciding the fate of the case ---Calling of the proposed witness in the
present case, was nothing, but a futile activity just to prolong the proceedings, because Court had
formed its opinion on the basis of evidence furnished in the case ---Witnesse s sought to be
summoned and examined, were already produced and examined by the prosecution witnesses ---
Trial Court was not to summon said witness i.e. Magistrate as his evidence was absolutely not
essential for the just decision of the case---Evidence of proposed witness was neither admissible,
nor could the same be used as incriminating piece of evidence against accused persons ---
Proposed witness/Magistrate, had only conducted an inquiry, entrusted to him by the Trial Court
to determine the truth or false hood of the occurrence in question on administrative side; and his
opinion was not binding upon the Trial Court ---Impugned order passed by the Trial Court was
set aside and application filed under S.540, Cr.P.C., was dismissed, in circumstances.
Syed Ayaz Zahoor for Petitiners.
Mujeeb Ahmed Hashmi for the Complainant.
Abdul Sattar Durrani, Addl. Prosecutor General for the State.
Date of hearing: 6th August, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---This criminal revision petition has been
preferred against the order dated 10th August, 2012 (the "impugned order"), passed by the
learned Sessions Judge, Loralai (the "trial Court"), whereby an application moved under section
540 of the Cr.P.C on behalf of the complainant was allowed on the fol lowing terms:
"Therefore, in view of the above settled principles, the evidence of the above witness is
essential to reach the right conclusion. Therefore, the instant application filed by the learned
counsel for the complainant is hereby allowed and the summon of Zia -ur-Rehman be issued in
this regard for recording his evidence."
2. Syed Ayaz Zahoor, learned counsel for the petitioners, at the very outset, contended that
the evidence of the proposed witness i.e. Judicial Magistrate is of no avail to t he prosecution for
the reason that his evidence, being hearsay, is inadmissible under the provisions of the Qanun -e-
Shahadat Order 1984 (the "Order"). He further added that neither his opinion is binding upon the
learned trial Court, nor could it affect the fate of the prosecution's case. The conviction cannot be
based on any type of evidence, which is not recorded by the Court of competent jurisdiction. He
further contended that the concerned Judicial Magistrate, who is sought to be examined by the
prosecu tion, has formed his opinion regarding the negligence on the part of the accused/
petitioners on the basis of evidence furnished by Momin Shah, Wali Muhammad and Nasrullah,
who have already been examined by the prosecution before the learned trial Court as P.Ws. 2, 4
and 5. Thus, there was no occasion with the learned trial Court for summoning and examining
the proposed witness.
3. On the contrary, Mr. Mujeeb Ahmed Hashmi, Advocate, appearing on behalf of the
complainant, while defending the impugned orde r and opposing the above contentions, stated
that the learned trial Court has passed a well speaking order with cogent reasons, which is
immune from interference.
4. I have given my anxious consideration to the arguments advanced by the learned counsel
for the parties and have gone through the record with their valuable assistance. Before
proceeding further with the matter, it would be appropriate and advantageous to refer to the
relevant provisions of the Criminal Procedure Code, 1898, which, inter alia, deal with the
inquiry, investigation and judicial proceedings, these are:
(1) Section 4(k) "Inquiry", "Inquiry" includes every inquiry other than a trial conducted
under this Code by a Magistrate or Court;
(2) Section 4(l) "Investigation". "Investigation" includes all the proceedings under this Code
for the collection of evidence conducted by a police officer or by any person (other than a
Magistrate) who is authorized by the Magistrate in this behalf, and
(3) Section 4(m) "Judicial proceeding". "Judicial proceeding" includes any proceeding in the
course of which evidence is or may be legally taken on oath.
5. From perusal of the aforesaid provisions of law, it can safely be inferred that the
expressions 'judicial proceeding" and "inquiry" used in the above provisions of law are not
synonymous and the difference is apparent from the definitions. Similarly, the two expressions
i.e. "inquiry" and `Judicial proceeding" also cannot be termed as synonymous and
interchangeable. Both terms are quite distinct from each other having altogether different
characteristics and there is nothing common between the adjudicative forums, by whom separate
prescribed procedure and mechanism is followed for adjudication and both t he forums have their
own domain of jurisdiction. The inquiry is by Magistrate, whereas the investigation is by police
or any person other than a Magistrate or Court. The object of investigation is collection of
evidence, but that of an inquiry is determina tion of truth or falsehood of certain allegations in
order to further action. Similarly, inquiry is something different from trial, when the former
stops, the latter beings. Hence, all the proceedings before a Magistrate, prior to the framing of a
charge f or the statement of particulars of the offence alleged, which do not result in conviction or
acquittal can be termed as inquiry. So far as judicial proceeding is concerned, it includes any
proceeding in the course of which evidence is or may be taken on oa th; however, it is not
necessary that every proceeding in which evidence has taken on oath can be termed as judicial
proceeding. Sometimes, Magistrate, while taking evidence on oath, does not do so judicially,
because he, while doing so, does not determine the rights and liabilities between the parties inter
se. It is also suffice to add here that criminal trial and inquiry proceedings are independent of
each other and different standard of evidence is required in both such proceedings. Result of one
could not influence the other.
6. In view of the above, a question, which arises at this juncture for determination, is
whether the statement of the Magistrate, who, after conducting inquiry, found the
accused/petitioners guilty of the alleged offence, his evi dence was relating to a fact or whether
the same was the opinion. of an inquiry officer and further that if it was the opinion of an inquiry
officer, whether the same was or was not admissible in evidence and further that whether the
same was binding upon the trial Court, while deciding the fate of the case after independent
assessment of evidence recorded during the course of trial.
7. Before further proceeding, it would be advantageous to reproduce herein below the
findings of the Inquiry Officer i.e. J udicial Magistrate (Mr. Zia -ur-Rehman), which reads as
under: --
"Therefore on the basis of statements of witnesses, respondents and available record, I am
of the considered opinion that deceased Abdul Shakoor had been killed by the police officials/
respondents due to their negligent acts. Hence prima facie case is made out against respondents,
they be tried before competent court of law. These are my findings /observations regarding the
matter in question. Submitted for perusal and necessary action plea se."
8. Admittedly, the expression. "fact" is defined as a statement of that which someone
knows; an actuality; and it also means reality of events or things whereas opinion is an inference
or conclusion drawn by a witness from facts. It is what one thinks of something as distinguished
from what he knows about it. Opinion is an inference drawn from observed facts. It is an
estimation which is not susceptible of exact knowledge.
9. The inquiry officer i.e. Mr. Zia -ur-Rehman, who conducted inquiry in the matter in hand,
is, admittedly, a person, who has, obviously, not seen the occurrence. His assignment was only to
determine the truth or falsehood of the allegations made by the complainant in his application
under Section 22- A of the Cr.P.C. regarding the incident in question and then took place all
material and information before the concerned Sessions Judge. However, when he states that so
and so is innocent or guilty, he is not stating something from his personal knowledge of the
occurrence in question, but such a statement is only an inference or the conclusion drawn by him
from the facts and circumstances as they appeared before him. It is now settled that the opinion
of a witness is irrelevant and inadmissible in evidence, except the exceptions as env isaged under
Articles 59 to 65 of the Order, which allow admission of opinion in evidence. Considering the
case in hand, I am of the considered view that the proposed statement of Mr.Zia -ur-Rehman is
not a statement about the fact, but is only his opinion drawn from the material collected by him
which is neither admissible in evidence, nor binding upon the learned trial Court, while deciding
the fate of the case.
10. There is also no escape from the conclusion that the conviction of an accused can only be
based on the basis of evidence properly recorded by a competent Court of law, having
jurisdiction to try the accused. To hold otherwise would lead to the absurd result that the
Sessions Judge would be competent to act on evidence recorded by anybody irres pective of the
consideration whether it is recorded by a Court or a Magistrate or by any other individual, or
whether it is recorded in an informal manner without any jurisdiction to record the same.
11. So far as the contention of the learned Additional Prosecutor General regarding powers of
the trial Court under section 540 of the Cr.P.C. is concerned, in order to appreciate the said
contention, it would be appropriate and advantageous to reproduce the said provisions of law,
which reads as under: ---
"540. Power to summon material witness or examine persons present.- Any Court may, at
any stage of any inquiry, trial or other proceeding under this Code, summon any person as a
witness, or examine any person in attendance, though not summoned as a witness or recall and
re-examine any person already examined; and the Court shall summon and examine or recall and
re-examine any such person if his evidence' appears to it essential to the just decision of the
case."
12. The bare perusal of the aforesaid provi sion of law clearly demonstrates that the object of
the provision as a whole is to do justice not only from the point of view of the accused and the
prosecution, but also from the point of view of orderly society. The user of "may" in first part
and "shall " in second part shows that the first part is discretionary and the second one is
obligatory. This section confers a wide discretion on the Court to act as the exigencies of justice
require, however, the discretion is to be exercised judiciously only for t he ends of justice and it
does not confer on any party the right to examine, cross -examine or re- examine any witness. It is
entirely discretion of the Court. A witness cannot be examined under the said provision of law as
Court -witness just to fill up the gap of the prosecution's case or to prolong the proceedings; the
paramount consideration is doing justice between the parties.
13. While considering the case in hand on the touchstone of the aforesaid settled principles of
law, I am in agreement with the learned counsel for the petitioners that calling of the proposed
witness is nothing, but a futile activity just to prolong the proceedings, because he has formed his
opinion on the basis of evidence, furnished by Momin Shah, Nasrullah and Wali Muhammad.
The learned trial Court, while passing the impugned order, has oversighted the fact that the said
witnesses were already produced and examined by the prosecution as P.Ws. 2, 4 and 5, thus,
there was absolutely no occasion with the learned trial Court to sum mon the said witness i.e.
Magistrate, as his evidence is absolutely not essential for the just decision of the case. The
evidence of the proposed witness is neither admissible, nor could the same be used as
incriminating piece of evidence against the accus ed/petitioners. He has only conducted an
inquiry, entrusted to him by the learned Sessions Judge, Loralai to determine the truth or
falsehood of the occurrence in question on administrative side and his opinion, as already
observed above, is not binding upon the learned trial Court, who is required to decide the fate of
the case after independent assessment of the evidence recorded by him during the course of trial.
In view of the above, the petition is allowed and the impugned order passed by the
learned trial Court is set aside and the application under section 540 of the Cr.P.C. filed by the
State is hereby dismissed.
HBT/94/Bal. Application dismisse dThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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