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Crl. P. No. 198 of 2016.docx 
SUPREME COURT OF PAKISTAN 
( Appellate jurisdiction ) 
 
 
PRESENT: 
Mr. Justice Dost Muhammad Khan 
Mr. Justice Sardar Tariq Masood 
 
CRIMINAL PETITION NO. 198OF 2016 
(On appeal against the order dated09.02.2016 passed by Peshawar  
High Court, Bannu Bench in Cr. M./Q.P. No. 58-B of 2015) 
 
Asfandyar & another 
 
 
 
 
 
Petitioners 
Versus 
Kamran & another  
 
 
 
 
 
Respondents 
 
For the petitioners:  
Mr. Liaqat Ali Shah, ASC 
 
 
 
 
Mr. Mehr Khan Malik, AOR (Absent) 
 
Respondents: 
 
Not represented 
 
Date of hearing: 
 
29.08.2016 
 
ORDER 
SARDAR TARIQ MASOOD, J.  
Crl. M.A. No. 540 of 2016 
 
For the reason mentioned in this Crl. M.A., same is allowed and the 
additional documents are taken on record.  
CRIMINAL PETITION NO. 198 OF 2016 
Petitioner Asfandyar, through this petition, has sought leave to appeal 
against the judgment dated 09.02.2016 passed by a learned Judge in 
Chamber of the Peshawar High Court, Bannu Bench, through which Crl. 
M./Q.P. No. 58-B of 2015, filed by complainant Kamran was allowed and 
order of the learned Additional Sessions Judge, Takht-e-Nasrati, Karak dated 
20.11.2015 was set aside.  
2. 
 
Brief facts of the case are that the petitioner along with another 
was involved in case FIR No. 278 registered on 11.09.2014 at Police Station 
Yaqoob Khan Shaheed, District Karak in respect of offences under Sections 
302/324/34 P.P.C. in respect of the murder of Abdul Razzaq and Wali Jan 
and attempt at the life of complainant and his uncle Muhammad Arif. Learned 
Additional Sessions Judge (trial Court) during the trial on the request of 
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petitioner/accused, vide order dated 20.11.2015 under Section 539-B Cr.P.C., 
appointed a Commission to visit the spot in order to ascertain the authenticity 
of the site plan in respect of a wall shown as close end. Vide the same order, 
the trial Court also allowed the accused person to place documents on record.  
3. 
 
The learned counsel argued that actually the Commission was 
appointed when defence requested the trial Court to proceed against the 
investigating officer for committing perjury and the Commission was 
appointed in the said inquiry but conceded that no separate file for such 
inquiry was prepared in this regard. It was further argued that the documents 
obtained through modern devise are per se admissible hence Article 79 of the 
Qanun-e-Shahadat Order, 1984 (hereinafter referred to as “the Order, 1984”) 
has no concern, for proving the said documents which were prepared from 
theC.C.T.V. Lastly,it was contended that the order of the learned Additional 
Sessions Judge was revisable hence petition under Section 561-A Cr.P.C. was 
not maintainable.  
4. 
 
We have heard the learned counsel for the petitioners and also 
perused the record appended with the petition.  
5. 
 
During cross-examination upon the investigating officer, in order 
to rebut the site plan, the learned trial Court on a request by the defence side, 
under Section 539-B Cr.P.C. appointed a Magistrate as a Commission to visit 
the place of occurrence in order to ascertain the authenticity of the site plan 
regarding the close end of the market. While doing so, the learned trial judge 
assumed the jurisdiction of an investigating officer and such order would 
amount to favour one party and prejudice the case of other party. Such power 
under Section 539-B Cr. P.C. cannot be a substitute for collection of evidence. 
Such inspection cannot be interchanged for investigation. Learned counsel for 
the petitioner although tried to satisfy us that the said Order was in respect of 
an inquiry regarding alleged perjury committed by the investigating officer but 
admittedly no separate file has been prepared to that extent nor, in the order 
dated 20.11.2015,the learned trial Court has mentioned that he had 
appointed a Commission in an inquiry whereas learned trial Court specifically 
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mentioned that the Magistrate as a Commission was appointed under Section 
539-B Cr. P.C.. Section 539-B Cr.P.C. gives power to a Judge or a Magistrate 
to visit and inspect the place of occurrence or any other place after due notice 
to the parties, if necessary in the opinion of the trial Court, for properly 
appreciating the evidence given during the trial. He was also required to record 
a memorandum without unnecessary delay regarding his observation at such 
inspection but this power cannot be delegated by the trial judge to any other 
subordinate or even a subordinate judicial officer. Under Section 539-B 
Cr.P.C, the trial Judge had no power to appoint another person to visit the 
place of occurrence as a Commission because the report submitted by a local 
Commission cannot be equated with the memorandum mentioned in sub-
section-I of Section 539-B Cr.P.C.. The trial Judge can inspect the place of 
occurrence but alone and he cannot delegate his powers under Section 539-B 
Cr.P.C. and it is exclusive domain of trial Court under said section. Judicial 
power has its own sanctity and the same cannot be entrusted to anyone. The 
act of the trial Court is not curable under Section 537 Cr.P.C. as it is not an 
irregularity rather was an illegality. It is quite astonishing that the learned 
trial Judge, while appointing a Commission under Section 539-B Cr.P.C, did 
not go through the said provision and acted mechanically upon the request of 
defence. The High Court has rightly observed that such an act of the trial 
Court was not only prejudicial to the other party but also detrimental to the 
fairness of the procedure provided under the Code, apart from being without 
jurisdiction.  
The record reveals that during investigation the petitioner tried to 
produce the footage of some C.C.T.V. which were produced by the 
petitioner/accused before the investigating officer. No doubt the trial 
Court,under Section 164 of the Order, 1984,may allow to produce the said 
footage of C.C.T.V. but it is incumbent upon the defence to prove the same in 
accordance with the provisions of the Order, 1984. The defence had ample 
opportunity to produce in his defence, the concerned person who had 
prepared the said footage from the C.C.T.V. system in order to prove the same. 
In that eventuality, the adverse party would be given an opportunity to cross-
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examine the said witness regarding the genuineness or otherwise of the said 
document. Any document brought on record could not be treated as proved 
until the same is proved strictly in accordance with the provisions contained 
in the Order, 1984. While discussing these aspects of the case, the High Court 
restricted the admissibility only to the extent of Article 79 of the Order, 1984 
whereas there are certain other provisions/articles in the Order, 1984 for 
proving the documents which are procured through the modern devices and 
techniques. Mere producing any footage of C.C.T.V. as a piece of evidence in 
the Court is not sufficient to be relied upon unless and until the same is 
proved to be genuine. In order to prove the genuiness of such footage it is 
incumbent upon the defence or prosecution to examine the person who 
prepared such footage from the C.C.T.V. system. So we modify the impugned 
judgment to the extent that the accused is at liberty to produce evidence and 
prove the same strictly in accordance with the provisions of the Order, 1984 
and it will not confine only to the Article 79 of the Order, 1984.  
Admittedly, the order of the learned Additional Sessions Judge was 
revisable and the learned Judge in Chamber of the Peshawar High Court, 
Bannu Bench was required to decide the same under his revisional powers. 
The remedy under Section 561-A Cr. P.C. is not an alternate or substitute for 
an express remedy as provided under the law in terms of Sections 435 to 439 
Cr.P.C..Jurisdiction under Section 561-A Cr.P.C. is neither alternative nor 
additional in its nature and is to be rarely invoked only to secure the end of 
justice so as to seek redress of grievance for which no other procedure is 
available. Although learned Judge in Chamber did not mention any reason as 
to why he made a departure from the normal course prescribed by law but 
this omission on the part of learned judge in Chamber is not fatal at this stage 
because the judgment passed by the High Court is well reasoned and was 
passed after going through the record of the lower Court. The High Court 
might have overlooked this aspect of the case, hence, we, in the peculiar 
circumstances of the case, hold that the impugned judgment, passed by the 
High Court, be deem to have been passed in revisional jurisdiction. The trial in 
this case is pending in the trial Court and almost prosecution evidence has 
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already been recorded, hence instead of remanding the case to the High Court, 
we observe that the impugned judgment is well reasoned and there is no 
perversity or infirmity warranting interference of this Court. Consequently, 
this petition is dismissed and leave to appeal is declined. 
 
Judge 
 
Judge 
Islamabad, the 
29thAugust, 2016 
Atif*/ 
APPROVED FOR REPORTING 
