' 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.0 on behalf of the complainant was allowed on the following 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-urRehman 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 the 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 the 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 prosecution, 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 order 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 the 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 determination 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 begins. Hence, all the proceedings before a Magistrate, prior to the framing of a charge for 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 oath; however, it is not necessary that every proceeding in which evidence was 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 evidence 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 hereinbelow the findings of the Inquiry Officer i.e. Judicial 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 please."
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 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 envisaged 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 irrespective 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 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 provision 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 the ends of justice and it does not confer on any party the right to examine, cross-examine or reexamine 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 summon 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 accused/petitioners. He has only conducted an inquiry, entrusted to him by the learned Sessions Judge, Loralai tb 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.