' This revision is directed against order, dated 26-3-1998 passed by learned Additional Sessions Judge-I, Quetta whereby he, has rejected report, dated 12-12-1997 of the Local Commissioner, appointed by him earlier 'vide his order, dated 8-12-1997.
2. The facts of the case, briefly stated, are that the petitioner along with two others, is standing trial under section 3/4 of the Prohibition (Enforcement of Had) order 1979. It is alleged, that in consequence of a raid, conducted at the Dairy of the petitioner, 20 kg opium was recovered from car bearing Registration No,QAG-5042 in which, he along with co-accused persons was sitting at the relevant time.
3. At trial, when the prosecution evidence was being led, and statements of two witnesses, namely, P.W.1 Rahim Khan and P.W.2 Syed Abdul Jabbar, were recorded, the petitioner on 3-12-1997 submitted an application for inspection of site, on the ground that since the place of incident was situated inside the Dairy, therefore, "in order to ascertain the truth and to reach at a just and proper conclusion" site may be inspected before examining the complainant and other witnesses.
4. Though record is silent, as to under which provision of law the application in question was submitted yet, the trial Ccurt vide its order, dated 8-12-1997 allowed the same and appointed Mr. Naeena Aichtar Advocate, as Local Commissioner to inspect the site and make a report, which was accordingly submitted on 12-12-1997.
5. The record reveals that on 1R-12-1997 an application was submitted on behalf of the State by District Attorney-I, Quetta wherein, it was stated that though, in the application, dated 3-12-1997 it was prayed by the petitioner, that site inspection may be carried out by the Court itself yet, contrary thereto Local Commissioner was appointed and his report was obtained. It was maintained in the application that since neither appointment of the Local Commissioner was legal nor his report had any legal sanctity, as under section 392-B, Cr.P.C. It is the Court alone which can inspect the site, therefore, "order, dated 8-12-1997 may be recalled and the report may not be considered".
6. The record further reveals that learned. Additional Sessions Judge-I, Quetta, while accepting the application in question, rejected report of the Local vide order, dated 26-3-1998, Commissioner relevant portion whereof reads as follows:-- "Perusal of section 539-B shows that only the Court is empowered to inspect the place and there is no provision in Cr.P.C. For appointment of a Commissioner for the purpose of inspection of any place. Moreover, the inspection was made after three months of the occurrence and it is doubtful whether the things were in the same condition as were on the date of occurrence or not? The perusal of record also shows that the car in which opium was allegedly found is of 1973 Model while the Local Commissioner wrote 1974 Model car for entering in the premises, although witnesses have said that the car is of 1974 Model but copy of registration book proves that the car is of 1973 Model. Moreover, at the time of inspection no one was present on behalf of the State except a Naib Court. In fact Investigating Officer should have been asked to be present at the spot at the time of inspection. There is nothing on record to show that the place inspected by the Local Commissioner was the same place as alleged by prosecution. No one has pointed out the said place on behalf of State. All these things have made the report doubtful and the same cannot be believed. In the light of above the same is rejected because there is no provision for appointment of Local Commissioner and the same is also doubtful for the reasons stated above. The application is, therefore, accepted."
' The petitioner has assailed the above order through the instant revision.
7. I have heard Ch. Rafique Ahmad, Advocate for the petitioner and Malik Sikandar Khan, Advocate, Advocate-General, Balochistan for the State and have also perused the relevant record with their help.
8. It has been mainly contended on ibehalf of the petitioner that though under section 539-B, Cr.P.C. The Court was not competent to appoint a Local Commissioner for inspection of the site yet, since, the power of review was not provided for in the Cr . P. C . , therefore, order, dated 26-3-1998 was patently without jurisdiction.
9. Malik Sikandar Khan, Advocate-General, Balochistan having been confronted with the above proposition candidly conceded that though power to review its earlier order was not available to the trial Court, yet the impugned order passed by him in the circumstances of the. Case was justified. He maintained that since under section 539-B, Cr.P.C. The Court had no power to appoint a Local Commissioner, therefore, the report submitted by him, otherwise, could not have been taken on record and was, thus, rightly rejected by the learned trial Court. He, however, suggested that since request made by the petitioner for inspection of the site by the Court, was neither accepted nor rejected and a wrong course was adopted altogether, therefore, he would have no objection, if the case is remanded to the trial Court, for re-consideration of petitioner's application in accordance with law. Ch. Rafique Ahmad, Advocate, learned counsel for the petitioner has also agreed to the proposal.
10. In order to ascertain as to whether there is substance in the respective contentions raised by the learned counsel, for the parties, I have myself carefully gone through record of the case. Though while seeking relief, no provision of law was cited in the application, dated 3-12-1997, yet the relief sought for therein, apparently falls under section 539-B, Cr.P.C. It appears that the learned trial Court without bothering to go through the relevant provision and without ascertaining scope thereof had casually passed order, dated 8-12-1997 for inspection of the site through Local Commissioner. Hid the learned trial Judge been a little bit vigilant he could have avoided the situation which had arisen subsequently. A glance at section 539-B, Cr.P.C. Would reveal that a Judge or Magistrate, at any stage of inquiry, trial or other proceedings, after due notice to the parties may visit and inspect any place which in his opinion, would be necessary for the purpose of properly appreciating the evidence, yet there appears to be no provision in the Code for appointment of a Commissioner to make a local inspection. Therefore, in my view after realizing the "Mistake" the trial Court has rightly rejected report of the Local Commissioner, dated 12-12-1997 and accepted the application, dated 18-12-1997 to recall the order appointing the Local Commissioner.
11. Though learned Advocate-General, Balochistan has contended that the power to review his earlier order was not available to the learned trial Court yet, I am not convinced by his argument.
No doubt as provided by section 369, Cr.P.C. Judgment of a Court is final so far as that Court is concerned; and, on signing and pronouncing it, such Court becomes functus officio and has, therefore, no power to review or alter the judgment, except in the manner as provided by law yet, the bar contained in section 369, Cr.P.C. In my view does not apply to orders which are neither in the nature of judgments nor final. To my mind order, dated 8-12-1997 whereby, the trial Court had appointed the Local Commissioner was interlocutory in nature to which, the provision of section 369, Cr.P.C. Was not applicable, thus, the trial Court was competent to reject report in question and recall its order, dated 8-12-1997, as prayed for by the respondent.
Resultantly this revision petition is accepted. Orders, dated 8-12-1997 as well as 26-3-1998 passed by learned Additional Sessions Judge-I, Quetta are set aside and case, with consent of the parties, is remanded to the trial Court for reconsideration of petitioners application for inspection of the site by the Court, in accordance with law.