' IQBAL HAMEED-UR-RAHMAN, J.---Through this writ petition, the petitioner prays that the findings dated 7-8-2009 made in the second judicial inquiry regarding police encounter dated 8-5-2009 into the killing of Professor Shahadat Ali Sial conducted by respondent No,1 Malik Khizar Hayat Khan, Additional District and Sessions Judge, Faisalabad, may be declared to be unlawful, illegal and without any legal warrant and the same may be set aside.
2. Brief facts as stated by the petitioner in this writ petition are that Professor Shahadat Ali Sial, brother of the petitioner, was killed during the police encounter at 11-30 P.M. On 8-5-2009 in the area of D-Type Colony, Faisalabad. A judicial inquiry under section 176, Cr.P.C. Into the cause of death of Professor Shahadat Ali Sial was entrusted to Mr.Ghulam Shabbir Hussain Gill, Judicial Magistrate Section 30, Faisalabad, (respondent No,2), by the learned Sessions Judge, Faisalabad, vide order, dated 12-5-2009 as per directions of the Honourable Chief Justice of this Court.
Respondent No,2 conducted a detailed inquiry and examined as many as 28 witnesses. After examining the evidence of the said witnesses and also material available on the file, respondent No,2 made a report dated 2-6-2009, in which it was held that Professor Shahadat Ali Sial, brother of the petitioner, had been killed in a fake police encounter and the said report was submitted to the learned Sessions Judge, Faisalabad, on 4-6-2009 and the same was forwarded to the honourable Chief Justice of this Court and the honourable Chief Justice had discovered certain irregularities in the report submitted by respondent No,2 dated 2-6-2009, as such, vide order dated 16-6-2009, the honourable Chief Justice of this Court had ordered the learned Sessions Judge, Faisalabad, to hold a second and fresh inquiry and the learned Sessions Judge entrusted the de novo inquiry to probe into the cause of unnatural death of Professor Shahadat Ali Sial to Malik Khizar Hayat Khan, Additional District and Sessions Judge, Faisalabad, (respondent No,1), who made a report dated 7- 8-2009, exonerating the police officers (respondents Nos. 3 to 7) and declaring that the police officers while killing Professor Shahadat Ali Sial were simply performing their duties and the said report was submitted to the honourable Chief Justice of this Court. Being aggrieved with the said report dated 7-8-2009, the petitioner has filed this writ petition.
3. It is contended by learned counsel for the petitioner that the petitioner's brother had been murdered brutally regarding which the honourable Chief Justice of this Court had ordered for judicial inquiry and the Inquiry Officer after due deliberations and examining 28 witnesses, had held that brother of the petitioner had been murdered in a fake police encounter and accordingly the petitioner initiated criminal proceedings against the delinquent police officials. It is further contended that for the conclusion of the trial when the criminal proceedings were initiated by the petitioner against the police officials, subsequent order has been passed by the honourable Chief Justice for a second fresh inquiry to be conducted by the learned Additional District and Sessions Judge, Faisalabad, who after conducting the inquiry has exonerated the police officials. It is further contended that there is no such provision in the Criminal Law relating to conducting of the second fresh inquiry as embodied in section 176, Cr.P.C. It is further contended that earlier findings have been over turned without giving any reason. It is further contended that the second inquiry conducted by respondent No,1 is a hurdle in the way of the petitioner to obtain justice under the law as the accused police officials (respondents Nos. 3 to 7) have been provided with immunity from the legal process which governs and controls the proceedings in a case of unlawful killing. It is further contended that the first judicial inquiry, which was ordered by the honourable Chief Justice of this Court, declared that brother of the petitioner had been the victim of an extra judicial killing and the second judicial inquiry declared the death of the brother of the petitioner to be an accident but without pointing out any irregularities and infirmities in the report of the first inquiry, the holding of second judicial inquiry is illegal as section 176 Cr.P.C. Makes no allowance for the holding of multiple inquiries. It is further contended that section 176, Cr.P.C. Speaks of an inquiry and makes no mention of any procedure for setting aside the report of such inquiry and in fact, there is no provision either of a review or revision. It is further contended that there is an embargo on a second inquiry by implication under section 176, Cr.P.C. It is further contended that de novo means a second inquiry and the same cannot be conducted by the learned Additional District and Sessions Judge and in view of the same, the report dated 7-8-2009 made by respondent No,1 in the second judicial inquiry is illegal and the same may be set aside.
4. On the other hand, learned counsel for respondents and the learned Additional Advocate- General, while supporting the report dated 7-8-2009 made by respondent No,1 in the second judicial inquiry, have stated that under section 176, Cr.P.C., there is no embargo on a second inquiry.
It is further stated that in the inquiry conducted by the learned Additional District and Sessions Judge, there is no mention that it was second inquiry. It is further stated that the order, dated 16-6- 2009 passed by the honourable Chief Justice regarding second inquiry was liable to be challenged but the same was not challenged. It is further stated that under section 561-A Cr.P.C., the honourable Chief Justice has unfettered powers to order second inquiry. It is further stated that the learned Magistrate recorded 28 witnesses without affording any right of cross-examination and even the doctors were not examined by the learned Magistrate and in view of the same, the first Inquiry Officer prepared biased, illegal and unwarranted report which was not accepted by the honourable Chief Justice of this Court, therefore, the honourable Chief Justice, after discovering certain illegalities, irregularities in the report of the first inquiry officer, had ordered for second inquiry. It is further stated that the learned Additional Sessions Judge, Faisalabad/ Second Inquiry Officer conducted the inquiry examined six witnesses from the petitioner side and nine witnesses from the respondent side, who were cross-examined, and also examined independent witnesses and on the basis of the exhaustive evidence produced by both the parties, oral and documentary as well as after visiting all the spots and examining the car in question, the second Inquiry Officer had rightly found that the assertions made by the petitioner were false and fabricated, therefore, report dated 7-8-2009 made by the Second Inquiry Officer is speaking one and that exoneration of accused in inquiry under section 176, Cr.P.C. Does not constitute bar even to a private complaint which is another mode of bringing culprits for trial before Court of competent jurisdiction but the petitioner has not filed any private complaint and in this respect, reliance is placed upon Mumtaz Hussain v. Deputy Director-General, Faisalabad and 7 others (PLD 202 Lah. 78). It is further stated that the findings of the second judicial Inquiry Officer regarding police encounter dated 8-5-2009 in respect of the killing of Professor Shahadat Ali Sial are based on legal, factual as well as on the basis of credible and trust worthy evidence produced by the respondents during the course of inquiry, as such, the second inquiry is not liable to be declared unlawful, illegal and without any legal warrant and in view of the same, this writ petition is not maintainable and the same is liable to be dismissed.
5. I have heard learned counsel for the petitioner and learned counsel for the respondents as well as the learned Additional Advocate-General and have also perused both the inquiry reports made by the learned Magistrate as well as the learned Additional District and Sessions Judge as well as material available on the file.
6. The only point in this case is as to whether second judicial inquiry into the cause of death of Professor Shahadat Ali Sial, brother of the petitioner, can be held or not. For the said purpose, it is necessary to reproduce section 176, Cr.P.C., which is as under:- "176. Inquiry by Magistrate into cause of death. (1) When any person dies when in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and, in any other case mentioned in section 174, Clauses (a) (b) and (c) of subsection (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case.
(2) Power to disinter corpses.
Whenever such Magistrate considers it expedient to make any examination of the dead-body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.
A plain reading of the said section shows that Magistrate can hold one judicial inquiry into the cause of death of a person who dies but there is no mention of second judicial inquiry in the said section. In this case, there are two judicial inquiries into the cause of death of Professor Shahadat Ali Sial, brother of the petitioner and the said two inquiries were held under the orders of the honourable Chief Justice of this Court. In one inquiry report dated 2-6-2009, the Magistrate had held that Professor Shahadat Ali Sial, brother of the petitioner, had been killed in a fake police encounter and he had been murdered at the instance of Saleem Mehmood Waraich D.S.P. While in the second inquiry report dated 7-8-2009, the learned Additional District and Sessions Judge, Faisalabad, had held that "the police officers had simply performed their duty with the aim and purpose of apprehending the robbers and to recover the snatched car, and the incident of the unfortunate death of an innocent person namely Shahadat Ali Sial was a mishap beyond their control, which was probably unavoidable and also was without their knowledge, which can be named as an inevitable accident". The contention of learned counsel for therespondents that the honourable Chief Justice has unfettered powers to order second inquiry has no force as from the perusal of section 176-A, Cr.P.C. It does not reveal that the honourable Chief Justice has the power to order second judicial inquiry.
7. From the perusal of letter dated 12-5-2010 issued by the Registrar of this Court to the District and Sessions Judge, Faisalabad, which is appended with the rejoinder filed on behalf of the petitioner as Annexure-A, it reveals that the honourable Chief Justice of this Court had ordered the learned District and Sessions Judge, Faisalabad, to nominate a Magistrate to hold judicial inquiry under section 176, Cr.P.C. To probe into the facts of the incident and a copy of the said letter was forwarded to the Secretary, Government of the Punjab, Home Department, Lahore, with reference to his letter No, SO (Judl.III) 9-88 of 2009 dated 11-5-2009 and the letter dated 11-5-2009, which is also appended with the rejoinder filed on behalf of the petitioner as Annexure-B, was issued by the Additional Secretary (Judicial), Government of the Punjab, Home Department, to the Registrar of this Court, requesting that a Judicial Inquiry may be conducted by a District and Sessions Judge or Senior Additional District and Sessions Judge to probe into the facts of the incident. All this shows that first judicial inquiry has been held on the orders of the honourable Chief Justice with reference to the request of the Provincial Government. But there is nothing on the record to show that second judicial inquiry has been held on the request of the Provincial Government.
8. Moreover, there is a plethora of authorities on the point that no second judicial inquiry under section 176, Cr.P.C. Can be ordered to be held and I rely upon two authorities i,e, Khuda Bakhsh v.
Province of West Pakistan and another (PLD 1957 (W.P.) Lahore 662) and Mst. Nargis v. The District Magistrate, Gujrat and 2 others (1985 M LD 782) and in the said authorities, order of the Provincial Government regarding second/fresh judicial inquiry was declared as without lawful authority as "the proceedings of a Magistrate who holds inquests under these sections are judicial proceedings which are open to revision by the High Court". Therefore, any order on administrative side by the honourable Chief Justice will be considered without lawful authority.
9. From the facts and circumstances of the case, it appears that the second judicial inquiry into the cause of death of Professor Shahadat Ali Sial, brother of the petitioner, has been held on the orders of the honourable Chief Justice of this Court, as is evident from first para of the second inquiry report dated 7-8-2009 made by the learned Additional District and Sessions Judge, Faisalabad and the second judicial inquiry is not permissible under the law, as had been held in the above cited authorities.
9-A. In view of the above perspective and while relying upon Khuda Bakhsh v. Province of West Pakistan and another (PLD 1957 (W.P.) Lahore 662), Mst. Nargis v. The District Magistrate, Gujrat and 2 others (1985 M LD 782), this writ petition is accepted and the second inquiry report dated 7-8- 2009 into the cause of death of Professor Shahadat Ali Sial, brother of the petitioner, conducted by the learned Additional District and Sessions Judge, Faisalabad, is declared as without jurisdiction, without lawful authority and of no legal effect and the same is set aside.