Through this petition the petitioner has prayed-for registration of a criminal case against the delinquent police officials, i,e, Respondent Nos, 4 to 6 and has also challenged the vires of the inquiry report conducted by the learned Magistrate Section 30, Jampur.
2. It has been contended by the learned counsel for the petitioner that during an incident the police officials lost their lives and thereafter the police officials has abducted the son of the petitioner namely Karam Hussain and later on he was done to death in the police custody but now the police is trying to give colour to said death of the petitioner's son to be a suicide. It is not possible that a man can commit suicide with a tap which is three and a half feet in height. Further submits that the inquiry conducted in this matter by the learned Magistrate but he has failed to apply judicial mind in this context by agreeing with the plea taken by the police. Respondents No, 4 to 6 have committed a heinous offence by taking the life of petitioner's son so a direction be issued to the District Police Officer, Rajanpur to get register a criminal case under the relevant provisions of law.
The son of the petitioner was severely tortured by the hands of the police and to save their skin the police had committed his murder. There was no occasion for the said Kareem Hussain son of the petitioner to commit suicide under police custody.
3. On the other hand the learned Assistant Advocate-General assisted by the learned counsel for Respondent No, 6 has raised objection to the maintainability of the instant petition and submits that the inquiry conducted by the Magistrate Section 30, Jampur was conducted under Section 176, Cr.P.C. and a judicial order can be assailed through a revision petition and not through writ petition.
The learned counsel for Respondent No, 6 relied upon PLD 2007 Lahore 176 and PLD 1978 Lahore 1259.
4. I have heard the learned counsel for the petitioner, the learned Assistant Advocate-General and the learned counsel for Respondent No, 6 and have also gone through the documents appended with this petition. Before taking up and appreciating the merits 'of this case this Court deems it appropriate to first take up the question of maintainability of this writ petitioner because the learned counsel for Respondent No, 6 has laid a great emphasize on the argument that the conclusions of inquiry were following a judicial inquiry and against a judicial verdict the writ petition is not maintainable rather the same could be questioned through a revision petition before the Court of Session. To better appreciate this pivotal point Section 176, Cr.P.C. is reproduce herein under:--
176. Inquiry by Magistrate into cause of death.--(1) When any person dies while 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 sub-section (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."
From the bare perusal of the supra section it has become crystal clear that the word "judicial" is nowhere, mentioned and only word of inquiry is written therein for the purpose inquiry it can be considered executive in nature, hence can be challenged in writ jurisdiction.
5. So far as the remaining arguments raised at bar by the learned counsel for the parties are concerned, without going into deeper appreciation of the evidence or material available in this case, it has been observed that according to the Post-mortem Examination Report: there is no mark of violence on the body of the deceased Kareem Hussain and only mark of ligature has been found around the neck so the contention , of the learned counsel for the petitioner that the said Kareem Hussain was tortured by the police to death has no force. It has also been observed that regarding the death of Kareem Hussain in police custody a judicial inquiry was ordered which was carried out by learned Judicial Magistrate Section 30, Jampur and according to the report and the judicial inquiry conducted by the Magistrate Section 30, Jampur the petitioner has committed suicide and the cause of death was partial hanging. In this regard report of the Chemical Examiner, the report of Medical Board were also obtained who gave their final opinion that the. cause of death is partial hanging.. The report from Forensic Histopathologist was also obtained who opined that the injury to the hyoid bone is ante-mortem.
6. For what has been discussed above it is crystal clear that the deceased was not tortured to death rather his death occurred due to partial hanging. In this view of the matter this petition has got no force and the same is dismissed as such. However, the petitioner may file a private complaint, if so advise.