Through this constitutional petition, the petitioners have impugned order dated 24.6.2015 passed by learned Ex-Officio Justice of the Peace, District Rahim Yar Khan ("Learned A.S.J") wherein the learned A.S.J issued direction to the concerned SHO to record the statement under Section 154 Cr.P.C, and then to proceed strictly in accordance with law, if a cognizable offence is made out.
2. Facts as narrated in the petition are that respondent No.3 filed petition under Section 22-A Cr.P.C before the learned A.S.J against the petitioners with the allegation that her son namely Saifullah was working in the motor workshop as a denter and painter; that on the day of occurrence i.e. 6.4.2015, Saifullah went on motor cycle, and came back at 07:00 PM, and was unconscious on the motor cycle; that respondent No.3 took her son to the hospital at Rahim Yar Khan but she did not satisfy from the treatment, thereafter, she took her son to a private hospital namely Azeem situated at Bangla Manthar. Respondent No.3 has been informed by the Doctor that her son's condition is serious, thereafter, she took her son to Sheikh Zayad Hospital on 10.4.2015, and was admitted to medical ward, where it has been informed by the Doctor that her son has been administered poison. Resultantly, the doctor could not save the precious life of her son, who died on 13.4.2015, and buried by respondent No.3 without any objection from the family member. Thereafter, she levelled allegations against the petitioners, after more than one month through an application before the learned A.S.J, in which the learned A.S.J sought comments from concerned SHO, who reported that actually on 6.4.2015 deceased Saifullah himself administered the poison in order to commit suicide, and finally died on 13.4.2015.
3. Learned counsel argued that respondent No.3 did not report the said occurrence to the police nor got the postmortem examination of her son and after 11/2 months, she filed the application under Section 22-A Cr.P.C for achieving unlawful purpose. Further argued that sufficient material is not available with respondent No.3 to connect the petitioners with the commission of alleged crime. Further argued that the case is of culpable homicide and not amounting to murder, and the deceased was buried by respondent No.3 herself. Further submitted that when respondent No.3 herself buried her son, then it seems that she would be satisfied that her son committed suicide, and it was not a murder. Argued that the occurrence was not conveyed to the concerned Police Station so to take the necessary action, therefore, law was not set in motion. Argued that if the information have been provided to the concerned police station then the police might have been proceeded under Section 174 Cr.P.C. Further submitted that without adopting due procedure for determining the cause of death of deceased or conducting an inquiry regarding the cause of death, how respondent No.3 involved the petitioners with the commission of alleged crime by obtaining the impugned order from the learned A.S.J. Learned counsel has placed reliance on Safdar Ali v. S.H.O., Warburton (1980 P Cr. L J 1058) and Khalid Pervez through Special Attorney v. Haji Akhtar Nisar and 6 others (2008 P Cr. L J 175).
3. While on the other hand, learned DPG assisted by learned counsel for respondent No.3 vehemently opposed the arguments of the learned counsel for the petitioners and contended that the proceedings under Section 154 Cr.P.C are mandatory in nature, and the police is duty bound to get the case registered in terms of order passed by the learned A.S.J, as the observation made if cognizable offence is made out, then the police should proceed in accordance with the provisions of law. Further argued that the order dated 24.6.2015 is legal and has been passed with lawful authority. Learned counsel has relied upon Sheikh Khalid Mehmood v. Station House Officer (2015 P Cr. L J 387).
4. Heard, record perused.
5. This Court has given its anxious thought to the relevant provisions of the law i.e. Sections 174 and 176 of Cr.P.C. For the convenience of the parties, Section 174 (3) of Cr.P.C is hereby reproduced as under:-
(3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the Provincial Government may prescribe in his behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
Seeing from any angle of the case, it is very much clear that the cause of the death is not known neither to the petitioner nor to respondent No.3 and deceased was buried on the disclosure of the fact that he has committed suicide by using the poison "black stone" and after the 4/5 days treatment to the deceased, he was expired.
This Court has meticulously observed that respondent No.3 levelled the allegations against the petitioners that they administered poison to her son but is very unfortunate that during the course of treatment, when the deceased remained in the hospital for about more than 4-5 days, and he had not levelled such type of allegation against the present petitioners. This Court has scanned all the record available on the file, and could not found any iota of evidence which strengthened the stance of respondent No.3. In the case in hand, respondent No.3 has moved an application after delay of about more than 1-month to the learned A.S.J for the registration of the case against the petitioners, and to indulge the petitioners in heinous offence without any reasonable justification is afterthought, with due deliberate and consultation. Even otherwise that if the postmortem was not conducted at the time of burying the deceased, and it was already in the knowledge of respondent No.3. No reasonable material was available with respondent No.3 to get a criminal case registered directly against the petitioners without determining the cause of death of the deceased.
6. In this respect, Section 174 Cr.P.C is very much clear that where there is a doubt regarding the cause of death, the police officer should follow the dead body with a view to be examined by the civil surgeon for the determination of the actual cause of death with the permission of concerned Area Magistrate. The object of Sections 174 and 176 Cr.P.C deals with inquests or inquiries into sudden violent or unnatural death if it is alleged which to be done by the Officer In-charge of police station or some other police official specifically empowered by the Provincial Government. The District Magistrate of the Area under the Sections, supra, if it is clear to his mid that there is a doubt regarding the cause of death of any deceased, he could have allowed the police officer to forward the body to the civil surgeon for determining the actual cause of death. The inquiry is conducted by the Area Magistrate under the Sections, supra, when it feels necessary for the determination of cause of death and to record the evidence in connection therewith in any manner prescribed by the Cr.P.C for conducting inquiries. The word "inquest" used in Sections, supra, has not been defined anywhere in Cr.P.C but the Magistrate when holding an inquiry as a part of the inquest, the Magistrate seems to be work as a Judicial Officer. In the present case, no such type of inquiry has been conducted with respect to the determination of the cause of death of deceased, therefore, directly going for the registration of the case against the innocent persons without ascertaining the actual cause of death of deceased, and without any cogent material would amount to cause great miscarriage of justice. The purpose of an inquest is only to find out the cause of death of a person and not the person who had caused the death, and the inquest held by a Magistrate under Section 176 Cr.P.C is an inquiry. Reliance can safely be placed on "Whizar Hayat and others v. District Magistrate and others" (PLD 1995 Lahore 433).
7. There is no cavil on this preposition that the Area Magistrate has the power to direct disinterment of the dead body and also to refuse to make such a direction. Disinterment of the dead body of the deceased was inevitable to determine the cause of death or at least to inquire into the allegations and suspicions. Reliance is placed on "Muhammad Tufail v. Additional Sessions Judge" (2010 MLD 5).
Sections 174 and 176 Cr.P.C are independent for determining the cause of death of a deceased person and without having the cogent material with respondent No.3 to the cause of death of her deceased son, the allegation cannot be levelled against the innocent persons to get them involved in a criminal case of a heinous offence. The intention of the legislation behind this might be to save or to protect the innocent persons to involve in such a heinous offence without having the inquiry of the cause of the death, and then to proceed under Section154 Cr.P.C for the registration of the case, if the cognizable offence is made out. Without any material, it cannot be said that a cognizable offence is made out against the petitioners, and to register the case is not the requirement of the law, and the case in hand where the actual cause of death is not determined.
8. The attention of this Court has also been drawn to the order dated 18.3.2015 passed by learned Divisional Bench of this Court in ICA No.26/2015, wherein the same type of matter was dealt with, and the Hon'ble Divisional Bench of this Court held that 'when the learned Ex-Officio Justice of Peace directed the SHO to proceed in accordance with law, it would be deemed that in compliance of such direction, the SHO, even would at liberty to proceed in the manner as provided under Section 174 Cr.P.C'. The direction given by the learned Divisional Bench of this Court in the stated ICA is very much clear, and is a safe for the administration of justice.
9. In view of the above, this petition is allowed, the order 24.6.2015 passed by the learned Addl.
Sessions Judge, Rahimyar Khan is set aside, and concerned SHO is directed to look into the possibility of procedure to be adopted in order to comply with the directions which may include the one, provided under Section 174 Cr.P.C.