' MALIK SHAHZAD AHMAD KHAN, J. -- This IntraCourt Appeal has been filed against the order dated 10.12.2014 passed by the learned Single Judge in Chamber of this Court, in Writ Petition No, 23227 of 2014, whereby the Constitutional petition filed by Mst. Robina Kausar respondent No, 2 was accepted, the order dated 18.4.2014 passed by the learned Ex-officio Justice of Peace, Kharian District Gujrat was set aside and SHO of the concerned Police Station was directed to record the version of Mst. Robina Kausar respondent No, 2 and proceed further in accordance with the law.
2. As per brief facts of the present case, Mst. Robina Kausar (respondent No, 2) filed a petition under Section 22-A/B of Cr.P.C. For registration of case against the appellant Mian Touseef, Inspector/SHO of P.S. Sadar, Kharian District Gujrat and other police officials with the averment that on 28.7.2014, her brother Iftikhar Ahmad Butt (deceased) went out of his house and did not return. She (respondent No, 2) started search for her brother and on 1.8.2014 she came to know that her brother Iftikhar Ahmad Butt was confined by the police at Police Station, Kakrali (District Gujrat). She (respondent No, 2) alongwith her sister Shamim ljaz (respondent No, 3), her daughter Saima Shafqat and one Tariq Mehmood son of Munawar Hussain, went to the Police Station, Kakrali and reached there at about 8.00 p.m.,' where the police told them that Safdar Qureshi, Inspector and Mushtaq Ahmad, Sub-Inspector have shifted the above-mentioned Iftikhar Ahmad Butt to Police Station Galyana (District Gujrat). Respondent No, 2, alongwith the above-mentioned witnesses, then reached at Police Station, Galyana, where they saw that Safdar Qureshi, Inspector and Mushtaq Ahmad, Sub-Inspector were strangulating her brother Iftikhar Ahmad Butt with the help of a rope, whereas, Mian Touseef Ahmad (appellant) and Mehr Abbas, inspector alongwith two other unknown police officials were extending physical torture to him. Respondent No, 2 and other witnesses raised hue and cry, whereupon Mehr Abbas, Inspector, asked the other police officials to confine the above-mentioned respondent and other witnesses, so that they may witness the lesson being given to the brother of respondent Nos. 2 and 3, thereafter, the other police officials started pushing them and forcibly made them to sit in the courtyard of the Police Station. The police officials kept on extending physical torture to Iftikhar Ahmad Butt with the help of 'dandas' iron rods and 'litters' who ultimately succumbed to the torture at the spot, Respondent No, 2 thereafter, moved an application under Section 22-A/B of Cr.P.C. Before the learned Ex-officio Justice of Peace, Kharian but the same was dismissed vide order dated 18.8.2014. Above- mentioned respondent, thereafter, filed Writ Petition No, 23227 of 2014 which has been accepted in the afore-mentioned terms vide impugned order dated 10.12.2014 passed by the learned Single Judge in Chamber of this Court hence, the instant Intra-Court Appeal before this Court.
3. It is contended by learned counsel for the appellant that in the writ petition filed by respondent No, 2, a notice was issued by this Court to the appellant but on the relevant date of hearing, the cause list was not issued to the counsel for the appellant and, as such, the appellant was not provided an opportunity of hearing before passing the impugned order; that the impugned order was passed against the principle of natural justice because the appellant has been condemned unheard; that the instant Intra-Court Appeal against the impugned order is maintainable under the relevant provisions of law and while keeping in view the principle of "audi alteram partem", that the deceased was involved in 17 cases of heinous nature and Mst. Robina .Kausar (respondent No, 2) is also involved in 3 criminal cases therefore, in order to save her skin, the above' mentioned respondent moved a frivolous application for registration of case against the police officials, so that the police officials may be pressurized and blackmailed; that Iftikhar Ahmad Butt deceased has committed suicide and the allegation of murder, levelled against the appellant and other proposed accused is baseless; that even according to the post-mortem report of the deceased, the cause of death of the deceased was asphyxia due to hanging which further supports the version of the appellant; that Iftikhar Ahmad Butt deceased apart from injury on his neck, received other injuries on his body at the hands of local residents who gave him severe beating when he (Iftikhar Ahmad Butt) was caught red-handed while trying to flee, away from the spot after committing dacoity and F.I.R. No, 204 of 2014 at Police Station, Kakrali, District Gujrat was also registered in this respect; that during the judicial inquiry conducted by concerned Judicial Magistrate Section-30, Gujrat, the appellant and other proposed accused have been found innocent; that even a departmental inquiry was held in this case and the appellant and other proposed accused were also exonerated during the said inquiry; that respondent No, 2 has implicated four SHOs of different Police Stations of District Gujrat, in her petition moved under Section 22-A/B of Cr.P.C. And acceptance of said petition would demoralize the police of District Gujrat; that the impugned order is against the law and facts of the present case therefore, the same may be set aside. In support of his contentions, learned counsel for the appellant has placed reliance on the cases reported as 'Sher Khan Vs. The State through A.A.G. And 2 others' (2009 YLR 2407), Usman Ali Vs. Additional Sessions Judge/Ex-officio Justice of Peace, Toba Tek Singh and 4 others' (2016 P.Cr.L.J. 323), 'Muhammad Ali Vs. The State and others' (2016 YLR 80), `Sindh High Court Bar Association through Secretary and another Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others' (PLD 2011 Supreme Court 671), Wisar Ahmed Vs. The State' (2015 MLD 742), 'Malik Muhammad Sadiq Vs. Station House Officer and others' (2013 P.Cr.L.J. 1177), `Mansoor Ali Vs. Station House Officer and another' (2015 P.Cr.L.J. 480) and 'Haji Muhammad Sadiq Vs. Ilaqa Magistrate Police Station Factory Area, Faisalabad and others' (PLJ 2000 Lahore 1787 (DB)).
4. Learned Assistant Advocate-General has also supported the arguments of learned counsel for the appellant.
5. On the other hand, this appeal has been opposed by learned counsel for respondent No, 2, on the ground that keeping in view the proviso of Section 3(2) of Law Reforms Ordinance, 1972, instant appeal, which has been filed against an order passed in respect of criminal proceedings, is not maintainable; that the appellant and other proposed accused are police employees and they were supposed to maintain the rule of law but they took the law in their own hands and committed the murder of an innocent person by extending severe physical torture to him therefore, the impugned order was rightly passed by the learned Single Judge in Chamber of this Court; that involvement of a person a different criminal cases does not grant a licence to the appellant police official to commit the murder of said person; that the post-mortem report of lftikhar Ahmad Butt dismissed has fully established that severe physical torture was extended to him which supports the version of respondent No, 2; that Section 154 of Cr.P.C. Does not require the hearing of an accused in a murder case before the registration of F.I.R.; that according to the police record, Iftikhar Ahmad Butt was arrested on 24.7.2014 and according to the post-mortem report dated 2.8.2014, he died 24 hours before the post-mortem examination therefore, it is established that he received injuries and died during the police custody; that pendency of a judicial inquiry is not bar against the registration of F.I.R.; that findings of judicial and departmental inquiries are not based on true facts therefore, the same are not binding on this Court; that during the departmental inquiry, the concerned senior police officials have tried to save the proposed accused who are also police employees; that the Medical Board has not reported that it was a case of suicide; that there is no substance in the present appeal` therefore, the same may be dismissed. In order to embellish his arguments, learned counsel for respondent No, 2 has placed reliance on the case reported as 'Ahmed Yar Vs. Station House Officer, Shah Kot, District Sahiwal and 8 others' (2007 P.Cr.L.J. 1352), 'Mst. Karim Bibi and others Vs. Hussain Bakhsh and another' (PLD 1984 Supreme. Court 344), Wawazul Haq Chowhan Vs. The State and others' (2003 SCMR 1597), 'Mumtaz Hussain Vs. Deputy Inspector General, Faisalabad and 7 others' (PLD 2002 Lahore 78) and 'Justice Khurshid Anwar Bhinder and others Vs. Federation of Pakistan and another' (PLD 2010 Supreme Court 483).
6. Arguments heard. Record perused.
7. First of all we take up the issue of maintainability of the instant Intra-Court Appeal. It is evident from the perusal of record that Mst. Robina Kausar respondent No, 2 moved a petition under Section 22-A/B of Cr.P.C., before the learned Ex-officio Justice of Peace, Kharian, for registration of F.I.R. Against the appellant and other police officials for the murder of her brother, namely, Iftikhar Ahmad Butt deceased. Said application was dismissed by the learned Ex-officio Justice of Peace, Kharian vide order dated 18.8.2014, however, the Constitutional petition filed by respondent No, 2 against the said order of the learned Ex-officio Justice of Peace, Kharian has been accepted by the learned Single Judge in Chamber of this Court, vide the impugned order dated 10.12.2014. Intra- Court Appeal against the order of a learned Single Judge in Chamber of this Court cannot be filed in view of proviso of Section 3(2) of the Law Reforms Ordinance (XII of 1972). The said provision of the Ordinance ibid reads as under:- Appeal to High Court in certain cases. -- (1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under [clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan] not being an Order made under sub-paragraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article [199] arises out of any proceedings in which the law applicable provided for at least one appeal [or one revision or one review] to any Court, Tribunal or authority against the original order."
(Underlining and bold supplied)
' The word "proceedings" mentioned in the above-referred provision of law also includes the F.I.R., therefore, Intra-Court Appeal against the order of the learned Single Judge in Chamber of this Court passed in Constitutional jurisdiction, whereby the order for registration of F.I.R. Was passed, is not maintainable. We may refer here the case reported as `Nawazul Haq Chowhan Vs. The State and others' (2003 SCMR 1597), wherein the Hon'ble apex Court of the country at page No, 1610 was pleased to observe as under:- "31. Civil Appeal No, 5553 of 1994 with the leave of this Court arises out of a counter-case viz. F.I.R.
No, 495 of 1991 registered under Sections 324, 148 and 149, PPC at the behest of acquitted accused Manzoorul Haq against Malik Anjum Farooq Paracha and seven others. Appellant Malik Anjum Farooq Paracha and others sought quashment of the said F.I.R. In Writ Petition No, 178 of 1993 before the Lahore High Court, Rawalpindi Bench, Rawalpindi under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which was allowed, against which I.C.A. No, 7 of 1993 was filed by acquitted accused Manzoorul Hag and others which was accepted and the order passed by learned Single Judge of the Lahore High Court for the quashment in writ petition was set aside. This order, however, was challenged by Malik Anjum Farooq Paracha appellant in Civil Petition No, 129 of 1994 in which leave to appeal was granted, inter alia, on the ground as to whether or not ICA lies against the order passed in writ petition by the learned Single Judge and as to whether or not the word 'proceedings' mentioned in the proviso of Section 3(1) of Law Reforms Ordinance, 1972, includes the F.I.R. On this aspect of the matter, we have given our anxious consideration to the contentions raised at bar. The above controversy have been resolved by this Court in the case of Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344) and Settlement Commissioner (L) and others v. Mauj Din and others (1989 SCMR 1351) while holding that in view of Section 3(2) of the Law Reforms Ordinance, 1972, I.C.A. Is not maintainable. Accordingly, Civil Appeal No, 553 of 1994 is allowed and order, dated 14.3.1993 passed in I.C.A. No, 7 of 1993 by the learned Division Bench of the Lahore High Court, Rawalpindi Bench, is set aside."
' Similar view was taken by this Court in the case of `Ahmad Yar Vs. Station House Officer, Shah Kot, District Sahiwal and 8 others' (2007 P.Cr.L.J. 1353). We are, therefore, of the view that the instant Intra-Court Appeal against the afore-mentioned impugned order is not maintainable.
8. It has also been argued by learned counsel for the appellant that as the appellant was condemned unheard while passing the impugned order therefore, the same is liable to be set aside. We are of the considered view that in cases where the allegations of cheating, fraud, forgery, criminal breach of trust, ineffective firing without causing any injury to any person, criminal trespass, criminal intimidation to commit murder, etc. Are levelled and there are no chances of the evidence being destroyed, in all such cases and other cases of the like nature, the concerned Justice of Peace, must provide an opportunity of hearing to the proposed accused before giving a direction for registration of the F.I.R. Similar view was taken by this Court in the case of 'Malik Muhammad Sadiq Vs. Station House Officer and others' (2013 P.Cr.L.J. 1177), wherein, it was held that in suitable cases, an aggrieved party may be heard before passing an order for registration of the case. However, in the cases where the allegations of murder, causing such injuries to the aggrieved party attracting cognizable offences, dacoity, offences under Anti-Terrorism Act, kidnapping, abduction, rape, sodomy, possession of counterfeit currency, drugs, etc. Have been levelled, in such cases and in all other cases in which some urgency is involved and there are chances that due to the delay in registration of the F.I.R., valuable evidence of the case may be destroyed, there is no need to provide opportunity of hearing to the proposed accused before registration of the case and F.I.R. Can be lodged without hearing a proposed accused. However, we may clarify here that even in cases falling under this latter category, if the facts and circumstances of a case so warrant or appear to be doubtful or a petition for registration of F.I.R. Seems to be based on mala fides, then opportunity of hearing may be provided to the proposed accused. In suchlike cases, the Justice of Peace is not obliged to blindly pass an order for registration of the F.I.R. Reference in this context may be made to the case of 'Rai Ashraf and others Vs. Muhammad Saleem Bhatti and others' (PLD 2010 Supreme Court 691), wherein the apex Court of the Country was pleased to observe that as the petition under Section 22-A/B of Cr.P.C. Was mala fidely filed by the petitioner of said case against Lahore Development Authority (L.D.A.) in order to restrain the public functionaries not to take action against him in accordance with the L.D.A. Act, 1975, rules and regulations framed thereunder, therefore, the said petition was rightly dismissed by the learned Ex-officio Justice of Peace, Lahore and the order of High Court, whereby, petition under Section 22-NB of Cr.P.C. Was accepted merely on the ground that a cognizable offence was made out from the contents of said petition, was set aside. We are, therefore, of the considered view that even in suitable cases falling under the latter category, the Justice of Peace should provide opportunity of hearing to the proposed accused before giving final decision on the petition under Section 22-A/B of Cr.P.C. For example in a case of abduction or rape of a girl, if the police report or the other circumstances suggest that the abductee/victim, being sui-juris, with her free will and consent has contracted marriage with the proposed accused and there is some documentary evidence like registered Nikahnama, etc., in this respect then a mechanical order for registration of F.I.R. Should not be passed by the Justice of Peace, merely on the ground that a cognizable offence was made out from the contents of the petition for registration of F.I.R. Similarly, in a case where the allegation of dacoity has been levelled and the police report so suggests that petition under Section 22-A/B of Cr.P.C. Has mala fidely been moved by a person who is himself an accused in the murder case of the relative of the proposed accused and the petition under Section 22-A/B of Cr.P.C. Has been moved in order to save his own skin, in that situation, the Ex-officio Justice of Peace must provide an opportunity of hearing to the proposed accused before passing any adverse order against him.
In such-like cases, opportunity of hearing must be provided to the proposed accused, by the Justice of Peace by fixing shortest possible dates of hearing before passing a final verdict on the petition under Section 22-A/B of Cr.P.C. However, it is clarified that opportunity of hearing to a proposed accused of cases falling under the category of latter cases, is to be provided by the Ex- officio Justice of Peace, only in exceptional cases, where the .Circumstances of a case so warrant and not in all cases of the said category.
9. Now coming to the facts of the present case, the appellant is a proposed accused in a murder case of Iftikhar Ahmad Butt deceased. An F.I.R. In a cognizable case is to be registered while keeping in view the provision of Section 154 of Cr.P.C. There is no legal requirement of providing an opportunity of hearing to an accused in a murder case before the registration of an FIR. Under Section 154 of Cr.P.C. Normally, if an accused of a murder case is given the right of hearing before registration of the F.I.R., then he will definitely try to linger on the proceedings and in that case, valuable evidence of the case may be destroyed. For example in a case of murder with the help of 'Churn', the accused may wash away the blood from the weapon of offence or the blood may disintegrate due to the lapse of time. The Hon'ble Supreme Court of Pakistan in the case of 'Justice Khurshid Anwar Bhinder and others Vs. Federation of Pakistan and another' (PLD 2010 Supreme Court 483), at page Nos. 540 and 541, has laid down some exceptions to the general principle of "audi alteram partem" (one should not be condemned unheard), which are reproduced hereunder:-- "A prima facie right to opportunity to be heard may be excluded by implication in the following cases:--
(i) ' When an authority is vested with wide discretion (H.W.R. Wade and C.F. Forsyth: Administrative Law, 7th Ed., at p. 391 H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at p.
392.
(ii) When the maxim 'expression unius set exclusion alterius' is involved (Colquhoun v. Brooks 21 QBD 52 at p. 62 Humphrey's Executor v. United States (1935) 295 US 602).
(iii) Where absence of expectation of hearing exists (Y.G. Shivakumar v. B.M. Vijaya Shankar (1962) 2 SCC 207, AIR 1992 SC 952).
(iv) When compulsive necessity so demands (Union of India v. W.N. Chadha (supra).
(v) When nothing unfair can be inferred (Union of India v. W.N. Chadha (supra).
(vi) When advantage by protracting proceeding is tried to be reaped (Ram Krishna Verma v. State of U.P. (1992) 2 SCC 620, AIR 1992 SC 1888).
(vii) When an order does not deprive a person of his right or liberty (Indian Explosive Ltd. (Fertilizer Division), Panki, Kanpur v. State of Uttar Pardesh (1981) 2 Lab. LJ 159).
(viii) In case of arrest, search and seizure in criminal case (Union of India v. W.N. Chadha, 1993 Cr.L.J. 859, 1993 Supp (4) SCC 260, AIR 1993 SC 1082).
(ix) In case of maintaining academic discipline (1992) 2 SCC 207).
(x) In case of provisional selection to an academic course (S.R. Bhupeshkar v. Secretary, Selection Committee, Sarbarmathi Hostel, Kilpauk, Medical College Hostel Campus, Madras, AIR 1995 Mad. 383 (FB).
(xi) In case of enormous malpractices in selection process (Biswa Ranjan Sahoo v. Sushanta Kumar Dinda (1996) 5 SCC 365 AIR 1996 SC 2552).
42. It must not be lost sight of that in the above-mentioned "exclusionary cases, the 'audi alteram partem' rule is held inapplicable not by way of an exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case "(Maneka Gandhi v. Union of India, AIR 1978 SC 597, (1978) 1 SCC 248, vide also Mohinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851, (1978) 1 SCC 405. The doctrine of 'audi alteram partem' is further subject to maxim nemo inauditus condemnari debet contumax."
(bold & underlining supplied)
Taking the guidelines from the Hon'ble Supreme Court of Pakistan through the afore-mentioned judgment, we are of the considered view that there is no legal requirement of providing an opportunity of hearing to a proposed accused of a murder case before registration of the F.I.R. And no illegality has been committed by the learned Single Judge in Chamber of this Court while passing the impugned order without providing an opportunity of hearing to the appellant. Similarly, in the cases of 'Wajid Ali Vs. Civil Judge and Judicial Magistrate No, 1 and 5 others' (PLD 2014 Sindh 164) and 'Muhammad Hayat Vs. The Chief Settlement and Rehabilitation Commissioner and another' (PLD 1970 Lahore 679), it was held that the maxim 'audi alteram partem' (no one should be condemned unheard), is not applicable in the cases of registration of F.I.R., therefore, the instant Intra-Court Appeal is not maintainable, merely on the ground that the appellant was not provided opportunity of hearing before passing the impugned order.
10. Apart from the above-mentioned aspects of this case, insofar as the merits of the case are concerned, we have noted that it was the case of Mst. Robina Kausar, respondent No, 2 that on 28.7.2014 her brother Iftikhar Ahmad Butt went out of his house and did not return. She (respondent No, 2) started search for her brother and on 1.8.2014 she came to know that her brother lftikhar Ahmad Butt was confined by the police at Police Station, Kakrali District Gujrat. She (respondent No, 2) alongwith her sister Shamim ljaz, her daughter Saima Shafqat and one Tariq Mehmood son of Munawar Hussain went to the Police Station, Kakrali and reached there at about 8.00 p.m., where the police official told them that Safdar Qureshi, Inspector and Mushtaq Ahmad, Sub-Inspector have shifted the above-mentioned lftikhar Ahmad Butt to Police Station, Galyana District Gujrat.
Respondent No, 2 alongwith the above-mentioned witnesses, then reached at Police Station, Galyana, where they saw that Safdar Qureshi, Inspector and Mushtaq Ahmad, Sub-Inspector were strangulating the above-mentioned lftikhar Ahmad Butt with the help of a rope, whereas, Mian Touseef Ahmad (appellant) and Mehr Abbas, Inspector alongwith two other unknown police officials were extending physical torture to him. Respondent No, 2 and other witnesses raised hue and cry, whereupon Mehr Abbas, Inspector, asked the other police officials to confine the above- mentioned respondent and other witnesses so that they may witness the lesson being given to the brother of respondent No, 2, thereafter, the other police officials started pushing them and made them to sit in the courtyard of the Police Station. The police officials kept on extending physical torture to lftikhar Ahmad Butt with the help of 'dandas' iron rods and 'litters' who ultimately succumbed to the torture at the spot. According to the police record, F.I.R. No, 204 of 2014 was registered at Police Station, Kakrali, District Gujrat regarding the occurrence of dacoity againsst six unknown accused persons, who after committing dacoity fled away from the place of occurrence.
The police report shows that lftikhar Ahmad Butt received the injuries on his body at the hands of local residents who gave him severe beatings when he was caught red-handed while trying to flee away after committing dacoity and he was shifted to Police Station, Galyana to save his life, where he committed suicice. It is noteworthy that according to the police record, lftikhar Ahmad Butt deceased was arrested by the police on 24.7.2014. His post-mortem report is also available on the record according to which, the post-mortem of the deceased was conducted on 2.8.2014 at 8.20 p.m., and the ,time that elapsed between the injuries and death was 24 hours, whereas, the time that elapsed between the death and postmortem examination was 16 to 24 hours, which means that the injuries on the body of lftikhar Ahmad Butt deceased were caused on 31.7.2014 when he was in police custody. The time given by the Medical Board regarding the duration of the injuries has fully negated the version of the appellant and other police officials that lftikhar Ahmad Butt deceased was physically tortured by the local residents by giving him severe beatings. The perusal of post-mortem report and pictorial diagrams of the deceased further reveals that apart from the injury on the neck, there were multiple anti-mortem injuries on the different parts of the body of the deccased which supports the version of respondent No, 2 that the deceased was subjected to several physical torture by the appellant and other police officials befe his death.
' It was the case of the appeilant that Iftikhar Ahmad Butt deceased committed suicide with the help of his 'naala' (string in the shalwar) but as per post-mortem report, the deceased was wearing shalwar qameez at the time of his post-mortem examination. If the deceased had committed suicide with the help of `naala' (string in his shalwar), then how his shalwar was present on his body at the time of his post-mortem examination.
11. We have gone through the reports of judicial inquiry and departmental inquiry conducted in this case and have noticed that the above-mentioned facts were not considered in the afore- mentioned inquiry reports, therefore, the said reports are not helpful for the appellant.
12. The next objection of learned counsel for the appellant is that at the relevant time, the judicial inquiry in the case in hand was pending before the concerned Judicial Magistrate (which has later on, been finalized) therefore, the order for registration of F.I.R. Should not have been passed during the pendency of said inquiry. This objection has no substance because there is no legal bar against the registration of a criminal case during the pendency of a judicial inquiry or the departmental inquiry or even after the finalization of the said inquiries in favour of the proposed accused. We may refer here the case reported as 'Mumtaz Hussain Vs. Deputy Inspector General, Faisalabad and 7 others' (PLD 2002 Lahore 78), wherein at page Nos. 82 and 83, it was observed as under:- "4. The mere fact that in the enquiry conducted by the Magistrate, the cause of death was held to be septicemia, does not bar registration of the criminal case under Section 154 of the Cr.P.C.
Sections 174 and 176 of the Cr.P.C. Are limited to ascertainment of the cause of death without recording a finding regarding guilt or innocence of an accused. That function is separately assigned to the police under the provisions of Part 5, Chapter XIV of the Cr.P.C. Under Section 174 of the Cr.P.C., the police officer Incharge of a Police Station or, some other police officers specially empowered by the Provincial Government in that behalf, can hold an investigation on receiving an information that a person,
(a) has committed suicide, or
(b) has been killed by another, or by an animal, or by machinery, or by an accident, or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence.
' On the other hand, under Section 176 of the Cr.P.C., a Magistrate can hold an enquiry into the cause of death of a person if it has taken place, while the deceased was in police custody. This enquiry can be either instead of or in addition to the investigation held by a police officer under Section 174 of the Cr.P.C. While interpreting the provisions of Sections 174 and 176 of the Cr.P.C. a Division Bench of this Court held in the case of Khuda Bakhsh v. Province of West Pakistan (PLD 1957 Lahore 662): "Section 176 of the Code of Criminal Procedure which has been reproduced in an earlier part empowers a Magistrate to hold an inquiry contemplated by clauses (a), (b) and (c) of sub-section
(1) of Section 174 of that Code in place of or in addition to an investigation held by a police officer the investigation referred to in Section 176 of the Cr.P.C., is the one held by a police officer under Section 174 of the Cr.P.C. So far as the registration of a criminal case is concerned, it is the independent right of an aggrieved person, who can report the matter to the Incharge of the concerned Police Station, who is bound under the provisions of Section 154 of the Cr.P.C., to record his report and conduct investigation in accordance with the law."
' It is evident from the above-mentioned discussion that there is no bar against the registration of FIR. During the pendency or even after the finalization of judicial or departmental inquiries, against or in favour of the accused.
13. It is also true that according to the police record, lftikhar Ahmad Butt (deceased) was involved in 17 criminal cases, whereas, Mst. Robina Kausar respondent No, 2 was involved in 3 criminal cases but involvement of the deceased or respondent No, 2, in number of criminal cases does not grant a licence to the appellant police official to taken the law in his own hands and commit the murder of the deceased.
14. Nomination of four SHOs of different police stations as proposed accused in the petition moved by respondent No, 2 under Section 22-A/B of Cr.P.C. Does not mean that the said application should be dismissed, outrightly, merely on the basis of said ground. Police officials are riot above the law therefore, they cannot be treated differently merely on the basis of their designations or posts.
15. In the case of 'Malik Muhammad Sadiq Vs. Station House Officer and others' (2013 P.Cr.L.J. 1177), cited by learned counsel for the appellant, this Court only observed that in suitable cases, opportunity of hearing may be provided to an accused by the learned Ex-officio Justice of Peace before passing an order for registration of F.I.R. But it was not held that in all cases, opportunity of hearing must be granted to the proposed accused by the learned Ex-officio Justice of Peace before passing any order on application under Section 22-A/B of Cr.P.C. Likewise in the case of 'Haft Muhammad Sadiq Vs. Ilaqa Magistrate Police Station Factory Area, FaLalabad and others' (PLJ 2000 Lahore 1787 (DB)), although this Court accepted Intra-Court Appeal against the order passed by a learned Single Judge in Chamber of this Court, in a case arising out of criminal proceedings but the proviso of Section 3(2) of the Law Reforms Ordinance, 1972 and the question of maintainability of Intra-Court Appeal against an order of a learned Single Judge of this Court, passed in respect of criminal proceedings, did not come under discussion in the said judgment.
Similarly, the facts of the other judgments, cited by learned counsel for the appellant, are distinguishable from the facts of the present case therefore, the aforementioned judgments are of no avail to the appellant.
16. In the light of above discussion, there is no substance in the present appeal therefore, the same is hereby dismissed on account of being not maintainable, as well as, on merits.