Tariq Saleem Sheikh, J. Through this petition under section 561-A Cr.P.C. the Petitioner has questioned the findings of the Judicial Magistrate, Depalpur , in Inquiry Report dated 10.2.2018 and prays that a direction be issued for registration of FIR against Responden t No.6 and other officials for killing her son Muhammad Arshad in a phony police encounter .
Facts
2. Inspector Muhammad Nadeem Iqbal, SHO Police Station Hujra Shah Muqee m, District Okara (Respondent No.6), lodged FIR No.674/2017 dated 17.11.20171 stating that the same night at 1:00 a.m. he was patrolling with his squad when he received a wireless message that three robbers pounced on Muhammad Yar son of Bagh Ali when he was driving home, snatched Motorcycle No.OKA-287 , cash and cellphone from him on gunpoint and fled towards the Ghara Bridge. Respondent No.6 ordered immediate blockade of all roads and hastened to the place of occurrence with his contingent. At about 1:30 a.m., Shafique Ahmad/SI, who was on Mobile-II with Shaukat Ali/ASI and Mukhtar Ahmad 119/C, informed him that three men riding two motorcycles came towards the Pakistani Bridge via the Ghara Bridge and on seeing them went off-road into the sugarcane fields and mounted an attack.
Respondent No.6 and his colleagues rushed there. The accused were continuously firing so the police had to shoot back in self-defence. After sometime when the guns became silent the officials went into the field and found a dead man with a .30 bore pistol and two motorcycles OKA-2871 and LEK-16-2807 lying beside him. His co-accused had escaped. They searched him and recovered the looted money and cellphone of Muhammad Yar from his pocket.
The deceased was later identified as Muhammad Arshad. Inspector Nadeem Iqbal maintained that he was killed by the firing of his cohorts. A separate case bearing FIR No.673/2017 was registered under section 392 PPC at the instance of Muhammad Yar in respect of the robbery .1
3. The Petitioner alleges that the police have killed Muhammad Arshad in a feign ed encounter and concocted a false story in collusion with Muhammad Yar to cover up their crime. According to her, on 14.11.2017 at about midnight she was coming home alongwith Muhammad Arshad and other family members when Respondent No.6 and other policemen intercepted them near Baba Fareed Chowk Depalpur . They forced Arshad into their official vehicle saying that he was a hardened criminal and wanted by them. The Petition er was shocked and dismayed.
The next morning she moved an application under section 22-A Cr.P.C. before the Justice of Peace, Depalpur , for registration of FIR against them which was disposed of vide order dated 22.11.2017 with a direction to the DPO, Okara, to look into the matter and to proceed against the police officials if they had committed any delinquency . The Petitioner assailed the said order before this Court in W.P. No.117027/2017 but that too was disposed of when her counsel stated that he would be satisfied if the DPO was commanded to comply with the above-mentioned direction of the Justice of Peace.
4. On 15.11.2017 when the Petitioner approached the Justice of Peace, her husband Muhammad Yousaf (Arshad' s father) filed a habeas petition bearing Crl. Misc. No.106574/H/2017 in this Court for recovery of Arshad. The said petition was, however , disposed of vide order dated 27.11.2017 when Qaddus Baig DSP/SDPO apprised the Court that he had been killed in an encounter . He added that he was ready to record Muhammad Yousaf 's version and to have a judicial inquiry into Arshad' s death. Subsequently , the DPO, Okara, made a written request to the Sessions Judge, Okara, who appointed Respondent No.2 (Mr. Muhammad Shahzad Mushtaq, Magistrate Section-30, Depalpur), to hold the inquiry .
5. Respondent No.2 summoned all the concerned, including the legal heirs of Arshad deceased, for the inquiry and also published notice in Daily "Assas" inviting the general public to join the proceedings and produce any oral or documentary evidence that may be relevant. In his final report dated 10.2.2018 he concluded: "27. By putting the versions of both the parties in juxtaposition it can easily be learnt that evidence produced by the police party is cogent, confidence inspiring and is also supportive by independent witnesses whereas there are lots of contradictions/discrepancies and improvements in the evidence produced by the legal heirs of deceased Arshad alias Arshadi. Evidence produced by the police officials is enough to establish the fact that police party did not exceed the limits and had opened firing in self-defence. No fault lies on the part of the members of the police party ."
6. The Petitioner assailed the aforemen tioned Inquiry Report in the Sessions Court through a revision petition which was dismissed by the Additional Sessions Judge, Depalpur , vide order dated 4.9.2018 on the short ground that it was not maintainable. Hence, this petition.
7. For the sake of completeness I may mention that at one stage the Petitioner filed Crl. Org. No.167398/W/2018 in W.P. No.117027/2017 in this Court praying that contempt proceedings be initiated against the DPO, Okara, for not implementing order dated 8.12.2017, supra. The said petition was disposed of on 27.3.2018 when the Petitioner 's counsel did not press it and stated that the Petitioner would seek remedy against Respondent No.6 and his fellow policemen through a private complaint.
Arguments
8. The learned counsel for the Petitioner contended that the inquiry conducted by Respondent No.2 was judicial in nature and revision was competent against his Inquiry Report dated 10.2.2018. He argued that the Additional Sessions Judge had erred in refusing to entertain the Petitioner 's petition. As regards the Inquiry Report, the learned counsel contended that the findings of Respondent No.2 were based on conjectures and surmises and contrary to the evidence available on record. He further contended that Respondent No.2 had travelled beyond his jurisdiction while declaring that the police had not committed any offence and that they opened fire in self-defence and did not exceed their limit.
9. The learned Public Prosecutor vehemently opposed this petition and contended that Muhammad Arshad was a hardened and desperate criminal. He was involved in a number of cases of heinous nature and was killed in a police encounter on 17.11.2017. The Petitioner 's allegation that it was an extra-judicial killing was disproved in the Judicial Inquiry . The learned Law Officer argued that Respondent No.2 had recorded his findings after thorough appraisal of evidence and no exception could be taken to the Inquiry Report dated 10.2.2018.
10. The learned counsel for Responde nt No.6 adopted the Law Officer's arguments and added that FIR No.674/2017 had already been registered in respect of the occurrence in which Arshad was killed and the Petitioner 's prayer for second FIR could not be granted as it was not permissible under the law .
Opinion
11. Section 174 Cr.P.C. stipulates that when the officer in charge of a police station (or some other police officer specially empowered by the Provincial Government in this regard) receives 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 suspicious circumstances, he shall immediately intimate the nearest Magistrate competent to conduct an inquisition and proceed to the place where the corpse of the deceased is lying. He would then investigate the cause of death in the presence of two or more responsible people of the locality and draw up a report containing details of the wounds, fractures, bruises or other marks of injury that may be found on the deceased' s body and stating in what manner or by what weapon or instrument they appear to have been inflicted. If there is doubt regarding the cause of death or when for any other reason the investigator considers it expedient, he shall send the body to the nearest Medical Officer for postmortem. Section 174(5) Cr.P.C. empowers the Magistrates of the First Class to hold inquests. Section 176 Cr.P.C. enjoins that when any person dies while in custody of the police, the Magistrate shall, and in other cases mentioned in section 174(1) Cr.P.C. he may, make an inquiry into to the cause of death. He may exercise this power instead of or in addition to the investigatio n by the police. Section 176(2)
Cr.P.C. invests the Magistrate with power to disinter corpse for examination to discover the cause of death of the person. Indeed, section 176 Cr .P.C. confers vast powers on the Magistrate.
12. The question as to whether the Magistrate' s order under section 176 Cr.P.C. is a judicial or administrative order has generated a lot of debate because of the consequences that flow from it. Importantly , a judicial order is amenable to revisional jurisdiction.
13. The oldest case on which I could lay hands is In the matter of Troylokhanath Biswas and Ram Chur n Biswas, (1878) ILR 3 Cal. 742, under the Criminal Procedure Code, 1872. Considering section 135 of the said Code, which was pari materia to section 176 of the Code of Criminal Procedure, 1898, presently in force, the Calcutta High Court held that a report embodying the result of an inquiry by a Magistrate could not be reckoned as part of a judicial proceeding. Markby , J. wrote: "I think that it may be fairly argued that prima facie when a Magistrate holds a judicial inquiry and has power to take evidence, we should expect that it was intended that some result should be arrived at. But though that is so as first sight, I think, on further consideration, it is by no means clear , even upon a general view of the Act independently of the exact language of the section itself, that was the intention of the legislature. The object of these inquiries may be three-fold. The object may be to calm any alarm that had been created in the mind of the public on the occurrence of a violent or unnatural death, and to allay any unfounded suspicion; or the object may be to put in force the law against a particular individual; or it may be merely to gain information to be used by the authorities according to their discretion. Now, looking at the general character of this section and the sections which precede it, I cannot myself see that merely for the purpose of putting the law in force against any particular individual, there was any necessity for the section at all. As far as I can see, the powers of a Magistrate under the law, if he suspects any person of having committed any particular offence, are ample without having any recourse to this section. Therefore the inquiry , or inque st as it is sometimes called, must be to inform either the officers of Government or the public at large as to what has really occurred or is suspected to have occurred."
He further said: "The language of the section does not require a report, nor does it require a finding: and it seems to me that if we were to say that, under this section, the Magistrate who holds an enquiry is bound to make a report or come to a finding, we should be making an unjustifiable addition to the language of the legislative."
14. In Laxminarayan Timmanna Karki (AIR 1928 Bombay 390) the Bombay High Court held that the question involved in the above-mentioned case was whether the Magistrate' s report was part of a judicial proceeding. It could not be considered as an authority for the proposition that the enquiry (of which the report is no part under section 176 Cr .P.C.) is not a judicial proceeding. The Court ruled: "The language of section 176, in our opinion, makes it clear that the proceeding contemplated by the section is judicial. The Magistrate is empowered to hold an enquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer, and if he does so, is invested with all the powers in conducting it which he would have in holding an enquiry into an offence. In our opinion, this would bring the proceeding within the meaning of an 'inquiry' as defined by section 4(1)(k) of a 'judicial proceeding' as defined by section 4(1)(m) Criminal Procedure Code where a judicial proceed ing is said to include any proceeding in the course of which evidence is or may be legally taken on oath. Clause (3) of section 435 Criminal Procedure Code, 1898, expressly excluded from the revisional powers of the High Court under that section proceedings under section 176. By so doing the legislature seems to have recognized the fact that those proceedings being judicial would fall within the scope of section 435 unless they were expressly excluded. Clause (3) of section 435 has since been repealed by Act 18 of 1923, section 116. There is nothing now, in my opinion, to debar this Court from exercising its jurisdiction under sections 435 and 439 Criminal Procedure Code in matters falling under section 176. Apart from its revisional powers under sections 435 and 439 this Court under section 561-A Cr.P.C. undoubtedly possesses inherent power to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
(emphasis added)
15. In Advocate-General v. Maung Chit Maung and another (AIR 1940 Rangoon 68) the question arose as to whether a Magistrate holding an inquest was a court subordinate to the High Court for the purposes of the Contempt of Courts Act. It was held: "Section 4(m), Criminal Procedure Code, defines 'judicial proceeding' as including any proceeding in the course of which evidence is or may be legally taken on oath ... Section 176 enacts that the Magistrate holding the inquiry shall have all the powers in conducting it which he would have in holding an inquiry into an offence. He shall record the evidence taken by him in any of the manners hereinafter prescribed, that is to say, either summarily or fully, as in a warrant case. It appears, as a matter of fact, that the evidence was not recorded on oath nor read over to the witnesses, but that is immaterial, as all that is required by the definition of 'judicial proceeding' is that it shall be one where evidence may be legally taken on oath ... In our opinion, a Magistrate holding judicial proceedings in which it is necessary for him to come to a finding as to the cause of death and as to the person or persons, if anybody , responsible for that death, must be considered to be acting as a 'Court' ... It is clearly a court inferior to the High Court for the purposes of section 435 Criminal Procedure Code."
16. Madras High Court held a contrary view in P. Rajangam, Sub-Inspector v. State of Madras and others (AIR 1959 Mad 294) . It reasoned: "...the magistrate first of all does not enquire into the offence; secondly , after enquir y into the proceedings he sends a report. He does not give any decision or determine the rights of the parties. As pointed out earlier , during the whole of this enquiry there was no prosecutor , and there was no accused to defend himself."
The High Court also held that the Magistrate is not a court while exercising powers under section 176 Cr.P.C. and his proceedings are not judicial. In this context it also considered section 4(m) Cr .P.C. and observed: "It is true that clause (m) of section 4 defines judicial proceedings as including any proceedings in the course of which evidence is or may be legally taken on oath. It only means wherever the expression 'judicial proceeding' is used, it is a proceeding in the course of which evidence is or may be legally taken on oath. The converse is not always the truth ... All men are mortals but all mortals are not men."
17. Thus, there are arguments both ways. Nevertheless, so far as this Court is concerned, the issue was settled by a Division Bench of the erstwhile West Pakistan High Court (Lahore) in Khuda Bakhsh v. Province of West Pakistan and another [PLD 1957 (W.P) Lahore 662] when it concurred with Laxminarayan and Maung Chit Maung and held that the inquiry by the Magistrate under section 176 Cr.P.C. is a judicial proceeding and subject to revision. This view has been consistently followed. Reference in this regard may be made to Muhammad Anwar v.
Sheikh Qurban Ali and 3 others (1973 PCr.LJ 882); The State v. Ch. Altaf Hussain Magistrate Ist Class, Gujrat and 2 others (PLD 1978 Lahore 1259 ); Ghulam Hussain v. District Magistrate, Muzaf fargarh and 3 others (1992 PCr.LJ 1870); Mansab Ali v. Asghar Ali Faheem Bhatti, Additio nal Sessions Judge, Nankana Sahib and 3 others (PLD 2007 Lahore 176). The following excerpt from The State v. Ch. Altaf Hussain Magistrate Ist Class, Gujrat and 2 others ( PLD 1978 Lahore 1259 ) is very instructive: "I am in respectful agreement with the views expressed in this behalf in the rulings of Muhammad Anwar and Khuda Bakhsh. I may add that although the word "inquest" used in sections 174 and 176, Cr.P.C., has not been defined in the Code, it carries particular significance when the same is conducted by a Magistrate ... Subsection (1) of section 176 gives an indication as to what would be the ordinary procedure in conducting the inquest. It is necessary for the Magistrate, when holding an enquiry as a part of the inquest, to "record the evidence taken by him in connection therewith", in of the manners prescribed in the Code of Criminal Procedure for conducting enquiries. The choice from amongst "the manners" has been left to the Magistrate and it would depend upon the circumstances of each case. Thus, the Magistrate, when holding an inquest, would be making an "enquiry" in accordance with the provisions of the Criminal Procedure Code and, thus, it would, all the more, make it a judicial function. Any order passed as a result of such an enquiry would, obviously , be revisable. It is needless to emphasize that the power to be exercised under subsection (2) of section 176 for disinterment of the body is a part of the jurisdiction conferred on the Magistrate to hold inquests. If the entire process of the inquest is to be conducted as an enquiry , then the disinterment of the body would also form part of the enquiry and any order passed in this behalf would also be a judicial function."
18. The Petitioner 's revision petition in the Sessions Court was, therefore, competent and the holding of the Additional Sessions Judge to the contrary is erroneous.
19. The next question that requires deliberation is the object and scope of the inquest by the Magistrate. The term "inquest" has neither been defined in the Pakistan Penal Code, 1860, nor the Code of Criminal Procedure, 1898. In Chaman Lal v. Emperor (AIR 1940 Lahore 210) this Court ruled that it is synonymous with inquiry which, under section 4(1)(k) Cr.P.C., connotes every inquiry other than a trial conducted under the said Code by a Magistrate or Court. If further held that the purpose of the inquest is only to find out the cause of death of a person and not the person who caused it. In Khuda Bakhsh v. Province of West Pakistan and another [PLD 1957 (W.P) Lahore 662] a Division Bench held that "the object of holding an inquest is not to determine the guilt or innocence of any particular person in relation to the death of the deceased." However , Shera v. The State and 3 others (1972 PCr.LJ 626) is more instructive where this Court held: "... section 176 Cr.P.C. ... only gives the Magistrate the same procedural powers as given to the Magistrates making preliminary inquiries under Chapter XVIII and does not mean that the scope of inquiry under section 159 Cr.P.C. is the same as the preliminary inquiries under Chapter XVIII and that the Magistrates can also give a finding as to the guilt or innocence of any person, because that will amount to prejudging the case and holding a person (or persons) concerned to be guilty even before they are tried for the offence in question. This shall also have the effect of prejudging their trial, in case one is held ultimately ."
The above principles were reiterated in Khizar Hayat and others v. District Magistrate and others (PLD 1995 Lahore 433); Zulfiqar Ali Virk and others v. D.I.G. and others (2000 MLD 1273 ); Mumtaz Hussain v. Deputy Inspector-General, Faisalabad (PLD 2002 Lahore 78); American Life Insurance Company (Pakistan) Ltd. v.
Master Agha Jan Ahmed and another (2011 CLD 350); Shabbir Hussain and others v. The State (2012 PCr.LJ 361); Haji Abdul Hameed v. Raz Muhammad and another (PLD 2014 Balochistan 50); Mst. Fozia Shabnam v.
Additional Sessions Judge, Multan and 8 others (PLD 2016 Lahore 518); Mian Touseef v. District Police Officer and 2 others (2017 PCr.LJ 1140); and Muhammad Yaseen v. Additional Sessions Judge, Gojra and 3 others (2019 PCr .LJ 219).
20. In Mumtaz Hussain v. Deputy Inspector-General, Faisalabad (PLD 2002 Lahore 78) this Court further explicated: "The opinion qua the cause of death recorded by the Magistrate during the course of an enquiry is not binding on a police officer holding investigation under Chapter XIV of the Cr.P.C. or a court of law holding trial of an accused.
The enquiry report may be relied upon by the prosecution or the defence and may be given due weight if the conclusions arrived at by the Magistrate, are consistent with the evidence brought on the record."
21. The jurisprudence in India also holds that the inquiry contemplated by section 176 Cr.P.C. has a limited purpose. In Guiram Mondal v . State of W est Bengal [(2013) 15 SCC 284] the Indian Supreme Court held: "The basic purpose of holding an inquest is to report regarding the cause of death, namely whether it is suicidal, homicidal, accidental etc. Reference may be made to the judgment of this Court in Pedda Narayana and others v.
State of Andhra Pradesh (1975) 4 SCC 153 and Amar Singh v. Balwinder Singh and others, 2003(1) R.C.R.
(Criminal) 701 : (2003) 2 SCC 518. In Radha Mohan Singh @ Lal Saheb and others v. State of U.P., 2006(1)
R.C.R.(Criminal) 692 : (2006) 2 SCC 450, this Court held that the scope of inquest is limited and is confined to ascertainment of apparent cause of death. Inquest is concerned with discovering whether in a given case the death was accident, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. The High Court has rightly held that the manner and approach of the trial court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law ."
22. It follows from the above discussion that the object of the proceedings under section 176 Cr.P.C. is merely to ascertain the cause of death of a person who has died an unnatural death. The Magistrate may opine about the apparent cause of the deceased' s death but has no jurisdiction to go beyond it. He cannot give any finding as to the guilt or innocence of an accused.
23. Applying the above principles to the case in hand, in my opinion, it would have been alright if the Inquiry Report dated 10.2.2018 had confined to the question as to whether Muhammad Arshad was killed in a genuine police encounter . Respondent No.2, however , exceeded his jurisdiction when he stated that the evidence produced by the Petitioner 's side was replete with contradictions and did not inspire confidence when put in juxtaposition with that of the police. He was also not competent to say that the police did not transgress their right of self-defence and no member of the force had committed any offence. Accordingly , these portions of his report are declared to be without lawful authority and are set aside/expunged.
24. Indubitably the Petitioner would not be happy with the aforementioned relief. In fact, she has prayed that this Court may issue a direction for registration of FIR against Respondent No.6 and other policemen. It is trite that registration of FIR and a private complaint are independent rights of an aggrieved person which cannot be hedged by an inquiry under section 176 Cr.P.C. Reliance is placed on Mst. Rabia v. Mr. J. Samual, ASJ and 10 others (1986 MLD 1196); Mst. Ghulam Zuhran v. Superintende nt of Police, Rahimyar Khan and others (1989 PCr.LJ 1826); and Mumtaz Hussain v. Deputy Inspector-General, Faisalabad (PLD 2002 Lahore 78). In the instant case, it is observed that Respondent No.6 has lodged FIR No.674/2017 dated 17.11.2017 in respect of the incident at Police Station Hujra Shah Muqeem. In Mst. Sughran Bibi v. The State (PLD 2018 SC 595) a larger Bench of the Hon'ble Supreme Court of Pakistan has ruled that law does not allow registration of multiple FIRs about the same occurrence but the Investigating Officer may record any number of versions of the incident under section 161 Cr.P.C. that may be brought to his notice . I would have directed the Investigating Officer to record the Petitioner 's version in FIR No.674/2017 in terms of the Sughran Bibi's case but she has abandoned that option in Crl. Org.
No.167398/W/2018. Hence, she may institute a private complaint, if so advised.
25. This petition stands disposed of in the above terms. The said FIR was registered under sectio ns 302, 324, 353, 186, 34 PPC and Section 13 of the Arms Ordinance, 1965.