SOHAIL NASIR, J.---This writ petition under Article 199 of the Constitution of The Islamic Republic of Pakistan, 1973 filed by Mst. Shahida Chaudhary (petitioner ) is directed against an order dated 29th May, 2021 passed by learned Additional Sessions Judge/Ex-Of ficio Justice of Peace, Rawalpindi on the basis of which her application under sections 22-A/22-B of the Code of Criminal Procedure, 1898 ( Cr.P.C.) was dismissed.
2. Facts of the case are that before approaching learned Ex-of ficio Justice of peace, petitioner submitted an application to Regional Police Officer Rawalpindi/respondent No.1 (RPO ), where she maintained that on 12.03.2021 Aizaz/SHO Cantt, Asif/SHO R.A. Bazaar , Ahsan/SHO Civil Lines and other senior Police Officers had forcibly taken with them her brothers Shahid and Nasir; they were tortured in Police Station Civil Lines and later on a fake police encounter was shown by alleging that Shahid Amjad (her brother ) and Zahid Mehmood (her husband) had committed the murder of Mian Imran Abbas Inspector despite the fact that there was no evidence with them in this regard; in FIR for the murder of Mian Imran Abbas no one was nominated; on the same day at about 04:30 pm, earlier stated Police Officers along with 40/50 other police employees forcibly entered in her house situated at Haji Jan Street; her husband Chaudhary Zahid Mehmood was not present in the house whereas she along with her daughter and son Obaid was there; police officers/of ficials caused mischief by damaging the household articles; they removed Rs.2500000/- (twenty five lacs) and jewellery 60- Tolas; they also damaged a new car parked in the porch; they abused and tortured her; they extended threats that if Ch. Zahid Mehmood was not produced, her children will be murdered; because of act of Police Officers/of ficials there was element of terror , so she along with her children went to the house of Shahid Amjad in Harley Street; on 22.03.2021 at about 03:00 pm, Aizaz/SHO Cantt, Asif/SHO R.A Bazaar , Ahsan/SHO Civil Lines and SHO Race Course along with other police officers entered in her house and had taken with them forcibly her son Obaid who was confined initially in Police Station Cantt And then in Police Station Civil Lines; Obaid was committed to physical torture; later on Ch. Zahid Mehmood (her husband) was also arrested and taken to Police Station Westridge where her son Obaid was already confined; in the Police Station Ahsan Younis/CPO and Faisal/SSP Investigation were also present; firstly torture was made on Ch. Zahid Mehmood and then on the asking of CPO he was shot dead by Aizaz SHO; dead body was taken to Mera Kalan and no one was allowed to participate in the funeral; she repeatedly went to police stations to inquire about her son Obaid but of no consequen ce; she was threatened every time to remain silent otherwise her son will be killed; on 29.03.2021 she filed a writ petition in the Lahore High Court, Rawalpi ndi Bench, Rawalpindi where on 30.03.2021 Ahsan SHO Police Station Civil Lines appeared and provided a copy of FIR showing that there was a case under section 216, P.P.C. against Obaid; the High Court directed SHO not to cause harassment to her or her family members. Ultimate version of petitioner was that legal action be taken against all the police of ficers.
3. According to the petitioner , as RPO forwarded the application to CPO who was one of the culprits, so she filed the application under Sections 22-A/22-B Cr.P.C, seeking direction for registration of criminal case against all the police officers. The learned Ex-Of ficio Justice of Peace observed that the petitioner has introduced a so-called story therefore, her application was dismissed.
4. In report and para wise comments filed by RPO the facts stated are as under:-- i. On 07.03.2021, at about 05:00 pm, Inspector Mian Imran Abbas, SHO Police Station Race Course was assassinated by two motor cyclists/target killers. First Information Report No. 299 on the same day under section 302, P.P.C. read with section 7 ATA was registered at Police Station Civil Lines Rawalpindi. Zahid Mehmood husband and Shahid Amjad brother of petitioner was nominated in that case with the help of sketches, human intelligence and sources. ii. On 12.03.2021, at about 05:10 am four persons on two motorbikes arrived from Tulsa Road towards Sher Zaman colony where Police party was on duty. When the motorbikes were stopped, all four persons started firing with their pistols and police also responded in the same way in exercise of their right of self defense by taking shelter . Two assailants were succeeded to escape. A person however was found in injured condition having pistol in his hand and he was Shahid Amjad (brother of petitioner) who had died later on. Nasir the other assailant was apprehended when found hidden in the road side bushes. Aizaz Azeem SHO Police Station Cantt and eye-witnesses Mohsin Hayat SI and Zeeshan Sarwar ASI had identified Shahid Amjad being involved in the murder Inspector Mian Imran Abbas. Nasir disclosed that one of the culprits escaped was Zahid Mehmood (husband of petitioner) whereas the other was unknown. iii. On 14.03.2021, a raid was conducted at the house of Zahid Mehmood who was succeeded to escape and in this regard FIR No. 140 dated 14.03.2021 under section 216, P.P.C. was recorded as Police Station R.A Bazaar against Shams Farooq the brother of Zahid Mehmood. iv. On 14.03.2021, a raid was conducted at the house of Shams Farooq brother of Zahid Mehmood who was also involved in a murder case vide FIR No. 389 of Police Station Chauntra however , he was succeeded to escape and in this regard FIR No. 348 under section 216, P .P.C. was recorded at Police Station Airport, Rawalpindi. v. On 23.03.2021, upon receipt of source report about Zahid Mehmood (husband of petitioner) and his two brothers coming from Islamabad on motorbikes, a raiding party was constituted who arrived at School Road Allabad. Four persons on two motorbikes without numb er plates came there and when they saw the police party , they started indiscriminate firing from different sides. Police also reacted in self defense. Due to firing of assailants, their companion Zahid Mehmood (husband of petitioner) lost his life and remaining were succeeded to escape. First Information Report No. 208 on 23.03.2 021 under sections 353/186/324/427/ 302/34, P.P.C. at Police Station Westridge was registered. The witnesses identified Zahid Mehmood one of the criminals who had gunned down Inspector Imran Abbas. vi. On 09.05.2021, Shams Farooq brother of Zahid Mehmood (ate) was also arrested in case FIR No. 389/20 and he was sent to jail.
5. Ultimate version of RPO was that the petitioner has narrated a false story by diverting the actual facts to pressurize the District Police. He also provided list of nine criminal cases against Zahid Mehmood, ten cases against Shahid (brother of Zahid), sixteen cases against Shams Farooq (brother of Zahid ) and one case against Nasir ( brother of Zahid ).
6. It is important to mention here that on 22.06.2021 the learned A.A.G. informed this Court that on the request of CPO Rawalpindi, the learned Sessions Judge Rawalpindi has directed a Magistrate to hold the judicial inquiry . As evident from order dated 25.06.2021, both sides were having consensus that there is no provision under Cr.P.C or any other law authorizing the learned Sessions Judge to order for a judicial inquiry on the request of CPO because only the Government is competent to pass such orders under the provisions of the Punjab Tribunals of Inquiry Ordinance, 1969 (Ordinance). They were also on the same page that CPO or RPO does not fall within the definition of Government in view of law laid down in Mustafa IMPEX case .
7. A report was also called from the learned Sessions Judge Rawalpindi so as to know his view that which provision(s) of law has assigned him the jurisdiction to order for judicial inquiry . He has made reliance on sections 174(c) and 176 of Cr .P.0 read with para 16.38 of the Police Rules, 1934.
8. Learned counsel for petitioner argued that from the contents of application cognizable offences are made out therefore, SHO is under obligation to record the FIR forthwith; the learned Ex-Of ficio Justice of Peace did not apply his judicial mind to the facts and circumstances of the case; petitioner and her family members are the victims of high handedness by the hands of police of ficers therefore, she has knocked the doors of the Courts.
9. On the other hand, learned Additional Advocate General maintained that with regard to allegations of fake police encounters, the FIRs have already been recorded therefore, no second FIR can be registered; similarly , the allegations which petitioner has levelled against police officers that they had removed cash and jewellery etc. from her house have been proved to be false because earlier when she filed a writ petition, she did not disclose these facts even by imaginations. He finally argued that petitioner is causing harassment to police officers to restrain them from performance of their official obligations in particular from the investigation of the murder of Mian Imran Abbas/Inspector.
10 HEARD.
11. There are two sets of allegations levelled by the petitioner in her application under Sections 22-A/22-B Cr.P.C.
Firstly , the encounters were fake resulting into the death of Zahid Mehmood and Shahid Amjad. Secondly , the police officers entered in her house, removed cash of Rs. 2500000/- (twenty five lacs) and 60-Tolas jewellery and they had also taken with them Obaid her son. For both sets of allegations petitioner has desired issuance of direction for registration of FIR.
12. Admittedly with regard to encounter of Shahid Amjad (brother of the petitioner ) FIR No. 316 on 12.03.2021 under sections 324/353/ 186/427/302/34, P.P.C. read with Section 13 of the Punjab Arms (Amendment) Ordinance, 2015 was recorded at Police Station Civil Lines, Rawalpindi. Similarly , about the encounter in which there was the casualty of Zahid Mehmood (husband of petitioner), FIR No. 208 on 23.03.2021 under sections 302/324/353/186/427/34, P.P.C. read with section 13 of the Punjab Arms (Ame ndment) Ordinance, 2015 was recorded at Police Station Westridge, Rawalpindi. Petitioner claims that both the encounters were fake. A fundamental question before this Court needs consideration is that whether a direction can be issued for registration of FIR when already the FIRs are in existence about the both occu rrence. In "Mst. Sughran Bibi case on this proposition the honorable Supreme Court of Pakistan was pleased to settle the principles as under:-- i. According to section 154, Cr.P.C an FIR is only the first information to the local police about commission of a cognizable offence. For instance an information received from any source that a murder has been committed in such and such village is to be a valid and sufficient basis for registration of an FIR in that regard. ii. If the information received by the local police about commission of a cognizable offence also contains a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth. iii. Upon registration of an FIR a criminal "case" comes into existence and that case is to be assigned a number and such case carries the same number till the final decision of the matter.1 2 iv. During the investigation conducted after registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under Section 161, Cr.P.0 in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case. v. During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person." vi. Upon conclusion of the investigation the report to be submitted under section 173, Cr. P. C is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident advanced by the first informant or any other version brought to the notice of the investigating officer by any other person.
13. When confronted with the above legal proposition that how second FIR can be recorded, learned counsel for petitioner frankly concedes that no such direction can be issued and he finally maintained that the version of petitioner be recorded in Roznamcha of the Police Station and be probed during the investigation of FIRs already registered.
14. Coming to second part of allegations, it is found that petitioner before she approached RPO had filed writ petition (1098 of 2021) before this Court on 29.03.2021. It was decided on 30.03.2021 while issuing a direction to RPO to ensure security of the life of petitioner and her family in accordance with law. have gone through the contents of that writ petition which is completely silent about the said allegations. If all happened on 12.03.2021 or before 29.03.2021, there was no question at all for petitioner to miss these serious allegations. This was the reason that the learned Ex-Of ficio Justice of Peace dismissed the application under sections 22-A/22-B, Cr.P.C. Learned counsel for petitioner in this context has been observed helpless having no good answer .
15. Under Article 4 of the Constitution of The Islamic Republic of Pakistan, 1973 to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and in particular no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law. If petitioner claims the encounters as fake and she has any evidence in this regard, it must be investigated in particular when in both the encounters the only story on the surface is by the police of ficers.
16. In view of above, to the extent of second phase of allegations the story narrated by petitioner does not appear to be true, so she is not entitled for any relief and the application under sections 22-A/22-B, Cr.P.C has been rightly dismissed. However , with regard to the allegations of fake encounters, petitioner has a legitimate right to raise a voice and it must be investigated. Therefore, it is directed that version of petitioner shall be recorded in the Roznamcha of police station concerned forthwith which shall form part of the investigation of FIRs already registered and same shall be investigated strictly on merits.
17. The second legal proposition emerged during the hearing of this writ petition is about the powers of police officer to move an application for inquest, the authority of Sessions Judge to entertain it and scope, restrictions and limitations for a Magistrate while holding the inquest/inquiry under sections 174 and 176 of Cr.P.C. As these provisions appear to have been misun derstood and misinterpreted therefore, taking the advantage of these proceedings it is appropriate to deliberat e on these provisions from all possible angles. For effective discussion these provisions are reproduced as under: - "174. Police to inquire to report in suicide etc.: (1) The officer incharge of a police station or some other police officer specially empowered by the Provincial Government in that behalf, on receiving 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 raisin g a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests and unless otherwise directed by any rule prescribed by the Provincial Government, shall proceed to the place where the body , of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body and stating in what manner , or by what weapons or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the concerned Magistrate.
(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, the shall, subject to such rules as the Provincial Governme nt may prescribe in this 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 admits of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) Omitted
(5) The Magistrates of the First Class are empowered to hold inquests.
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 inquir y into the cause of death either instead of, or in addition to, the investiga tion 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 an 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."
18. Relevant portions of Chapter XXV of the Police Rules, 1934 about inquest are also as under:- 25.31 (1) An officer in charge of police station shall, upon in receipt of information of the sudden or unnatural death of any person, when the body of such person is within the local jurisdiction of his police station, immediately send information to the nearest magistrate authorized to hold inquests and shall procee d to the place where the body is and hold an investigation in the manner prescribed by section 174, Code of Criminal Procedure. When the Sub- Inspector in charge of the Police Station through illness or absence from the station house, is himself unable to carry out the investigation, he shall at the first convenient opportunity proceed to the place where the body of the deceased person was found, and shall personally verify the results of the investigation.
(2) In cases where the body is not found, or has been buried, there can be no investigation under section 174, Code of Criminal Procedure.
In such cases, if there are reasonable grounds for suspicion that a cognizable offence has been committed, the police shall register a case and commences investigation:- Provided that the following cases shall be exceptions to this rule:- (a).................
(b)................
(c)...............
(d)...............
25.35. The Inquest Report. (1) When the investigation has been completed the investigating officer shall draw up a report, in duplicate by the carbon copying process, in Form 25-35(1) A, B, or C, according as the deceased appears to have died:- A. From natural causes.
B. By violence.
C. By poisoning.
(2) Such report shall state the apparent cause of death, give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted.
(3) ...................
(4).................
(5).................
(6)................
(7)..................
19. Combined study of the Police Rules and the provisions of Cr .P.C reveal that: i. Under section 174, Cr .P.0 the powers qre available to police officer and Magistrate too.. ii. Under section 176, Cr ,P.0 the powers are exclusively available to a Magistrate. iii. In case of inquest by police officer , he shall make the investigation whereas in case of a Magistrate he shall hold an inquiry . iv. In both the situations, the objective is to find out the cause of death. v. In case under section 174, Cr.P.C. there are situations defined in clauses (a) (b) and (c), whereas in case of Magistrate another additional eventuality of death in police custody is there. vi. In both the eventualities there must be existence of dead body may it be outside or inside the grave. vii. The inquiry by a Magistrate is either instead of, or in addition to the investigation. viii. It may be under section 174 or 176, Cr. P. C, the exercise has to be made without wastage of time as these proceedings appear to be of emergent nature.,
20. Whether a Magistrate is competent to hold an inquest/inquiry , for that simple reading of subsection (5) of sections 174 and 176, Cr.P.C. makes it clear that a Magistrate is empowered to do so. It is important to mention here that subsection (5) of section 174, Cr.P.C. was substituted through Code of Criminal. Procedure (Amendment)
Ordinance (XXVIII of 2001).
21. Commenting on the next question that whether CPO can move an application to the Sessions Judge: with a request for holding the inquest/inquiry by a Magistrate, the provision of section 551, Cr.P.C. is the ultimate answer and that is as under: - "Powers of superior officers of police: Police officers superior in rank to an officer incharge of a police station may exercise the same powers, through out the local area to which they are appointed, as may be exercised by such officer within the limits of his station"
22. This takes me to the powers of Sessions Judge to entertain the application and to entrust it to a Magistrate. It has already been resolved earlier that a Magistrate has the powers to hold an inquest/inquiry . Under section 17, Cr.P.C. all the Magistrates appointed under sections 12, 13 and 14 and all Bench es constituted under section 15, shall be subordinate to the Sessions Judge and he may, from time to time, make rules or give special orders consistent with this Code and any rules framed by the provincial government under section 16, as to the distribution of business among such Magistrates and Benches (Emphasized). When distribution of business amongst the Magistrates is within the exclusive domain of the Sessions Judge, it means that he can validly receive an application for inquest/inquiry and entrust it to any Magistrate subordinate to him.
23. Moving towards the most significant area the question is that what the ultimate objective is for a Magistrate while holding the inquest/inquiry under both the provisions of law? The word "inquiry " has been defined under Section 2(K) which includes every inquiry other than a trial conducted under Cr.P.C by a Magistrate or Court. The word "investigation " has also been defined under section 2(L) that includes all the proceedings under Cr.P.C for the collection of evidence conducted by a police officer or by any person (other than a Magistrate ) who is authorised by a Magistrate in this behalf.
24. The word "inquest" however has not been defined under the Cr.P.C. In Khuda Bakhsh's case this Court about the definition of "inquest" held that:- "The word "inquest" is not defined in the Code of Criminal Procedure, nor in the Pakistan Penal Code, but it is apparent that what is intended is that the Magistrate should prepare a report as to the apparent cause of death of the deceased person, mentioning the wounds etc., found on the body and the weapons which appear to have been used for causing the injuries which have resulted in fatality"
25. In legal dictionary the word inquest is also defined as under:--3 4 "An investigation and/or a hearing held by the coroner (a county official) when there is a violent death either by accident or homicide, the cause of death is not immediately clear , there are mysterious circumstances' surrounding the death, or the deceased was a prisoner"
26. The purpose of an inquest/inquiry by a Magistrate is to gather the evidence that may be used by the police in their exploration of a violent or suspicious death and the subsequent prosecution of a person if death ensued from a criminal act. An inquest is not a trial but criminal proceeding of a preliminary , investigatory nature. While holding an inquest/inquiry under section 174 or 176, Cr.P.C, a Magistrate is confined to find out the cause of death only if it is unnatural like, Homicidal or Accidenta l or Suicidal . He by no stretch of imagination can declare that who is responsible for the death. He is also unde r no jurisdiction to proceed for facts findin g. In case of Shera there was an argument on behalf of certain respondents that once a Magistrate proceeds to make an inquiry under section 176, Cr.P.C., he can give a complete finding including one on the question as to who was responsible for causing the death by relying on the wording occu rring in section 176, Cr.P.C. "he shall have all the powers in conductin g it which he would have in holding an inquiry into an offence." It was also contended there that the scope of inquiry made by a Magistrate under section 176, Cr.P.C. is the same as the one made under Chapter XVIII, Cr.P.C. under which he can give a finding as to the prima facie guilt of the accused person. This Court did not agree with the said arguments by holding that: - "Portion of Section 176, Cr. P. C reproduc ed above 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 in preliminary inquiries under Chapter XVIII and 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 affect of prejudicing their trial, in case one is held ultimately"
27. This Court also in Khizar Hayats' case on the question of limitation for a Magistrate holding an inquest/inquiry observed that: - "Reference to Sections 174 and 176 from the Code of Criminal Procedure would show that the purpose of an inquest is only to find out the cause of death of a person and not the person who have caused it as was held in Chaman Lal v . The Emperor AIR 1940 Lahore 210" (Emphasized)
28. This proposition was again discussed in Mumtaz Hussain's case that was relating to custodial killing and it was ruled that:- "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. (Emphasized)
29. The High Court of Balochistan on the same question had observed as under: - "A plain reading of the aforesaid Section would show that it relates the to the death of a person, while in custody of the police, whereas in the instant case, deceased Abdul Qayyum was not in the custody of police at the time of his death. It also clearly demonstrates that the investigation and inquiry under sections 174 and 176 of the Cr. P. C are related to discovery of real cause of death and not to identify or locate the perpetrators" (Emphasized).
30. In Muhammad Yasin case taking into account the same legal proposition it was declared that:- "Therefore, on the face of it there existed no justifiable reason to have recourse to disinterment of the dead body by invoking the process provided in section 176, Cr.P.C, because otherwise assessment or determination of facts that as to why and in what manner the incident took place is clearly a circumstance beyond the mandate of section 176, Cr .P.C."
31. Under section 176, Cr.P.C, the power .of inquiry available to a Magistrate is only to the extent of determination of cause of death and not beyond. that. This authority to a Magistrate under section 176, Cr.P.C. has been assigned with a clear intention by the law makers that while holding so a Magistrate may not be handicapped as in difficult cases or the case of undetermined death, he may be in a position to examine any person so as to finalize his opinion about cause of death. The intention of legislatures is also manifest from subsection (2) of5 6 7 8 9 section 176, Cr.P.C. that while holding inquest/inquiry the Magistrate even can cause to body to be disinterred which has already been interred.
32. In England and Wales , inquests are the responsibility of a Coro ner , who operates under the jurisdiction of the Coroners and Justice Act, 2009 Even in that jurisdiction the purpose of inquest is to answer only four questions (1) identity of the deceased (2) place of death (3) time of death and (4) how the deceased came by their death. Evidence must be solely for the purpose of answering these questions and no other evidence is admitted. It is not for the inquest to ascertain "how the deceased died" or "in what broad circumstances", but "how the deceased came by his death", a more limited question. Moreover , it is not the purpose of the inquest to determine or appear to determine, criminal or civil liability , to apportion guilt or attribute blame.
33. The objective of the inquest proceedings in India is also to ascertain only whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit of scope of the proceedings .
34. The position in case in hand is entirely different because CPO Rawalpindi never made a request to determine the cause of death of Zahid Mehmood. What he prayed, that can be ascertained on perusal of his letter reference No. 1019-RL dated 05.04.2021 received to the learned Sessions Judge, Rawalpindi on 25.05.2021: - "It is submitted that as per report of SP/Potohar Division, Rawalpindi on 22.03.2021 1/SHO Police Station Morgah along with police contingent was on night patrolling and present at COD Chowk, meanwhile he received an information that Zahid Mehmood, main accused of case FIR No. 299, dated 07.3.2021 under section 302/34 P.P.C., 7 ATA Police Station Civil Lines with his two brothers namely Shahid and Mohsin are coming from Islamabad on two motorcycles towards Darbar Shah Piyara via School Road. Upon that information, he along with police contingent reached at Police Station Westridge and constituted a raiding party with S.I/SHO Police Station Westridge. At about 11:50 pm they reached at School Road Illah Abad opposite Mirza Mehmood Land etc, the raiding party was divided into two groups and erected Naka Bandi. Meanwhile, 04 persons on two Honda 125 motorcycles without number plates came from Kacha Stop side. On seeing the police party, they stopped their motorcycles and started indiscriminate firing upon police party, from different sides with their pistols. The Police party also made firing in their self defence. Some bullets shots were hit on the official vehicle of Police Station Westridge. Due to their firing one of their companion sustained bullet injuries and felt down, while others succeeded to flee away from the spot by taking benefit of darkness. The firing was stopped and search was made in the area and a dead body who later on identified as Zahid Mehmood son of Muhammad Nazir having pistol 9MM found there. On his personal search pistol 9MM having 03 bullets was recovered. The police party has taken into possession the weapon of accused through recovery memo. Hence the subject case was registered. (Copy of FIR is enclosed for kind perusal).
As, Zahid Mehmood died at the spot due to firing of his companion during Naka Bandi, therefore, the judicial inquiry into the incident is required to be got conducted.
It is therefore, requested that kindly depute a judicial officer for holding a judicial inquiry on the subject matter to probe into the facts of the occurrence please". (Emphasized )
35. The words "the judicial inquiry into the incident is required" and "subject matter to probe into the facts of the occurrence" are clear indicators that CPO had desired the fact finding inquiry through the Magistrate. This is absolutely beyond and alien to the scope of section 176, Cr.P.C. and powers assigned to the Magistrate. "To discover the real cause of death" is completely different from "to probe into the facts of the occurrence" .
Neither CPO could make such request, nor could learned Sessions Judge Rawalpindi entertain it. Even if entrusted to the Magistrate, he is under no authority to probe into the facts of the occurrence.
36. Probing into the facts of the occurrence can only be under the Punjab Tribunals of Inquiries Ordinance, 1969, which empowers the Provincial Government under section 3 to appoint a Tribunal, Commission or Committee of inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification and a Tribunal, Commission or Committee so appointed shall make the inquiry and perform function accordingly . If according to CPO Rawalpindi, it was definite10 11 12 13 14 matter of public importance, he at the most could make a request to the Governm ent and thereafter it was for the Provincial Government to appoint or not to appoint any Tribunal, Commission or Committee of inquiry . The latest example that can be quoted is with regard to the death of Muhammad Usman Khan Kakar , Ex-Senator , who passed away on 23.06.2021. The family of deceased claimed that the death seems to be unnatural and merits inquiry . The Government of Balochistan, Home and Tribunal Department in exercise of the powers under the Balochistan Tribunals of Inquiry Ordinance, 1969 had appointed a Judicial Commission for that purpose.
37. This practice on the part of police officers to ask for judicial inquiry in the matters (in particular police encounter), other than determination of cause of death, amounts to misuse of their powers. The learned Sessions Judges before entrustment of said application to a Magistrate are under obligations to examine its contents so as to find out that what has been asked, is that permissible under the law and that, the request made is within the parameters of section 176, Cr .P.C? If not, it is to be turned down or returned as the case may be.
38. In view of above, the request made by CPO to the learned Sessions Judge, Rawalpindi through letter dated 05.04.2021 for probing into the facts of the occurrence, entertaining said application by the learned Sessions Judge Rawalpindi and its entrustment to the Magistrate are declared as illegal and without lawful authority with following directions that in future: - i) If an application is moved by a police officer to a Sessions Judge or to a Magistrate (in case it is directly submitted), it will be his primary duty to examine that the request has been made within the parameters of section 176, Cr. P. C. and it relates to cause of death only. If it is so, the application shall be entertained otherwise it may be turned down or returned to the concerned police officer as the case may be. ii) The Magistrate holding the inquest/inquiry under section 176, Cr. P. C. under no circumstance can travel beyond his jurisdiction that is limited to determination of cause of death of the person and not the person who has caused the death. iii) A Magistrate has no power to record a finding regarding guilt or innocence of an accused while holding the inquest. iv) The powers in conducting the inquest which a Magistrate would have in holding, an inquiry into an offence shall also be limited to determination of cause of death.
39. Office is directed to circulate copies of this judgment to all the judicial officers across the Province of Punjab (including the Judges posted on Ex-Cadre) for their information and strict compliance in future. Mustafa IMPEX Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808. Mst. Sughran Bibi v. The State PLD 2018 SC 595. Khuda Bakhsh v. Province of Punjab and another PLD 1957 W.P (Lahore) 662 https://legal-dictionary.thefreedictionary.com/inquest Shera v. The State and 3 others 1972 PCr.LJ 626 Khizar Hayat and others v. District Magistrate and others PLD 1995 Lahore 433 Mumtaz Hussain v. Deputy Commissioner Faisalabad and 7 others PLD 2002 Lahore 78 Haji Abdul Hameed v. Raz Muhammad and another PLD 2014 Bal 50 Muhammad Yaseen v. Additional Sessions Judge and 3 others 2019 PCr.LJ 219 https://en.wikipedia.org/Wiki/Inquests in England and Wales Scope of inquest An official who holds inquests into violent, sudden, or suspicious deaths An. Act of the Parliament of the United Kingdom that changed the law on coroners and criminal justice in England and Wales https://amity.edu/UserFiles/aibs/c7a42018 Amity International Journal of Juridical_Scie_007.pdf Radha Mohan Singh alias Lal Saheb vs. State of U.P (2006) 2 SCC 450 1 2 3 4 5 6 7 8 9 10 11 12 13 14