1. ' On the night between 15th and 16th of January, 1985 a police party consisting of six Foot constables, headed by Muhammad Ashraf, Inspector C.I.A., Gujranwala whose services were on loan with Gujrat Police, cordoned the dairy farm of one Nawaz in village Kalra, Tehsil and District Gujrat. The raid was organized to arrest a desperado criminal Shafqat Hussain alias Shaqu and other proclaimed offendeRs, The police party gave a warning to Shafqat and his companions to surrender. Instead of complying with the direction, the party inside the dairy farm resisted. The police opened fire. When the operation ended, six dead bodies were found inside the dairy farm.
2. Those were of Mst. Shahida, Mst. Zahida, real sisters, Shafaqat alias Shaqu, brother, Safdar, nephew of Mst. Nargis daughter of Muhammad Hussain, resident of Gujrat, and two others.
3. ' According to the police, this was a "police encounter" whereas according to Mst. Nargis it was a police massacre in which two of her real sisters, one .Brother and a nephew alongwith two others were shot dead.
4. ' The District Magistrate, Gujrat ordered an inquiry into this incident. Muhammad Rafiq Gill, Assistant Commissioner, Kharian was deputed to hold the inquiry. He examined a number of witnesses, including Mat. Nargis. The Inquiry Officer on the conclusion of the inquiry held that it was a genuine police encounter.
5. ' Mst. Nargis filed a petition under section 176(2), Cr.P.C. Before the District Magistrate for exhumation of the dead bodies. The application was "filed" by the District Magistrate on 2-2-1985.
6. She went in revision before the Sessions Judge, Gujrat. The revision was entrusted to the Additional Sessions Judge, who by his order dated 14-2-1985 dismissed it on the ground of lack of jurisdiction.
7. Mst. Nargis thereafter filed a constitutional petition under para. 9 of the provisional Constitution Order, 1981, in which she cited the District Magistrate, Gujrat and the Additional Sessions Judge, Gujrat as respondents. The State was also impleaded as a respondent. This petition came up for hearing before Mr. Justice Zia Mahmood Mirza on 4-3-1985. The learned Judge sent for the Advocate-General. The Additional Advocate-General entered appearance. He submitted that he had instructions to contest the petition. The learned Judge called for paradise comments, which were submitted on 16-3-1985.
8. ' On 6-4-1985, a detailed order was passed by the learned Judge in which he discussed the case law and came to the conclusion that there were conflicting decisions on the question of interpretation and application of section 176, Cr.P.C. The case was accordingly submitted to the Hon'ble Chief Justice for constituting a larger Bench. Thereafter the matter was referred to a Full Bench.
9. ' The Additional Advocate-General appeared before the Full Bench and conceded that there was no bar to disinterment of the dead bodies and even a second inquiry was competent. He further admitted that the impugned order of the Additional Sessions Judge was not maintainable.
10. ' In view of the stance of the Additional Advocate-General, the Full Bench did not think it necessary to give an authoritative judgment. The case was sent back to the learned Single Judge for disposal in accordance with law.
11. ' On 28-4-1985, when the matter came up before Zia Mahmood Mirza J., the learned counsel for the petitioner requested that the petition he converted into a criminal revision. The prayer was allowed.
12. The revision was admitted to hearing on 30-4-1985. The Additional Advocate-General, who was present in the Court, accepted the notice. The learned Judge was further pleased to order that since he would not be available up to 13-5-1985 the matter be placed before some other Bench.
13. The Office, as usual exercising their whim, without obtaining orders from the Hon'ble Chief Justice or from the Senior Puisne Judge fixed the matter before me. The petition came up before me on 5- 5-1985. I told the learned counsel that the propriety demanded that the matter be kept pending till the learned Judge came back from the summer spell. The counsel, however, insisted that I should decide the matter because it was of genuine urgency. So, I ordered that full dress arguments will be heard in this case on 7-5-1985.
14. ' Mr. Aitzaz Ahsan, first of all, gave the background of the alleged encounter. He gave the detailed facts and submitted that it was not an encounter but as a matter of fact the deceased were duped, trapped and killed. In this connection, he referred to the post-mortem reports as well as conduct of the doctor and submitted that the reports were vague. There were number of loopholes in it. According to the learned counsel, the report was made at the instance of the police in order to provide them complete shelter. Learned counsel further submitted that application of the petitioner was not dealt with in accordance with law by the District Magistrate. Similarly, the Additional Sessions Judge failed to exercise the jurisdiction vested in him.
15. ' The counsel also submitted that a second inquiry was not debarred. The petitioner was well within her right to seek the relief prayed for because her real sisters, brother and nephew had been shot dead.
16. ' The Additional Advocate-General raised two preliminary objections. First was that this petition was not maintainable. The provisional jurisdiction had already been exercised by the Additional Sessions Judge. The second revision as such was not competent. The Additional Advocate-General contended that the Additional Sessions Judge for the purpose of exercising the revision jurisdiction was as superior in the matter of jurisdiction as the High Court-and was in no way subordinate to the High Court. He very seriously contended this.
17. ' The other objection pertained to the second inquiry which in the opinion of the Law Officer was not competent. An inquiry had already been held. The report of the Inquiry Officer was never challenged. Therefore, it had attained finality for all intents and purposes. In support of this, he relied upon Khuda Bakhsh v. The Province of West Pakistan and A. Haq, Sub Divisional Magistrate, Leish PLD 1857 (W.P.) Lah.
18. 662.
19. With regard to the first objection, Mr. Aitzaz Ahsan submitted that as is evident from the order of the Additional Sessions Judge, he did not exercise the jurisdiction vested in him. He disposed of the revision by observing that he lacked jurisdiction. Therefore, the revision before this Court was competent.
20. With regard to the second objection, counsel submitted that he was really surprised to note the stance of the Additional Advocate-General. Having conceded all the points, including that of second inquiry, he was debarred to raise the same before me. Learned counsel for the petitioner, however, conceded that the revisional jurisdiction of this Court as well as of the Sessions Judge or for that matter of the Additional Sessions Judge is concurrent. He submitted that as the Additional Sessions Judge failed to exercise revisional jurisdiction, the matter be sent back to him or in the alternative I should myself decide the revision on merits, specially when the matter has gone up to the Full Bench.
21. The preliminary objections of the Additional Advocate-General have no force. Those have been rightly met out by the learned counsel for the petitioner with whom I am inclined to agree. In this connection, I would like to observe that when the matter was being argued before me I repeatedly asked the Additional Advocate-General as to what was his stance with regard to the second inquiry. Every time his answer was that there was no legal bar for a second inquiry. Nevertheless in the next breath he changed his stance. I suppose this was an objection for the sake of objection.
22. Learned counsel for the petitioner further submitted that the petitioner being real sister of three and aunt of one of the deceased has the right to ask for exhumation of the dead bodies. She and her relations were so much pressurized and terrorized by the police that they were ordered to bury the dead in such a hurried manner that the petitioner was not able to pay last homage to the deceased.
23. ' In the light of the decision of the Full Bench before whom the Additional Advocate-General conceded all the points, I can very easily dispose of this petition with a short observation that as the Additional Advocate-General conceded there is no force in the contentions raised by him before me. But I find that the concession of the Additional Advocate-General before the Full Bench does not entitle me to by-pass the decision of the Division Bench in Khuda Bakhsh's case. This decision for all intents and purposes is binding on me. However, I am clear in my mind that the facts of that case are distinguishable from the present case. The main question in the above referred case was whether the provincial Government had any power under the Code of Criminal Procedure to ask a Magistrate to hold a second inquiry under section 176, Cr.P.C. When a similar inquiry had already been made. After going through the relevant provisions of the Code, the Division Bench held that no such power vested in the Provincial Government. The other two points, which were of academic nature, were whether any other Magistrate could hold a second inquiry and whether the inquiry proceedings under section 176, Cr.P.C. Were open to revision jurisdiction of the High Court. The answer to the former question was that when an inquiry into the cause of death had been held by a Magistrate, second inquiry could not be held by another Magistrate. On the latter question, the Court ruled that the proceedings of inquiry under section D 176, Cr.P.C. Are judicial proceedings and are open to scrutiny in the revisional jurisdiction of the High Court.
24. The prayer in this revision petition before me is only for exhumation of the dead bodies and their examination. I am of the view F that the petitioner has the right to ask for the relief prayed for.
25. ' Consequently, I allow this petition and direct the District Magistrate Gujrat to get the dead bodies exhumed. He shall, in consultation with the Medical Superintendent, Mayo Hospital, Lahore, constitute a Board of Senior Medical Professors for post-mortem examination.