1. SALAHUDDIN AHMED, J.---This appeal, by special leave, is from the order of a learned Single Judge of the Lahore High Court accepting respondent Shera's revisional application and holding that the impugned order directing the Magistrate to hold inquiry under section 159 of the Code of Criminal Procedure is bad in law, and also quashing the finding of the Magistrate that certain persons were guilty of the offence in question.
2. The question for consideration is whether under section 159 of the Code of Criminal Procedure the District Magistrate was competent to direct inquiry by a Magistrate subordinate to him in a cognizable case while the police had already been investigat--ing the case. Leave has been granted to consider this question which has arisen in the following circumstances A case under sections 302 and 307 read with section 34 of the Pakistan Fenal Code was registered against the three peti--tioners at Police Station Chiniot on the 19th June 1971, for the murder of one Muhammad and for causing injuries with gun shot to his son Shera P. W. During the investigation of the case the appellants filed an application before the District Magistrate, Jhang, accusing the said Shera as the culprit. The application was marked by the District Magistrate to a local Magistrate, who held an inquiry, and formed the opinion that the injury found on the person of Shera was in all probability self-suffered and that it appeared that he had in complicity with Gullu, Amir and another Gullu murdered his father and lodged a false complaint against the appellants. Aggrieved by the findings of the Magistrate Shera moved the High Court for quashment of the Magistrate's findings, on the ground, inter alia, that in holding the inquiry he had acted without jurisdiction.
3. Part V, Chapter XIV of the Code of Criminal Procedure deals with Information to the Police and their powers to investigate, and contains sections 154 to 176. Section 154 speaks about laying the information in a cognizable case. Section 156 authorises any officer-in-charge of a police station to investigate a case. The section also provides that any Magistrate empowered under section 190 of the Code may order such investigation. Sections 157, 158--and 159 are as follows :- "157.-(1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under section .156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report, and shall proceed in person or depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and if necessary to take measures for the discovery and arrest of the offender : Provided as follows;
(a) When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot ;
(b) If it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investiga--petition, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1), the officer-in-charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as maybe prescribed by the Provincial Government, the fact that he will not investigate the case or cause it to be investigated.
4. 158.-(1) Every report sent to a Magistrate under section 157 shall, if the Provincial Government so directs, be submitted through such superior officer of police as the Provincial Government by general or special order, appoints in that behalf.
(2) Such superior officer may give such instructions to the officer-in-charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.
5. 159--Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a pre--liminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code."
6. Sections 174(1) and (2), and 176(1) of the Code of Criminal Procedure have also some; relevancy, and they are as follows :- 174.-(1) The officer-in-charge 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 raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magis--trate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, or by any general or special order of the District or Sub-Divisional Magistrate, 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 weapon 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 District Magistrate or the Sub Divisional Magistrate.
7. 176.-(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 subsection (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation 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."
8. On a consideration of the aforesaid provisions of the Code of Criminal Procedure it appears to us clear that where investigations are being carried on by the police, and the police have not acted In terms of the provisions of subsection (2) of section 157 of the Code, the Magistrate concerned cannot stop the police from carrying on investigation or either hold a preliminary inquiry himself or depute any other Magistrate subordinate to him to hold such inquiry. The police has a statutory duty to investigate in a cognizable ca3e under section 157 of the Code and the com--petent police officer is entitled to carry the investigations to conclusion in accordance with the provisions of the Cede. This view finds support from the observations of the Privy Council in. The case of Emperor v.
9. Khawaja Nazir Ahmad (I. L R 1945 Lah.). The observations are as follows :- "In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicia' authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent juris--diction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code, to give directions in the nature of habeas corpus."
10. Similar view has been expressed in the case of Lachmanan Chetty v. King-Emperor (1 Cr. L J 539). In the case under report the police submitted a report under section 173 of the Code of Criminal Procedure that the case might be classed as mistaken. The report came before the Headquarters Magistrate who expressed an opinion that the complaint was false and the informant should be prosecuted under section 211 after a preliminary inquiry under section 159 of the Code of Criminal Procedure. Accordingly, a preliminary inquiry was held under section 159 of the Code of Criminal Procedure and the Headquarters Magistrate recom--mended prosecution and sent the case for trial to the Sub---divisional Magistrate. It was held that the report on which the Magistrate took action was a final report under section 173 and section 159 did not apply to such a report.
11. If upon an investigation it appears that there is no sufficient evidence or reasonable ground of suspicion to justify the forward--ing of the accused to a Magistrate, the accused if in custody, shall be released in terms of section 169 of the Code on his executing a bond as prescribed. But if upon an investigation under Chapter YIV it appears that there is sufficient evidence or reasonable ground as aforesaid, the accused under custody shall be sent to the competent Magistrate or if the offence is bailable and the accused is able to give security, security shall be taken from him for his appearance before the Magistrate concerned, as provided for in section 170(1) of the Code. On completion of an investigation the police officer concerned is required to send the report under section 173 of the Code to the Magistrate concerned.
12. Subsection (1) of section 157 provides that the police officer concerned etc. Shall proceed to the spot to investigate the facts and circumstances of the case etc. The provisos provide that in certain contingencies the police officer need not proceed to the spot to make the investigation or if it appears to the officer that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Subsection (2) of section 157 provides that in each one of such cases mentioned in the two provisos the said police officer shall state in his report required to be sent under section 157(1) of the Code his reasons for not fully com--plying with the requirements of subsection (1). Police Officer is also required to notify forthwith to the informant, if any, that the former will not investigate the case or cause it to be investi--gated. Section 158 says that the aforesaid report shall be sent to the Magistrate concerned through the relevant superior officer of police if so prescribed by the Provincial Government. The section also provides that such superior officer may give such directions to the police officer concerned as he thinks fit. Section 159 provides that such Magistrate, on receiving such a report, may direct an investigation or if he thinks fit, either proceed or depute a Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. The `report' contem--plated under sections 158 and 159 is the report which the police officer is required to send under section 157 of the Code and, ha reference to a preliminary report at a stage when either the investigation is not completed or the police officer has acted under subsection (2) of section 157 of the Code. In the present case it has been conceded that the police officer was still investigating the case. It also does not appear from the record nor has it been asserted before us that the police officer ever acted under subsection (2) of section 157 of the Code. That being so, I do not think that the Magistrate could either direct the police to investigate or proceed to hold a preliminary inquiry himself or, depute a Magistrate subordinate to him to do so. Of course, if, the police officer concerned submit an unfavourable report and the complainant is not satisfied with it he can himself lodge a C complaint with a Magistrate under section 200 of the Code and the Magistrate can direct an inquiry for the purpose of ascertain--ing the truth or falsehood of the complaint. The case of Crown v. Khuda Bux (PLD 1956 Lah. 448), has no application to the facts of the present (1) case. In the case under report while the police was investigating a case under section 307, P. P. C., the accused applied to the Ilaqa Magistrate alleging that the place of occurrence was in the Khata of the accused where blood was still lying, that the investi--gating officer had, however, refused to record the report made by the accused, and that in the interests of justice it was essential that the place of occurrence be fixed by an inspection of the spot through some Magistrate. A Magistrate, accordingly, inspected the spot and made a report that the allegation of the accused as to the place of occurrence being in their Khata was correct, but that there was no dispute between the parties about it. Furthermore, the police had taken blood-stained earth from the very place which had been pointed out by the accused. It was held by a learned Judge of the High Court-Kaikaus, J., as he then was, that under section 159 of the Code of Criminal Procedure, the Magistrate concerned had authority to make an inquiry including an inquiry as to the location of the place of occurrence. The learned Judge, however, held that a Magistrate could take cogniz--ance of a case on a complaint, on a police report, on information received from a person other than a police officer, and once he took cognizance he was entitled to make a full inquiry into the facts. All that this decision implied was that the Magistrate had some control over the investigation of the case and in exercise of this control he could make the inquiry or depute a Magistrate subordinate to him to do so in furtherance of and in order to supplement the investigation and not to supplant the police investigation. The view I have taken finds support from the language of section 176(1) of the Code, which inter alia provides " . . . . . . . Any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer . . . . . . ."
13. The police officer mentioned in section 174 was obliged, unless directed otherwise by any rule prescribed by the Provincial Government etc., to proceed to the place where the dead body lay and to make an investigation, and draw up a report of the apparent cause of death, etc. It is thus evident that where the Legislature thought it necessary, it clearly provided that the Magistrate could either instead of, or in addition to, the investigation held by the police officer, hold an inquiry into the cause of death. Any other interpretation may involve a complication and create an undesir--able situation. Let us try to understand this in the light of the facts and circumstances of the present case. We are told that the police has since completed the investigation and submitted a report to the Magistrate concerned under section 173 of the Code of Criminal Procedure. If the result of the inquiry held by the Magistrate under section 159 of the Code be in conflict with the report submitted by the police under section 173, such an undesir--able situation as I have just mentioned may arise. The Magistrate cannot dismiss the report submitted by the police under section 173 merely on the ground that the result of the preliminary inquiry conducted by the Magistrate is otherwise. If a challan be submitted under section 173 of the Code it is the duty of the Magistrate to proceed to deal with it according to law, and this appears that the Magistrate shall proceed to issue process under section 204 of the Code, and hold the inquiry or trial as contemplated under Chapters XVIII, XX and XXI of the Code.
14. For the reasons stated above, I think that the impugned sc order of the learned Single Judge of the High Court is correct A, and does not call for interference. The appeal is, accordingly dismissed.