A case was registered against Said Jalal, Shah Nawaz and Amir Shah respondents at the instance of Shera petitioner, on 19-6-1971 at 12-15 a.m. at Police Station Chiniot,. District Jhang.
2. The prosecution story briefly is that after evening prayer time on the 18th of June 1971, the three respondents (Nos. 2 to 4), who were armed with guns, attacked Shera petitioner and his father Muhammad. Shah Nawaz respondent shot at Shera petitioner, which hit him on the leg and Said Jalal respondent fired at Muhammad, which resulted in his death.
3. After the registration of the case the police apprehended the respondents and started investigating the case. The investiga tion was almost over when the three respondents submitted an application to the District Magistrate, Jhang, alleging therein that the case against them is wholly false, that the petitioner had himself strangulated his father in order to implicate them and that he had subsequently got an injury manufactured on his leg to support his case. They also prayed that the body of Muhammad deceased should be exhumed and re-examined by an independent Board of Medical Officer. The learned District Magistrate marked the application to Mr. Imtiaz Ahmad Sahi, Assistant Commissioner, Chiniot, who after going through the relevant police files and considering the suspicion surrounding the death of Muhammad deceased he ordered the disinterment of the body and directed Mr. Bashir Hussain Tahir, Ilaqa Magistrate to proceed to the spot and hold an inquiry under section 159, Cr. P. C. vide his order dated 6-7-1971 (A copy of this order is attached to the file as Annex. 'A'). He also requested the District Magistrate to constitute a Board of Surgeons to perform the post-mortem. Mr. Bashir Ahmad Tahir, M. I. C., Chiniot then made an inquiry and submitted a report dated 30-7-1971. In the heading this report has been described by him as one under section 159/176, Cr. P. C. Tn this report the learned Magistrate after thorough inquiry gave a finding that Shera P. W. in complicity with Shera son of Amir Gullu Harral, Amir son of Sukha and Gullu had murdered Muhammad and subsequently got a self-suffered injury through a friendly hand on his leg to strengthen his case. It will be appropriate to reproduce the finding of the learned Magistrate in extenso as given in paragraph No. 17 of his report.
"Under the circumstances, it can be held with any amount of certitude that Shera P. W. in conspiracy with the proved enemies of Said Jalal accused hatched up a conspiracy and on some pretext or the other took his old father to the graveyard of village Jhamb and after shooting Muhammad deceased got rid of a disgraceful father and succeeded in falsely implicating his enemies as well. Even according to Modi's Text Book of Medical Jurisprudence and Toxicology such instances are not lacking when to fabricate to false charge against an enemy it is usual for one party to kill a relation probably a child or old person and then to accuse the opposite-party of murder. The medical evidence, the nature and the location of the injuries found on the person of Shera P. W. got to prove that in all probability it is a self-suffered injury inasmuch as the bone has carefully been avoided. If it was from the rear, there would have been fracture of the bone without fail. It appears that Shera P. W. in complicity with Shera son of Amir, Gullu Harral, Amir son of Sukhu, Ghullu resident of Balhark murdered his father and consequently got a self-suffered injury through friendly hand and thus managed to escape the charge of murder and also succeeded in implicating his enemies Said Jalal etc."
4. Shera petitioner has filed this application for the quash- ment of the above-noted finding on the ground that it is entirely without jurisdiction. The petition is opposed by the respondents through Qazi Muhammad Saleem, Advocate with Mr. M. Nawaz Khan Toor, Advocate. The learned Assistant Advocate- General-ll appearing for the State, however, supported the application for quashment.
5. Mr. M. A. Bajwa, the learned counsel for the petitioner urged firstly that the learned Magistrate had no power under the law to carry out an investigation under section 159, Cr. P. C.. when an investigation by the police is already under way. In support of this contention he relied on the Crown v. Muhammad Sadiq Niaz (I) and Shahnaz Begum v. The Hon'able fudges of the High Court of Sind & Baluchistan and another (2).
6. Mr. Asghar Ali Bhatti, the learned Assistant Advocate- General appearing on behalf of the State, conceded this point and submitted that when an investigation was already proceeding, the learned Magistrate could not order another investigation under section 159, Cr. P. C. Qazi Muhammad Saleem, Advocate appearing on behalf of respondents Nos. 2 to 4 controverted this position and argued that such an inquiry could be ordered. He relied on The Crown v. Khuda Bux and others (3).
I am inclined to agree with the view taken by the learned counsel for the petitions. The provision of section 159, Cr. P. C. came under consideration in The Crown v. Muhammad Sadiq Niaz. In that case the facts were slightly different inasmuch as that the Additional District Magistrate had passed a composite order (I) stopping the investigation of the case by the special staff of C. I. D. and (ii) directing a Magistrate 1st Class to hold an inquiry into the case. This order was made under section 159, Cr. P. C. In the present case, however, there is no order stop ping the investigation by the local police but the Ilaqa Magistrate was simply ordered to proceed to the spot and hold an inquiry under section 159, Cr. P. C. Their Lordships of course held on the basis of King-Emperor v. Khawaja Nazir Ahmad (4) that there should be no interference with the police investigation by the judiciary and the order stopping police investigation was bad in law. But in the present case I am concerned mainly with the interpretation placed by their Lordships (Mr. Justice Muhammad Sharif and Mr. Justice Muhammad Khurshid Zaman) on section 159, Cr. P. C. and the reasoning given in support thereof. Their Lordships held that a Magistrate could not direct an investigation under the said section where the police Was already investigating the case. The reason given by their Lordships for coming to this conclusion are as follows :-- "...... The word, 'direct' which means command could only signify that something which was not being done would be done and in section 159 the word direct would connote that the police are not engaged in the investigation and the Magistrate ordered them to do so. The word direct therefore would be meaningless in relation to an investigation by the police which is already in progress. The police themselves are doing a thing and no direction from the Court to do that which is already being done would be necessary or called for. It would therefore, cover only those cases where the investigation is not done bythe police and the Court directs them to investigate."
This reasoning is supported by the observations of Supreme Court of Pakistan in the case of Shahnaz Begum v. The Hon'bIe fudges of the High Court of Sind & Baluchistan and another.
Although the observations have been made with regard to the provision of clause 22 of the Letters Patent of the High Court of West Pakistan and not with regard to the provisions of section 159, Cr. P.
C. but they are relevant to inasmuch as the phraseology of the two provisions is similar. It will be useful to reproduce the two sections for a proper understanding of the relevancy of the observations of the Supreme Court in the above-noted case to interpretation of the provisions of section 159, Cr. P. C.: "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 preliminary inquiry into or otherwise to dispose of the case in manner provided in this code."
(The expression such Magistrate there refers to the Magistrate to whom a report under section 159, Cr. P. C. is sent by the police officer empowered to investigate a case under section 156, Cr. P. C.).
Sub-clause (II) of clause 22 of the Letters Patent reads as follows:-- "To direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it though such case belongs in ordinary course to the jurisdiction of some other officer or Court."
The relevant observation of his Lordship the Chief Justice of Pakistan in the case of Shahnaz Begum is as follows:-- "The word direct in clause 22 means command and could only signify that something which was not being done should be done. Therefore, the necessity for making a direction can only arise in a case where no investigation has started. The power to issue a direction cannot be involved where investigation has already commenced in accordance with law by authorities competent to investigate under the Criminal Procedure Code."
It will be seen that in view of the similarity the words used in the two provisions, the above-noted observations of the Supreme Court support the view taken by the High Court in PLD 1949 Lah. 562.
No doubt a different view was taken in PLD 1956 Lah. 448 relied upon by the learned counsel for respondents Nos. 2 to 4 where in it was held that the Additional District Magistrate had the authority under section 159, Cr. P. C. to depute a Magistrate subordinate to him to make an inquiry and that the power to direct a full inquiry would include a power to make a partial inquiry. But in view of the above-mentioned observations of the Supreme Court of Pakistan which support the reasoning of the learned Judges in the case of The Crown v. Muhammad Niaz, I would respectfully follow the view taken in that case in preference to the expressed in The Crown v. Khuda Iiux and others.
1. I, therefore, hold that the learned Magistrate could not order an investigation into the case under section 159, Cr. P. C. E when an investigation was already being held by the police.
8. It was next contended by the learned counsel for the peti tioner that although the learned Magistrate was empowered to hold an inquiry under section 176, Cr. P. C. he was empowered to give a finding only with regard to the cause of death, and not with regard to the person who was guilty for causing the death. He, therefore urged that the impugned order dated 30-7-1971 whereby the learned Magistrate had held Shera petitioner to be guilty of, the murder was bad in law as having been passed in excess of the jurisdiction given to him by section 176, Cr. P. C.
9. The learned Assistant Advocate-General appearing for the State conceded this position.
The learned counsel for respondents Nos. 2 to 4 however urged 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. For this he relied on the following words occurring in section 176, Cr. P. C.
"..... he shall have all the powers in conducting it which lie would have in holding an inquiry into an offence."
The learned counsel argued that this means that the scope of the inquiry made by a Magistrate under section 176, Cr. P. C. is the same as the one made under Chapter XVIII of the Criminal Procedure Code under which he can give a finding as to the prima facie guilt of the accused person.
He referred to. Amir Muhammad Khan v. The State (1), in support of this view. i I am afraid I cannot agree with the learned counsel for the respondents. The portion of section 176, Cr. P. C. reproduced 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.
The case of Amir Mohammad Khan v. The State, cited by the learned counsel for the respondents does not support his plea. The point involved in that case was whether or not the order of*u Magistrate under section 176, Cr. P. C. is reversable under
(1) 1971 P Cr. L J 509 section 439, Cr. P. C. It was held that the order being a judicial one was reversable.
10. In view of the above discussion I accept the petition and hold that the order directing inquiry by a Magistrate under section 159, Cr. P. C. while police was already investigating the case, is bad in law and secondly that the finding given by Mr. Bashir Hussain Tahir, M. I. C., Chiniot as to the persons, who were guilty for committing the offence in question is also bad in law as being beyond his powers under section 176, Cr. P. C. The same is, therefore quashed.
11. It is, however, open to the learned District Magistrate to order another inquiry into the cause of death, of Muhammad deceased under section 176, Cr. P. C. The petition is disposed of with this observation. .