This criminal revision under section 435/439, Cr.P.C. By Ghulam Hussain, complainant calls in question the order of the District Magistrate, Muzaffargarh, dated 12-2-1992 whereby he allowed the prayer of exhumation and directed the Medical Superintendent, D.H.Q. Hospital, Muzaffargarh and the Assistant Commissioner, Kot Addu to depute a Magistrate and a Medical Officer for the purpose.
2. A few essential facts are; that Ghulam Hussain herein petitioner, lodged an information in connection with the murder of Ghulam Farid on 19-1-1992, at Police Station Sarwar Shaheed. The Investigating Officer visited the scene of occurrence, took the dead body of the deceased in his custody and sent the same to the Hospital Chowk Sarwar Shaheed for autopsy. On 20-1-1992, the post-mortem- examination was conducted by the Medical Officer, who gave the post-mortem report to investigating authorities. On 11-2-1992 Inayat Hussain, Ghulam Yasin accused through Faqir Hussain submitted an application to the District Magistrate, Muzaffargarh ft: exhumation of the dead body and for the post-mortem examination afresh. On the same day the District Magistrate got an opinion of the Medical Superintendent D.H.Q. Hospital, Muzaffargarh, who gave an opinion by way of verbal discussion that exhumation was necessary. Pursuant to this advice, the District Magistrate Muzaffargarh, passed the impugned order whereby the application was allowed. The Medical Superintendent, D.H.Q. Hospital, Muzaffargarh, Assistant Commissioner, Kot Addu, were directed to depute a Magistrate and a Medical Officer for the purpose.
3. The validity of the impugned order was assailed on the ground that the impugned order was passed in absence of the complainant as well as the State. As such it was in breach of principle of natural justice, that nobody should be condemned unheard. Reliance was placed on unreported judgment of my brother Sardar Muhammad Dogar, J. Delivered in Crl. M. No.443/90 titled `Sardar Muhammad v. District Magistrate, Vehari, etc.
4. On the contrary the learned counsel for respondent No.4 supported the impugned decision by saying that the impugned order was passed by the District Magistrate in exercise of his administrative powers under section 176, Cr.P.C. As such it was not amenable to revisional jurisdiction of this Court. Reliance was placed on unreported judgment of my brother Manzoor Hussain Sial, J., dated 14-11-1990, rendered in W.P. No.7745/90 titled Basharat Aziz v, District Magistrate, Sialkot etc. 1991 P Cr. L J Note 91 at p.65 and Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18.
It was next contended that the Medical Officer, who conducted the post-mortem examination was a relative of the complainant and had a patent bias towards the accused. According to the learned counsel the post-mortem report of the aforesaid Doctor was erroneous and dishonest.
Under these circumstances it was in the interest of justice that the post-mortem examination be conducted afresh.
5. The learned Additional Advocate-General, appearing on behalf of respondents Nos.1 to 3, frankly stated that he was not in a position to support this order on account of its being in breach of the principle of natural justice that nobody should be condemned unheard. He took up the position that the order passed under section 176, Cr.P.C. By a Magistrate/District Magistrate was a judicial order and was, therefore, revisable under section 439, Cr.P.C.
6. After hearing the learned counsel for the parties at considerable length I find that the points for determination in this application are as to whether the order passed under section 176, Cr.P.C. Is a judicial order and is amenable to revisional jurisdiction of this Court under section 439, Cr.P.C.
Answers to these points turn upon an integrated analysis of sections 174 and 176 of Cr.P.C. These two sections are contained in Chapter XIV in Part V of the Code of Criminal Procedure which deals with information to the police and heir power to investigate. The former section prescribes the powers of investigator to undertake investigation with respect to cause of death; the investigator is required to draw up a report, find the cause of death in presence of two or more responsible inhabitants of neighbourhood. In case of doubt with respect to cause of death or where he considers otherwise expedient, he may forward the dead body to the nearest Medical Officer for post-mortem examination under subsection (5) of section 174, ibid, the District Magistrate, Sub- Divisional Magistrate, Magistrate 1st Class or any Magistrate empowered by the Provincial Government or the District Magistrate, is also equipped with powers to make inquiry with respect to ascertaining the cause of death. The later section i.e. 176 ibid, deals with the powers of the Magistrate. This power is invested in the Magistrate either instead of, or in addition to investigation held by the police under section 174 ibid. The object of section 176 is to check the inquiry being held by the police or allay doubts in the mind of public against a particular individual. The critical analysis of this section indicates that the Magistrate is given the vast power to make inquiry with respect to cause of death arising out of the circumstances mentioned in clauses (a), (b) and (c) of 8 subsection (1) of section 174 ibid. Section 170, which is of great significance is reproduced as under:-- "(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 (e) 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 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) 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 the disinterred and examined."
The bare look at this section makes it amply clear that the Magistrate has been empowered to make an inquiry with respect to cause of death: There was divergence of opinions on the question as to whether the inquiry conducted under section 176 was judicial in nature or merely administrative exercise. According to one view the Magistrate acting under this section was exercising the same power which the police officer had under section 174, Cr.P.C. According to this view the inquiry under section 176 was, therefore, administrative in nature and not revisable under section 439, Cr.P.C. AIR -1958 Pb. 141, AIR 1958 Pb. 430 and AIR 1959 Mad. 294 are authorities for this view. While according to other view inquiry under section 176, Cr.P.C. Was judicial in nature and was revisable. This view was laid down in Purshottam Ishvir Amin v. Emperor AIR 1921 Bom. 3 and Re: Laxminarayan Timmanna Karki AIR 1928 Bom. 390. The view taken by the Indian jurisdiction was examined in Khuda Bakhsh v. Province of West Pakistan and another PLD 1957 Lah. 662. After survey of case-law and the relevant provision of law, it was held that the inquiry under section 176 ibid was judicial in nature. It was held:-- "It was contended by the learned counsel for the petitioner that an order of the Magistrate who holds -an inquiry either under section 174 or section 176 of the Code of Criminal Procedure is a judicial order which is open to scrutiny not by the Provincial Government but only by the High Court in the exercise of revisional powers and he relied in this connection on In re: Laxminarayan Timmanna Karki A, I R 1928 Bom. 390 wherein it was held that proceedings of a Magistrate under section 176 of the Code of Criminal Procedure are judicial proceedings, which can be dealt with by the High Court in revision. He also relied on Advocate-General v. Maug Chit Mating AIR 1940 Rang.
68 wherein the question for determination was whether a Magistrate holding an inquest was a Court subordinate to the High Court for the purposes of the Contempt of Courts Act and it was held that he was. I am in respectful agreement with the views expressed in the above two decisions and hold that the proceedings of a Magistrate who holds an inquest under the Code of Criminal Procedure are judicial proceedings which are open to revision by the High Court. 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 and the High Court would not ordinarily exercise its powers of revision when an order has been passed by a Magistrate of competent jurisdiction but the mere fact that it is but rarely that the High Court would interfere in revision with such orders does not divest the order of the Magistrate of its judicial character.... "
This view was followed in Muhammad Anwar v. Sheikh Qurban Ali and 3 others 1973 P Cr. L J 882 and was again reiterated in The State v. Ch. Altaf Hussain, Magistrate 1st Class, Gujrat and 2 others PLD 1978 Lah. 1259. In this case after the survey of relevant law and the case-law it was held that:-- "One simple question which arose indirectly can be answered straightway. Although there are some old rulings showing as if orders passed under section 174 and/or section 176, Cr.P.C., are administrative in nature, therefore, not revisable under section 439, Cr.P.C. But recent authority on this question, particularly from our own High Court is to the contrary. Dissenting from an Indian authority from East. Punjab High Court, this Court held in Muhammad Anwar v. Sheikh Qurban Ali and 3 others 1973 P Cr. L J 882 that the aforesaid orders are passed in exercise of judicial functions, therefore, they are revisable. There is a D.B. Ruling of erstwhile West Pakistan High Court (Lahore) which also supports the same view--- See Khuda Bakhsh v. Province of West Pakistan and another PLD 1957 Lah. 662. I am in respectful agreement with the view expressed in this behalf in the ruling 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 (5) of section 174 provides only the District Magistrate, a Sub-Divisional Magistrate or Magistrate of the 1st Class and another Magistrate specially empowered in this behalf can hold inquests. 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 inquiry as a part of the inquest to "record the evidence taken by him in connection therewith", in any 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. Looked at from this angle also the orders, dated 24-4-1978 and 25-4-1.978 passed by the learned Magistrate in this case have to be treated as judicial orders and the learned Additional Sessions Judge could decide the revision and pass the judgment, which has been impugned in these petitions."
7. Applying this principle to the facts and circumstances of this case, it is quite clear to me that on.
20-1-1991, the post-mortem examination was conducted by the medical officer; that after the lapse of one month, an application was moved by one Faqir Hussain on behalf of Inayat Hussain and Ghulam Yasin accused for exhumation of the dead body and for repost---mortem examination: The perusal of the application further shows that allegation of bias was levelled against Dr. Ghulam Hussain by alleging that he was a relative of the complainant party. It is clear from this application that the report of the Medical Officer with respect to cause of death of deceased Ghulam Farid was not. Seriously challenged. On the same date, the District Magistrate took into confidence the Medical Superintendent D.H.Q. Hospital, Mu7affargarh, who rendered the opinion in the course of verbal discussion. On the following day the District Magistrate passed the impugned order in following words:--- "Order be issued as proposed by the M.S. (Sd.) D.M. ------ 7-A. From the perusal of the order it becomes clear that neither the District Magistrate afforded opportunity of hearing to the complainant nor State. He has passed an order which on the face of it is mechanical and stereotype in nature. No order with respect of inquiry was passed. It is thus clear to me that the order of the District Magistrate was not only m defiance with the principle of natural justice that nobody should be condemned unheard but was also speculative and conjectural and mechanical.
8. In result I have no difficulty in coming to the conclusion that the impugned order is clearly violative of law and cannot be sustained. This revision petition is accordingly allowed and the impugned order is hereby set aside:
9. Before parting with this order it is made clear that this order shall not preclude either of the parties from claiming inquiry within the meaning of section 176, Cr.P.C., by filing an application to competent authority, who shall decide the application and act strictly in accordance with law.
N.H.Q./G-59/L