' ABDUL SHAKURUL SALAM J.-Facts leading to this Constitutional petition are that Fauja Khan, respondent No, 3, filed an application before the Deputy Commissioner, Dera Ghazi Khan, to the effect that his brother Haji Jewan was murdered by Qadir. Bakhsh and others about which the deceased's brother gave an information to the Police in time. Instead of recording correct facts, the local Police recorded a false F. I. R. And arrested one Ghulam Mohammad. This Ghulam Mohammad; during the custody cf the Police, was killed but the local Police by stating false facts recorded a F. I. R. About the murder of Ghulam Mohammad and did not show that the deceased had died in the custody of the Police. It was requested that a judicial enquiry may be made. The District Magistrate appointed Mr. Irshad A, Qureshi, Magistrate First Class to hold judicial enquiry vide order dated 16-2-1976 and the learned Enquiry Magistrate ordered on i9-2-1976 "Call for both the parties to appear in this Court on 2-3.76 for evidence to establish their requisite stands". The petitioner filed a revision petition against the order of the learned District Magistrate directing holding of the judicial enquiry, It was argued before the learned Sessions Judge that the learned District Magistrate had no power under section 159, Cr. P. C. To direct judicial enquiry when the case was being investigated by the Police. The learned Sessions Judge accepted the contention and held that the order of the learned District Magistrate directing enquiry under section 159, Cr. P. C.
Was not sustainable in the eyes of law. As regards the murder of Ghulam Mohammad in the custody of the Police, the learned Sessions Judge observed that "It was, however, argued by the learned counsel for the respondent that Ghulam Muhammad was murdered by the Police when he was under their custody. But the case was registered against some other persons. Therefore, judicial inquiry into the cause of his death under section 176, Cr. P. C. Can be made, Under section 176, Cr. P. C. Enquiry into the cause of death is permissible. Learned Magistrate shall, therefore, proceed to make such enquiry". This is vide order dated 10-6-1976. The petitioner filed another application before the learned District Magistrate requesting that the judicial enquiry regarding the cause of the death of Ghulam Muhammad may be stopped and papers filed. The application was dismissed by the learned District Magistrate vide order dated 4-10-1976. The petitioner has flied this petition under Article 199 of the Constitution.
2. Learned counsel for the petitioner has contended that a report regarding the murder of Ghulam Muhammad was lodged with the Police and the F. L R. Was recorded. The case after investigation has been sent to the Court for trial. Consequently, no enquiry under section 176, Cr. P. C. Can be held and the order of the learned District Magistrate and proceedings ensuing be quashed, It is.
Next, contended that an enquiry under section 176, Cr. P. C. Can only be held when a person has died "in the custody of Police" and there is nothing on the record to prove that the deceased had died in the Police custody. Consequently, the enquiry cannot be held. It is, next, contended that the judicial enquiry under section 176, Cr_ P. C. Can only be held about "the cause of the death" of the deceased in the Police custody and, in the present case, "the cause of the death" of the deceased is already established by medical evidence. Therefore, no enquiry can be held. It was, then, contended that an enquiry can be held when the body of the deceased is in existence. In the present case that being not so as the deceased had been buried, the judicial enquiry cannot be held.
3. From the statement of facts made above, it would appear that on the application of the respondent No, 3, inter aila, to the effect that Ghulam Muhammad, while in the custody of the Police, had been killed, the learned District Magistrate made an order directing holding of a judicial enquiry. The order has been maintained on revision petition by the learned Sessions Judge on the ground that the judicial enquiry into the cause of death under section 176, Cr. P. C. Can be made.
Section 176, Cr. P. C. Provides that "(1) when any person dies while in the custody of the Police, the nearest Magistrate empowered to hold inquests shall . . . . Hold an enquiry into the cause of death either instead of, or in addition to, the investgation held by the Police Officer,". Subsection (2) provides that "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". From the perusal of these provisions, it is quite clear that when any person dies while in the custody of Police the nearest Magistrate empowered to hold inquests "shall hold an enquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer". Therefore, the contention of the learned counsel for the petitioner that the Police had recorded the F. L R.
Regarding the murder of Ghulam Muhammad deceased and had investigated the case and submitted the challan is of no consequence. The duty is cast by use of the imperative of "shall" on the Magistrate to hold an enquiry regarding the cause of the death of any person in the custody of the Police and this is to be done either "instead of or in addition to the investigation by the police officer." Therefore, the Police cannot, by its own acts of registering a case, investigating the same and submitting a challan, render nugatory the statutory duty of the Magistrate and make the provision of holding judicial enquiry redundant by its fiat. The contention of the learned counsel for the petitioner that it is not "proved" that the deceased Ghulam Mohammad had died in the Police custody and, therefore, no judicial enquiry can be held is begging the question because according to the allegations of the respondent No, 3 the deceased had died in the Police custody and it is to be found out by the learned Magistrate holding the enquiry as to whether the deceased had died in the custody of the Police and what was the cause or causes thereof. By mere assertion that the deceased had not died in the Police custody, statutory provision cannot be avoided. If the!
Assertion has any merit, it has to be made and proved before the officer holding the judicial enquiry. As regards the contention of the learned counsel for the petitioner that the provision is applicable only to find out "the cause of the death" of the deceased in Police custody and that that is already known through the medical evidence that is not quite correct. The medical evidence would only show as to what injury or injuries had been inflicted on the deceased resulting in his death. That would not furnish "the cause" or the reason of the death. The word "cause" means, inter alia as given in Chamber's Twelveth Century Dictionary, New Edition. 1973, "motive, D inducement ".
Therefore, the injuries inflicted on the deceased would not furnish "the cause" or the whole cause of the death of the deceased.
' The other contention of the learned counsel for the petitioner that the judicial enquiry can only be held when there is the body of the deceased in existence and as the body of the deceased had been 8 buried no judicial enquiry can be held, to say the least, loses sight of subsection (2) of section 176. Cr. P. C. Which provides that "whenever the 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". There is another aspect of the case and that is that the learned Sessions Judge had held vide his impugned order dated 10-6-76 that the judicial enquiry into the cause of the death of Ghulam Muhammad in Police custody under section 176, Cr P. C, is permissible and the learned Magistrate shall, therefore, proceed to make such enquiry. The question would arise as to how the petitioner would have a locus stancd to question the holding of the judicial enquiry into the cause of the death of the deceased in Police custody. He is not a member of the Police force, He cannot be said to be "an aggrieved person to maintain a petition under Article 199 of the Constitution to ask for stopping a judicial enquiry into the cause of the death of a person in Police custody. If he knows anything or has something to say, be might as well say so before the learned Magistrates holding the judicial enquiry. He has no right to ask for stifling a judicial enquiry into the death of a person in the Police custody.
4. For the foregoing reasons, this petition has no force on merit and the same is, accordingly, dismissed in limine.