جوڈیشل انکوائری کے موضوع پر لاھور ہایئکورٹ کا انتہائی اھم فیصلہ

PLD 2021Lahore 805

Under Article 4 of the Constitution of The Islamic Republic of Pakistan, 1973 to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. If petitioner claims the encounters as fake and she has any evidence in this regard, it must be investigated in particular when in both the encounters the only story on the surface is by the police officers.

Powers of police officer to move an application for inquest,

the authority of Sessions Judge to entertain it and scope,

restrictions and limitations for a Magistrate while holding the inquest/inquiry under Sections 174 and 176 of Cr.P.C.

As these provisions appear to have been misunderstood and misinterpreted therefore, taking the advantage of these proceedings it is appropriate to deliberate on these provisions from all possible angles.

Combined study of the Police Rules and the provisions of Cr.P.C reveal that: -

...................

i. Under Section 174 Cr.P.C the powers are available to police officer and Magistrate too.

ii. Under section 176 Cr.P.C the powers are exclusively available to a Magistrate.

iii. In case of inquest by police officer, he shall make the investigation whereas in case of a Magistrate he shall hold an inquiry.

iv. In both the situations, the objective is to find out the cause of death.

v. In case under Section 174 Cr. P.C there are situations defined in clauses (a) (b) and (c), whereas in case of Magistrate another additional eventuality of death in police custody is there.

vi. In both the eventualities there must be existence of dead body may it be outside or inside the grave.

vii. The inquiry by a Magistrate is either instead of, or in addition to, the investigation.

viii. It may be under Section 174 or 176 Cr.P.C, the exercise has to be made without wastage of time as these proceedings appear to be of emergent nature.

Whether a Magistrate is competent to hold an inquest/inquiry, for that simple reading of Sub Section (5) of Section 174 and 176 Cr.P.C makes it clear that a Magistrate is empowered to do so. It is important to mention here that Sub Section 5 of Section 174 Cr.P.C was substituted through Code of Criminal Procedure (Amendment) Ordinance (XXVIII of 2001).

Whether CPO can move an application to the Sessions Judge with a request for holding the inquest/inquiry by a Magistrate, the provision of Section 551 Cr.P.C is the ultimate answer and that is as under: -

...................

“Powers of superior officers of police: Police officers superior in rank to an officer incharge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station”

This takes me to the powers of Sessions Judge to entertain the application and to entrust it to a Magistrate. It has already been resolved earlier that a Magistrate has the powers to hold an inquest/inquiry. Under Section 17 Cr.P.C all the Magistrates appointed under Sections 12, 13 and 14 and all Benches constituted under Section 15, shall be subordinate to the Sessions Judge and he may, from time to time, make rules or give special orders consistent with this Code and any rules framed by the provincial government under Section 16, as to the distribution of business among such Magistrates and Benches (Emphasized). When distribution of business amongst the Magistrates is within the exclusive domain of the Sessions Judge, it means that he can validly receive an application for inquest/inquiry and entrust it to any Magistrate subordinate to him.

What the ultimate objective is for a Magistrate while holding the inquest/inquiry under both the provisions of law?

............................

The word “inquiry” has been defined under Section 2(K) which includes every inquiry other than a trial conducted under Cr.P.C by a Magistrate or Court. The word “investigation” has also been defined under Section 2(L) that includes all the proceedings under Cr.P.C for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

The word “inquest” however has not been defined under the Cr.P.C. In Khuda Bakhsh’s case this Court about the definition of “inquest” held that: -

“The word "inquest" is not defined in the Code of Criminal Procedure, nor in the Pakistan Penal Code, but it is apparent that what is intended is that the Magistrate should prepare a report as to the apparent cause of death of the deceased person, mentioning the wounds etc., found on the body and the weapons which appear to have been used for causing the injuries which have resulted in fatality”.

In legal dictionary the word inquest4 is also defined as under: -

“An investigation and/or a hearing held by the coroner (a county official) when there is a violent death either by accident or homicide, the cause of death is not immediately clear, there are mysterious circumstances’ surrounding the death, or the deceased was a prisoner”

The purpose of an inquest/inquiry by a Magistrate is to gather the evidence that may be used by the police in their exploration of a violent or suspicious death and the subsequent prosecution of a person if death ensued from a criminal act. An inquest is not a trial but criminal proceeding of a preliminary, investigatory nature. While holding an inquest/inquiry under Section 174 or 176 Cr.P.C a Magistrate is confined to find out the cause of death only if it is unnatural like, Homicidal or Accidental or Suicidal. He by no stretch of imagination can declare that who is responsible for the death. He is also under no jurisdiction to proceed for facts finding.

Under Section 176 Cr.P.C, the power of inquiry available to a Magistrate is only to the extent of determination of cause of death and not beyond that. This authority to a Magistrate under Section 176 Cr.P.C has been assigned with a clear intention by the law makers that while holding so a Magistrate may not be handicapped as in difficult cases or the case of undetermined death, he may be in a position to examine any person so as to finalize his opinion about cause of death. The intention of legislatures is also manifest from sub-Section 2 of Section 176 Cr.P.C that while holding inquest/inquiry the Magistrate even can cause to body to be disinterred which has already been interred.

The objective of the inquest proceedings in India is also to ascertain only whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit of scope of the proceedings.

The words “the judicial inquiry into the incident is required” and “subject matter to probe into the facts of the occurrence” are clear indicators that CPO had desired the fact finding inquiry through the Magistrate. This is absolutely beyond and alien to the scope of Section 176 Cr.P.C and powers assigned to the Magistrate. “To discover the real cause of death” is completely different from “to probe into the facts of the occurrence”. Neither CPO could make such request, nor could learned Sessions Judge Rawalpindi entertain it. Even if entrusted to the Magistrate, he is under no authority to probe into the facts of the occurrence.

Probing into the facts of the occurrence can only be under the Punjab Tribunals of Inquiries Ordinance, 1969, which empowers the Provincial Government under Section 3 to appoint a Tribunal, Commission or Committee of inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification and a Tribunal, Commission or Committee so appointed shall make the inquiry and perform function accordingly. If according to CPO Rawalpindi, it was definite matter of public importance, he at the most could make a request to the Government and thereafter it was for the Provincial Government to appoint or not to appoint any Tribunal, Commission or Committee of inquiry. The latest example that can be quoted is with regard to the death of Muhammad Usman Khan Kakar, Ex-Senator, who passed away on 23.06.2021. The family of deceased claimed that the death seems to be unnatural and merits inquiry. The Government of Balochistan, Home and Tribunal Department in exercise of the powers under the Balochistan Tribunals of Inquiry Ordinance, 1969 had appointed a Judicial Commission for that purpose.

This practice on the part of police officers to ask for judicial inquiry in the matters (in particular police encounter), other than determination of cause of death, amounts to misuse of their powers. The learned Sessions Judges before entrustment of said application to a Magistrate are under obligations to examine its contents so as to find out that what has been asked, is that permissible under the law and that the request made is within the parameters of Section 176 Cr.P.C? If not, it is to be turned down or returned as the case may be.

Directions issued by High Court

.......................

i) If an application is moved by a police officer to a Sessions Judge or to a Magistrate (in case it is directly submitted), it will be his primary duty to examine that the request has been made within the parameters of Section 176 Cr.PC and it relates to cause of death only. If it is so, the application shall be entertained otherwise it may be turned down or returned to the concerned police officer as the case may be.

ii) The Magistrate holding the inquest/inquiry under Section 176 Cr.P.C under no circumstance can travel beyond his jurisdiction that is limited to determination of cause of death of the person and not the person who has caused the death.

iii) A Magistrate has no power to record a finding regarding guilt or innocence of an accused while holding the inquest.

iv) The powers in conducting the inquest which a Magistrate would have in holding, an inquiry into an offence shall also be limited to determination of cause of death.

Writ Petition No. 1984 of 2021
(Mst. Shahida Chaudhary Versus Regional Police Officer & 6 others)