P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

By this petition under section 170 of the Constitution of the Islamic Republic of Pakistan, Khuda Bakhsh, a resident of village Bakain in the District of Muzaffargarh, sought a writ, removing the direction of the West Pakistan Government by which an inquiry was ordered into the cause of death of Ilahi Bakhsh, a resident of Hasanpur Khas, District Muzaffargarh and for restraining Mr. Izhar‑ul -Haq, Sub‑Divisional Magistrate, Leiah, from holding the inquiry under section 176 of the Code of Criminal Procedure regarding the death of Ilahi Bakhsh above mentioned. The respondents appeared through Mr. M. Anwar. Assistant Advocate‑General West Pakistan, in reply to notices sent by this Court and mentioned in their joint written statement that the person at whose instance the proceedings had in the first instance started having withdrawn from them the inquiry was no longer pending. As the inquiry was not pending the petition had become in fructuous and would have been dismissed as such, but the learned counsel for the petitioner pressed for costs while the learned Assistant Advocate‑General contended that as the Provincial Govern ment was competent in law to pass the order to which objection had been taken by the petitioner in his writ petition, no question of awarding costs against the respondents or either of them could arise. Time was allowed to the learned counsel for the parties to study the questions of law that arose and they addressed elaborate arguments. Before dealing with the questions of law that arise, I will mention some of the relevant facts. A woman died in village Hasanpur Kacha and a case of murder lodged against five persons was pending in the Court of a Magistrate of the First Class, Ilahi Bakhsh., the man into the cause of whose death the inquiry objected to by the petitioner was ordered, appears to have made a statement before the police on the 28th of March 1956. On the 3rd of July 1956, a dead body was found in a jungle known as Rakh Manikpur. The persons who were being proceeded against for the murder of the woman mentioned above gave out the dead body was of Ilahi Bakhsh and that he had died because of torture at the hands of the police, and after death his dead body was thrown in the forest from which it was recovered. On the 11th of July 1956, an application was, sent by Manzur Husain and Muhammad Bakhsh to the then Superintendent of Police, Muzaffargarh, in which it was alleged that the dead body was that of Ilahi Bakhsh whose death had resulted from the torture of the police. The matter was brought to the notice of the then District Magistrate, Muzaffargarh, who directed the Sub Divisional Magistrate, Alipur, to hold an inquiry into the cause of death of the man whose dead body was recovered from Rakh Manikpur. Mr. Qaim Din, P. C. S., Sub‑Divisional Magistrate, Alipur, held the inquiry and after examining no less than 131 persons as witnesses gave his findings on the 19th of September 1956, one of which was couched in the following words:‑-- "I am of the opinion that the allegations against the respondents have not been proved and are incorrect. I seriously doubt if the dead body found lying in Rakh Manikpur was that of Ilahi Bakhsh, for it was not identi fiable. I have not been able to find out the cause of the death of the unknown deceased, whose unidentifiable dead body was found in the Rakh Manikpur." Some time after Mr. Qaim Din, Sub‑Divisional Magistrate, Alipur, had concluded his inquiry, the Provincial Government ordered that another inquiry with regard to the cause of death of person whose dead body was found in Rakh Manikpur should be held, and the Commissioner, Bahawalpur Division, wrote to the Deputy Commissioner, Muzaffargarh that the Sub‑Divisional Magistrate, Leiah, (respondent No. 2), should hold that inquiry. The inquiry was entrusted by the District Magistrate, Muzaffargarh, to respondent No. 2, whereupon Khuda Bakhsh, who was named in the application dated the 11th July 1956, on which the proceeding started originally, as the abettor of the police officers who had by torture brought about the death of the dead man, put in the present writ petition. The main question that falls for determination is whether or not the Provincial Government can order a fresh inquiry by a Magistrate into the cause of death of a person who is alleged to have died in the custody of the police if an inquiry has been already made by a Magistrate. The relevant provisions of law in this connection are contained in sections 174 and 176 of the Code of Criminal Procedure, the former of which deals with enquiries and reports with regard to the cause of death of persons believed to have committed suicide, or to have been killed by another, or by an animal, or by machinery, or by an accident, or to have died under circum stances raising a reasonable suspicion that some other person has committed an offence, and directs a police officer in charge of a police station or some other police officer empowered by the Provincial Government in that behalf on receiving information to immediately 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 neigh bourhood to make an investigation and draw up the report of the apparent cause of death. That section further enjoins that the officer is to draw up a report which would mention the apparent cause of death, the description of such wounds, fractures, bruises and other marks of injuries as may be found on the person and the opinion of the officer with regard to the manner or these weapon or instrument, if any, with which such marks appear to have been inflicted. Subsection (5) of section 174 is to the effect that the District Magistrate, Sub Divisional Magistrate and Magistrates of the 1st Class as well as all Magistrates special empowered in that behalf by the Provincial Government or the District Magistrates are empowered to hold inquests. 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. Section 176 of the Code of Criminal Procedure is in the following terms :‑ 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 herein after 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 be disinterred and examined. The inquiry by Mr. Qaim Din was evidently conducted under section 176 of the Code of Criminal Procedure, though it was the District Magistrate, Muzaffargarh, who had directed him to hold the inquiry. The direction by the District Magistrate appears to have been necessitated by the fact that though the dead body was recovered in a jungle, the allegation in the application of Manzur Husain and Muhammad Bakhsh was that the death of the person, whose dead body was found in the jungle, had occurred when he was in the custody of the Police, Rakh Manikpur where the dead body was discovered is near Alipur and apparently within the jurisdiction of the Sub‑Divisional Magistrate of that place, and when the Sub Divisional Magistrate, Alipur, undertook the inquiry, he was contravening no provision of law because he was the nearest Magistrate and could have, by reason of section 176 of the Code of Criminal Procedure, held the inquiry in spite of the fact that the dead body had not been found in a police station and there was merely an allegation that death of the deceased person had occurred while he was in custody of the police. It is clear that even if section 176 of the Code of Criminal Procedure was not attracted by reason of the fact that there was no definite proof at the time when the inquiry started that the death of the deceased person had occurred when he was in the custody of the police, Mr. Qaim Din, Sub‑Divisional Magistrate, Alipur, was competent to hold the inquiry into the cause of the death because he would get that power under subsection (5) of section 174 of the Code of Criminal Procedure to which a reference has already been made and under section 176 of that Code. Now after holding an inquiry allowed by the provisions of law into the cause of the death of the deceased person, at which inquiry it is established that he examined no less than 131 witnesses, 100 of whom had been produced by Manzur Husain and Muhammad Bakhsh and 31 by police officers and Khuda Bakhsh at whose doors the blame was being laid, Mr. Qaim Din wrote a report in which he expressed the view that there was nothing to now that the unidentified and unidentifiable dead body, found in Rakh Manikpur was that of Ilahi Bakhsh and that the allegation that the deceased died at the hands of the police was entirely incorrect. This finding was given by a Magis trate who was exercising powers given to him by law and the learned Assistant Advocate‑General could point to no provision in the Code of Criminal Procedure or any other law under which the Provincial Government could ask any other Magistrate to hold an inquiry and send a report on a matter which had been, as far as one can see, thoroughly sifted by Mr. Qaim Din. The learned counsel for the petitioner urged that the order passed by the Provincial Government which was unprecedented was due to the fact that Manzur Husain and Muhammad Bakhsh had influence with persons who were in authority while the learned Assistant Advocate‑General urged that even if the Provincial Government could not have ordered the second inquiry, the action of the Government was entirely bona fide. It was not considered necessary to go into the question whether or not the order for the second inquiry had a political back‑ground and, therefore, neither party was allowed to lead evidence on the point. The reason why it was not considered necessary to determine the question whether or not the impugned order was passed because some persons who were in power were interested in Manzur Husain and Muhammad Bakhsh was that if the Provincial Government was within its rights in ordering the impugned inquiry, the fact that it acted because some persons in power were interested in Manzur Husain and Muhammad Bakhsh would not make any difference unless it could be shown that the order directing the second inquiry was mala fide and, on the other hand, if the second inquiry could not be ordered, the fact that the Provincial Government had acted bona fide would not make much difference. Leiah. the Sub‑Divisional Magistrate of which place was directed by the Provincial Government to hold an inquiry into the cause of the death of the person whose dead body had been found in Rakh Manikpur but who was alleged to have died in the custody of the police, is at a distance of more than a hundred miles from Alipur, and the Sub‑Divisional Magistrate, Leiah, is not the nearest Magistrate for the purposes of an inquiry into the cause of death of such a person, and when the Provincial Government ordered the Sub‑Divisional Magistrate of Leiah to hold the inquiry they were clearly over looking some relevant provisions of the Code of Criminal Procedure. But be that as it may, I am of the opinion that no provision of the Code of Criminal Procedure gives the Provincial Govern ment the power to order an inquiry into the cause of death of a person if an inquiry has already been held with regard to that matter by a Magistrate of competent jurisdiction. What I have said about the Provincial Government being in competent to order an inquiry by a Magistrate applies to all cases of such inquiries, be the case governed by section 174 or section 176 of the Code of Criminal Procedure. Section 176 of the Code of Criminal Procedure which has been reproduced in an earlier part empowers a Magistrate to hold an inquiry con templated by clauses (a), (b) and (c) of subsection (1) of section 174 of that Code in place of or in addition to an investigation held by a police officer, but does not empower him to hold an inquiry after one has been held by another Magistrate. It may appear strange to some persons that the Provincial Government, which, under the Code of Criminal Procedure, can confer powers on Magistrates, and in some cases take away the powers conferred on them, could not order one of them to hold an inquiry into the cause of death of a person if an inquiry already held by another Magistrate is deemed by it to be unsatisfactory, but the matter is governed by law which is binding on the Provincial Government also and it cannot pass orders which the law does not confer on it the power to pass. 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. Maung Chit Maung (A I R .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. An order passed as a result of a judicial proceeding can be interfered with only in the manner allowed by law and as nowhere in the Code of Criminal Procedure has the Provincial Government been given the power to set at naught the finding of a Magistrate of competent jurisdiction even if that finding be arrived at on an inquest, I hold that the impugned order of the Provincial Government was entirely without jurisdiction. Having held that the order of the Provincial Government for a fresh inquiry into the cause of death of the person whose dead body was found lying in Rakh Manikpur was entirely without jurisdiction, I proceed to consider whether or not the petitioner should get costs of his present petition from the Provincial Government or the Sub‑Divisional Magistrate, Leiah. The learned counsel for the respondents urged that because the inquiry had been stopped by respondent No. 2 on the 2nd of January 1957 while the order of this Court staying the inquiry was passed on the 8th of January, the petitioner was not entitled to costs. It is established that the Sub‑Divisional Magistrate, Leiah, (respondent No. 2), did not take any proceedings because Manzur Husain and Muhammad Bakhsh stated before him on the 2nd of January 1957 that they wanted to withdraw their petition, but the fact that the proceedings were stopped on the 2nd January 1957 does not, in my opinion, affect the right of the petitioner to get his costs. At the time when the petitioner came to Lahore to seek redress against an action which was entirely unjustified in law, the petitioner could not have known that events will take the turn they did, and if feeling nervous at the trouble some prospect of having to participate in an inquiry which might, like the previous one, entail the examination of a large number of witnesses, he sought redress from this Court, he cannot be held to be unjustified and be deprived of the costs legitimately incurred by him in an attempt to save himself from undergoing unnecessary expense and trouble. Conse quently, I find no ground for depriving the petitioner of his costs. It is admitted in the written statement of the respon dents that the Provincial Government (respondent No. 1) had directed the second inquiry and it is obvious that the costs should be paid by the respondent directing the second inquiry, I would, therefore, order that the petitioner should have the costs of this petition from respondent No.

1. The petition having become infructuous is dismissed. B. Z. KAIKAUS, J.

I agree. A. H. Petition dismissed.