2000 PLP 1273 (MLD)

1986 MLD 1196 ref. Ch. Naseer Ahmad Sindhu and Parvez Inayat Malik, Advocates. The petitioners are functionaries of the Punjab Police and desire, through under‑consideration petition, to quash investigation being made in a case of custodial death. On consideration of factual and legal position of the case, I am of the view that the petition must fail.

2. The version of the police is that one Azam Butt, an accused having considerable criminal history, was arrested in criminal case. F.I.R. No. 136 of 1994 of Police Station Rangpura, Sialkot and after obtaining physical remand from Anti‑Terrorism Court, Gujranwala was being brought to Sialkot by a police posse consisting of 15 police functionaries in two vehicles when four persons astride two Honda mortor‑cycles came and got released handcuffed prisoner from the police on gun‑point and fled towards Sialkot. The police party went in pursuit and overtook them when they started firing at the police. The firing was returned as a result of which Azam Butt lost his life. His companions, however, succeeded in escaping from the spot. Criminal case vide F.I.R. No. 391 of 1997, dated 11‑10‑1997 was registered at Police Station, Saddar, Sialkot about the incident.

3. Mst. Rehana Kausar widow of Azam Butt moved an application before District Magistrate, Sialkot for registration of criminal casein respect of murder of Azam Butt. On the direction of the District Magistrate, Deputy Superintendent of Police, City started reinvestigation of the case. Aggrieved of that, the petitioners submitted the under‑consideration petition. It has been submitted on behalf of the petitioners that it was a case of genuine police encounter and this fact was endorsed in a judicial enquiry conducted by A.D.C. (G) and thereafter further investigation could not be made particularly after a passage of 2‑1/2 years of the occurrence. It was argued that the law envisaged only one investigation and re‑investigation of case amounted to abuse of process of law and was liable to be set at naught.

4. Azam Butt, admittedly, died an unnatural death on account of fire arm injuries received at the hands of police which claimed to have acted in self‑defence. Relatives of the deceased, however, cried foul from the outset and they claimed that the petitioners and a Deputy Superintendent of Police obtained about 2.5 million rupees from their enemies and murdered Azam Butt and police‑encounter was staged to cover‑up the murder. Now, these are serious allegations and merit due probe. Certain features of the case make it all the more imperative to do this. Azam Butt was in handcuffs and was in the custody of 15 police functionaries, 13 of whom were properly armed but certain culprits succeeded in taking away handcuffed and secured Azam Butt from right under the nose of a large police posse 5 culprits fled from the spot on two motor‑cycles but‑were not fired upon, were not chased right after the incident and in the alleged shooting only Azam Butt was injured while his companions and members of the police force did not receive even a scratch; no effort was ever made to trace or apprehend companions of Azam Butt, 'and, they again went away scot‑free and are untraceable even to. this day. The plea of the petitioners is that they acted in self‑defence. Where such a plea is raised in a criminal case, the defence (whether in civvies or uniformed) always has a case to answer. A criminal case cannot be put in a cold storage merely because the police claimed that it had acted in self‑defence, rather it merits thorough probe arid proper investigation. If the police encounter was genuine, the petitioners should have peaceful sleep and throw their worries to j the wind.

5. Scope . of an enquiry conducted by provisions of section 176, Cr.P.C. is always limited. It aims at ascertainment of the cause of a custodial death and this enquiry can be held instead of, or in addition, to an investigation. Investigation in a case or prosecution of an accused where an enquiry has been held by a Magistrate is not barred. Reference for this view might be made to 1986 MLD 1196. The enquiry under 176, Cr.P.C. does not envisage determination of guilt or innocence of an accused in the matter. The opinion of Enquiry Officer being relied upon by the petitioners is meaningless and would not advance their case in any manner. Investigation in the case is being carried out legitimately and has full support of the law and the precedent.

6. The petition is dismissed. N.H.Q./Z‑7/L