P L D 2002 Lahore 78 (PLP)

The petitioner seeks registration of a criminal case against respondents Nos.5 to 8 and others for the murder of the petitioner's brother Haq Nawaz (deceased).

2. Briefly stated, the facts giving rise to the present petition are that on 8‑10‑2000 at about 4‑00 p.m., the petitioner alongwith his brother Haq Nawaz (deceased) went to purchase some household articles from Qaim Bharwana Bazar. Arif Ali, ASI/respondent No.5, Zahoor Ahmed, A.S.I./respondent No.6, Ahmad Nawaz, Constable/respondent No.7 and Muhammad Sharif, Constable/respondent No.8 alongwith two unknown police Constables armed with tire‑arms, came in a police van at the Adda of Qaim Bharwana. Arif Ali, A.S.‑I. directed Haq Nawaz to accompany the police as he was a proclaimed offender in a narcotic case. He refused to accompany them saying that he had already been acquitted in the case, whereupon Arif Ali, A.S.‑I. gave slaps to him and threw him in the police van. He was taken to the police station. This part of the occurrence was witnessed by Mumtaz Hussain‑petitioner, Mushtaq son of Ghulam Muhammad and Shaukat Abbas son of Khadim Hussain. The petitioner alongwith the witnesses went to the police station and found that his brother was being badly beaten by the police. The two unknown Constables had held the deceased from his arms, while Ahmed Nawaz and Muhammad Sharif, Constables had held his legs. Arif Ali and Zahoor Ahmed, respondents Nos.5 and 6 were inflicting Chhitter blows on his buttocks. Haq Nawaz was assuring the police officials about his innocence‑but Arif Ali, A.S.‑I shouted that he had insulted the police at the Adda, therefore, he would be taught a lesson. As a result of the torture, Haq Nawaz became unconscious. The petitioner and the witnesses requested Arif Ali, A.S.‑I. not‑ to beat Haq Nawaz and release him from the unlawful custody but he refused to do so. Thereafter, the petitioner and the witnesses returned home and again went to the police station in the evening alongwith Qasim, Muhammad Nawaz, Jahangir and other respectables of the locality. When they reached the police station, they heard shrieks of Haq Nawaz. Later they saw that Arif Ali, A.S. ‑I with the help of Ahmed Nawaz and Sharif, respondents Nos. 7 and 8, was torturing him with the roller, while Zahoor A.S.‑I/respondent No.6 was giving him blows with an iron‑bar. The petitioner brought the matter to the notice of the S.H.O. but he refused to help him and ordered him as well as his companions to go out of the police station. During the night time, the petitioner and the witnesses again contacted Arif Ali, A.S.I., who demanded Rs.20,000 for release of Haq Nawaz. The petitioner refused to pay the said amount and carne back to his house. On 9‑10‑2000, the petitioner alongwith the above‑referred witnesses again went to the police station but did not find Haq Nawaz in the police lock‑up. Within the sight of the petitioner and the witnesses, Haq Nawaz was brought by two Constables while carrying him on their shoulders, boarded a police van and rushed towards the hospital. The petitioner and the witnesses also followed them and reached the hospital. On examining Haq Nawaz, the doctor informed the police that he had died due to the injuries received by him. The petitioner and the witnesses told the doctor about the police torture upon which he referred the matter to a Board for postmortem examination. A copy of the postmortem report has been attached with this petition as Annexure B. The inquest report prepared by Arif Ali, A.S.‑I., is attached as Annexure C. The post‑mortem report shows that the deceased had received six injuries on different parts of his body.

3. I have heard the learned counsel for the petitioner, the learned Additional Advocate‑General and learned counsel for respondent No.5. It was urged on behalf of the respondents that an enquiry was conducted by the Magistrate into the cause of death of Haq Nawaz; that the Magistrate recorded evidence and arrived at the following conclusions: "(i) Haq Nawaz was arrested on 8‑10‑2000 and remained in police custody for about 12 hours. (ii) The evidence on record did not mention any police torture or manhandling of Haq Nawaz. (iii) Out of total six injuries; injury No.6, is a bruise while No.2 to No. 5 are burns of. a period of 24 hours and injury No. l is one week old septic abscess, hence there is no mark of violence found which could be declared of under 12 hours (time of police custody). (iv) Injury No.1 is declared as cause of death which is a septic abscess more than one week old hence this injury cannot be considered as a result of police violence." Relying on the report of the Bacteriologist, the learned Magistrate came to the conclusion that the cause of death of Haq Nawaz was septicemia due to a septic abscess on his legs. It appears that the complainant party did not take part in the enquiry proceedings. The Magistrate recorded statements of some other persons who generally stated that Haq Nawaz was a chronic patient of a septic abscess on his legs and that his death had taken place in the normal course. The oral evidence appears to have been procured by the police to suit its own ends. The petitioner had been trying hard to have a case registered against respondents Nos.5 to 8 but of no avail. First of all, he submitted a written application to the S.H.O., Police Station Shorkot City and thereafter to the S.S.P. Jhang and D.I.‑G., Faisalabad Range, Faisalabad. The police officials did not take any action to redress the petitioner's grievance. This conduct betrays that even the higher police officials were trying to protect respondents Nos. 5 to 8.

4. The mere fact that in the enquiry conducted by the Magistrate, the cause of death was held to be septicemia, does not bar registration of the criminal case under section 154 of the Cr.P.C. Sections 174 and 176 of the Cr.P.C. are limited to ascertainment of the cause of death without recording a finding regarding guilt or innocence of an accused. That function is separately assigned to the police under the provisions of Part 5, Chapter XIV of the Cr.P.C. Under section 174 of the Cr.P.C., the police officer incharge of a police station or some other police officers specially empowered by the Provincial Government in that behalf, can hold an investigation on receiving an information that a person, (a) has committed suicide, or (b) has been killed by another, or by an animal, or by machinery, or by an accident, or (c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence ...." On the other hand, under section 176 of the Cr.P.C. a Magistrate can hold an enquiry into the cause of death of a person if it has taken place, while the deceased was in police custody. This enquiry can be either instead of or in addition to the investigation held by a police officer under section 174 of the Cr.P.C. While interpreting the provisions of sections 174 and 176 of the Cr.P.C. a Division Bench of this Court held in the case of Khuda Bakhsh v. Province of West Pakistan PLD 1957 Lahore 662: "Section 176 of the Code of Criminal Procedure which has been reproduced in an earlier part empowers a Magistrate to hold an inquiry contemplated 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, ... ... .. .." So, the investigation referred to in section 176 of the Cr.P.C. is the one held by a police officer under section 174 of the Cr.P.C. So far as the registration of a criminal case is concerned, it is the independent right of an aggrieved person, who can report the matter to the incharge of the concerned police station, who is bound under the provisions of section 154 of the Cr.P.C. to record his report and conduct investigation in accordance with law. The opinion qua the cause of death recorded by the Magistrate during the course of an enquiry is not binding on a police officer holding investigation under Chapter XIV of the Cr.P.C. or a Court of law holding trial of an accused. The enquiry report may be relied upon by the prosecution or the defence and may be given due weight if the conclusions arrived at by the Magistrate, are consistent with the evidence brought on the record. Otherwise, a police officer or a Court of law can legitimately arrive at a contrary finding in the light of the evidence brought on the record. In the case of Shera v. The State and 3 others 1972 PCr.LJ 626 it was held: "While holding an inquiry under section 176 of the Cr.P.C. the Magistrate cannot give a finding as to the guilt or innocence of any person because that will' amount to prejudicing the case and prejudging their trial, in case one is held ultimately." In the case of Mst. Ghulam Zuhran v. Superintendent of Police, Rahimyar Khan and others 1989 PCr.LJ 1826, registration of a criminal case was ordered by this Court although the result of the enquiry held by the Magistrate under section 176 of the Cr.P.C. was in favour of the accused police officials. The relevant part of the judgment is reproduced below for ready reference: "No doubt, the doctor conducting post‑mortem examination had opined that Sultan Mehmood had died due to Pneumonia and the Medical Board was of the view that he might have died due to heat stroke but the fact remains that after arresting him from the Court premises, Muhammad Yousaf, S.H.O. and others had subjected Sultan Mahmood to torture and had also been demanding bribe from him. The S.H.O. Police Station Sadar, is, therefore, directed to register a case against Muhammad Yousaf and others under section 330, P.P.C. on the basis of complaint marked 'A' of Mst. Ghulam Zohran." Apart from registration of a criminal case, it is also open to an aggrieved person to file a private complaint. Exoneration of an accused in an enquiry under section 176 of the Cr.P.C. does not constitute a bar even to a private complaint which is another mode of bringing the culprits for trial before a Court of competent jurisdiction. In the case of Mst. Rabia v. Mr. J. Samual, A.S.I. and ten other Police officials 1986 MLD 1196, it was held that the conclusions arrive at an. enquiry under section 176, Cr.P.C. should not restrain a competent Court from proceeding with the complaint and arriving at its own conclusions in the light of the evidence brought on the record.

5. In the present case, the deceased had received as many as six injuries on different parts of his body, which are fairly indicative of torture during the police custody. The complainant and his witnesses had heard the shrieks of the deceased and also seen the police officials subjecting him to torture. Even if it is presumed that the deceased had a septic abscess on his left buttock, the possibility that it had burst directly due to physical beating by the police, cannot be ruled out. The complainant and the eye‑witnesses had seen the police giving Chhitter blows on the buttocks of the deceased. The Enquiry Magistrate has wrongly mentioned in his report that injury No. l was found on the leg of the deceased. Moreover, cause of death is essentially relevant qua the offence under section 302 of the P.P.C. but it has no bearing qua other offences of illegal arrest and confinement of the deceased and the injuries caused to him during police custody. Keeping in view all the facts and circumstances of the case, a criminal case ought to h4 re been registered by the police under the relevant provisions of the Penal Code including sections 302 and 342 of the P.P.C.

6. For the foregoing discussion, this petition is accepted and the S.S.P. Jhang is directed to have a criminal case registered against respondents Nos.5 to 8 on the basis of the petitioner's report/application attached with this petition as Annexure 'F' and entrust the investigation of the case to a higher police officer not below the rank of a D.S.P. Q.M.H./M.A.K./M‑872/L Petition allowed.