2021LHC2939

JUDGMENT SHEET
IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI.
JUDICIAL DEPARTMENT
Writ Petition No. 1984 of 2021

(Mst. Shahida Chaudhary Versus Regional Police Officer & 6 others)
Date of Hearing 02.07.2021

Petitioner by Malik Waheed Anjum Advocate
Respondents by Mr. Mujeeb Ur Rehman Kiani Additional
Advocate General for Respondents No. 1, 3 to 7
In Person Tasawwur Iqbal SP, Ejaz Hussain DSP, Ahsan
Kiani SI/SHO, Abid Munir SI/SHO, Hassan
Askari SI and Habib SI/SHO
SOHAIL NASIR J: This writ petition under Article 199 of the

Constitution of The Islamic Republic of Pakistan, 1973 filed by Mst.
Shahida Chaudhary (petitioner) is directed against an order dated 29th
May, 2021 passed by learned Additional Sessions Judge/Ex-Officio
Justice of Peace, Rawalpindi on the basis of which her application under
Sections 22-A/22-B of the Code of Criminal Procedure, 1898 (Cr.P.C)
was dismissed.
2. Facts of the case are that before approaching learned Ex-officio
Justice of peace, petitioner submitted an application to Regional Police
Officer Rawalpindi/respondent No.1 (RPO), where she maintained that on
12.03.2021 Aizaz/SHO Cantt, Asif/SHO R.A Bazaar, Ahsan/SHO Civil
Lines and other senior Police Officers had forcibly taken with them her
brothers Shahid and Nasir; they were tortured in Police Station Civil
Lines and later on a fake police encounter was shown by alleging that
Shahid Amjad (her brother) and Zahid Mehmood (her husband) had
committed the murder of Mian Imran Abbas Inspector despite the fact that
there was no evidence with them in this regard; in FIR for the murder of
Mian Imran Abbas no one was nominated; on the same day at about 04:30
pm, earlier stated Police Officers along with 40/50 other police employees
forcibly entered in her house situated at Haji Jan Street; her husband
Chaudhary Zahid Mehmood was not present in the house whereas she
2
along with her daughter and son Obaid was there; police officers/officials
caused mischief by damaging the household articles; they removed
Rs.2500000/- (twenty five lacs) and jewellery 60-Tolas; they also
damaged a new car parked in the porch; they abused and tortured her;
they extended threats that if Ch. Zahid Mehmood was not produced, her
children will be murdered; because of act of Police Officers/officials there
was element of terror, so she along with her children went to the house of
Shahid Amjad in Harley Street; on 22.03.2021 at about 03:00 pm,
Aizaz/SHO Cantt, Asif/SHO R.A Bazaar, Ahsan/SHO Civil Lines and
SHO Race Course along with other police officers entered in her house
and had taken with them forcibly her son Obaid who was confined
initially in police station Cantt and then in police station Civil Lines;
Obaid was committed to physical torture; later on Ch. Zahid Mehmood
(her husband) was also arrested and taken to police station Westridge
where her son Obaid was already confined; in the police station Ahsan
Younis/CPO and Faisal/SSP Investigation were also present; firstly
torture was made on Ch. Zahid Mehmood and then on the asking of CPO
he was shot dead by Aizaz SHO; dead body was taken to Mera Kalan and
no one was allowed to participate in the funeral; she repeatedly went to
police stations to inquire about her son Obaid but of no consequence; she
was threatened every time to remain silent otherwise her son will be
killed; on 29.03.2021 she filed a writ petition in the Lahore High Court,
Rawalpindi Bench, Rawalpindi where on 30.03.2021 Ahsan SHO Police
Station Civil Lines appeared and provided a copy of FIR showing that
there was a case under Section 216 PPC against Obaid; the High Court
directed SHO not to cause harassment to her or her family members.
Ultimate version of petitioner was that legal action be taken against all the
police officers.
3. According to the petitioner, as RPO forwarded the application to
CPO who was one of the culprits, so she filed the application under
Sections 22-A/22-B Cr.P.C, seeking direction for registration of criminal
case against all the police officers. The learned Ex-Officio Justice of
3
Peace observed that the petitioner has introduced a so-called story

therefore, her application was dismissed.
4. In report and para wise comments filed by RPO the facts stated are
as under: -
i. On 07.03.2021, at about 05:00 pm, Inspector
Mian Imran Abbas, SHO PS Race Course was
assassinated by two motor cyclists/target killers.
FIR No. 299 on the same day under Section 302
PPC read with Section 7 ATA was registered at
Police Station Civil Lines Rawalpindi. Zahid
Mehmood husband and Shahid Amjad brother of
petitioner was nominated in that case with the
help of sketches, human intelligence and
sources.
ii. On 12.03.2021, at about 05:10 am four persons
on two motorbikes arrived from Tulsa Road
towards Sher Zaman colony where Police party
was on duty. When the motorbikes were stopped,
all four persons started firing with their pistols
and police also responded in the same way in
exercise of their right of self defense by taking
shelter. Two assailants were succeeded to
escape. A person however was found in injured
condition having pistol in his hand and he was
Shahid Amjad (brother of petitioner) who had
died later on. Nasir the other assailant was
apprehended when found hidden in the road side
bushes. Aizaz Azeem SHO PS Cantt and eye
witnesses Mohsin Hayat SI and Zeeshan Sarwar
ASI had identified Shahid Amjad being involved
in the murder Inspector Mian Imran Abbas.
Nasir disclosed that one of the culprits escaped
was Zahid Mehmood (husband of petitioner)
whereas the other was unknown.
iii. On 14.03.2021, a raid was conducted at the
house of Zahid Mehmood who was succeeded to
escape and in this regard FIR No. 140 dated
14.03.2021 under Section 216 PPC was
recorded as PS R.A Bazaar against Shams
Farooq the brother of Zahid Mehmood.
iv. On 14.03.2021, a raid was conducted at the
house of Shams Farooq brother of Zahid
Mehmood who was also involved in a murder
case vide FIR No. 389 of PS Chauntra however,
he was succeeded to escape and in this regard
FIR No. 348 under Section 216 PPC was
recorded at PS Airport, Rawalpindi.
v. On 23.03.2021, upon receipt of source report
about Zahid Mehmood (husband of petitioner)
and his two brothers coming from Islamabad on
motorbikes, a raiding party was constituted who
4
arrived at School Road Allabad. Four persons

on two motorbikes without number plates came
there and when they saw the police party, they
started indiscriminate firing from different sides.
Police also reacted in self defense. Due to firing
of assailants, their companion Zahid Mehmood
(husband of petitioner) lost his life and
remaining were succeeded to escape. FIR No.
208 on 23.03.2021 under Sections 353/186/
324/427/302/34 PPC at PS Westridge was
registered. The witnesses identified Zahid
Mehmood one of the criminals who had gunned
down Inspector Imran Abbas.
vi. On 09.05.2021, Shams Farooq brother of Zahid
Mehmood (late) was also arrested in case FIR
No. 389/20 and he was sent to jail.
5. Ultimate version of RPO was that the petitioner has narrated a false
story by diverting the actual facts to pressurize the District Police. He also
provided list of nine criminal cases against Zahid Mehmood, ten cases
against Shahid (brother of Zahid), sixteen cases against Shams Farooq
(brother of Zahid) and one case against Nasir (brother of Zahid).
6. It is important to mention here that on 22.06.2021 the learned AAG
informed this Court that on the request of CPO Rawalpindi, the learned
Sessions Judge Rawalpindi has directed a Magistrate to hold the judicial
inquiry. As evident from order dated 25.06.2021, both sides were having
consensus that there is no provision under Cr.P.C or any other law
authorizing the learned Sessions Judge to order for a judicial inquiry on
the request of CPO because only the Government is competent to pass
such orders under the provisions of the Punjab Tribunals of Inquiry
Ordinance, 1969 (Ordinance). They were also on the same page that CPO
or RPO does not fall within the definition of Government in view of law
laid down in Mustafa IMPEX case1.
7. A report was also called from the learned Sessions Judge
Rawalpindi so as to know his view that which provision(s) of law has
assigned him the jurisdiction to order for judicial inquiry. He has made
reliance on Sections 174 (c) and 176 of Cr.P.C read with para 16.38 of the
Police Rules, 1934.
1
Mustafa IMPEX Karachi & Others VS. The Govt. of Pakistan through Secretary Finance, Islamabad
& Others PLD 2016 SC 808.
5
8. Learned counsel for petitioner argued that from the contents of

application cognizable offences are made out therefore, SHO is under
obligation to record the FIR forthwith; the learned Ex-Officio Justice of
Peace did not apply his judicial mind to the facts and circumstances of the
case; petitioner and her family members are the victims of high
handedness by the hands of police officers therefore, she has knocked the
doors of the Courts.
9. On the other hand, learned Additional Advocate General
maintained that with regard to allegations of fake police encounters, the
FIRs have already been recorded therefore, no second FIR can be
registered; similarly, the allegations which petitioner has leveled against
police officers that they had removed cash and jewellery etc. from her
house have been proved to be false because earlier when she filed a writ
petition, she did not disclose these facts even by imaginations. He finally
argued that petitioner is causing harassment to police officers to restrain
them from performance of their official obligations in particular from the
investigation of the murder of Mian Imran Abbas/Inspector.
10 HEARD.
11. There are two sets of allegations leveled by the petitioner in her
application under Sections 22-A/22-B Cr.P.C. Firstly, the encounters
were fake resulting into the death of Zahid Mehmood and Shahid Amjad.
Secondly, the police officers entered in her house, removed cash of Rs.
2500000/- (twenty five lacs) and 60-Tolas jewellery and they had also
taken with them Obaid her son. For both sets of allegations petitioner has
desired issuance of direction for registration of FIR.
12. Admittedly with regard to encounter of Shahid Amjad (brother of
the petitioner) FIR No. 316 on 12.03.2021 under Sections 324/353/186/
427/302/34 PPC read with Section 13 of the Punjab Arms (Amendment)
Ordinance, 2015 was recorded at Police Station Civil Lines, Rawalpindi.
Similarly, about the encounter in which there was the casualty of Zahid
Mehmood (husband of petitioner), FIR No. 208 on 23.03.2021 under
Sections 302/324/353/186/427/34 PPC read with Section 13 of the Punjab
Arms (Amendment) Ordinance, 2015 was recorded at PS Westridge,
6
Rawalpindi. Petitioner claims that both the encounters were fake. A

fundamental question before this Court needs consideration is that
whether a direction can be issued for registration of FIR when already the
FIRs are in existence about the both occurrence. In “Mst. Sughran Bibi
case2 on this proposition the honorable Supreme Court of Pakistan was
pleased to settle the principles as under: -
i. According to section 154, Cr.P.C an FIR is only
the first information to the local police about
commission of a cognizable offence. For
instance an information received from any
source that a murder has been committed in
such and such village is to be a valid and
sufficient basis for registration of an FIR in that
regard.
ii. If the information received by the local police
about commission of a cognizable offence also
contains a version as to how the relevant offence
was committed, by whom it was committed and
in which background it was committed then that
version of the incident is only the version of the
informant and nothing more and such version is
not to be unreservedly accepted by the
investigating officer as the truth or the whole
truth.
iii. Upon registration of an FIR a criminal "case"
comes into existence and that case is to be
assigned a number and such case carries the
same number till the final decision of the matter.
iv. During the investigation conducted after
registration of an FIR the investigating officer
may record any number of versions of the same
incident brought to his notice by different
persons which versions are to be recorded by
him under Section 161, Cr.P.C in the same case.
No separate FIR is to be recorded for any new
version of the same incident brought to the
notice of the investigating officer during the
investigation of the case.
v. During the investigation the investigating officer
is obliged to investigate the matter from all
possible angles while keeping in view all the
versions of the incident brought to his notice
and, as required by Rule 25.2(3) of the Police
Rules, 1934 "It is the duty of an investigating
officer to find out the truth of the matter under
investigation. His object shall be to discover the
actual facts of the case and to arrest the real
offender or offenders. He shall not commit
2
Mst. Sughran Bibi vs. The State PLD 2018 SC 595
7
himself prematurely to any view of the facts for

or against any person."
vi. Upon conclusion of the investigation the report
to be submitted under section 173, Cr.P.C is to
be based upon the actual facts discovered during
the investigation irrespective of the version of
the incident advanced by the first informant or
any other version brought to the notice of the
investigating officer by any other person.
13. When confronted with the above legal proposition that how second
FIR can be recorded, learned counsel for petitioner frankly concedes that
no such direction can be issued and he finally maintained that the version
of petitioner be recorded in Roznamcha of the Police Station and be
probed during the investigation of FIRs already registered.
14. Coming to second part of allegations, it is found that petitioner
before she approached RPO had filed writ petition (1098 of 2021) before
this Court on 29.03.2021. It was decided on 30.03.2021 while issuing a
direction to RPO to ensure security of the life of petitioner and her family
in accordance with law. I have gone through the contents of that writ
petition which is completely silent about the said allegations. If all
happened on 12.03.2021 or before 29.03.2021, there was no question at
all for petitioner to miss these serious allegations. This was the reason that
the learned Ex-Officio Justice of Peace dismissed the application under
Sections 22-A/22-B Cr.P.C. Learned counsel for petitioner in this context
has been observed helpless having no good answer.
15. 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.
16. In view of above, to the extent of second phase of allegations the
story narrated by petitioner does not appear to be true, so she is not
entitled for any relief and the application under Sections 22-A/22-B
8
Cr.P.C has been rightly dismissed. However, with regard to the

allegations of fake encounters, petitioner has a legitimate right to raise a
voice and it must be investigated. Therefore, it is directed that version of
petitioner shall be recorded in the Roznamcha of police station concerned
forthwith which shall form part of the investigation of FIRs already
registered and same shall be investigated strictly on merits.
17. The second legal proposition emerged during the hearing of this
writ petition is about the 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. For effective discussion these
provisions are reproduced as under: -
“174. Police to inquire to report in suicide, etc.:
(1) The officer incharge of a police station or some
other police officer specially empowered by the
Provincial Government in that behalf, on receiving
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,
shall immediately give intimation thereof to the
nearest Magistrate empowered to hold inquests and
unless otherwise directed by any rule prescribed by
the Provincial Government, shall 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 neighbourhood, shall
make an investigation, and draw up a report of the
apparent cause of death, describing such wounds,
fractures, bruises and other marks of injury as may
be found on the body and stating in what manner, or
by what weapons or instrument (if any), such marks
appear to have been inflicted.
(2) The report shall be signed by such police officer
and other persons, or by so many of them as concur
therein, and shall be forthwith forwarded to the
concerned Magistrate.
9
(3) When there is any doubt regarding the cause of

death or when for any other reason the police
officer considers it expedient so to do, the shall,
subject to such rules as the Provincial Government
may prescribe in this behalf, forward the body, with
a view to its being examined, to the nearest Civil
Surgeon, or other qualified medical man appointed
in this behalf by the Provincial Government, if the
state of the weather and the distance admits of its
being so forwarded without risk of such putrefaction
on the road as would render such examination
useless.
(4) Omitted
(5) The Magistrates of the First Class are
empowered to hold inquests.
176. Inquiry by Magistrate into cause of death: (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 sub section
(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 hereinafter prescribed according to the
circumstances of the case.
(2) Power to disinter corpses: 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.”
18. Relevant portions of Chapter XXV of the Police Rules, 1934 about
inquest are also as under: -
25.31 (1) An officer in charge of police station
shall, upon in receipt of information of the sudden
or unnatural death of any person, when the body of
such person is within the local jurisdiction of his
police station, immediately send information to the
nearest magistrate authorized to hold inquests and
shall proceed to the place where the body is and
hold an investigation in the manner prescribed by
section 174, Code of Criminal Procedure. When the
Sub Inspector in charge of the Police Station
through illness or absence from the station house, is
himself unable to carry out the investigation, he
shall at the first convenient opportunity proceed to
10
the place where the body of the deceased person

was found, and shall personally verify the results of
the investigation.
(2) In cases where the body is not found, or has
been buried, there can be no investigation under
section 174, Code of Criminal Procedure.
In such cases, if there are reasonable grounds for
suspicion that a cognizable offence has been
committed, the police shall register a case and
commences investigation: -
Provided that the following cases shall be
exceptions to this rule: -
(a) …..
(b) …..
(c) …..
(d) …..
25.35. The Inquest Report. (1) When the
investigation has been completed the investigating
officer shall draw up a report, in duplicate by the
carbon copying process, in Form 25-35(1) A, B, or
C, according as the deceased appears to have died:-
A. From natural causes.
B. By violence.
C. By poisoning.
(2) Such report shall state the apparent cause of
death, give a description of any mark or marks of
violence which may be found on the body and
describe the manner in which and the weapon or
instrument with which such marks appear to have
been inflicted.
(3) …..
(4)…..
(5) …..
(6) …..
(7) …..
19. 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.
11
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.
20. 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).
21. Commenting on the next question that 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”
22. 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.
12
23. Moving towards the most significant area the question is that 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.
24. The word “inquest” however has not been defined under the
Cr.P.C. In Khuda Bakhsh’s case3 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”
25. 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”
26. 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
3
Khuda Bakhsh vs. Province of Punjab & another PLD 1957 W.P (Lahore) 662
4
https://legal-dictionary.thefreedictionary.com/inquest
13
proceed for facts finding. In case of Shera5 there was an argument on

behalf of certain respondents that once a Magistrate proceeds to make an
inquiry under Section 176, Cr.P.C, he can give a complete finding
including one on the question as to who was responsible for causing the
death by relying on the wording occurring in section 176, Cr.P.C “he
shall have all the powers in conducting it which he would have in holding
an inquiry into an offence.” It was also contended there that the scope of
inquiry made by a Magistrate under section 176, Cr.P.C is the same as the
one made under Chapter XVIII Cr.P.C under which he can give a finding
as to the prima facie guilt of the accused person. This Court did not agree
with the said arguments by holding that: -
“Portion of Section 176, Cr.P.C reproduced above
only gives the Magistrate the same procedural
powers as given to the Magistrates making
preliminary inquiries under Chapter XVIII and does
not mean that the scope of inquiry under Section
159, Cr.P.C is the same as in preliminary inquiries
under Chapter XVIII and the Magistrates can also
give a finding as to the guilt or innocence of any
person, because that will amount to prejudging the
case and holding a person (or persons) concerned
to be guilty even before they are tried for the
offence in question. This shall also have the affect of
prejudicing their trial, in case one is held
ultimately”
27. This Court also in Khizar Hayats’ case6 on the question of

limitation for a Magistrate holding an inquest/inquiry observed that: -
“Reference to Sections 174 and 176 from the Code
of Criminal Procedure would show that the purpose
of an inquest is only to find out the cause of death
of a person and not the person who have caused it
as was held in Chaman Lal v. The Emperor AIR
1940 Lahore 210” (Emphasized)
28. This proposition was again discussed in Mumtaz Hussain’s case7

that was relating to custodial killing and it was ruled that: -
“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
5
Shera Vs The State & 3 Others 1972 PCRLJ 626
6
Khizar Hayat & others vs. District Magistrate & others PLD 1995 Lahore 433
7
Mumtaz Hussain vs. Deputy Commissioner Faisalabad & 7 others PLD 2002 Lahore 78
14
of an accused. That function is separately assigned

to the police under the provisions of Part 5, Chapter
XIV of the Cr.P.C. (Emphasized)
29. The High Court of Balochistan8 on the same question had

observed as under: -
“A plain reading of the aforesaid Section would
show that it relates the to the death of a person,
while in custody of the police, whereas in the
instant case, deceased Abdul Qayyum was not in
the custody of police at the time of his death. It
also clearly demonstrates that the investigation
and inquiry under Sections 174 and 176 of the
Cr.P.C are related to discovery of real cause of
death and not to identify or locate the
perpetrators”(Emphasized).
30. In Muhammad Yasin case9 taking into account the same legal
proposition it was declared that: -
“Therefore, on the face of it there existed no
justifiable reason to have recourse to disinterment
of the dead body by invoking the process provided
in section 176, Cr.P.C, because otherwise
assessment or determination of facts that as to why
and in what manner the incident took place is
clearly a circumstance beyond the mandate of
Section 176, Cr.P.C”
31. 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.
8
Haji Abdul Hameed vs. Raz Muhammad & another PLD 2014 Bal 50
9
Muhammad Yaseen vs. Additional Sessions Judge & 3 others 2019 PCRLJ 219
15
32. In England and Wales10, inquests are the responsibility of

a Coroner11, who operates under the jurisdiction of the Coroners and
Justice Act, 200912 Even in that jurisdiction the purpose of inquest is to
answer only four questions (1) identity of the deceased (2) place of death
(3) time of death and (4) how the deceased came by their death.
Evidence must be solely for the purpose of answering these questions and
no other evidence is admitted. It is not for the inquest to ascertain "how
the deceased died" or "in what broad circumstances", but "how the
deceased came by his death", a more limited question. Moreover, it is not
the purpose of the inquest to determine or appear to
determine, criminal or civil liability, to apportion guilt or attribute blame.
33. The objective of the inquest proceedings in India13 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 proceedings14.
34. The position in case in hand is entirely different because CPO
Rawalpindi never made a request to determine the cause of death of Zahid
Mehmood. What he prayed, that can be ascertained on perusal of his letter
reference No. 1019-RL dated 05.04.2021 received to the learned Sessions
Judge, Rawalpindi on 25.05.2021: -
“It is submitted that as per report of SP/Potohar
Division, Rawalpindi on 22.03.2021 I/SHO P.S
Morgah along with police contingent was on
night patrolling and present at COD Chowk,
meanwhile he received an information that
Zahid Mehmood, main accused of case FIR No.
299, dated 07.3.2021 u/s 302/34 PPC, 7 ATA
P.S Civil Lines with his two brothers namely
Shahid & Mohsin are coming from Islamabad
on two motorcycles towards Darbar Shah
10
https://en.wikipedia.org/wiki/Inquests_in_England_and_Wales#Scope_of_inquest
11
An official who holds inquests into violent, sudden, or suspicious deaths
12
An Act of the Parliament of the United Kingdom that changed the law on coroners and criminal
justice in England and Wales
13
https://amity.edu/UserFiles/aibs/c7a42018_Amity_International_Journal_of_Juridical_Scie_007.pdf
14
Radha Mohan Singh alias Lal Saheb vs. State of U.P (2006) 2 SCC 450
16
Piyara via School Road. Upon that information,

he along with police contingent reached at P.S
Westridge and constituted a raiding party with
S.I/SHO P.S Westridge. At about 11:50 pm they
reached at School Road Illah Abad opposite
Mirza Mehmood Land etc, the raiding party was
divided into two groups and erected Naka
Bandi. Meanwhile, 04 persons on two Honda
125 motorcycles without number plates came
from Kacha Stop side. On seeing the police
party, they stopped their motorcycles and
started indiscriminate firing upon police party,
from different sides with their pistols. The
Police party also made firing in their self
defence. Some bullets shots were hit on the
official vehicle of P.S Westridge. Due to their
firing one of their companion sustained bullet
injuries and felt down, while others succeeded
to flee away from the spot by taking benefit of
darkness. The firing was stopped and search
was made in the area and a dead body who later
on identified as Zahid Mehmood son of
Muhammad Nazir having pistol 9MM found
there. On his personal search pistol 9MM
having 03 bullets was recovered. The police
party has taken into possession the weapon of
accused through recovery memo. Hence the
subject case was registered. (Copy of FIR is
enclosed for kind perusal).
As, Zahid Mehmood died at the spot due to
firing of his companion during Naka Bandi,
therefore, the judicial inquiry into the incident
is required to be got conducted.
It is therefore, requested that kindly depute a
judicial officer for holding a judicial inquiry
on the subject matter to probe into the facts of
the occurrence please”. (Emphasized)
35. 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
17
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.
36. 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.
37. 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.
38. In view of above, the request made by CPO to the learned Sessions
Judge, Rawalpindi through letter dated 05.04.2021 for probing into the
facts of the occurrence, entertaining said application by the learned
Sessions Judge Rawalpindi and its entrustment to the Magistrate are
18
declared as illegal and without lawful authority with following directions

that in future: -
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.
39. Office is directed to circulate copies of this judgment to all the

judicial officers across the Province of Punjab (including the Judges
posted on Ex-Cadre) for their information and strict compliance in future.
(Sohail Nasir)
Judge
Approved for Reporting
Judge
Sharif*

2021LHC2939

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JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

Writ Petition No. 1984 of 2021

Date of Hearing 02.07.2021

SOHAIL NASIR J: This writ petition under Article 199 of the

Peace observed that the petitioner has introduced a so-called story

arrived at School Road Allabad. Four persons

8. Learned counsel for petitioner argued that from the contents of

Rawalpindi. Petitioner claims that both the encounters were fake. A

himself prematurely to any view of the facts for

Cr.P.C has been rightly dismissed. However, with regard to the

(3) When there is any doubt regarding the cause of

the place where the body of the deceased person

vi. In both the eventualities there must be existence

20. Whether a Magistrate is competent to hold an inquest/inquiry, for

22. This takes me to the powers of Sessions Judge to entertain the

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

26. The purpose of an inquest/inquiry by a Magistrate is to gather the

proceed for facts finding. In case of Shera5 there was an argument on

27. This Court also in Khizar Hayats’ case6 on the question of

28. This proposition was again discussed in Mumtaz Hussain’s case7

of an accused. That function is separately assigned

29. The High Court of Balochistan8 on the same question had

31. Under Section 176 Cr.P.C, the power of inquiry available to a

32. In England and Wales10, inquests are the responsibility of

Piyara via School Road. Upon that information,

learned Sessions Judge Rawalpindi entertain it. Even if entrusted to the

declared as illegal and without lawful authority with following directions

39. Office is directed to circulate copies of this judgment to all the

Approved for Reporting

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