Mian Khan Vs The State and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 522-A/2022

JUDGMENT

Date of hearing.............03.09.2025.................................

Petitioners (Mian Khan) By Mr. Faisal Raheem, Advocate.

Respondents (The State and others) Respondents No.1, 3 & 4 By Mr. Wajahat Hussain Shah, Assistant Advocate General.

AURANGZEB, J.- Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 02.03.2022 passed by the learned Judicial Magistrate, Allai Battagram whereby the inquiry conducted under section 174 Cr.P.C was filed.

2.In essence, the petitioner lodged a report with the local police alleging that his sister had been killed by his sister-in-law, namely Taleh Zar. The said report was formally incorporated in the daily diary vide entry No.05 dated 20.08.2021. Pursuant thereto, the police initiated proceedings under Section 174, Cr.P.C., and conducted the requisite inquiry. Upon completion of the same, the report was submitted before the learned Judicial Magistrate concerned, who, after examining the matter, filed the same vide order

dated 02.03.2022. Being dissatisfied with the said order and considering that no further action was taken by the police authorities, the petitioner has approached this Court by way of the instant constitutional petition.

3.We have heard arguments of learned counsel for petitioner as well as learned Assistant Advocate General and gone through the record with their valuable assistance.

4.The matter presently under consideration essentially pertains to the interpretation and application of Section 174 of the Code of Criminal Procedure, 1898. Before entering into a discussion on the merits of the case and examining the judicial precedents cited at the bar, it is deemed appropriate to first ascertain the true object, intent, and scope of the said provision. The proper understanding of Section 174 Cr.P.C. is foundational, as it provides the statutory framework governing inquiries into the apparent cause of death and related circumstances. For the sake of clarity and convenience of reference, the text of Section 174 of the Code of Criminal Procedure, 1898 is reproduced herein below:-

“Section 174. Police to inquire on suicide, etc. The officer in charge 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 weapon 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.

(3)When there is any doubt regarding the cause of death, or when for any other person the police officer considers it expedient so to do, he 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 admit of its being so forwarded without risk.

(4)[Omitted by A.O 1949]

(5)[The Magistrate of the first class are empowered to hold inquests].”

5.The above-quoted provision of law empowers the officer-in-charge of a police station, or any other police officer specially authorized by the Provincial Government in that behalf, to conduct an inquiry into the apparent cause of death whenever information to such effect is received. The officer is further required to intimate the Magistrate empowered to hold

an inquest. The circumstances in which such inquiry is to be conducted are expressly enumerated in the statute, namely:

where a person has committed suicide; where a person has been killed by another; where death has occurred by an animal, machinery, or by accident; or where the circumstances of the death create a reasonable suspicion that an offence has been committed by some other person.

The underlying object of this section is to ensure a preliminary investigation into the cause of death of the deceased and to prepare an inquest report determining its apparent cause. For this purpose, the police officer is to record details such as the description of wounds, fractures, bruises, burns, or other marks of violence found on the body, and the probable manner in which any weapon or instrument was used in inflicting the same. The report must also specify the nature of the place where the dead body is found, the cause of death, the type of weapon, the number and location of injuries, and any other visible indications relevant to the cause of death. Importantly, such report is required to be prepared in the presence of at least two or more respectable inhabitants of the locality where the body is found, thereby lending authenticity and credibility to the proceedings. The report must be signed both by the police officer conducting the inquiry and by the witnesses present during the investigation. Upon completion, the report is to be duly forwarded to the concerned Magistrate having jurisdiction to

hold inquest, who may thereafter proceed further in accordance with law.

6.For the purposes of conducting an investigation under Section 174 of the Code of Criminal Procedure, 1898, the police officer concerned is vested with the power, under Section 175 of the Code, to summon any person through a written order. Such power extends to requiring the attendance of any individual who is acquainted with the facts and circumstances of the case. The persons so summoned are legally bound to answer all relevant questions put to them, except those which may tend to incriminate them in respect of any criminal offence. It is, however, provided that where the case does not disclose the commission of a cognizable offence to which Section 170 of the Code is applicable, the persons summoned are not required to appear before the Court. Section 170 Cr.P.C. deals with situations where, upon sufficient evidence being collected during the investigation, the accused is to be forwarded to the Magistrate empowered to take cognizance of the offence on a police report. In addition to the powers conferred upon the police under Section 174, the law further empowers the Magistrate, under Section 176 of the Code, to hold an independent inquiry into the cause of death. This inquiry by the Magistrate is supplemental to the investigation conducted by the police. The jurisdiction of the Magistrate extends to all cases where a person dies or disappears under suspicious

circumstances, or where there is reason to believe that an offence has been committed. For such purposes, the Magistrate is required to record evidence, and where necessary, may direct that a post-mortem examination of the dead body be conducted to ascertain the true cause of death.

Moreover, where the Magistrate considers it expedient for the ends of justice to examine the body of a person who has already been interred, the law authorizes the Magistrate to order the disinterment of the body and its subsequent medical examination. This power is of great significance as it ensures that the true cause of death may be determined, even after burial, whenever the circumstances so warrant.

7.In essence, the scope of Section 174 of the Code of Criminal Procedure, 1898 is narrow and circumscribed.

The provision primarily prescribes the procedure to be followed by a police officer upon receiving information of the unnatural or suspicious death of a person. Where an unidentified dead body is discovered, the police officer is duty-bound to immediately inform the Magistrate empowered to hold an inquest, and thereafter to conduct a preliminary inquiry into the apparent cause of death. Upon such inquiry, an inquest report is to be prepared, incorporating the observations and findings of the police officer, including the condition of the body, the nature and location of injuries, and any other relevant circumstances surrounding the death. The section further enumerates the requirements to be fulfilled by

the police officer while preparing the inquest report, which must clearly state the apparent cause of death. It is important to underscore that Section 174 Cr.P.C. does not provide for the tracing, identification, or apprehension of the accused;

rather, it is confined to ascertaining the prima facie cause of death through a limited fact-finding exercise. The obligation placed upon the police officer under this provision is, therefore, a special statutory duty that arises in cases of unnatural or suspicious deaths. Thus, the application of Section 174 Cr.P.C. is restricted to cases of unnatural deaths, or such other circumstances where the police officer, upon information received, considers it expedient to conduct an inquiry for the preparation of an inquest report, which is then submitted to the competent Magistrate for further proceedings in accordance with law.

8.Section 174 of the Code of Criminal Procedure, 1898, though limited in its scope, nevertheless empowers the police officer to conduct a preliminary investigation for the purpose of ascertaining the apparent cause of death, and to determine whether such death has occurred by accident, suicide, or as a result of the commission of a cognizable offence. However, it must be clearly appreciated that the inquiry under Section 174 Cr.P.C. is distinct in nature and character from an investigation initiated under Section 154 Cr.P.C. While proceedings under Section 154 are directed towards the registration of a cognizable offence with a view to

tracing and prosecuting the offender, the object of Section 174 is confined to conducting an inquest for the limited purpose of discovering the apparent cause and circumstances of death. For this reason, Section 174 casts a statutory duty upon the police officer to prepare an inquest report which must include, inter alia, the apparent cause of death, a description of the nature, location and extent of wounds, fractures, bruises or other injuries found on the body, as well as any indication of the weapon or instrument by which such injuries appear to have been inflicted. The report so prepared is not intended to establish culpability of any accused, but rather to furnish the Magistrate with material to understand the circumstances of the death before proceeding further in accordance with law.

9.The investigation under Section 174 of the Code must be conducted, and the inquest report prepared, in the presence of at least two or more respectable inhabitants of the locality where the dead body is discovered, so as to ensure transparency and credibility in the proceedings.

Furthermore, Section 175 Cr.P.C. confers power upon the police officer to summon any person or witness who may be acquainted with the facts and circumstances of the case, and such persons are bound to provide relevant information, except where such answers may tend to incriminate them.

Section 176 of the Code, however, goes a step further by empowering the Magistrate to hold an independent inquiry, in

addition to the investigation carried out by the police under Section 174. The jurisdiction of the Magistrate becomes particularly significant in cases where an offence is alleged to have been committed against a person while in police custody, or in any other custody authorized by the Magistrate, resulting in death. In such circumstances, the Magistrate is duty-bound to undertake a judicial inquiry into the cause of death, record evidence, and, where necessary, direct a post- mortem examination. Thus, it is manifest that Section 174 Cr.P.C., though limited in scope, embodies the fundamental objective of criminal law to ensure a fair, transparent, and credible investigation into cases of unnatural or suspicious deaths, thereby enabling the Magistrate to proceed further in accordance with law. The Lahore High Court in case titled Khizar Hayat and others versus District Magistrate and others (PLD 1995 Lahore 433) has held 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 Emperior AIR 1940 Lahore 210. The inquest hled by a Magistrate under section 176, Cr.P.C. is an “inquiry”. The word “inquiry” has been defined in section 4 (1)(k) of Criminal Procedure Code to include every inquiry other than a trial conducted under this Code by a Magistrate or Court.”

The Lahore High Court in case titled Mumtaz Hussain versus Deputy Inspector General, Faisalabad and 7 others (PLD 2002 Lahore 78) has held as under:-

“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."

The Lahore Court in another case titled Sajid Ali versus The State and 5 others (PLD 2022 Lahore 55) has held that:-

“A bare reading of subsection (1) of section 176 of the Code shows that it is in continuity of section 174 of the Code, whereby an information regarding one who:-- 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 is to be made to the nearest Magistrate who, within the meaning of section 176 of the Code, shall be required to hold an inquiry for no other purpose but to know the 'cause of death'. The intention of the legislature behind insertion of sections 174 and 176 in the Code is indeed to secure the right of all, interested in knowing the 'cause of death' of their loved one. Moreover, it is the legitimate right of every single person to know the 'cause of death' of his loved one because sorrow of a natural death is much lighter than the pain of

unnatural and sudden death. Taking notice of tragedy being faced by a person after the unnatural death of his/her loved one, the legislature has included proviso "c" in section 174 of the Code, whereby such inquiry can competently be conducted merely on existence of "reasonable suspicion". In this respect, I am fortified in my view by the judgment reported as Mansab Ali v. Asghar Ali Faheem Bhatti, Additional Sessions Judge, Nankana Sahib and 3 others (PLD 2007 Lahore 176) wherein it has been observed as under:-- "9. It may be noted that even on simple ground of suspicion, an application for disinterment can be moved, this is more so because a person should have a right to ascertain the real cause of death of his dear one...."

10.Perusal of the record reflects that subsequent to the lodging of the complaint by the petitioner, the local police initiated an inquiry under Section 174 Cr.P.C to ascertain the cause of death of Mst. Gul Adama, real sister of the petitioner. The inquiry proceedings culminated in a report which did not support the version alleged in the first information supplied by the petitioner. On the contrary, the police, during the inquiry, examined the real children of the deceased, namely, Mst. Bibi Taja (daughter) and Sarwar Muhammad (son), who had accompanied their mother to Basic Health Unit (BHU), Bateela, Allai. Both of them consistently stated that their mother had expired in the Hospital during the course of treatment in the presence of the attending doctor, and no act of violence or mischief was committed by any person. Their account, being natural and

direct as eyewitnesses to the circumstances of death, carries significant evidentiary value.

11.The police also associated Dr. Shahzad, the Medical Officer posted at BHU Bateela Allai, who categorically reported that the deceased was a known asthmatic patient. According to him, while first aid was being administered, the patient suddenly collapsed. He prepared a referral slip for shifting the patient to DHQ Hospital, Banna, but the referral was declined by the son of the deceased. The doctor’s medical report is in harmony with the statements of the daughter and son, thereby lending credence to the conclusion that the death was natural and not homicidal in nature. Thus, the medical evidence, being an independent and professional assessment, has corroborated the stance taken by the police as well as by the children of the deceased.

12.It is also significant to note that the petitioner, after lodging the complaint, moved an application seeking exhumation of the dead body. However, despite filing the said petition, he neither pursued the matter diligently nor cooperated with the investigating officer for proper inquiry.

More importantly, during the proceedings of the said petition before the learned Judicial Magistrate on 03.09.2021, and in the presence of his learned counsel, the petitioner voluntarily recorded his statement that he would withdraw his application if respondent No.2 namely Taleh Zar took an Oath before the

Court. In compliance, Taleh Zar (respondent No.2), in the open court, solemnly affirmed on Oath that he had no involvement whatsoever in the alleged occurrence. The Oath, being made in judicial proceedings and duly recorded by the learned Magistrate, carries sanctity in law. On this basis, the application of the petitioner stood dismissed by order of the learned Judicial Magistrate. The voluntary withdrawal of the petitioner from pursuing his own application further diminishes the credibility of his allegations.

13.Irrespective of the said exhumation proceedings, the material available on record, namely: (i) the consistent statements of the children of the deceased, who are the most natural witnesses and whose presence at the relevant time is undisputed; (ii) the medical report of Dr. Shahzad, who treated the deceased and certified her death as resulting from asthma and collapse during treatment; and (iii) the inquiry report of the police under Section 174,Cr.P.C, all converge to the same conclusion that the deceased had expired due to natural causes. The record, therefore, does not provide any tangible material to substantiate the allegation of homicide levelled by the petitioner. The convergence of medical, ocular, and investigative evidence leaves little room for doubt and lends assurance to the correctness of the inquiry report submitted by the investigating officer.

14.As far as the impugned order passed by the learned Judicial Magistrate is concerned, it appears to have

been passed strictly in accordance with the law. The learned counsel for the petitioner has not been able to point out any legal infirmity, jurisdictional error, or procedural irregularity committed by the learned Judicial Magistrate while issuing the said order. In the absence of any such flaw, there is no justification for interference with the impugned order.

15.For the reasons mentioned above, the instant petition being bereft of merit and substance is hereby dismissed.

Announced.

JUDGE

JUDGE

Hon’ble Mr. Justice Sadiq Ali Hon’ble Mr. Justice Aurangzeb

Aftab PS/*