Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. Shahida Choudhary VS Respondent: Regional Police Officer, Rawalpindi and 6 JUDGMENT
Court Name: Lahore High Court Judge(s): Sohail Nasir Title:Mst. Shahida Choudhary vs Regional Police Officer, Rawalpindi and 6
JUDGMENT
Reported As: PLD 2021 Lahore 805 Result: Order accordingly Judgment JUDGMENT 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-Of ficio 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-of ficio 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 along with her daughter and son Obaid was there; police officers/of ficials 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/of ficials 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
---
## Page 2
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 consequen ce; 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, Rawalpi ndi 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, P.P.C. 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 of ficers. 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-Of ficio Justice of 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 Police Station Race Course was assassinated by two motor cyclists/target killers. First Information Report No. 299 on the same day under section 302, P.P.C. 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 Police Station 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, P.P.C. was recorded as Police Station 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 Police Station Chauntra however , he was succeeded to escape and in this regard FIR No. 348 under section 216, P .P.C. was recorded at Police Station 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 arrived at School Road Allabad. Four persons on two motorbikes without numb er 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. First Information Report No. 208 on 23.03.2 021 under sections 353/186/324/427/ 302/34, P.P.C. at Police Station 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 (ate) 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
---
## Page 3
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 A.A.G. 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 case . 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.0 read with para 16.38 of the Police Rules, 1934. 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-Of ficio 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 of ficers 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 levelled 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 levelled 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, P.P.C. 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, P.P.C. read with section 13 of the Punjab Arms (Ame ndment) Ordinance, 2015 was recorded at Police Station Westridge, 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 occu rrence. In "Mst. Sughran Bibi case 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.1 2
---
## Page 4
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.0 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 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. 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-Of ficio 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 of ficers. 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, 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 misun derstood and misinterpreted therefore, taking the advantage of these proceedings it is appropriate to deliberat e 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 raisin g 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
---
## Page 5
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. (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 Governme nt 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 inquir y into the cause of death either instead of, or in addition to, the investiga tion 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 procee d 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 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.
---
## Page 6
(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.0 the powers qre available to police officer and Magistrate too.. ii. Under section 176, Cr ,P.0 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. 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 subsection (5) of sections 174 and 176, Cr.P.C. makes it clear that a Magistrate is empowered to do so. It is important to mention here that subsection (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, through out 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 Bench es 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. 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 case 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…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.