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Criminal Revision No. 430 of 1964, decided on 18th March 1970.

S. 439 read with S. 176‑Revision‑Jurisdiction‑Contention that Magisterial enquiry under S. 176, Criminal Procedure Code is not subject to revisional jurisdiction of High Court because S. 176 postulates a final and effective order to revise order passed on such inqutry‑[Piara Singh v. The State and another A I R 1958 Ph. 141; Piara Singh v. The State and Another A I R 1958 Pb. 430 and P. Rajangham v. The State of Madras A I R 1959 Mad. 294 dissented from].

Piara Singh v. The State and another A I R 1958 Pb. 141; Piara Singh v. The State and another A I R 1958 Pb. 430 and P. Rajangham v. The State of Madras A I R 1959 Mad. 294 disserted from.

Khuda Bakhsh v. Province of West Pakistan and another P L D 1957 Lah. 662 rel.

A. S. Kirmani for Petitioner.

Mian Nazir Akhtar for A.‑G. for the State.

A. S. I. Sabir Hussain with Ch. Abdur Rehman.

This revision petition is directed against the report of Haji Muhammad Akram, S. D. M., Leiah, dated 11th of January 1964, which he made under section 176 of the Criminal Procedure Code to the District Magistrate in respect of the death of Hamidullah who died in police custody.

2. According to the special report submitted by the S. H. O., Leiah, to the S. D. M., Leiah, it transpires that Hamidullah had been arrested by the police for lurking house trespass into the house of one Maqbul Alam on the night between 2nd and 3rd of November 1963. He was admitted into the hospital but died on 8th of November 1963.

3. It appears from the resume of facts given by the learned Magistrate that Hamidullah was found with a knife on the night between 2nd and 3rd of November 1963, in the house of Maqbul Alam (C. W. 1) at about 3 a.m. Maqbul got up and set the light on. He tried to catch Hamidullah but the latter hit him with a knife on his back. Maqbul hit Hamidullah with a lathi and the blow fell on the latter's nose. Hamidullah tried to scale the northern wall of the house and was given two lathi blows by Maqbul. Hamidullah, however, succeeded in scaling the wall and entered the house of Qazi Muhammad Ramzan who grappled with him. Hamidullah was going to hit Qazi Muhammad Ramzan with his knife when Maqbul shouted from behind with the result that Hamidufah left the place and ran away. He was chased by Qazi Ramzan and Maqbul who were joined in by two police officials. Hamidullah took shelter in a room of the Habib Hotel and bolted the door from inside. In the meantime Sabir Husain respondent who was then in charge of the City Police Post arrived there Hamidullah ran away after unbolting the room of the hotel and was given a chase but was ultimately arrested from the house of one Eedu where he had hidden himself. He was taken to the place of occurrence where the statements of the witnesses were recorded. He was then sent to the Civil Hospital, Leiah at about 9 a.m. and was medically examined by Dr. Mahmood Ahmad (C. W: 16). He found the following injuries on his person:

(1) A lacerated wound " x " skin deep upper part of nose.

(2) A contusion 3" x 2" top of right shoulder.

(3) An abrasion 1 " x " on the knee joint.

(4) A contusion 2" x 1" lower part of back of left forearm.

At about 5 p.m. on the sane day, Hamidullah was got admitted into the hospital as he started vomiting and developed otter troubles. He remained in the hospital in the custody of the Police till 8th of November 1963, on which day he died at about 9 p.m.

4. An inquiry under section 176, Cr. P. C. was, started by Haji Muhammad Akram S. D. M., Leiah, witnesses were produced by the police as also by Amir Muhammad Khan the uncle of the deceased. The version set forth by the uncle of the deceased was that Hamidullah when he was taken after his medical examination to the police post, had been given four fist blows on the back of the head by Sabir Husain respondent as a result of which he developed trouble and was admitted in the hospital. The post- mortem examination of the deceased showed that he had died on account of the concussion of the brain which had resulted in mental disturbance and depression of the vital centres. On the Court question, the doctor gave an opinion that the concus sion of the brain could happen on account of a blow on the head or by jumping from a height or by a fall. He further stated that it was not possible that concussion of brain could be developed by hitting against some soft matter. He further opined that the con cussion happened immediately after the blow and the person who developed concussion could not run. When questioned whether the fist blows could lead to concussion, the doctor replied in the affirma tive but stated that in that case there should have been some mark on the head, provided the blows were given on the same place.

5. Mr. Abdur Rehman, the learned counsel appearing for Sabir Husain has raised a question of jurisdiction. His submission is that the opinion of a Magistrate under section 176, Cr. P. C. is not subject to the revisional jurisdiction of the Court which postulates that a final and effective order should be passed in respect of the matter. It is his contention that even if this Court differs with the finding of the learned Magistrate, it will not entail the passing of any final order for or against the respondent. He in this connection relies on Piara Singh v. The State and another (A I R 1958 Pb. 141), Piara Singh v. The State and another (A I R 1958 Pb. 430) and P. Rajangham v. The State of Madras (A I R 1959 Mad. 294.). Mr. Kirmani, on the other hand relies on the case of Khuda Bakhsh v. Province of West Pakistan and another (P L D 1957 Lah. 662), wherein it was held by a Division Bench of this Court that such an order is revisable.

6. I will, however; proceed on the assumption that this Court has the jurisdiction as there is a Division Bench decision to support Mr. Kirmani's point of view.

7. A perusal of the record, shows that the report of the learned Magistrate on the facts of the case is not so unsustainable that this Court may be called upon to interfere. The learned Magistrate has thoroughly discussed the evidence and it has come out from the evidence adduced by the relatives of the deceased that there were injuries on the person of the deceased when he was seen in the Habib Hotel. It is actually their case that the deceased was sleeping in Habib Hotel when the Police raided the room where he was asleep: It is also in the evidence adduced by the police that the deceased was hit by Maqbul and had scaled the wall of Qazi Muhammad Rarnzatl and there was grappling. There was no visible injury on the head which could lead one to think injury. the concussion of the brain had occurred due to the head injury.

8. In view of these findings, I do not feel that I am called upon to interference in this case. This revision petition is dismissed.

Petition dismissed.

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