P L D 1971 Peshawar 162 (PLP)

Qazi Muhammad Jamil for the State. Date of hearing: 14th June 1971. The petitioners were tried and convicted of an offence under section 297, P. P. C. Sohbat, Maddat, Muhabbat, Yar Mohammad and Muslim were sentenced to undergo rigorous imprisonment for a period of one month each and to pay a fine of Rs. 50 each, or in default to undergo R. 1. for a further period of two months. On account of old age and poor health of Taj Mohammad and Mohammad Ali, they were sentenced to pay a fine of Rs. 100.03 each or in default to undergo rigorous imprisonment for a period of three months each.

2. The convicted persons appealed, but their appeal was dismissed by the Additional Sessions Judge, Peshawar. The petition for enhancement of sentence filed by the complainant was also dismissed.

3. Taj Mohammad and six others have come up in revision under section 439, Cr. P. Code to this Court.

4. The facts of the case are few and simple. On June 5, 196'3, when the dead body of Hanan, a brother of Jalat, was taken to the village graveyard, the petitioners turned up there after the funeral prayers were over and objected to the digging of a grave in the piece of land adjoining the old graveyard and burying the dead body there it took the persons present there, particularly Haji Noor Mohammad who was informed of it, three or four hours to convince the petitioners that the land in which the grave was dug actually formed a part of the old graveyard. The matter was settled and the dead body lowered in the grave which was originally dug for the purpose after Amir of village Khan Mir Killai and Mohammad Turan, a Kaka Khel, had convinced the petitioners of the rightful claim of the relation of the dead to busy the dead body.

5. The complainant produced a number of witnesses in support of the case and the substance of their evidence is that the dead body remained lying exposed in the sun for about four hours due to opposition offered by the petitioners to its burial in the grave that had been dug in the piece of land adjoining the old graveyard and this act on their part injured the feelings of the relations of the dead person. On going through the evidence, it is clear to me that the piece of land in which the grave had been dug was acquired for the extension of the existing graveyard and this was the first grave which was being dug in the place to which the peti tioners had objected and their defence was that the land belong ed to them and was still in their possession. The petitioners examined one witness in their defence, but it is not necessary to refer to his statement because the question which calls for determination in this revision petition is whether by their act, the petitioners committed any offence. Section 297 of the Pakistan Penal Code provides punishment for wounding the feelings of any person or for insulting the religion of any person or committing trespass in a place of worship or on any place of sculpture or any place set apart for the performance of funeral rites or as a depository for the remains of the dead or offers any indignity to any human corpse. If I have been able to understand the law correctly, the petitioners by objecting to the burial of the dead body of Hanan in a piece of land which they considered not to be a part of the public grave yard did not offer any indignity to human corpse nor committed trespass on a piece of land which served as depository for the remains of the dead, because it was the first grave which was being dug in a piece of land acquired for the extension of existing graveyard. Stuart, J. in Amanat's case (A I R 1922 All. 184) observed that if a person used his influence to prevent the burial of the complainant's son, he would not be considered to have committed any criminal offence. The petitioners had done nothing except that they objected to the burial of Hanan in a grave dug in a piece of land which they did not consider to be a part of the public graveyard. The mere fact that the dead body remained lying in the sun for four hours cannot be so construed as to bring it within the mischief of section 297, P. P. C. The petitioners in no way desecrated the dead body. I will, therefore, accept the revision petition, set aside the con viction and sentences passed on the petitioners and order them to be acquitted. The fine, if paid, shall be refunded to the petitioners. The petitioners are on bail and their bail bonds shall stand cancelled. Petition accepted.