1991 P Cr (PLP)

M.R. Khalid Malik for Petitioner Tassaddaq Hussain Jilani, Addl. A.-G. for Respondents. Through this Constitutional petition Muhammad Anwar petitioner seeks declaration to the effect that the order, dated 22-5-1990 passed by learned District Magistrate, Sahiwal is without lawful authority and of no legal effect.

2. The facts leading to this petition briefly are that on 10-5-1990 Muhammad Akbar, brother of the petitioner was murdered and a case under section 302, P.P.C. was registered against Tariq Rahim respondent No.2. Post mortem examination was performed on 11-5-1990. The doctor found that the cause of death was due to injury No.1 on the head of the deceased caused by blunt weapon. On 21-5-1990 an application was moved before the learned District Magistrate, Sahiwal on behalf of respondent No.2 for the re-post-mortem examination of the dead body of Muhammad Akbar, which was accepted on 22-5-1990, hence this petition.

3. Learned counsel for the petitioner relied on section 176, Cr.P.C. to contend that the District Magistrate could not pass the impugned order without affording the petitioner opportunity of being heard and also without having recorded evidence produced by the parties.

4. I have considered the submission made by the learned counsel with care. I have not been able to persuade myself to agree with him, for the reason that section 176, Cr.P.C. relied upon by him is not relevant. The section may be reproduced advantageously: Section 176 Cr.P.C. (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 subsection (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) 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." The plain reading of the section reproduced above would show that it relates to the death of person while in custody of the police whereas in the instant case Muhammad Akbar was not in the custody of police at the time of his death. I feet that after the registration of the F.I.R. relating to the death of persons who do not die while in the custody of the police whenever the District Magistrate/ A Magistrate considers it expedient to make examination of the dead body of any person who has been interred, in order to discover the cause of his death, he can cause the body to be disinterred and examined and he is not obliged under the provisions of Criminal Procedure Code to hear the complainant or record I evidence with regard to the cause of death before, making such order. Pursuant to the above discussion, the petition fails and is accordingly dismissed. S.A./M-2698/L Petition dismissed.