2010 PLP 1681 (MLD)

MUHAMMAD TASNIM, J.

This criminal miscellaneous has been filed under section 561-A, Cr.P.C. by Damsaz the applicant. The case as set out in the application is as under: On 22-3-2009, the respondent No.2 was available in the house at morning time, when she received information that her brother SIP-Illahi Bux Lund has been expired. She went to the house of her brother, where she found dead body of deceased Illahi Bux lying there. On inquiry Mst. Sahib Khatoon wife of deceased, her son Muhammad Amin and Hari Chandio, the step-brother of Mst. Sahib Khatoon disclosed that deceased had died due to fallen on the ground. As the respondent No.2 found injuries on the nose and neck of the deceased, therefore suspicion arose in her mind and she again enquired from the above named persons about the cause of death of deceased but they repeated the same reason. However, the applicant found the death of deceased Illahi Bux being unnatural death due to breaking of neck and strangulation. The witnesses Gul Hassan, Aslam Ali, Raja Ali, Arbab Ali, Zamir Hussain, Wazir Ali, Mushtaque Ali, Mitho and Pir Muzafar Ali also found the injuries on the person of deceased. She raised cries, whereupon Mst. Sahib Khatoon her son Muhammad Amin and Haji admitted that deceased had died due to unnatural death at their hands in collusion with Ali Hassan Tunio. The respondent No.2 approached the police for registration of F.I.R., but the same was not registered. In the circumstances, respondent No.2 filed application under sections 22-A and 22-B Cr.P.C., which was also dismissed on 17-4-2009. Thereafter respondent No.2 filed application under sections 174-176(2), Cr.P.C. before learned 3rd Civil Judge and I.M. Nushehro Feroze, who after hearing the parties vide order dated 20-4-2009 passed the following order:-- "Register this case as misc. application. Let D.G. Health Services Hyderabad to constitute a Board. It may be mentioned in the letter that no F.I.R. has been registered in this case". The order dated 20-4-2009 was challenged before this Court. However, During pendency of the proceedings before this Court, learned 3rd Judicial Magistrate withdrew his order dated 20-4-2009 and the proceedings before this Court became infructuous. Thereafter present respondent No.2 initiated proceedings under sections 174-176(2), Cr.P.C. before Assistant Mukhtiarkar (Revenue)/Special Magistrate who vide order dated 16-10-2009 allowed the application as prayed with the following directions:-- "Let the copy of this order be sent to the Director General Health, Government of Sindh, Hyderabad for constituting a Special Medical Board for exhumation of the dead body of the deceased Illahi Bux Lund within the period of ten days, please grant of this order in order to determine the real cause of death of' deceased by way of strangulation, as claimed by her sister, the applicant Mst. Husun Bano Lund." Feeling aggrieved with the aforesaid directions of the learned Assistant Mukhtiarkar/Special Magistrate, present criminal miscellaneous has been filed. Learned counsel for the applicant has submitted that two years to the death of deceased have passed and no fruitful result could be achieved if the dead body of the deceased is taken out from the grave. Learned counsel has further submitted that it will ridicule and or disgrace the family of the deceased if the body of deceased is taken out and the respondent No.2 is unnecessarily initiating the proceedings just to harass the present applicant. He prayed that the impugned order passed by the learned Assistant Mukhtiarkar/Special Magistrate is not legally sustainable and is liable to be set aside. On the other hand, learned counsel for the respondent No.2 has submitted that the deceased had blood relationship with the respondent No.2. He further submitted that in the present proceedings question of disgracing the deceased dead body does not arise, as the respondent No.2 wants to know real cause of death of the deceased, which was not sustainable and there are allegations that the deceased had not died as natural death. Learned counsel further submitted that no prejudice shall be caused to the present applicant if order of the learned Special Magistrate is acted upon. Learned counsel for the respondent No.2 has further submitted that no illegality in the impugned order has been pointed out on the contrary the applicant is pressurizing the respondent No.2 not to act upon the directions of the learned Special Magistrate. In support of his contentions, learned counsel has relied upon the following case-laws:-- (1) Ghulam Nabi v. D.M. Okara 1989 MLD 4147 (2) Syed Riaz-ul-Hasasn Shah v. Additional Sessions Judge, Vehari and 3 others (2006 YLR 2953). (3) Javaid Iqbal v. The State (1996 MLD 626). (4) Mansab etc. v. D.M. etc. (NLR 1996 Criminal 742). (5) Mst. Haleema Bibi v. D.M. Sheikhupura and another (1988 PCr.LJ 2366). (6) Mansab etc. v. District Magistrate etc. (PLJ 1996 CR.0 (Lahore) 1442). (7) Mansha v. The District Magistrate, Toba Tek Singh (1997 PCr.LJ 126). Learned DPG has supported the order passed by the learned Special Magistrate and submitted that the same is strictly in accordance with law. He further submitted that no prejudice shall be caused to the present applicant if the order passed by learned Special Magistrate is implemented. I have heard the parties and have perused the record. From the examination of impugned order it appears that it is just and proper and the learned Special Magistrate while passing the impugned order has taken note of the correct legal position. It is consistent view of the Superior Courts that exhumation of dead body could be ordered on the request or information of even a stranger for the purpose to know the actual cause of death so that criminal machinery be set into motion. In the present case respondent No.2 is closely related to the deceased under the prohibited degree and she is justified in making an application for exhumation of the dead body of deceased to know cause of death. The judgments cited by the learned counsel for the respondent No.2 fully support the case of the respondent No.2. In the circumstances. I had dismissed this criminal miscellaneous application by a short order dated 5-7-2010 these are the reasons for the same. H.B.T./D-9/K Application dismissed.