2006 PLP 2953 (YLR)

IJAZ AHMAD CHAUDHRY, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner challenges the order dated 8-6-2005 passed by learned Magistrate Section 30, Vehari whereby direction was issued for exhumation of the dead body of Mst. Shah Bibi, who according to respondent No.4 was done to death in the night between 12-13/5-2005 and revision petition filed by the petitioner along with others was dismissed by the learned Additional Sessions Judge, Vehari vide order dated 12-7-2005.

2. The brief facts of the case are that respondent No.4 Khalid Mehmood, who is nephew of Mst. Shah Bibi, claimed that in the night between 12th/13th May, 2005 she was done to death due to certain family disputes and there were signs of unnatural death on her dead body. Respondent No.4 has levelled allegations that she was murdered by the petitioner and others. He moved an application to the learned Magistrate for exhumation of the dead body of the deceased whereupon inquiry was conducted and statements of the witnesses from both sides were recorded and then the impugned order was passed by the learned Magistrate for exhumation of the dead body of the deceased. Against the said order, the petitioner also filed a revision petition which has also been dismissed by the learned Additional Sessions Judge, Vehari vide order dated 12-7-2005.

3. Learned counsel for the petitioner contends that respondent No.4 being not legal heir of the deceased could not file application before the Magistrate, but without considering this fact, both the Courts below have passed the impugned orders, which are liable to be set aside by this Court. It is further contended that Mst. Shah Bibi was aged about 80 years, who died natural death and it has been wrongly claimed by respondent No.4 that as she wanted to contract second marriage and sale out the house, she was done to death.

4. I have heard the learned counsel for the parties and also gone through the impugned orders passed by both the Courts below. Both the Courts below have passed the orders in detail after considering the evidence of the witnesses examined by both the parties during the inquiry conducted by the learned Magistrate on the application submitted for exhumation of the dead body of deceased Mst. Shah Bibi.

5. Learned counsel for the petitioner has failed to show that both the Courts below had no jurisdiction to entertain the said application and to pass the impugned orders. Learned counsel has relied upon 2005 PCr.LJ 736 in support of his contention. I have perused the said judgment which is not applicable to the facts and circumstances of the present case as in the cited case the application was filed after about 11 months of the death of the deceased while in the death certificate it was mentioned that the deceased remained sick for 7 days before her death and cause of death was heart attack.

6. I am not in agreement with the learned counsel that exhumation could not be ordered on the request of respondent No.4 as he was not legal heir of Shah Bibi deceased because criminal machinery into commission of cognizable offence can be, set at motion even on the information supplied by the stranger and then investigation is started to unearth the true facts. It is not denied that respondent No.4 is nephew of the deceased, as such he cannot be declared unconcerned person. As the suspicion has been raised regarding unnatural death of Mst. Irshad Bibi deceased, the process of exhumation of dead body cannot be stopped the purpose of which is to ascertain the cause of death only and at this stage it cannot be held to be adverse order against the petitioner or A others. Moreover, if after the post-mortem examination the report is received that the deceased died unnatural death, the petitioner and others can prove their innocence during the investigation. The process of collecting the evidence into commission of cognizable offence cannot be restrained by this Court in writ jurisdiction. I am fortified by the case-law reported in 1999 SCMR 1322, Muhammad Moosa v. Abdul Aziz and others, and 1996 PCr.LJ 389 (Lahore), Mst. Ghazala Begum and others v. The District Magistrate, Khanewal and others, in forming the above opinion. Both the Courts below have passed valid orders on good reasons, which are maintained.

7. This writ petition is dismissed in limine. N.H.Q./R-155/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.