2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned criminal misc. application, applicant Zaffar Ali has assailed order dated 23.02.2015, passed by the Court of learned II-Additional Sessions Judge Ghotki, whereby application to constitute Medical Board for conducting fresh post-mortem of deceased Mst. Arbeli was declined.

2. Relevant facts spelt out from instant application are that complainant Mst. Muradan lodged FIR No.279 of 2014, under sections 302, 147, 148, 149, P.P.C. at Police Station Daharki, regarding murder of her daughter Mst. Arbeli, which is reproduced as under:- "My daughter Mst. Arbeli aged about 20/21 years was married with one Alam Khan Dahar. Out of their wedlock, two daughters were born and now she was also pregnant for about 6/ 7 months. On domestic disputes her husband started maltreatment and she made such complaints to me. My son-in-law was not allowing her to visit my house. On 06.12.2014, I, my son Mohammad Aslam and my son-in-law Abdul Jabbar Dahar, went to the house of my daughter Mst. Arbeli for meeting purpose. We stayed for the night in the house of Alam Khan Dahar and I asked him for permission of Mst. Arbeli to visit my house but Alam Khan got annoyed. In the night after taking meal, we went to sleep in his house. On 07.12.2014, at about 3:00 a.m. (night), on the cries of Mst. Arbeli, I, Mohammad Aslam and Abdul Jabbar woke-up and in the electric bulbs light, we saw in the room, where accused Alam Khan and Ishaque had over-powered my daughter, and she was lying on the cot and started throttling, while accused Nisar, Zaffar and Qadeer Dahar duly armed with pistols, threatened us and stated that they will kill Mst. Arbeli. Due to fear of weapons, we remained silent. Within our sight, accused persons committed the murder of Mst. Arbeli with throttling, and they fled away from the spot along with their respective weapons. We noticed marks of throttling on her neck and she was died at the spot. Such information was conveyed to police, and police came there, and the dead body of Mst. Arbeli was shifted at Government Hospital, Daharki, and then again to Taluka Hospital, Ghotki for post-mortem. After funeral ceremony, I lodged report that accused persons in furtherance of their common object committed the murder of my daughter Mst. Arbeli with throttling".

3. Learned Counsel for applicant contended that during the night of 07.12.2014, Mst. Arbeli went unconscious after consuming poison of black stone, and her husband and others shifted her to Taluka Hospital, Daharki, where Dr. Kelash Kumar, Medical Officer, examined her and after providing necessary treatment, issued Referral Form for better treatment to Shaikh Zaid Hospital, Rahimyar Khan, but subsequently, she died and her husband informed the police about the incident; that relatives of the deceased in collusion with Women Medical Officer, Taluka Hospital, Ghotki obtained bogus post-mortem report, where the cause of death has been mentioned due to throttling; that applicant moved application under 176(2), Cr.P.C. for exhumation of the dead body for a fresh post-mortem, but learned Magistrate dismissed said application, and learned Appellate Court has also not considered the material placed by the applicant properly, hence both impugned orders are liable to be set-aside, and Medical Board may be constituted for fresh post-mortem of the corpse to ascertain the cause of death.

4. While controverting the above submissions, learned counsel for respondent No.1 contended that Mst. Arbali expired on the spot at about 03:00 a.m. on 07.12.2014 due to strangulation by accused persons and after the incident, police was called instantly and police prepared mashirnama of place of wardat and recovery of dead body at 04:10 a.m. Learned Counsel further emphasized that under a police letter, PC Mumtaz Ali brought dead body at Taluka Hospital at 09:00 a.m. on same day for the post-mortem; that after four days of the incident, Dr. Kelash Kumar has issued a managed and false medical certificate at the instance of accused persons and such copies were not provided to the Investigating Officer; that Dr. Razia Solangi had already issued post mortem report, hence there is no need for conducting fresh post-mortem; that Dr. Kelash Kumar issued a false certificate dated 11.12.2014, at the behest of accused persons only to save them from the consequences of the offence.

5. Learned APG vehemently contended that Referral Form for better treatment and certificate dated 11.12.2014, issued by Dr. Kelash Kumar are not supported by the original medical record of Out-Patient Department (O.P.D) Register, hence same have no legal value.

6. Dr. Kelash Kumar is also present in the Court, and on the query, he could not satisfy the Court and admitted that he had issued both certificates at the instance of accused persons and copies were not sent to the Investigating Officer.

7. Heard arguments advanced by learned Counsel for the parties and examined the material available on record minutely.

8. Perusal of record reflects that applicant moved application for disinterment on (sic.) before learned Magistrate, Daharki, who also called report from Women Medical Officer Dr. Razia Solangi and she furnished a detailed report and copy whereof is also available at page No.77 of the file, which emanates that on 07.12.2014, she was WMO on emergency duty at Taluka Hospital, Ghotki. At 09:00 a.m., she received dead-body of deceased Mst. Arbeli through PC Mumtaz Ali Lashari of P.S Daharki along with inquest report, for post mortem examination and report. She also referred a note mentioned in letter that dead-body of above named deceased was referred to Taluka Hospital Ghotki for the reason that WMO of Taluka Hospital Daharki was on leave and letter was signed by Dr. Kelash Kumar M.O. on duty. She conducted postmortem of the deceased instantly. Per report, during post-mortem examination on external as well as internal examination, found the all external and internal signs of throttling such as visible finger marks on neck region, rupture of muscles and vessels of neck region and fracture of hyoid bone, all the internal viscera were congested no any sign of poisoning externally and internally or any sign of prick intramuscular or intravenous injunction for treatment purpose found on person of the above named deceased. Per post-mortem report, death had been occurred due to asphye constricting the neck and hands throttling. Per clause-A, the duration between injury and death would be instantaneously. In column-12 of the post mortem, it is clearly mentioned that the deceased was containing elead fatas of about 20-2 weeks.

9. Dr. Kelash Kumar, Medical Officer issued certificate dated 11.12.2014, for the sake of convenience, same is re-produced as under:- CERTIFICATE This is to certify that Mai Arbeli wife of Alam Dahar aged 35 years resident of Shah Latif Colony, Daharki came as outdoor patient vide monthly O.P.D. No.116, dated 7.12.2014. Patient complains of painful swelling around front of neck and difficulty in swallowing then I examined her and found tenderness and pain over front of neck. Give treatment:

1. Ti TAM 1 gm.

2. Voren 1 mg.

3. Decadran 1 mg. After treatment they want and their relative want to refer her to Shaikh Zayed Hospital Rahimyar Khan for better treatment on the same date 7-12.2014. Dated: 11.12.2014 Sd/- (Dr. Kelash Kumar)".

10. Bare perusal of certificate dated 11.12.2014, issued by Dr. Kelash Kumar, Medical Officer, emanates that Mst. Arbeli aged about 35 years, was brought at hospital as out-door patient on 07.12.2014 vide O.P.D No.116. Dr. Kelash Kumar had certified that Mst. Arbeli was alive when she was brought at hospital, and he had medically examined and provided medical treatment and injected her decadron injection. Conversely, memo of place of wardat and recovery of dead body prepared at 04:10 a.m., police letter for post-mortem and inquest report prepared on 07.12.2014, and post mortem report and statement of WMO Dr. Razia Solangi had prima facie controverted the averments of certificate dated 11.12.2014 directly issued by Dr. Kelash Kumar to accused party and same was neither provided to the Investigating Officer nor is available in prosecution file.

11. Per original Out-Patient Department (O.P.D) Register, at Serial No.115, the name of patient is mentioned as Mst. Asaya wife of Akram, while in Referral Form for better treatment produced by the applicant available at page No.79 of the file, issued by Dr. Kelash Kumar is mentioning the name of patient as Arbeli wife of Alam Khan aged 35 years at serial No.115 of O.P.D. Register. Undoubtedly, said Referral Form is controverting to the original O.P.D. Register, thus it has lost its authenticity.

12. It is significant to mention that applicant has agitated two grounds in instant application i.e. to ascertain cause of death, and factum of pregnancy, however, during the course of arguments after going through medical record and post-mortem report of the deceased, learned counsel for the applicant did not press the ground of pregnancy and emphasized only on the ground of cause of death. Learned counsel for applicant relied on the case of Ghulam Fareed v. Additional Sessions Judge, D.G. Khan and 4 others (supra) cited by learned counsel for applicant, it was observed as follows:- "S.176: Application for exhumation of dead body moved by real brother of deceased woman alleged cause of her death to be due to poison administered to her by her husband and others, and not by biting of snake. Order of Judicial Magistrate accepting such application upheld by Sessions Judge. Such application could be moved on simple ground of suspicion. Applicant and other close relatives of deceased had every right to know about real cause of her death and get her body exhumed for such purpose. Magistrate had power to disinter any dead body for discovering cause of death and he was not obliged to hear complainant or record evidence with regard to cause of death. Serious allegation of murder had been leveled against petitioner suspecting him to have murdered his deceased wife. Petitioner had denied such allegation, thus, exhumation of body of deceased would be in his interest so as to exonerate him from such allegation forever. High Court declined to interfere in impugned orders in circumstances." The above cited case law is quite distinguishable from the case in hand, as FIR was lodged instantly and post-mortem of the deceased was also conducted.

13. Under section 176(2), Cr.P.C., Magistrate has ample powers to disinter any body to ascertain the actual cause of death of deceased person who has already been interred. There is no limitation provided in criminal law for moving any application for exhumation of grave and disinterment of dead body, but Magistrate should examine the information or application for exhumation of dead body prudently, and if he is not satisfied with the averments of such application or is of the opinion that cause of death has already been ascertained properly, he may decline said application straightaway. It is well settled that for exhumation of the grave and disinterment of dead body mere any suspicion is sufficient to ascertain the actual cause of death of the deceased to exonerate any slightest doubt in the minds of relatives of the deceased which is their legal right to know the real facts and cause of death of the deceased, but such application should be examined judiciously and due respect of the deceased and his body should be maintained in view of the injunctions of Islam. In the case of letters patent, In Re: (1989 PCr.LJ 1827), it was observed that cause of death very much obvious in proceedings already conducted by police, thus dead body may not be disinterred after 8 months of occurrence. In the case of Zaffar Iqbal alias Kaka v. Additional Sessions Judge and 3 others (2005 PCr.LJ 736), it was observed that being Muslim, we have to respect a dead body and its disinterment could only be allowed against serious accusation.

14. Indeed, deceased Mst. Arbeli was aged about 20, 21 years and on 7.12.2015, she was hale and healthy and during the night, allegedly she was strangulated by her husband and others at 03.00 a.m. Police was informed instantly after commission of death/murder of Mst. Arbeli and mashirnama of recovery of dead body was prepared at 04.10 a.m. Inquest report and the corpse were sent on 7.10.2014 for post-mortem report and at 09.10. a.m. post mortem of the deceased was conducted by WMO of Taluka hospital, Ghotki, and after conducting post-mortem, report was issued mentioning cause of death in detail, thus there is no need or justification for conducting fresh post-mortem. Applicant has moved instant application with mala fide intention and the sole purpose of disinterment is only to harass the complainant and her family and to frustrate the murder case lodged against accused persons.

15. Perusal of impugned orders dated 09.01.2015 and 23.02.2015 reflect that both the Courts below have discussed all aspects of the controversy while passing impugned orders and applicant has failed to point out any material irregularity or serious infirmity in the impugned orders, which do not call for any interference, consequently, same stand maintained.

16. For the facts, circumstances and case law referred supra, instant criminal miscellaneous application being devoid of legal substance stands dismissed. However, the observations referred supra are tentative in nature and learned trial Court shall decide the case strictly on merits. SL/Z-6/Sindh Application dismissed.