P L D 2022 Lahore 55 (PLP)

SAFDAR SALEEM SHAHID, J.

Through instant Criminal Miscellaneous, filed under section 561-A, Cr.P.C., the petitioner has called in question the vires of order, dated 19.07.2021, passed by learned Magistrate 1st Class, Bhowana on an application moved by Naseem Akhtar/respondent No.3, for exhumation/disinterment of dead body of deceased Ghulam Bibi and order dated 12.08.2021, passed by learned Additional Sessions Judge, Bhowana in criminal revision moved by the petitioner, whereby both the learned courts below allowed the exhumation/ disinterment of dead body of deceased Ghulam Bibi by constituting a Medical Board.

2. Precisely, the facts necessary for the disposal of instant criminal miscellaneous petition are that Ghulam Bibi died allegedly in suspicious circumstances; she was buried and after sometime, Naseem Akhtar/ respondent No.3 filed an application before the learned Magistrate 1st Class, Bhowana for exhumation/post-mortem of her dead body with the assertions that deceased Ghulam Bibi married to her brother Waseem Akram/respondent No.4 with her free will and consent but against the wishes of her parents and started living with him in his house; due to this grudge, on 20.06.2021 at about 11:00 P.M., she was abducted by respondents Nos.2 to 6; Waseem Akram, husband of deceased, filed a petition under section 491, Cr.P.C., (hereinafter to be called 'the Code') before the learned Additional Sessions Judge, Bhowana for the recovery and production of his wife, wherein police submitted its report that deceased Ghulam Bibi had committed suicide by taking poison. It was further alleged in the application that in order to ascertain the real cause of death, no medical or post-mortem examination of deceased Ghulam Bibi was conducted. Further alleged that death of Ghulam Bibi was unnatural and prayed for conducting disinterment of her dead body in order to ascertain real cause of her death. Learned Magistrate 1st Class, Bhowana, after hearing both the parties, vide order dated 19.07.2021, accepted the said application. Feeling aggrieved, the applicant/petitioner preferred Criminal Revision before the learned Additional Sessions Judge, Bhowana which was dismissed vide order dated 12.08.2021, hence the instant criminal miscellaneous.

3. Learned counsel for the petitioner submits that the learned Magistrate has neither conducted any inquiry into the matter as required under section 174, Cr.P.C. nor adopted due procedure of law while passing the impugned order; that the learned Magistrate has passed the impugned order in a slipshod and hasty manner; that Naseem Akhtar/respondent No.3 has sought direction qua disinterment of dead body of deceased Ghulam Bibi by concealing true facts in order to save the skin of her brother, alleged husband of deceased; that father of deceased Ghulam Bibi had sworn an affidavit before the learned Magistrate deposing therein that deceased Ghulam Bibi had committed suicide due to family dispute with his husband Sajid Ali/petitioner and nobody had administered poison to her; that respondent No.3 being stranger had no locus standi to file an application before the learned Magistrate on the subject; that respondent No.3 had moved the application before the learned Magistrate just to disgrace and humiliate the family of the deceased; that the impugned orders passed by both the courts below are against the law and facts as they have not applied their independent judicial mind while passing the same. Learned counsel for the petitioner while referring to case laws reported as Iqbal Bibi v. Additional Sessions Judge and others (PLD 2017 Lahore 435), Ghulam Mustafa v. The State and 5 others (2015 YLR 2230) and Muhammad Akram v. Additional Sessions Judge, Depalpur and 3 others (2014 PCr.LJ 1030) submits that by accepting this petition, impugned orders dated 19.07.2021 and 12.08.2021 passed by both the courts below are liable to be set aside.

4. Arguments heard. Available record perused.

5. The matter in hand revolves around the applicability or otherwise of section 176, Cr.P.C., therefore, before proceeding further in the matter and discussing its merits as well as case-law on the subject, I feel it appropriate to look into the object of said section, which for convenience of reference is reproduced as under:--

176. Inquiry by Magistrate into cause of death.

(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 enquiry 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) When 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. A bare reading of subsection (1) of section 176 of the Code shows that it is in continuity of section 174 of the Code, whereby an information regarding one who:-- a) has committed suicide, or b) has been killed by another, or by an animal, or by machinery, or by an accident, or c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence is to be made to the nearest Magistrate who, within the meaning of section 176 of the Code, shall be required to hold an inquiry for no other purpose but to know the 'cause of death'. The intention of the legislature behind insertion of sections 174 and 176 in the Code is indeed to secure the right of all, interested in knowing the 'cause of death' of their loved one. Moreover, it is the legitimate right of every single person to know the 'cause of death' of his loved one because sorrow of a natural death is much lighter than the pain of unnatural and sudden death. Taking notice of tragedy being faced by a person after the unnatural death of his/her loved one, the legislature has included proviso "c" in section 174 of the Code, whereby such inquiry can competently be conducted merely on existence of "reasonable suspicion". In this respect, I am fortified in my view by the judgment reported as Mansab Ali v. Asghar Ali Faheem Bhatti, Additional Sessions Judge, Nankana Sahib and 3 others (PLD 2007 Lahore 176) wherein it has been observed as under:-- "

9. It may be noted that even on simple ground of suspicion, an application for disinterment can be moved, this is more so because a person should have a right to ascertain the real cause of death of his dear one...." Such right to know about the cause of death has been protected even where the body has been interred, therefore, subsection (2), mentioned supra, was added in section 176 of the Code. A bare reading of sections 174 and 176 of the Code in juxtaposition, would show that for passing an order on an application filed under section 176 of the Code, nothing is necessary except that of satisfaction of the Magistrate only to the extent that 'exhumation is necessary for knowing the cause of death'. Since such order is always for the purpose to remove the clouds of suspicion, therefore, discretion needs to be exercised as such even if single reasonable circumstance/suspicion so justifies because determination the 'cause of death' would do nothing except setting the criminal machinery into motion or otherwise. This discretion even should not be denied merely on account of request being made by a stranger if, otherwise, circumstances so justifies because for bringing the law into motion the requirement of move by blood-relation is never insisted. At the same time, there can be no exception to the fact that even close blood relations are found involved in homicide of their beloved one, therefore, mere resistance by close relatives alone would not be a sufficient ground to deny such exercise if the other circumstances convince the Magistrate to exercise such discretion. Reliance is placed on Muhammad Saleem v. State (2014 PCr.LJ 219) wherein it has been held as under:-- "

15. It is constant view of the Superior Courts that exhumation of dead body could be ordered on the request of or on the information even a stranger for the purpose to know the actual cause of death so that criminal machinery be set in motion..." Thus, it can safely be concluded that if there is even a single circumstance/suspicion, reasonably convincing the Magistrate that disinterment is necessary to know the cause of death then such discretion should be not avoided for the reason that the application is moved by a stranger and not by the legal heir/blood relative. Reliance is placed on case reported as Mst. Iqra Faisal and 5 others v. Zubair Khan and 7 others (PLD 2021 Sindh 118).

6. In the instant case, the learned Magistrate proceeded to pass the impugned order of exhumation/disinterment of dead body of deceased Ghulam Bibi after obtaining report from the concerned S.H.O. and hearing learned counsel for the parties including the legal heirs of deceased. It is well settled by now that application for exhumation of dead body of deceased can be moved on simple ground of suspicion and in this regard no time limit is fixed. The main objection raised by learned counsel for the petitioner is regarding locus standi of Naseem Akhtar/respondent No.3 to file the application before the learned Magistrate for exhumation of dead body of her deceased 'Bhabhi', who admittedly had no blood relation with her (Naseem Akhtar), thus, the moot point involved in this petition is whether an application for exhumation/disinterment of dead body of a deceased could be moved by her legal heir(s)/close relative(s) or anybody else/stranger.

7. Admittedly, respondent No.3 is the sister of husband of deceased Ghulam Bibi and suspected that she was not met with her natural death rather by administering poison by respondents Nos.2 to 6 in the application filed before the Magistrate and, thus, was interested in disinterment of her body in order to know the real cause of her death. It is apparent that during proceedings, father of deceased Ghulam Bibi, namely, Anwar Ali appeared before the learned Magistrate, sworn his affidavit deposing therein that his deceased daughter was married to Sajid Ali/petitioner on 11.04.2021 and performed her matrimonial obligation but later on due to some family dispute, committed suicide, whereas Naseem Akhtar/respondent No.3, in her application filed before the Magistrate, took entirely different stance by alleging that the deceased was married to his brother Waseem Akram.

8. The learned Magistrate, in the impugned order, has discussed each and every aspect of the case and no exception could be taken to such an order, which otherwise would help in removing the clouds over sudden death of a young lady under mysterious circumstances as it is the only way to know actual cause of death by conducting the post-mortem of deceased, whereafter the question on the death either it is natural or unnatural will be determined. At the same time, the medical examination of the deceased only shows the conformity with the question of death and does not itself implicates any person in the case. In this regard, I am guided by the judgment reported as Faryad Ali v. The State (2008 SCMR 1086).

9. So far as the objection of learned counsel for the petitioner that exhumation/disinterment of body of the deceased will disgrace of grave of deceased is concerned, no doubt the legal heirs are the custodian of grave but when they themselves came in the sphere of suspicion, then they loss their such right. Even otherwise, for the sake of arguments, if we exclude the locus standi of both the applicants, especially respondent No.3, even though it is the basic scheme of criminal law that an offence if committed must be , unearthed for which criminal machinery has to be set into motion. Section 176(2) of the Code does not place an embargo of locus standi to approach a Magistrate for exhumation of dead body. Reliance is placed on the cases reported as Mst. Shama v. The State and 3 others (PLD 2017 Lahore 337) Syed Riaz-ul-Hassan Shah v. Additional Sessions Judge, Vehari and 3 others (2006 YLR 2953) and Begum Ali v. Additional Sessions Judge and others (PLD 2020 Lahore 394) wherein it has been held that subsection (2) of Section 176 of the Code does not put any clog of locus standi upon an applicant to approach the Magistrate to undertake the exercise and the Magistrate even on his own accord or on information or any Stranger can file an application to ascertain the actual case of death.

10. For what has been discussed above, I am of the considered view that disinterment of the dead body of Ghulam Bibi is inevitable to determine the cause of her death in order to inquire into the allegations and suspicions levelled by respondent No.3. The findings of both the courts below seem to be just, legal and reasonable, which do not warrant any interference by this Court. No illegality, infirmity or procedural errors has, been observed in the orders so impugned by the petitioner, thus, by dismissing this petition in limine, the same are upheld. MH/S-68/L Petition dismissed.