2005 P Cr (PLP)

Zafar Iqbal alias Kaka has filed this writ petition against an order of the learned Additional Sessions Judge, Pattoki, District Kasur, allowing an application under section 176(2),Cr.P.C. and issuing a direction for disinterment of the body of the deceased Nazir Ahmed for Forensic testing and location of his cause of death. Prior to this when an application for disinterment was made before the learned Illaqa Magistrate, he held an inquiry and during the inquiry Khalil Ahmed, respondent No.3 as well as Sardar Ali recorded their statements. Both of them are brothers of the deceased. Zafar Iqbal is the nephew of the deceased and is opposing disinterment of the body inter alia on the following grounds:-- (a) That this application for disinterment of the body has been made almost after 11 months of the death of Nazir Ahmed. (b) That the purpose was based on mala fide because of a dispute over property. (c) That the said Khalil respondent has filed a suit two days after filing of the application for disinterment to create a wrongful impression about the death of the deceased.

2. The Medico-legal Report is not available because the deceased was never sent for examination purposes. Annexure A is the death certificate which shows that the deceased remained sick for seven days before his death and the reason for death is given as heart attack.

3. Khalil Ahmed, respondent No.3 in his testimony appeared before the trial Court and stated as follows:-- This is supported by the statement of Sardar Ali, another brother of the deceased.

4. According to the learned counsel for the petitioner, the purpose of disinterment is only to harass the petitioner and nothing else.

5. The question is whether the allegation in any tangible shape with respect to the death of the deceased through crime has been made. Learned counsel for respondent No.3 was questioned whether an F.I.R. was registered to which he has stated that the learned Additional Sessions Judge refused to give the relief when approached under section 22-A, Cr.P.C. on the ground that the cause of death be first known. But this did not mean that the learned Additional Sessions Judge required the disinterment of the body for determining the allegation of the complainant side. The complainant had to assert a motive and had also to assert the ground on which he was basing his suspicion regarding the death of the deceased. And, once he was able to substantiate the same while also informing the Court about the justification of the delay, a case would have been registered.

6. It is only after registration of the case, the police has to collect evidence for purpose of proceeding further on the ground that a crime was committed. An F.I.R. has also its implication because a falsely lodged F.I.R. is triable under the law. Whereas, all this presently appears to be an academic exercise, which is being done after almost 11 months. Therefore, the impugned order of the learned Additional Sessions Judge shall not be acted upon. However, there is a way open for the respondent side through lodging of a private complaint in case they nourish a strong doubt against the petitioner and feel that Nazir Ahmed died unnaturally. All this is being said because they have agitated this question after a delay of 11 months based on the statements of which they were aware months back while being close relations of the deceased.

7. The crux of the decision is that this Court is not closing an opportunity of disinterment, but this should only be exercised in case the petitioner succeeds in making a persuasive accusation after explaining the delay and then moved for disinterment of the body through the police who has then to collect evidence. Being Muslims, we have to respect a dead body and only against serious accusations should allow disinterment.

8. With these directions, the matter stands disposed of. H.B.T./Z-67/L Order accordingly.