2010 P Cr (PLP)

JAMSHED RAHMAT ULLAH, J.

Precisely, the facts of the petition are that one Syed Muhammad Anwar respondent No.4 filed an application on 11-8-2007 in the Court of learned Duty Magistrate respondent No.2 for exhumation/post-mortem of the dead body of her sister namely Mst. Nasim Bibi for determination of real cause of her death. It has been alleged by respondent No.4 in his application that in fact her sister Mst. Naseem Mai has not died her natural death and she expired due to poison, which was allegedly to be administered to her by her husband Ghulam Fareed and ethers. It has further been alleged in the petition that Ghulam Fareed has neither intimated the petitioner, nor close relatives of Mst. Nasim Bibi, regarding her death, nor Mst. Nasim Bibi was admitted to any Hospital, if she died due to snake biting.

2. On the application of respondent No.4, the learned Magistrate respondent No.2 issued notice to S.H.O. respondent No.3 for his repot. The learned Duty Magistrate also called the petitioner and parents of Mst. Nasim Bibi. The learned Magistrate after recording the statement of father of Mst. Nasim Bibi, respondent No.5 accepted the application moved by respondent No.4 and directed the S.H.O. and Medical Superintendent to conduct exhumation proceedings of dead body of Mst. Nasim Bibi vide his order dated 28-8-2007. The petitioner being aggrieved by the order dated 28-8-2008 filed a criminal revision, which was fixed before the learned Additional Sessions Judge, D.G. Khan respondent No.1, who vide his' order dated 22-9-2007 dismissed the same.

3. The learned counsel for the petitioner argued that the learned Magistrate respondent No.2 had neither conducted an enquiry according to the provision of section 174(i), (a), (b), (c), Cr.P.C. nor ordinary procedure has been adopted while passing the impugned order. He further contended that the learned Magistrate respondent No.2 has no lawful authority to hold an inquiry under section 174(i), a, b, c, Cr.P.C. He further contended that the learned Magistrate respondent No.2 being a Duty Magistrate could not pass the impugned order especially when no urgency was shown in the application for exhumation. He further contended that respondent No.4 moved the application for exhumation as Mst. Nasim Bibi contracted her marriage with the present petitioner without the consent of her parents and her family members. The learned counsel further contended that the place of exhumation is not under the jurisdiction of the learned Magistrate respondent No.2 as he has no lawful authority to pass any order regarding the exhumation, which is not in his jurisdiction.

4. On the other hand, the learned counsel for the respondents Nos.4 and 5 has argued that no illegality has been found in the impugned order, which has been passed in accordance with law.

5. After perusing the record and hearing the arguments of both the learned counsel for the parties, the following points need consideration:

(i) Any time limit for exhumation. (ii) Procedure to be adopted by the Magistrate before passing the order of exhumation. (iii) Whether the order of the learned Magistrate was within his jurisdiction. (iv) Whether the Duty Magistrate, who passed the impugned order was vested with the judicial powers to pass such order. As per record, the deceased Mst. Naseem Bibi expired on 27-7-2007, which means that period of about one year and eleven months has elapsed and in these circumstances, whether the order for determining disinterment could be passed. In Pakistan, there is no time limit fixed for the disinterment of body. Modi in his Medical Jurisprudence and Toxicology giving the time limit of exhumation writes:-- "In India-Pakistan, no time limits is fixed for the disinterment of a body. In France, this period is limited to ten years, while it is thirty years in Germany." The learned counsel for the petitioner argued that the provision of section 176 of Cr.P.C. has not been complied with by the learned Magistrate.

6. Section 176, Cr.P.C. is, reproduced as under:

"Section 176, Cr.P.C.

(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 inquiry 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." The plain reading of the section reproduced above would show that it relates to the death of a person while in custody of police whereas in the instant case Mst. Naseem Bibi was not in the custody of the police at the time of her death. Thus the said objection of the learned counsel for the petitioner does not carry any weight.

7. The learned counsel for the petitioner while referring sections 182 and 185, Cr.P.C. regarding question of jurisdiction, has argued that the learned Duty Magistrate has no jurisdiction to pass the said order and in the circumstances of the case, the matter should have been referred to this Court for determining the jurisdiction.

8. Section 185, Cr.P.C. is only attracted where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence but in the present case, the learned Duty Magistrate was within the local limits of this Court and no other subordinate Court took cognizance of this case.

9. The learned counsel for the petitioner further argued that the learned Duty Magistrate had no judicial power to pass the impugned order. The objection of the petitioner carries no weight, as he has failed to bring .on record or demonstrate, that by the order of the Duty Magistrate the petitioner has been prejudiced, and what prejudice has been caused to him. He has even failed to bring on record any Notification or material which could demonstrate that the impugned order dated 28-8-2007 was passed without jurisdiction.

10. The law is clear on this point that the learned Magistrate is fully empowered to disinter any dead body for discovering cause of death and he was not obliged to hear complainant or record the evidence with regard to cause of death.

11. In the present case, respondent No.4, who moved an application for disinterment of the dead body of Mst. Naseem Bibi, is her real B brother and he has every right to know the cause of death. If he and his other close relatives suspect that death of Mst. Naseem Bibi is not on account of natural causes or by biting of snake and are interested in disinterment of her body in order to know the real cause of her death. To get the body exhumed for this purpose is their right. Reliance can be placed on 2007 PLD Lah.176 and 1991 PCr.LJ 806.

12. 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. In Ameer Afzal Baig v. Ahsan Ullah Baig (supra), on the ground of mere suspicion, the order of disinterment passed by this Court was upheld by Honourable Supreme Court of Pakistan. It is, therefore, in the interest of justice that order of exhumation of dead body of the deceased is passed and in such like cases no interference by this Court is called for. Under the facts and circumstances of the present case, a serious allegation of murder has been levelled against the present petitioner, suspecting him of the murder of the deceased. A fact which has been vehemently denied by the petitioner himself. It would, therefore, be in his interest also that the body of the deceased is exhumed so as to exonerate him from this allegation forever.

13. For what has been discussed above, no illegality, infirmity has been observed in the orders so impugned by the petitioner. Accordingly by dismissing this petition, the order dated 22-9-2007 passed by learned Additional Sessions Judge, D.G. Khan respondent No.1 and order dated 28-8-2007 passed by learned Magistrate D.G. Khan respondent No.2 are upheld. S.A.K./G-92/K Petition dismissed.