P L D 2017 Lahore 337 (PLP)

QAZI MUHAMMAD AMIN AHMED, J.

Impugned herein is order dated 4.4.2016 by a learned Additional Sessions Judge at Kabirwala whereby he set-aside Magisterial order dated 3.11.2015 whereby request for exhumation of dead body of Husna Bibi deceased was declined. Ghulam Yasin, respondent No.4 approached the learned Magistrate on 14.10.2015 for disinterment of grave of his niece Husna Bibi, aged about 10/11, buried in the village graveyard on 17.12.2014; he alleged that his brother Sikandar Hayat, father of the deceased lived abroad for good and in his absence, his wife Shama Mai established illicit liaison with Dilshad Ahmad; his case is that on 12.12.2014 Husna Bibi, deceased surprised her mother while being in a compromising position with Dilshad Ahmad and in this backdrop, apprehending disclosure, both of them did away with the deceased to hush up their affair. According to Ghulam Yasin, symptoms of unnatural death were noticed before her burial; he further relies upon a confession allegedly made by the accused. The request did not find favour with the learned Magistrate, who inter alia observed that respondent No.4 being a paternal uncle had no locus standi in preference to the parents of the girl to move for exhumation; he found the script as poor and held that the deceased met a natural death due to illness and syndrome of asthma; the finding is reversed by a learned Additional Sessions Judge at Burewala vide impugned order dated 4.4.2016, vires whereof, are being challenged through this Criminal Miscellaneous Application in the inherent jurisdiction of this Court.

2. Learned counsel for the petitioner contends that it is unthinkable the petitioner being a real mother would become a privy in the murder of her own daughter; he has also referred to the silence of deceased's father to agitate the issue. It has also been argued that in the absence of a positive proof, disinterment of the dead body, without registration of formal First Information Report and buried way back on 17.12.2014 would be an exercise in futility at the cost of desecration of the corpse. The bottom-line of submissions made by the learned counsel for the petitioner is that there was no occasion for the learned Additional Sessions Judge to substitute his findings with the conclusion, rightly drawn by the learned Magistrate; places reliance in the cases of "Ghulam Mustafa v. The State and 5 others" (2015 YLR 2230) and "Muhammad Akram v. ASJ, Depalpur and 3 others" (2014 PCr.LJ 1030) .Contrarily, the learned Law Officer assisted by learned counsel for respondent No.4 has defended the impugned order on the ground that circumstances of the case warrant investigation and probe into the allegations supported by evidence, suggestive of commission of the crime of ultimate enormity.

3. Heard. Record perused.

4. The pain and devastation caused by a death to a family particularly calamitous and untimely is best shrouded in the closet of a grave and intrusions into this mystical domain ought to be avoided save in situations where having regard to the facts and circumstances, the examination of dead body is considered expedient; facts and circumstances suggestive of some foul play must not be ignored as it is divine right of every individual to live out natural span of his life. Homicide is a most flagrant interference with God's discretion granting opportunity of existence and thus is a crime of utmost repugnance and it is in this backdrop, that a Magistrate is vested with ample powers to direct interment for examination of a dead body if it is found expedient to discover the cause of his death. Prosecution of offences is a State attribute and to bring an offender to the book is its primary responsibility; intensity of human bonds and profound feelings attached therewith, notwithstanding, sovereign paramountcy of the State requires no approvals or permissions by the relations, therefore, to achieve the above purpose any person can set the law into motion; subsection (2) of Section 176 of the Code of Criminal Procedure, 1898 does not put any clog of locus standi upon an applicant to approach a Magistrate to undertake the exercise; it can be carried out by a Magistrate even on his own nor any specific period of limitation for this purpose is provided under the law. Reliance is placed in the case of Muhammad Ramzan and others v. The State and another (1987 SCMR 272). Similarly registration of a First Information Report, in the first place, is not a sine qua non to launch a probe into the cause of a suspicious death nor there is any legal compulsion for the existence of some positive proof as the relevant provision of law is meant for to attend situations where cause of death is reasonably inferred as other than being natural. In the present case, Husna Bibi, a child of 10/11 years passed away, without any apparent cause while her father was away in Saudi Arabia; he did not even attend her funeral. Contra argument that found favour with the learned Magistrate that the deceased was suffering from acute asthma and respondents' reliance upon an x-ray film and some prescriptions to substantiate this position is beside the point in the absence of any authentic medical opinion about the cause of death. Though, dependent on positive proof beyond reasonable doubt, nonetheless, accusation of illicit liaison and possible involvement of Dilshad Ahmad respondent, at least warrant an investigative probe which is only possible through forensic analysis of the corpse. Argument that flux of time spanning over a period of almost two years has by itself rendered the proposed exercise as being inconsequential in view of possible decomposition of the corpse, though ingeniously articulated is nonetheless conclusory being devoid of any empirical foundation; ordinarily, in most cases, autolysis sets in immediately after the last breath, followed by different stages of putrefaction/ decomposition, however, possibility of a forensic analysis is not entirely eliminated even at stages subsequent to skeletonization; instances of natural mummification owing to arid soil or with high salinated contents are not that rare as one would have you believe. Asphyxial death due to strangulation invariably left its symptoms on hyoid bone, detectable even at skeletonized stage and same is the case with the remains of poisonous contents even in decomposed viscera; arsenic is possibly detectable not only in the hair but also in the soil where the dead body is buried, therefore, to deny a probe on this ground alone would render the very provisions of law as nugatory. The learned Addl: Sessions Judge rightly reversed the decision taken by the learned Magistrate and as such, it does not call for any interference in exercise of inherent jurisdiction of this Court, meant to make such orders as may be found necessary to give effect to any order passed under the Code of Criminal Procedure, 1898 or to prevent abuse of process of any Court or otherwise to secure the ends of justice. The learned counsel for the petitioner has not been able to point out any error or flaw in the impugned order falling under any of the aforementioned categories. For the above reasons and in view of the law laid down in supra case, I regret my inability to subscribe to the view taken in the cases cited by the learned counsel for the petitioner; even otherwise, it is by now well settled that owing to divergent facts, circumstances and backgrounds, in criminal dispensation of justice, earlier decided cases cannot be applied in an omnibus manner with any precedential force. On the other hand petitioner's fierce opposition to the exhumation reinforces the hypothesis of an unnatural death. Criminal Miscellaneous No.483-M is disallowed, however, it is clarified that observations made hereinabove are merely issue specific, having no bearings on any proceedings collateral therewith or incidental thereto. WA/S-82/L Petition dismisse