Malik Imam Din vs Asj etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Criminal Miscellaneous No.3635 -Q of 2021/BWP Malik Imam Din VS. Additional Sessions Judge, Liaquatpur, District Rahim Yar Khan and six others.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, where proceeding proceeding. necessary.

02.02.2022 Jam Ghulam Nazik Kareem, Advocate for the petitioner.

Malik Tariq Raheem, Advocate for the respondents No.4 to 6.

Jam Muhammad Tariq, Deputy Prosecutor General.

Through the instant petition, moved under section 561-A, the Code of Criminal Procedure, 1898, the petitioner namely Malik Imam Din has made the following prayer:-

" Under these circumstances, it is, therefore, humbly prayed that the impugned order dated 24.07.2021 passed by learned respondent No.2 and the impugned order dated 14.09.2021 passed by learned respondent No.1 may kindly be set aside and declared as having been passed illegally, without lawful authority, having no legal effect and in-operative upon the rights of petitioner and the application for exhumation of grave of deceased Kousar Bibi (real daughter of petitioner) may kindly be accepted to secure the ends of justice."

2.Precisely stated the facts which led to the filing of the instant petition are to the effect that Kausar Bibi, daughter of the petitioner was married with Muhammad Irfan (respondent No.4) on 20.06.2020, however, the

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relationship between the spouses suffered and Kausar Bibi (deceased) returned to the house of her father, the petitioner, on 01.10.2020, however, on 15.10.2020, the in-laws of Kausar Bibi visited the petitioner and sought that she be allowed to accompany them, whereafter Kausar Bibi (deceased) went on to live with her in-laws. On 23.10.2020 the petitioner got information from Muhammad Sajid (respondent No.6) that Kausar Bibi had died upon which the petitioner along with his brother and others rushed to the house of the in-laws of Kausar Bibi and confronted Muhammad Irfan (respondent No.4), the husband of Kausar Bibi (deceased), as to the circumstances of her death, however, neither Muhammad Irfan (respondent No.4) nor others could provide any justifiable answer to the queries of the petitioner. However, Kausar Bibi (deceased) was buried on 23.10.2020 but Maryam Bibi, Shabana Bibi and Fauzia Bibi told the petitioner that, at the time of washing the dead body of Kausar Bibi (deceased) ,they had seen marks of violence on her body. After getting the said information, the petitioner moved an application under section 176, Cr.P.C. for disinterment of the body of the deceased before the learned Judicial Magistrate, Liaquatpur which was dismissed vide order dated 24.07.2021. The order of the learned Magistrate Liaquatpur was assailed through an application under section 439-A, Cr.P.C. which was also dismissed vide order dated 14.09.2021 passed by the learned Additional Sessions Judge, Liaquatpur, hence, the instant petition.

3.The learned counsel for the petitioner contended that the order dated 24.07.2021 passed by the learned Magistrate Liaquatpur and the order dated

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14.09.2021 passed by the learned Additional Sessions Judge, Liaquatpur are liable to be set-aside being against the facts and law; that Maryam Bibi, Shabana Bibi and Fauzia Bibi, at the time of washing the dead body of Kausar Bibi (deceased), had seen marks of violence on her body indicating her death due to violence; that Kausar Bibi (deceased) had been murdered:

that there is no legal bar or restriction for the disinterment of the dead body and lastly that the law has not prescribed any limitation for proceeding under section 174 read with section 176, Cr.P.C.

4.The learned counsel for the respondents No.4 to 6 strongly controverted the arguments advanced on behalf of the petitioner and argued that the occurrence took place on 23.10.2020 and now it was too late to conduct the post mortem examination of the dead body of the deceased after disinterment. The learned counsel appearing on behalf of the respondents No.4 to 6 finally submitted that that the learned counsel for the petitioner had not been able to point out any illegality, infirmity or jurisdictional error in the impugned order dated 24.07.2021 passed by the learned Judicial Magistrate, Liaquatpur and the order dated 14.09.2021 passed by the learned Additional Sessions Judge, Liaquatpur which would warrant interference by this Court.

5.The learned Deputy Prosecutor General submitted that the law had not prescribed any limitation for proceeding under section 174 read with section 176, Cr.P.C and that the petitioner had a right, being father of the deceased, to know the cause of her death.

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6.I have heard learned counsel for the petitioner, the learned counsel appearing on behalf of the respondents No.4 to 6, the learned Deputy Prosecutor General and perused the record with their able assistance.

7.It reveals from the examination of the record as well as from the arguments advanced by the parties, that the instant petition is fixated at subjecting the dead body of the deceased to post mortem examination after disinterment. On 23.10.2020 the petitioner got information from Muhammad Sajid (respondent No.6) that Kausar Bibi, his daughter, had died upon which the petitioner along with his brother and others rushed to the house of in-laws of Kausar Bibi and confronted Muhammad Irfan (respondent No.4), the husband of Kausar Bibi (deceased), as to the circumstances of her death, however, neither Muhammad Irfan (respondent No.4) nor others could provide any justifiable answer to the queries of the petitioner. However, Kausar Bibi (deceased) was buried on 23.10.2020 but Maryam Bibi, Shabana Bibi and Fauzia Bibi told the petitioner that, at the time of washing the dead body of Kausar Bibi (deceased), they had seen marks of violence on her body. After getting the said information, the petitioner moved an application under section 176, Cr.P.C. for disinterment of the body of the deceased before the learned Judicial Magistrate, Liaquatpur. During the proceedings of the petition as filed by the petitioner seeking the post mortem examination of the dead body of the deceased after disinterment, the learned Magistrate recorded the statements of the petitioner, Shabana Bibi, Fauzia Bibi and also allowed them to be cross examined by the respondents No. 4 to 6. During the proceedings of the

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application as filed by the petitioner, the learned Magistrate also recorded the statements of the respondents No. 4 and 6 namely Muhammad Irfan and Muhammad Sajid. The learned Magistrate, after recording the above- mentioned statements, dismissed the application of the petitioner with the observation that in his view there were no grounds for entertaining any suspicion with regard to the circumstances of the death of Kausar Bibi (deceased). A perusal of the record reveals that the learned Magistrate recorded the statements of the petitioner, Shabana Bibi, Fauzia Bibi and also allowed them to be cross examined by the respondents No.4 to 6 during the pendency of the petition as filed by the petitioner seeking post mortem examination of the dead body of the deceased after disinterment and both Shabana Bibi and Fauzia Bibi remained consistent that they had observed marks of violence on the dead body of Kausar Bibi (deceased) at the time of washing and preparing the same for the burial. When the learned Magistrate had himself held an inquiry during the proceedings of the petition as filed by the petitioner then he must have forwarded some reasons for rejecting the statements of the petitioner and both Shabana Bibi and Fauzia Bibi, however, a perusal of the order dated 24.07.2021 passed by the learned Magistrate does not mention any basis for rejecting the statements of the petitioner and both Shabana Bibi and Fauzia Bibi at this nascent.

8.The law relating to inquiry with regard to death of an individual in suspicious circumstances is well established. Section 174 of the the Code of Criminal Procedure, 1898 reads as under:-

174.Police to inquire on suicide, etc.---(1) The officer incharge of

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a police-station or some other police-officer specially empowered by the Provincial Government in that behalf, on receiving information that a person:

(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.

shall immediately give intimation to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2)The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forward to the [concerned] Magistrate.

(3)When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the Provincial Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.

Section 176 of the Code of Criminal Procedure, 1898 reads as under:-

176.Inquiry by Magistrate into cause of death.---(1) When any dies while in the custody of the police, the nearest Magistrate

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empowered to hold inquests shall, and, in any other case mentioned in section 174, clauses (a), (b) and (c) of sub-section (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). Power to disinter corpses.---Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interned, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.

It is apparent that the provisions of the section 176, Cr.P.C., are not to be read in isolation from the provisions of section 174(1), Cr.P.C. and instead are to be considered in conjunction with it. Moreover, from the plain reading of section 176(2), Cr.P.C. it evinces that the order of post mortem examination of the dead body after disinterment can be passed by the Magistrate, if he considers it expedient to do so and there exist circumstances with regard to the suspicious death of any individual. The question of expediency relates to the facts and circumstances of the case and is inflexible in nature. The petitioner being the real father of the deceased had all the genuine cause to dispel the suspicion of unnatural death of his deceased daughter. The scope and intent of section 176, Cr.P.C. is to discover the actual cause of death of a deceased person. Subsection (1) of section 176, Cr.P.C. makes a provision for conducting an inquiry into the cause of death either instead of or in addition to the investigation held by

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the police if the case is covered by subsection (1) of section 174, Cr.P.C.

Even the registration of an F.I.R. is not necessary for holding of an inquiry into the cause of death of deceased person under section 176, Cr.P.C. In the wake of a specific allegation and apprehension of unnatural death of the deceased, the daughter of the petitioner, the requirements of section 174 read with section 176, Cr.P.C. could not be ignored or kept aside by deriving certain conclusions regarding the interests, whether bona fide or mala fide, of the parties. The only thing that had to be considered by the learned Judicial Magistrate was whether the death had taken place under the circumstances raising a reasonable suspicion that some other person had committed an offence, which in the light of the statements of the petitioner, Shabana Bibi and Fauzia Bibi, could not brushed aside. Further, it is the right of the real father of the deceased to know the actual cause of death of his deceased daughter so that his apprehension is laid to rest once and for all. It may be noted that an application for disinterment can be moved on the ground of suspicion only and it is in the interest of justice that an order for exhumation of dead body is passed in such case. It is constant view of the august Supreme Court of Pakistan that exhumation of dead body could be ordered on the request of or on the information of even a stranger for the purpose to know the actual cause of death . In the present case, the petitioner is the real father of the deceased and he is justified in making an application for exhumation of dead body of the deceased to know the cause of death.

The august Supreme Court of Pakistan in the case of “AMEER AFZAL BAIG Versus AHSAN ULLAH BAIG and others” (2006 S C M R 1468) has held as under:-

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“3. We have gone through the detailed reasoning given in the impugned order and observed that the same was quite logical, fair and just. In the circumstances of the present case at least the legal heirs had a right to get the suspicion removed, more particularly, when the exhumation by itself could never lead to the involvement of some one unless the post-mortem is conducted and the report is positive. When report is positive, the persons involved certainly require to be proceeded against. Exhumation and thereafter the post-mortem are mere tools of investigation which, in the ordinary course, would not be interrupted. It may be recalled that after preliminary inquiry, the Magistrate in his first order had found the exhumation to be justified. The learned Additional Sessions Judge as well as the learned High Court is of the same opinion and hence any interference by this Court would be totally uncalled for. The petition is hereby dismissed and leave to appeal refused.”

The disinterment and the post mortem examination of the dead body is likely to advance the cause of justice and to remove all the doubts. If the injuries, as claimed by the petitioner are not found on the body of the deceased, it, for all practical purposes, will help the respondents No. 4 to 6 in clearing their names.

9.With regard to the contention of the learned counsel for the respondents No. 4 to 6 that as Kausar Bibi had died on 23.10.2020, so it was too late to order disinterment of her body for the purpose of post mortem examination, it is observed that medical jurisprudence does not provide any time limit for the exhumation of a dead body. In Chapter 14 ‘EXHUMATION ”, at page 342 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), it has been discoursed as under:-:

“Rules for Exhumation. The statutory provision lays down that in the course of enquiry by a magistrate into the cause of death, "Whenever

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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. Under the written order of the district magistrate, the body should be exhumed by the police in the presence of revenue officials and a medical officer. In India, there is no time limit fixed for the exhumation of a dead body

Time of Exhumation.-- In India and England, no time limit is fixed for the disinterment of a of a body. In France, the period is limited to ten years, while it is 30 years in Germany.”

The august Supreme Court of Pakistan has also enunciated the same principle in the case of “Faryad Ali Vs. The State” (2008 SCMR 1086) and has held as under:-

“13. Coming to the contention of the learned Deputy Prosecutor General that the re-examination of the dead body conducted by the Special Medical Board after about 10 months of the burial, suffice it to answer that the medical jurisprudence has not provided any time limit for exhumation/disinterment of the dead body in India and England while in France the period is limited to 10 years and 30 years in Germany. Reference is made to Modi's Medical Jurisprudence and Toxicology (Chapter IV Page 90).”

Therefore the contention of the learned counsel for the respondents No. 4 to 6 that as Kausar Bibi had died on 23.10.2020, so it was too late to order disinterment of her body for the purpose of post mortem examination, is not tenable.

10.In view of above, the instant petition is allowed and the order dated 24.07.2021 passed by the learned Magistrate Liaquatpur and the order dated 14.09.2021 passed by the learned Additional Sessions Judge, Liaquatpur

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are hereby set-aside. The learned Magistrate concerned is directed to do the needful for disinterment of the dead body of the deceased, Kausar Bibi and its post mortem examination, within the next ten days of receiving the certified copy of this order.

(SADIQ MAHMUD KHURRAM)

JUDGE

*Raheel/*

Approved for Reporting

Judge