2021 P Cr. L J 1638
[Balochistan]
Before Rozi Khan Barrech, J
MUHAMMAD OWAIS ---Petitioner
Versus
AAWAL KHAN and another ---Respondents
Criminal Miscellaneous Quashment No. 107 of 2020, decided on 7th September, 2020.
Criminal Procedure Code (V of 1898 )---
----Ss. 561- A, 156(3), 174 & 176---Order for exhumation of dead body---Quashing of order,
petition for ---Petitioner, who was brother of the deceased, had sought quashing of order
passed by the Judicial Magistrate, ordering exhumation of dead body of t he deceased for
post-mortem examination ---Scope ---Record showed that petitioner/ complainant lodged a
case against accused/respondent under S. 302, P.P.C. with the allegation and he along with
two other companions made firing on his brother who received injuries and later on died ---
During the investigation, respondent/accused was arrested, who moved an application for digging the grave of deceased for confirmation of the cause of his death and the same was accepted ---Being aggrieved from the said order, com plainant/petitioner filed revision
petition, but was dismissed ---Validity ---In the present case, there was a way open for the
accused/respondent that the evidence of the doctors, who examined the deceased, could be demolished by cross -examining them, in ca se they nourished strong doubts about the nature
of injuries or cause of death of the deceased or crime weapon used in the commission of the offence---Accused in his defense could not ask the court for disinterment ---Only right
available to accused was to inquire the doctor's opinion by way of cross -examination or
cross -examining another expert witness to challenge the opinion expressed by the expert on
whose report the prosecution relied or rebut the said opinion with the aid of authoritative textbooks ---View taken by the courts below that the disinterment was inevitable was not
sustainable ---All that was being said because the accused/respondent had agitated that
question after a delay of six months based on the injuries received by the deceased on his skull---No time limit had been provided for disinterment of the dead body, however, in
circumstances, disinterment would certainly serve no fruitful purpose and the accused/respondent was not justified for making such request ---Cause of death of the
deceased could only be gathered safely through conducting a post -mortem examination ---
Dead body was examined by two Medical Officers, who had categorically stated regarding the crime weapon and cause of death in their Medico -Legal Certificates ---FIR was lodged by
the complainant promptly with the allegation that the accused and his companions made
firing upon the deceased with pistols, who received injuries and later on succumbed to the injuries ---Medical Officers who examined the deceased also gave the same opinion that the
deceased received injuries by means of firearms and the cause of death were also mentioned
as receiving injuries on the skull---Investigating Officer also conducted an inquiry under S.
174, Cr.P.C., who also gave the cause of death of the decease d in his report ---Exhumation of
the dead body was not inevitable, in circumstances ---Application against exhumation of dead
body was allowed.
Attaullah Langov for Petitioner.
Saeed Ahmed Kakar, State Counsel.
Date of hearing: 25th June, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---The captioned criminal miscellaneous Quashment
petition has been filed under section 561- A, Cr.P.C. against the order dated 24.03.2020
passed by learned Additional Sessions Judge -VII, Quetta ("revisional court") whereby the
revision petition filed by the petitioner was dismissed, which was filed against the order
dated 17.03.2020 passed by learned Judicial Magistrate -XII, Quetta ("trial court") on the
application filed by the respondent No.1 for digging the grave of deceased Muhammad
Shahid for confirmation of the cause of his death.
2. Brief facts leading to filing the instant petition are that on 13.09.2019 the
petitioner/complainant Muhammad Owais lodged the FIR No. 210 of 2019 with Police Station Brewry Quetta for an offence under section 302, P.P.C. against the accused/respondent No.1 Awal Khan and others with the allegation that on the said date the
accused Awal Khan and his two other companions made firing on his deceased brother namely Muhammad Shahid with pistols, who received injuries and later on succumbed to the
injuries. The deceased was examined by Dr. Aisha Faiz, Police Surgeon Sundeman Provincial Hospital Quetta on 13.09.2019, who found that the deceased had received injuries on the skull by means of a firea rm and the deceased was shifted to Jailani Hospital Quetta,
who expired on 14.09.2019 at Jailani Hospital, where the deceased was examined by Dr. Nasrullah Langove, who found that the cause of death of the deceased was due to injuries received by the deceased with firearms.
3. During the investigation the accused/respondent No.1 was arrested, who moved an
application before the trial court for digging the grave of deceased Muhammad Shahid for confirmation of the cause of his death and the same was accepted on 17.03.2020 with the
direction that "a letter be issued to DG Health for the constitution of Medical Board for conducting postmortem of the deceased and a letter be issued to Municipal Corporation for making proper arrangement for the exhumation of the deceased".
4. Being aggrieved from the order dated 17.03.2020 passed by the trial court, the
complainant/petitioner filed a criminal revision petition before the revisional court, but the same was dismissed vide order dated 24.03.2020, whereafter the instant petition has been filed under section 561- A, Cr.P.C.
5. I have heard 'the learned counsel for the petitioner learned counsel appearing on
behalf of the state in the light of relevant provisions of law and also perused the record
available with their valu able assistance. Before dilating upon the said contentions, it would
be relevant and advantageous to reproduce hereinbelow the provisions of section 176, Cr.P.C. with the controversy involved in the instant petition:
"176. Inquiry by Magistrate into cause of death.--(1) When any person dies when 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 ho ld 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 the holding an inquiry into an offence. The Ma gistrate 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 cases.
(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 interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined."
6. A plain reading of the section above would show that it relates to the death of a
person, while in the custody of the police, whereas in the instant case, deceased Muhammad Shahid was not in the custody of the police at is time of his death. It also clearly demonstrates that the investigation and inquiry under sections 174 and 176 of the Cr.P.C. are related to the discovery of the real cause of death and not to identify or locate the perpetrators. Whereas all this presently appears to be an academic exercise, which is being
done after six months of th e occurrence, therefore, impugned orders passed by the learned
courts below shall not be acted upon. There is a way open for the accused respondent that the evidence of the doctors, who examined the deceased could be demolished by cross -
examining them, in case they nourish strong doubts about the nature of injuries or cause of
death of the deceased or crime weapon used in the commission of the offence. The accused in his defense cannot ask the court for disinterment. The only right available to him was to inquire the doctors' opinion by way of cross -examination or cross -examining another expert
witness to challenge the opinion expressed by the expert on whose report the prosecution relies or rebut the said opinion with the aid of authoritative textbooks. The refore, the view
taken by the courts below that the disinterment was inevitable is not sustainable. All this is being said because the accused/respondent has agitated this question after a delay of six months based on the injuries received by the deceased on his skull.
7. Intent and scope of section 176 of the Cr.P.C. are only to discover the actual cause of
death of a deceased person. Subsection (1) of section 176 of Cr.P.C. provides for conducting an inquiry into the cause of death either instead of or in addition to the investigation held by
police if the case is covered by subsection (1) of section 174 of the Cr.P.C. Even an FIR is not an impediment for holding an inquiry into the cause of death of deceased persons under section 176 of the Cr.P.C, thus i t is by now settled that the purpose of an investigation under
section 174 of the Cr.P.C. or inquiry under section 176 of the Cr.P.C. is only to ensure that
no offence has been committed in connection with the death of a person and such
investigation or in quiry cannot be carried out for the purpose to determine the crime of
weapon used in the commission of an offence or seat of injuries on the person of deceased because the medical expert can safely opine that a specific injury was inflicted by which kind of weapon. An investigation or inquiry under sections 174 and 176 of the Cr.P.C. and
exhumation of the dead body can only be allowed if the real cause of death is shrouded in
mystery. Needless to observe that section 176 of the Cr.P.C. relates to death of a person,
while in custody of police, but not in case of death out of custody of police. The Magistrate
can only cause any dead body disinterred, whenever he/she considers it expedient for discovering the cause of death and was not obliged to do the same on the request of accused
for academic purposes, that too, after a delay of one year.
8. It needs to be mentioned that this court is not closing an opportunity of disinterment,
but this should only be exercised, in case the accused/respondent succeeds in mak ing a
persuasive accusation after explaining the delay and then moves for disinterment of the body through police, who has then to collect evidence. Being Muslims, we have to respect dead bodies, the disinterment of a dead body is not as simple as the mere legal process in view of
our cultural values and social atmosphere, where such an approach is generally considered
with the humiliation of the legal heirs and disrespect to the deceased person and only against
serious accusation should allow disinterment.
9. I am conscious of the fact no time limit has been provided in Pakistan for
disinterment of the dead body, however, in the present circumstances of the case in hand, disinterment would certainly serve no fruitful purpose, and the accused/respondent was not justified for making such request. It is trite saying that the cause of death of the deceased can
only be gathered safely through conducting a postmortem examination. However, the dead body was examined by Dr. Aisha Faiz of Sundeman Provincial Hospital Quetta and Dr.
Nasrullah Langove of Jailani Hospital Quetta, who had categorically stated regarding the crime weapon and cause of death in their Medico -Legal Certificates.
10. It is also important to mention here that the FIR was lodged by the complainant
promptly with the allegation that the accused his companions made firing upon the deceased with pistols, who received injuries and later on succumbed to the injuries. The doctors who examined the deceased also gave the same opinion that the deceased recei ved injuries by
means of firearms, and the cause of death was also mentioned as receiving injuries on the skull. The investigation officer also conducted an inquiry under section 174, Cr.P.C, who also gave the cause of death of the deceased in his report.
11. There is no cavil to the proposition that every accused has a right of fair trial, and one
of its essential and real ingredients is his right to cross -examine any witness who had
deposed against him when the witnesses came to the court for recording their statements; the accused is at liberty to cross -examine the said witnesses to move their defence, without
adverting much to the facts of the case inter se between the parties, lest the interests of either party may be prejudiced in the ultimate.
For th e aforesaid reasons, I am of the considered opinion that in the attending
circumstances of the case, the exhumation of the dead body was not inevitable and the
application in question was, admittedly, moved only for the determination of academic question a nd the trial court has fallen in error, while allowing the same. Thus, the petition is
allowed and the impugned orders dated 17.03.2020 and 24.03.2020 respectively passed by the learned Judicial Magistrate -XII, Quetta and the learned Additional Sessions Judge -VII,
Quetta are set aside. The observations, made hereinabove, are of such nature, which shall not
prejudice the case of both the parties being made only for disposal of the instant petition and
the learned trial court shall not get influenced by it in any manner.
JK/183/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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