P L D 2014 Balochistan 50
Before Muhammad Hashim Khan Kakar, J
Haji ABDUL HAMEED ---Petitioner
Versus
RAZ MUHAMMAD and another ---Respondents
Criminal Revision No.38 of 2013, decided on 20th August, 2013.
Criminal Procedure Code (V of 1898) ---
----Ss. 174 & 176---Penal Code (XLV of 1860), S.302---Qatl -e-amd---Inquiry into cause of
death ---Disinterment of dead body ---Medical report revealed that brother of petitioner died
due to injuries caused by sharp edged weapon, hypovolemic shock and excess ive bleeding ---
Trial Court allowed application of accused for disinterment of corpus to obtain a part of
deceased's body for DNA test ---Validity ---Purpose of investigation under S.174, Cr.P.C. or
inquiry under S.176, Cr.P.C. was only to ensure that no offe nce had been committed in
connection with death of a person--- Such investigation or inquiry could not be carried out for
the purpose to determine crime weapon used in commission of offence or seat of injuries on
the person of deceased ---Medical expert coul d safely opine that specific injury was inflicted
by which kind of weapon---Investigation or inquiry under Ss.174 & 176, Cr.P.C. and
exhumation of dead body could only be allowed if real cause of death was shrouded in
mystery ---Provision of S.176, Cr.P.C. related to death of a person while in custody of police
but not in case of death out of custody of police ---Magistrate could only cause any dead body
disinterred, whenever he considered it expedient for discovering cause of death and was not
obliged to do the same, as request of accused for academic purposes, that too, after a delay of
about 18 months ---Disinterment of dead body was not inevitable and application was filed by
accused only for determination of academic questions and trial Court had fallen in error
while allowing the same ---High Court in exercise of revisional jurisdiction set aside the order
passed by trial Court ---Revision was allowed in circumstances.
Mrs.Alia Tareen, Managing Director, Pakistan General Hospital, Quetta v. Amanullah
Khan, Advocate PLD 2005 SC 99 rel.
Muhammad Dawood Kasi for Petitioner.
Muhammad Asghar Panezai and Muhammad Ashraf Bazai for Respondents.
Mrs. Tayyaba Altaf, Special Prosecutor for the State.
Date of hearing: 6th August, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this criminal revision
petition, petitioner Haji Abdul Hameed seeks declaration to the effect that the order dated
25th May 2013 (the "impugned order"), passed by learned Sessions Judge, Loralai (the "trial
Court"), is without lawful authority and of no legal effect.
2. The facts leading to filing of this petition are that on 4th November 2011, Abdul
Qayyum, brother of the petitioner, was, allegedly, murdered and a case vide F.I.R. No.27 of
2011 dated 4th November 2011, under section 302 read with section 34 of the Pakistan Penal
Code 1860 (P.P.C.) was registered against accused/respondent No.1 Raz Muhammad and
absconding accused persons; viz, Baz Muhammad and Noor Muhammad at Sanjavi Police
Station.
3. The deceased was e xamined by P.W.6. Dr. Irfan- ud-Din, District Health Officer,
Ziarat on 4th November 2011 at R.H.C, Sanjavi and found that the cause of death of the
deceased was due to injuries Nos.1 and 2, caused with sharp weapon, hypovolemic shock and
massive/excessive bleeding. After examination of the recovery witness i.e. P.W.5 on 21st
March 2013, an application under Section 176 of the Cr.P.C. was moved before the learned
trial Court on behalf of accused/respondent No.1 for disinterment of corpse in order to obtain
a part of deceased's body for D.N.A test in order to cross -match with recovered bloodstained
knives, which was accepted on 21st May 2013, hence this petition.
4. I have heard the learned counsel for the parties and considered their rival contentions
in th e light of relevant provisions of law and also perused the record available to me with
their valuable assistance. Before dilating upon the said contentions, it would be relevant and
advantageous to reproduce herein below the provisions of section 176 of the Cr.P.C, which
deals 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 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 doe s so, he shall have all
the powers in conducting it which he would have in the 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 presc ribed 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.
5. A plain reading of the aforesaid section would show that it relates the to the death of a
person, while in custody of the police, whereas in the instant case, deceased Abdul Qayy um
was not in the custody of police at the 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 discovery
of real cause of death and not to identify or locate the perpet rators.
6. Whereas, all this presently appears to be an academic exercise, which is being done
after almost 18 months of the occurrence, therefore, the impugned order of the learned trial
Court shall not be acted upon. There is a way open for the accused /respondent that the
evidence of PW -6 Dr. Irfan -ud-Din, District Health Officer, Ziarat could be demolished by
cross -examining him, in case he nourishes strong doubts about the nature of Injuries Nos.1
and 2 or crime weapon used in the commission of the of fence. The accused in his defence
could not ask the Court for disinterment. The only right available to him was to challenge his
opinion by way of cross -examination or examine 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. Therefore, the view taken by the learned trial
Court that the disinterment was inevitable is not sustainable. All this is being said because
the accused/respo ndent has agitated this question after a delay of about 18 months based on
the statement of P.W.5, of which the respondent was, obviously, aware months back while
facing trial.
7. It needs to be mentioned that this Court is not closing an opportunity of disinterment,
but this should only be exercised, in case the respondent succeeds in making 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 ha ve to respect dead bodies, the
disinterment of a dead body is not as simple as mere legal process in view of our cultural
values and social atmosphere, where such a process is generally considered with humiliation
of the legal heirs and disrespect to the deceased person and only against serious accusation
should allow disinterment.
8. Intent and scope of section 176 of the Cr.P.C. is 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 F.I.R. is
not an impediment for holding an inquiry into the c ause of death of deceased persons under
section 176 of the Cr.P.C, thus, it is by now settled that the purpose of 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 committe d in connection with death of a person and such investigation
or inquiry 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 dead
body can only be allowed if the real cause of death is shrouded in mystery. Needless t o
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 disc overing 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 about 18 months.
9. I am conscious of the fact no time limit has been provided in Pakistan for
disinterment of dead body , however, in the attending circumstances of the case in hand,
disinterment would certainly serve no fruitful purpose and the accused/respondent was
absolutely not justified for making such request. It is trite saying that the cause of death of
the decease d can only be gathered safely through conducting a postmortem examination as
laid down by the Hon'ble Supreme Court of Pakistan in the case of Mrs. Alia Tareen,
Managing Director, Pakistan General Hospital, Quetta v. Amanullah Khan Advocate, PLD
2005 SC 99 , however, in the instant case, the dead body of deceased Abdul Qayyum was
examined by PW -6 Dr. Irfan -ud-Din, who had categorically stated regarding crime weapon
and cause of death in his medico legal certificate Exh.P/6 -A.
10. It is worth mentioning tha t during the course of cross -examination of P.Ws. 5 and 6,
neither was the cause of death disputed by the defence, nor was any, query made by the
defence regarding nature of the injuries or crime weapons used by the culprits at the time of
commission of the offence, Where on a material part of his evidence a witness is not cross -
examined, it may be inferred that the truth of such statement has been accepted. Statement of
a witness, which is material to the controversy of the case, particularly when it state s his case
and the same is not challenged by the other side directly or indirectly, then such
unchallenged statement should be given full credit and usually accepted as true unless
displaced by reliable, cogent and clear evidence.
11. The impugned order seems to be passed and disinterment has been ordered for the
sole object to carry out DNA test for cross -match with recovered bloodstained
Churries/knives, but the learned trial Court has failed to take notice of the fact that the role of
causing these inj uries has been attributed to the proclaimed offenders i.e. Baz Muhammad
and Noor Muhammad, whereas the accused/respondent No.1 has only been assigned the role
of ineffective firing, Thus, the accused/respondent was absolutely not justified to ask for
disin terment of the dead body in order to determine as to whether the alleged crime weapons
i.e. knives were stained with human blood or otherwise. Moreover, the recovery of knives in
the instant case is not of much help to the prosecution, particularly when ne ither Serologist's
report, nor Chemical Examiner's reports have been procured so as to prove that the knives
were bloodstained and if it were so, it had human blood of the same group as was of the
deceased. The recovery of crime weapon is only of supportiv e nature/character and the same
loses all its value in a case like the present one, where there are no experts' reports.
12. As has been observed, the statement of PW -6 is not disputed or challenged by the
defence, nor an attempt was made by the defence to ask any question in cross -examination to
clarify this matter. It seems that the accused/respondent has made an attempt to build up the
case of the proclaimed offenders, who happen to be his real brothers by moving the instant
application for disinterment of the dead body, that too, at the verge of completion of
prosecution's evidence after a period of about 18 months. The learned trial Court, while
passing the impugned order, seems to be ignorant to the settled proposition of law that on the
question of conflict between ocular and evidence of corroboratory nature, the prosecution
and not the accused is obliged to clarify the position. In case of any lacuna or shortcomings
in the prosecution's case, the benefit thereof always goes in favour of the accused.
For the aforesaid reasons, irrespective of the bona fide or mala fide on the part of
accused/respondent, I am of the confident view that in the attending circumstances of the
case, the disinterment of the dead body was not inevitable and the application in question
was, admittedly, moved only for determination of academic questions and the trial Court has
fallen in error, while allowing the same. Thus, the petition is allowed and the impugned order
passed by the learned trial Court is set aside. The obs ervations, 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.
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