THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Miscellaneous Application No.416 of 2019

 

 

Applicant:             Anwar Hussain son of Jaraar Hussain Rizvi through Ms. Farah Khan, Advocate.

 

Respondent

No.1            :         IX-Additional Sessions Judge, District West

 

Respondent

No.2            :         Judicial Magistrate No.XIV District West

 

Respondent

No.3          :           Irshad Ahmed Chohan, Investigating Officer, PS Gulshan-e-Maymar, Karachi is present

 

Respondent

No.4            :         The State, through Mr. Abrar Ali Khichi,    Additional Prosecutor General, Sindh.

 

Date of hearing:    15.10.2019

 

Date of Order :      15.10.2019

 

 

ORDER

 

 

Abdul Maalik Gaddi, J. Through this criminal miscellaneous application, the applicant has challenged the order dated 09.10.2019, passed by the learned 9th Additional District and Sessions Judge, Karachi (West), in Criminal Revision Application No.35 of 2019, whereby the Criminal Revision Application filed by the applicant against the order dated 30.9.2019 passed by the learned 14th Civil Judge & Judicial Magistrate, Karachi (West) has been dismissed.

 

2.       Precisely, the facts necessary for the adjudication of instant criminal miscellaneous application are that the applicant Anwar Hussain has lodged the FIR being Crime No.286/2019 under Section 302/34 PPC at PS Gulshan-e-Maymar, Karachi with the allegation that his daughter namely Anam Fatima was working in Call Centre DJ Tonics, on 14.9.2019 at 09:00 p.m. she went to her duty from the house and on 15.9.2019 at 08:30 a.m. one Samin came to his house and informed him that his daughter is unwell and is under treatment at Abbasi Shaheed Hospital, Karachi, upon such information, the family of complainant rushed and reached to the said hospital, met the doctor and learnt that his daughter has died. Complainant received the dead body of his daughter Anam Fatima and buried same. Thereafter, complainant learnt that on the night of 15.2.2019, her daughter was present at Al-Ghani/ Night Village Farmhouse, Gulshan-e-Maymar, Karachi in a party along with (1) Mishal Dinawaz, (2) Areeba, (3) Phool Fatima, (4) Simran, (5) Faryal, (6) Talha Qaseem, (7) Ali Jibran, (8) Muhammad Tariq, (9) Robin Nicolas Gill, (10) Ahmed, (11) Rameez, (12) Ali Jumani, (13) Roan Frances and (14) Jawad Tewari and his daughter got ill there. His claim is against person(s) for committing murder of his daughter.

 

3.       It appears from the record that during investigation, respondent No.3 (Investigating Officer of the said case) moved an application before the 14th Civil Judge and Judicial Magistrate, Karachi (West) for the exhumation of dead body of deceased Anam Fatima d/o Anwar Hussain under Section 176 CrPC to ascertain the cause of death. The said application was resisted by the applicant on the ground that he being father of deceased does not want to carry the process of exhumation. Learned Magistrate after hearing the parties allowed the prayer of the Investigating Officer. The said order was challenged before the Revisional Court, but the prayer of the applicant was declined. Hence this criminal miscellaneous application.

 

4.       Learned counsel for the applicant contended that the respondent No.3 (Investigating Officer) has no locus-standi to file the application for exhumation of dead body of deceased Anam Fatima d/o applicant. She maintained that both the Courts below have erred in law while allowing the exhumation. She further submitted that almost one month to the death of deceased has been passed and no fruitful result could be achieved if the dead body of the deceased is taken out from the grave. She further submitted that it will be ridicule and or disgrace the family of the deceased if the body of deceased is taken out and respondent No.3 is unnecessarily initiating the proceedings just to harass the present applicant. However, she prayed that the impugned orders passed by the Courts below are not legally sustainable and are liable to be set-aside. In support of her arguments, she has relied upon the cases of (1) Mir Ghani SHO Police Station Tangir, District Diamer vs. The State reported in 2017 PCrLJ 544, (2) Muhammad Akram vs. Additional Sessions Judge, Depalpur reported in 2014 PCrLJ 1030, and (3) Ghulam Mustafa vs. The State and 5 others reported in 2015 YLR 2230. She has also relied upon the Article on “Frequency of Unascertained cause of Death in Exhumed Bodies: Multicentric Experience in Interior of Sindh”.

 

5.       On the other hand, learned APG while vehemently opposed this criminal misc. application argued that under the circumstances as agitated in the crime and doctrine as considered in impugned orders are definitive to dismiss this application being not maintainable for the reasons that situation wherein death of deceased was occurred are required to be ascertained the cause of death to know the truthfulness of the incident.

 

6.       I have heard the learned counsel for parties at a considerable length and perused the record so made available before me with the able assistance of the learned counsel for parties.

 

7.       It is very unfortunate incident in which one innocent girl namely Anam Fatima has lost her life. FIR of such incident was registered by her father, stating therein the name of the accused. She was buried, however, it appears from the record that during the investigation, the Investigating Officer of the case has moved an application to the concerned Magistrate for exhumation and postmortem of deceased to ascertain the cause of death, who allowed the same. The request of the I.O. has also been maintained by the learned Additional District & Sessions Judge, Karachi (West). Learned counsel for the applicant submits that applicant and his family do not want to carry the process of exhumation but learned APG submits that it is very necessary to know the cause of death of the deceased.

 

8.       In order to reach at correct conclusion and before coming to the other aspect of the case in hand, it would be advantageous first of all to go through the relevant provision of law attracted in the instant case and for the said purpose, Section 176 of Criminal Procedure Code, 1898 is reproduced below:  

 

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 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 interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.”

 

 

9.       Perusal of sub-section (2) ibid clearly envisages that it is within judicial discretion and domain of the concerned Magistrate to make an examination of the dead body of any person who has already been interred, in order to discover the cause of his/ her death. It appears from the record that there are serious allegations about unnatural death of deceased and the real cause of death can only be ascertained by exhuming the body of deceased. To this effect, FIR No.286/2019 under Section 302/34 PPC at PS Gulshan-e-Maymar has already been registered by complainant/ applicant, who is the real father of the deceased and in the said FIR, the accused are nominated. In my opinion, the application for disinterment and exhumation of body of deceased could be moved, even on simple ground of suspicion and it is up to the judicial conscious of the Magistrate, who after due satisfaction may cause the body to disinter and examine.

 

10.     The alleged occurrence took place on 15.9.2019 and the FIR was lodged on 19.9.2019 and the application for exhumation has been filed by the I.O. of the case after burial of the deceased. In Pakistan, there is no time limit fixed for disinterment of body as is held in the Medical Jurisprudence and toxicology by Modi’s, whereas in France this period is limited to 10 years, while it is 30 years in Germany. Sub-section (2) of Section 176 CrPC did not put any clog of locus-standi to approach a Magistrate for exhumation of dead body; it could be carried out by the Magistrate on his own. No specific period of limitation was provided under the law. I have gone through the case of Muhammad Ramzan and others vs. The State and another reported in 1987 SCMR 272 in which the Hon’ble Supreme Court of Pakistan did not interfere in the order of disinterment in which even one year from the date of death of the deceased was passed.   

 

11.     I have perused the impugned orders in the light of background of the present case and come to the conclusion that the impugned orders passed by two Courts below are proper and Presiding Officers of both the Courts below have taken note of correct legal position. It is consistent view of the Superior Courts that exhumation of death body could be ordered even on the request or information of even a stranger for the purpose to know the actual cause of death, so that criminal machinery be set into motion. In the present case, I.O. of the case has made application for exhumation of dead body of the deceased before the concerned Magistrate for exhumation purpose just to know the cause of death. In the given circumstances, at this stage when FIR has been lodged by applicant himself, therefore, investigation cannot be carried out at the wish and whim of either complainant or prosecution and this Court cannot interfere with the smooth process of investigation. The Presiding Officers of both the Courts below have dealt with the aspect of the matter quite comprehensively in the light of all relevant laws dealing with the matter and now before me the counsel for applicant was unable to demonstrate that the impugned orders by any means suffer from any illegality or miscomprehension or non-appreciation of evidence by way of documents available on record. The case-laws cited by learned counsel for applicant has been perused and considered by me but did not find applicable to the facts of the present case. Therefore, the same are not helpful for applicant. Even otherwise, in Criminal Administration of Justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently, as held by the Hon’ble Supreme Court of Pakistan in the case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and Muhammad Faiz alias Bhoora v. The State and another reported as 2015 SCMR 655.

 

12.     For the foregoing discussions, I do not find any good ground to interfere in the impugned orders, which are maintained, resultantly, this criminal miscellaneous application stands dismissed along with listed applications. However, it is clarified that observations made herein above are merely issue specific, having no bearings on any proceedings collateral therewith or incidental thereto.

 

13.     This criminal miscellaneous application was dismissed by me after hearing the parties through short order passed on 15.10.2019 and these are the detailed reasons thereof.   

 

 

                                                                                       JUDGE

asim/pa